Fast-track border procedure (Eastern Aegean islands)

Greece

Country Report: Fast-track border procedure (Eastern Aegean islands) Last updated: 30/11/20

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General (scope, time limits)

The fast-track border procedure until the end of 2019 under Article 60(4) L 4375/2016

Although the fast-track border procedure was initially introduced as an exceptional and temporary procedure, it has become the rule for a significant number of applications lodged in Greece. In 2019, the total number of applications lodged before the RAO of Lesvos, Samos, Chios, Leros and Rhodes and the AAU of Kos was 39,505.[1] This represented 51.1% of the total number of applications lodged in Greece that year.

The previous Article 60(4) L 4375/2016 provided for a special border procedure, known as a “fast-track” border procedure, visibly connected to the implementation of the EU-Turkey Statement. In particular, the fast-track border procedure as initially foreseen by Article 60(4) L 4375/2016, voted some days after the launch of the EU-Turkey statement, provided an extremely truncated asylum procedure with fewer guarantees.[2]

As the Director of the Asylum Service noted at that time: “Insufferable pressure is being put on us to reduce our standards and minimize the guarantees of the asylum process… to change our laws, to change our standards to the lowest possible under the EU [Asylum Procedures] directive.”[3]

The United Nations Special Rapporteur on the human rights of migrants highlighted that the provisions with regard to the exceptional derogation measures for persons applying for asylum at the border raise “serious concerns over due process guarantees.”[4] It further noted that the duration of the fast track border procedure “raises concerns over access to an effective remedy, despite the support of NGOs. The Special Rapporteur is concerned that asylum seekers may not be granted a fair hearing of their case, as their claims are examined under the admissibility procedure, with a very short deadline to prepare.”[5]

In February 2019, the EU Fundamental Rights Agency (FRA) underlined that “almost three years of experience [of processing asylum claims in facilities at borders] in Greece shows, [that] this approach creates fundamental rights challenges that appear almost insurmountable.”[6]

Moreover, the UN High Commissioner for Refugees, following a visit in November 2019, “cautioned that faster processes to determine people’s status should not come at the expense of safeguards and standards, highlighting that the majority of arrivals to Greece this year were refugees, mostly Syrian and Afghan”.[7]

Trigger and scope of application of the fast-track border procedure under Article 60(4) L 4375/2016

According to the abovementioned Article 60(4) L 4375/2016, said procedure could be “exceptionally” applied in certain cases. Subsequently, the relevant Joint Decision by the Minister of Interior and Administrative Reconstruction and the Minister of National Defence, dated 31 August 2016,[8] referred to in Article 60(4) L 4375/2016, was issued on 26 October 2016.

Pursuant to the original wording of L 4375/2016, the duration of the application of the fast-track border procedure should not exceed 6 months from the publication of that law and would be prolonged for a further 3-month period by a decision issued by the Minister of Interior and Administrative Reconstruction.[9]

Since then, however, the duration of the fast-track border procedure had been repeatedly amended: under a June 2016 reform it would not exceed 6 months and could be extended for another 6 months,[10] and following an August 2017 reform it is applicable for 24 months from the publication of the latest amendment.[11] The May 2018 reform extended the validity of the procedure until the end of 2018,[12] and a December 2018 reform further prolonged it until the end of 2019.[13]

The impact of the EU-Turkey Statement has been, inter alia, a de facto dichotomy of the asylum procedures applied in Greece.[14] This is because, the procedure is applied in cases of applicants subject to the EU-Turkey Statement, i.e. applicants who have arrived on the Greek Eastern Aegean islands after 20 March 2016 and have lodged applications before the RAO of Lesvos, Chios, Samos, Leros and Rhodes, and the AAU of Kos. On the contrary, applications lodged before the Asylum Unit of Fylakio by persons who entered through the Greek-Turkish land border and remaining in the RIC of Fylakio in Evros are not examined under the fast-track border procedure.

Main features of the fast-track border procedure under Article 60(4) L 4375/2016

The fast-track border procedure under Article 60(4) L 4375/2016, in force until end of 2019, provided among others that:

  1. The registration of asylum applications, the notification of decisions and other procedural documents, as well as the receipt of appeals, may be conducted by staff of the Hellenic Police or the Armed Forces: In 2019, an average 50 police officers were assisting the Asylum Service in this procedure. Their tasks included fingerprinting of applicants, registrations, issuance and renewal of asylum seekers’ cards, notification of decisions and other administrative actions.[15]
  2. The interview of asylum seekers may also be conducted by personnel deployed by EASO.   The initial provision of Article 60(4)(b) L 4375/2016 foresaw that the Asylum Service “may be assisted” in the conduct of interviews as well as any other procedure by staff and interpreters deployed by EASO. The possibility for the asylum interview to be conducted by an EASO caseworker was introduced by a subsequent amendment in June 2016.[16] As of May 2018, this possibility also exists for Greek-speaking EASO personnel in the Regular Procedure. The Regulation of the Asylum Service, adopted in February 2018, expressly states that its provisions are also binding for EASO staff assisting the Asylum Service.[17] In 2019, a number between 173 and 261 EASO caseworkers have been recruited during the year in the RAO of Lesvos, Chios, Samos, Leros, and the AAU of Kos.[18]
  3. The asylum procedure shall be concluded in a very short time period (no more than 2 weeks).

More precisely, according to points (d) and (e) of the provision:

  • The time that was given to applicants in order to exercise their right to “sufficiently prepare and consult a legal or other counselor who shall assist them during the procedure” was limited to one day;
  • Decisions should be issued, at the latest, the day following the conduct of the interview and should be notified, at the latest, the day following its issuance;
  • The deadline to submit an appeal against a negative decision was 5 days from the notification of this decision. In case that the first instance decision was not notified to the applicant for whatever reason, the deadline to submit an appeal was 15 days from the expiry of the asylum seeker’s card or 15 days for the issuance of the decision if the card has already expired;[19]
  • When an appeal is lodged, its examination is carried out no earlier than 2 days and no later than 3 days after its submission, which means that in the first case appellants must submit any supplementary evidence or a written submission the day after the notification of a first instance negative decision; or within 2 days maximum if the appeal is examined within 3 days;
  • In case the Appeals Authority decided to conduct an oral hearing, the appellant was invited before the competent Committee one day before the date of the examination of their appeal and he/she could be given, after the conclusion of the oral hearing, one day to submit supplementary evidence or a written submission. Decisions on appeals should be issued, at the latest, 2 days following the day of the appeal examination or the deposit of submissions and should be notified at the latest on the day following their issuance. The notification of the decision might “alternatively” be done to the representative or lawyer of the appellant who had signed the appeal or who had been present during the examination of the appeal or had submitted observations before the Appeals Committee, the Head of the RIC, or online on a specific database.[20]

Exempted categories from the fast-track border procedure under Article 60(4) L 4375/2016

According to Article 60(4)(f) L 4375/2016, the fast-track border procedure was not applied to vulnerable groups or persons falling within the family provisions of the Dublin III Regulation.[21]

It is noted that the Administrative Court of Appeals of Piraeus, under the previous legislative framework (L 4375/2016), has repeatedly annulled decisions of the Appeals Committees issued under the fast-track border procedure, on the ground that the applicant should have been exempted therefrom and referred to the regular procedure for reasons of vulnerability.[22] Besides, the said Administrative Court has clearly ruled that the applicant is under no obligation to prove “procedural damage” (δικονομική βλάβη) stemming from the failure to exempt him or her from the fast-track border procedure.[23]

In a Decision of February 2020, the Administrative Court of Appeals of Piraeus, annulled the second instance decision. The case concerned an Eritrean applicant that had been identified as a person belonging to a vulnerable group. Nevertheless the Asylum Service and the Appeals Committee examined his application under the fast track border procedure. The Court held that the Appeals Committee illegally rejected the applicant’s Appeal, as the Committee did not take into consideration the request of the applicant to be exempted from the fast track border procedure on the basis of his vulnerability and proceeded with the examination of the Appeal under the fast-track border procedure.[24]

The identification of vulnerability of persons arriving on the islands in the context of the fast-track border procedure on the islands takes place either by the RIS prior to the registration of the asylum application, or during the asylum procedure (see Identification).

In 2017, 2018 and 2019, the Asylum Service took the following decisions:

 

First instance decisions taken in the fast-track border procedure: 2017-2019

Decisions on admissibility

2017

2018

2019

Inadmissible based on safe third country

912

395

235

Admissible based on safe third country

365

116

44

Admissible pursuant to the Dublin family provisions

3,123

4,005

2,010

Admissible for reasons of vulnerability

15,788

21,020

25,967

Decisions on the merits

2017

2018

2019

Refugee status

1,151

4,183

4,235

Subsidiary protection

225

2,047

3,186

Rejection on the merits

1,648

3,364

3,129

Total decisions

23,212

35,134

39,505

Source: Asylum Service

 

This data, particularly the number of asylum seekers identified as vulnerable, should be read in conjunction with the profile of the persons arriving on the Greek islands in 2019, the vast majority of whom have lived through extreme violence and traumatic events. Out of the total number of 59,726 persons arriving in Greece by sea in 2019, the majority originated from Afghanistan (40%), Syria (27%) and the Democratic Republic of the Congo (7%). Typically, the majority of Afghans and Syrians arrive in family groups. More than half of the population were women (23%) and children (36%).[25]

The fast-track border procedure since the entry into force of the IPA on 1 January 2020

A “fast-track border procedure” is also foreseen by the new law on asylum (IPA), in force since 1 January 2020. Article 90(3) IPA largely repeats the provision of Article 60(4) L. 4375/2016. However, as opposed to the previous Article 60(4) L. 4375/2016, the IPA does not refer to the fast track border procedure as a procedure applied by way of exception.

More particularly, Article 90(3) IPA foresees that said procedure can be applied for as long as third country nationals who have applied for international protection at the border or at airport / port transit zones or while remaining in Reception and Identification Centres, are regularly accommodated in a spot close to the borders or transit zones. A Joint Ministerial Decision issued on 31 December 2019, foresees the application of the fast track border procedure under Art. 90 (3) up until 31 December 2020.[26]  In practice it is also applicable to those arrived on the Greek Eastern Aegean islands.

Main features of the procedure of the fast-track border procedure under the IPA

The fast-track border procedure under Article 90(3) IPA, in force since January 2020, repeats to a large extend the previous legal framework and provides among others that:

  1. The registration of asylum applications, the notification of decisions and other procedural documents, as well as the receipt of appeals, may be conducted by staff of the Hellenic Police or the Armed Forces, if police staff is not sufficient.
  2. The interview of asylum seekers may also be conducted by personnel deployed by EASO. However, Article 90(3) also introduced the possibility, “in particularly urgent circumstances”, the interview to be conducted by trained personnel of the Hellenic Police or the Armed Forces, as opposed to the strict limitation to registration activities under the previous L. 4375/2016.
  3. The asylum procedure shall be concluded in a short time period.

This may result in the underestimation of the procedural guarantees provided by the international, European and national legal framework, including the right to be assisted by a lawyer. As these truncated time limits undoubtedly affect the procedural guarantees available to asylum seekers subject to an accelerated procedure, as such, there should be an assessment of their conformity with Article 43 of the recast Asylum Procedures Directive, which does not permit restrictions on the procedural rights available in a border procedure for reasons related to large numbers of arrivals.

More precisely, according to Article 90(3)(c) IPA:

  • The Asylum Service shall take a first instance decision within 7 days;
  • The deadline for submitting an appeal against a negative decision is 10 days;
  • The examination of an appeal is carried out within 4 days. The appellant is notified within 1 day to appear for a hearing or to submit supplementary evidence. The second instance decision shall be issued within 7 days.

The concerns which are mentioned above as regards the short deadlines applying to the fast-track border procedure under the previous L 4375/2016 also apply here. In any event, it should be noted that these very short time limits seem to be to exclusively at the expense of applicants for international protection in practice. In fact, whereas processing times take several months on average, applicants still have to comply with the very short time limits provided by Article 90(3) IPA.[27] The average time between the full registration and the issuance of a first instance decision under the fast-track border procedure was 228 days in 2019, i.e. over 7 months.[28]

The Greek Asylum Service is under a constant pressure to accelerate the procedures on the islands, which was also one of the reasons invoked for the amendment of national legislation in late 2019. However the FRA has found “even with the important assistance the European Asylum Support Office provides, it is difficult to imagine how the processing time of implementing the temporary border procedure under Article 90(3) IPA or the regular asylum procedure on the islands can be further accelerated, without undermining the quality of decisions. Putting further pressure on the Greek Asylum Service may undermine the quality of first instance asylum decisions, which in turn would prolong the overall length of procedure, as more work would be shifted to the appeals stage.”[29]

In practice until 2019, which will be similar as of 2020, the fast-track border procedure has been variably implemented depending on the profile and nationality of the asylum seekers concerned (see also Differential Treatment of Specific Nationalities in the Procedure). Within the framework of that procedure:

  • Applications by Syrian asylum seekers are examined on admissibility on the basis of the Safe Third Country concept;
  • Applications by non-Syrian asylum seekers from countries with a recognition rate below 25% are examined only on the merits;
  • Applications by non-Syrian asylum seekers from countries with a recognition rate over 25% are examined on both admissibility and merits (“merged procedure”). In such cases, according to practice followed by EASO staff, the majority of applications for international protection of the aforementioned asylum seekers, is found to be inadmissible in the context of the safe third country concept. Subsequently, the Asylum Service declares such applications admissible and proceeds to the examination of them on the merits.

It has been highlighted that “the practice of applying different asylum procedures according to the nationalities of the applicants is arbitrary, as it is neither provided by EU nor by domestic law. In addition, it violates the principle of non-discrimination as set out in Article 3 of the Geneva Convention of 28 July 1951 relating to the status of refugees. Instead, it is explicitly based on EASO’s undisclosed internal guidelines, which frame the hotspot asylum procedures in order to implement the EU-Turkey statement.”[30]

Exempted categories from the fast-track border procedure under the IPA

As opposed to the previous legislation, the IPA repeals the exception of persons belonging to vulnerable groups and applicants falling under Dublin Regulation from the fast-track border procedure (see Special Procedural Guarantees). In particular unaccompanied minors are concerned Article 90(4) IPA provides that unaccompanied minors are examined under the fast track border procedure in case that

  • the minor comes for a country designated as a safe country of origin in accordance with the national list
  • he/she submits a subsequent application
  • he/she is considered a threat to the public order/national security
  • there are reasonable grounds that a country can be considered as a safe third country for the minor; and given that it is in line with the best interest of the minor.
  • the unaccompanied minor has misled the authorities by submitting false documents or he/she has destroyed or he/she has lost in bad faith his/her identification documents or travel document, under the conditions that he/she or his/her guardian will be given the opportunity to provide sufficient grounds on this.

Personal interview

According to Article 60(4)(c) L 4375/2016, asylum seekers may prepare for the interview and consult a legal or other counselor who shall assist them during the procedure within 1 day following the submission of their application for international protection. Decisions shall be issued, at the latest, the day following the conduct of the interview and shall be notified, at the latest, the day following its issuance

Under the previous fast-track border procedure as per Article 60(4) L 4375/2016, the personal interview could be conducted by Asylum Service staff or EASO personnel. According to Article 90(3) IPA, in force since 1 January 2020, the personal interview may be conducted by Asylum Service staff or EASO personnel or, “in particularly urgent circumstances”, by trained personnel of the Hellenic Police or the Armed Forces.[31]

As regards EASO, its competence to conduct interviews had already been introduced by an amendment to the law in June 2016, following an initial implementation period of the EU-Turkey Statement marked by uncertainty as to the exact role of EASO officials, as well as the legal remit of their involvement in the asylum procedure. The EASO Special Operating Plans to Greece foresaw a role for EASO in conducting interviews in different asylum procedures, drafting opinions and recommending decisions to the Asylum Service throughout 2017, 2018 and 2019.[32] A similar role is foreseen in the Operational & Technical Assistance Plan to Greece 2020, including in the Regular procedure.[33]

As found by the European Ombudsman in 2018,

in light of the Statement of the European Council of 23 April 2015 (Point P), in which the European Council commits to ‘deploy EASO teams in frontline Member States for joint processing of asylum applications, including registration and finger-printing’, EASO is being encouraged politically to act in a way which is, arguably, not in line with its existing statutory role. Article 2(6) of EASO’s founding Regulation (which should be read in the light of Recital 14 thereof, which speaks of “direct or indirect powers”) reads: ‘The Support Office shall have no powers in relation to the taking of decisions by Member States’ asylum authorities on individual applications for international protection’”.[34]

Furthermore, in 2019 and following a complaint with regards an individual case, the European Ombudsman found that

EASO’s failure to address adequately and in a timely way the serious errors committed in […] case constituted maladministration”.[35]

During 2019, the content of the personal interview varied depending on the asylum seeker’s nationality. Interviews of Syrians mostly focused only on admissibility under the Safe Third Country concept and were mainly limited to questions regarding their stay in Turkey. Non-Syrian applicants from countries with a recognition rate below 25% were only examined on the merits, in interviews which could be conducted by EASO caseworkers. Finally, non-Syrian applicants from countries with a rate over 25% undergo a so-called “merged interview”, where the “safe third country” concept was examined together with the merits of the claim.

In practice, in cases where the interview is conducted by an EASO caseworker, he or she provides an opinion / recommendation (πρόταση / εισήγηση) on the case to the Asylum Service, that issues the decision. The transcript of the interview and the opinion / recommendation are written in English, which is not the official language of the country.[36] The issuance of an opinion / recommendation by EASO personnel to the Asylum Service is not foreseen by any provision in national law and thus lacks legal basis.[37] In 2019, EASO conducted 6,047 interviews and issued 5,365 opinions in the fast-track border procedure during that year, out of which 1,283 opinions recommended the referral of the asylum seeker to the regular procedure for reasons of vulnerability.[38]

Finally, a caseworker of the Asylum Service, without having had any direct contact with the applicant e.g. to ask further questions, issues the decision based on the EASO record and recommendation.[39]

In November 2019, a number of 28 applications examined under the fast-track border procedure on Lesvos island, have been rejected at first instance by the Lesvos RAO, without undergoing any asylum interview before, contrary to the guarantees of the Directive 2013/32/EU. The applicants all belonged to nationalities with a recognition rate under 25%. All negative decisions mentioned with an identical wording that “the asylum seeker did not attend a personal interview since repeated attempts to find interpretation services for the mother tongue and the language of communication of the asylum seeker proved unsuccessful”. In some of these cases the applicants were served fictitious invitations to interviews scheduled for the same day the decision was issued.[40]

In a number of these cases, the Appeals Committees reversed the first instance decisions. According to the second instance Decision, the Committee considered that the failure to conduct an interview was contrary to the law and referred the cases back to the first instance for an interview to take place.[41]

Moreover, and following a parliamentary priority question submitted to the European Commission on 25 November 2019 with regard to these cases,[42] the European Commission noted that

“[t]he Directive on asylum procedures (2013/32/EU) guarantees that the asylum applicants’ are given the opportunity of a personal interview on their applications for international protection, with certain limited exceptions. As regards the interpretation, the Directive provides that the communication shall take place in the language preferred by the applicant unless there is another language which he or she under­stands and in which he or she is able to communicate clearly”.[43]

In February 2020, in at least 3 cases known to GCR, the Asylum Service on Lesvos (Lesvos RAO) rejected the applications for international protection as manifestly unfounded on the grounds of non–cooperation with the competent authority, as they had to undergo an interview in the official language of their country of origin and not in their native language and consequently communication was not possible during the interview. This is for example the case of a Senegalese applicant, member of the Wolof ethnic group, who had to undergo his asylum interview in French. The interview lasted for five minutes and at the end of the transcript of the interview the caseworker notes: “The procedure is interrupted due to the inability of the applicant to understand the declared language for conducting the interview”.[44] Despite this and in accordance with the provisions of the IPA, the application has been rejected as manifestly unfounded,[45] without offering the applicant the possibility to undergo an interview in a language that he understands or that he is able to communicate clearly.

With regard to the possibility of personnel of Hellenic Police or Armed Forces to conduct personal interviews, Amnesty international has underlined that the application of such provision “would be a serious backward step that will compromise the impartiality of the asylum procedure”.[46]

Quality of interviews by EASO

The quality of interviews conducted by EASO caseworkers has been highly criticised and its compatibility even with EASO standards has been questioned. Inter alia, quality gaps such as lack of knowledge about countries of origin, lack of cultural sensitivity, questions based on a predefined list, closed and leading questions, repetitive questions, frequent interruptions and unnecessarily exhaustive interviews and conduct preventing lawyers from asking questions at the end of the interview have been reported.[47]

In 2018, following the ECCHR complaint, the European Ombudsman found that “there are genuine concerns about the quality of the admissibility interviews as well as about the procedural fairness of how they are conducted”.[48] In the same year, a comparative analysis of 40 cases of Syrian applicants whose claims were examined under the fast-track border procedure further corroborated the use of “inappropriate communication methods and unsuitable questions related to past experience of harm and/or persecution” which include closed questions impeding a proper follow-up, no opportunity to explain the case in the applicant’s own words, failure to consider factors that are likely to distort the applicant’s ability to express him- or herself properly (such as mental health issues or prior trauma), lack of clarification with regard to vague or ambiguous concepts mentioned by the interviewer, potential inconsistencies or misunderstandings regarding critical aspects of the case that could lead to confusion and/or the inability of the applicant to express him- or herself effectively, and more generally, violations of the right to be heard.”[49]

In a 2019 comparative analysis, it has been noted that in a number of cases EASO opinions often rely on outdated sources both with regard to the examination of the safe third country concept vis-a-vis Turkey and the examination of the merits of the applications. Moreover, failures as of the legal analysis in the EASO opinions have been identified.[50]

In 2019, following a complaint submitted before the European Ombudsman, EASO mentioned that in the context of quality feedback report, it had thoroughly examined the complainant’s case and stated that “EASO considered that the quality feedback report showed that the interviewer pursued a line of questioning that was inappropriate for the case, and displayed a misunderstanding of the complainant’s situation. Consequently, the case officer had “made a severe error of judgment when dealing with [that] case”, and this should not have been approved by his manager. EASO also acknowledged that there were problems with the work of the interpreter”. As found by the European Ombudsman, the “EASO’s failure to address adequately and in a timely way the serious errors committed in Mr […]’s case constituted maladministration”. [51]

 Appeal

Changes in the Appeals Committees

As already mentioned, the legal basis for the establishment of the Appeals Authority was amended twice in 2016 by L 4375/2016 in April 2016 and L 4399/2016 in June 2016, and then in 2017 by L 4661/2017 (see Regular Procedure: Appeal). These amendments were closely linked with the examination of appeals under the fast-track border procedure, following reported pressure to the Greek authorities from the EU on the implementation of the EU-Turkey Statement,[52] and “coincided with the issuance of positive decisions of the – at that time operational – Appeals Committees (with regard to their judgment on the admissibility) which, under individualised appeals examination, decided that Turkey is not a safe third country for the appellants in question”,[53] as highlighted by the National Commission on Human Rights.

Further amendments to the procedure before the Appeals Committees that had been introduced by L 4540/2018 which echo the 2016 Joint Action Plan on Implementation of the EU-Turkey Statement,[54] and were visibly connected with pressure to limit the appeal steps and the procedure to be accelerated. This includes the possibility to replace judicial members of the Appeals Committee in the event of “significant and unjustified delays in the processing of appeals” by a Joint Ministerial Decision, following approval from the General Commissioner of the Administrative Courts.[55]

As noted in the Regular procedure, following the 2019 Reform the composition of the Appeals Committees has been re-amended. According to Article 116 IPA, the Appeals Committees shall consist of three judges and it is envisaged that the Independent Appeal Committees may operate in a single or three-member composition.

Rules and time limits for appeal

Similarly to the first instance fast-track border procedure, truncated time limits are also foreseen in the appeal stage, although a few improvements have been made following the introduction of the IPA. Whereas according to the previous Article 60(4) L 4375/2016, appeals against decisions taken in the fast-track border procedure had to be submitted before the Appeals Authority within 5 days,[56] contrary to 30 days in the regular procedure, the deadline for appealing a negative decision is now 10 days.[57]

The provisions of the IPA relating to the fictitious service (πλασματική επίδοση) of first instance decisions are also applicable to the fast track border procedure and thus the deadline for lodging an appeal against a first instance negative decision may expire without the applicant having being actually informed about the decision.[58]

Suspensive effect

Since the entry into force of the IPA, the appeals before the Appeals Committees no longer have automatic suspensive effect as a general rule. The automatic suspensive effect of appeals depends on the type of decision challenged by the applicant (see Admissibility Procedure: Appeal and Accelerated Procedure: Appeal). With regard to applications rejected at first instance within the framework of the fast-track border procedure, the new law states, that a derogation from automatic suspensive effect of appeals can only be ordered provided that the individual benefits from the necessary assistance of an interpreter, legal assistance and at least one week to prepare the appeal before the Appeals Committee.[59]

The Appeals Committee examining the appeal must take a decision within 7 days,[60] contrary to 3 months in the regular procedure.[61] In practise this very short deadline is difficult to be met by the Appeals Committees.

As a rule, the procedure before the Appeals Committees must be written, based on the examination of the dossier. It is the duty of the Appeals Committee to request an oral hearing under the same conditions as in the regular procedure.[62]

Moreover, according to Articles 97(2) and 78(3) IPA which refer to the specific case of applicants residing in RIC on islands and whose applications are examined under the “fast-track border procedure”, a written certification of the Head of the Reception Centre should be sent to the Appeals Committee on the day prior of the examination of the Appeal. The certification must specify that the appellant lived at the specific RIC at the day of examination or, alternately, an appointed lawyer should appear before the Committee on the day of the examination of the appeal. If these conditions are not met, the appeal is rejected as “manifestly unfounded”.

Similarly to the concerns raised under the Regular procedure as regards the severity of these new procedural requirements, serious concerns with regard to the effectiveness of the remedy and the risk of a violation of the principle of non-refoulement are thus also applicable to appeals in the context of fast-track border procedures.

The provisions of the IPA[63] with regards the fictitious service (πλασματική επίδοση) of second instance decisions are also applicable in the fast track border procedure (see Regular Procedure)

As regards appeals against first instance inadmissibility decisions issued to Syrian asylum seekers based on the “safe third country” concept in the fast-track border procedure, it should be highlighted that in 2016, the overwhelming majority of second instance decisions by the Backlog Appeals Committees overturned the first instance inadmissibility decisions based on the safe third country concept. The Special Rapporteur on the human rights of migrants “commended the independence of the Committee, which, in the absence of sufficient guarantees, refused to accept the blanket statement that Turkey is a safe third country for all migrants — despite enormous pressure from the European Commission.”[64]

Conversely, following the amendment of the composition of the Appeals Committees, 98.2% of decisions issued by the Independent Appeals Committees in 2017 upheld the first instance inadmissibility decisions on the basis of the safe third country concept.

In 2018, the Appeals Committees issued 78 decisions dismissing applications by Syrian nationals as inadmissible based on the safe third country concept. As far as GCR is aware, there have been only two cases of Syrian families of Kurdish origin, originating from Afrin area, in which the Appeals Committee ruled that Turkey cannot be considered as a safe third country for said Syrian applicants due to the non-fulfilment of the connection criteria (see Safe Third Country).[65]

Respectively, in 2019 and as far as GCR is aware, all cases of Syrian Applicants examined under the fast-track border procedure have been rejected as inadmissible on the basis of the safe third country concept (29 Decisions),[66] if no vulnerability was identified or no grounds in order the case to be referred for humanitarian status were present. To the knowledge of GCR, there have been only two decisions from the Appeals Committee’s Decision so far in 2020, in cases supported by GCR, that reversed the first instance inadmissible decision and in which the Appeals Committee accepted the Appeals and declared them as admissible (see Safe Third Country).

Judicial review

The general provisions regarding judicial review, as amended in 2018 and 2019, are also applicable for judicial review issued within the framework of the fast-track border procedure and concerns raised with regard to the effectiveness of the remedy are equally valid (see Regular Procedure: Appeal). Thus, among others, the application for annulment before the Administrative Court does not have automatic suspensive effect, even if combined with an application for suspension. Suspensive effect is only granted by a relevant decision of the Court. This judicial procedure before the Administrative Courts is not accessible to asylum seekers without legal representation.

According to practice, appellants whose appeals are rejected within the framework of the fast-track border procedure are immediately detained upon the notification of the second instance negative decision and face an imminent risk of readmission to Turkey. The findings of the Ombudsman, that detainees arrested following a second instance negative decision are not promptly informed of their impeding removal,[67] are still valid.

The IPA has further hindered the effective access to judicial review for appellants for whom their appeal has been rejected within the framework of the fast-track border, i.e. who remain under a geographical limitation on the Aegean Islands or are detained on the Aegean Islands following the notification of the second instance decision. Article 115(2) IPA foresees that the First Instance Administrative Court of Athens is the competent Court for submitting legal remedies against second instance negative decisions with regards application submitted on the Aegean islands. Thus, legal remedies regarding appellants who reside or even are detained on the Aegean Islands, should be submitted by a lawyer before the Administrative Court of Athens. By taking into consideration the geographical distance and the practical obstacles (for example to appoint a lawyer able to submit the legal remedy in Athens) this may render the submission of legal remedies non accessible for those persons.[68]

Given the constraints that detained persons face vis-à-vis access to legal assistance, the fact that legal aid is not foreseen by law at this stage, that an onward appeal can only be submitted by a lawyer, and lack of prompt information about impeding removal, access to judicial review for applicants receiving a second instance negative decision within the framework of the fast-track border procedure is severely hindered (see Regular Procedure: Judicial Review).

 Legal assistance

The IPA does not contain special provisions regarding free legal assistance in the fast-track border procedure. The general provisions and practical hurdles regarding legal aid are also applicable here (see section on Regular Procedure: Legal Assistance).

State-funded legal aid is not provided for the fast-track border procedure at first instance. Therefore, legal assistance at first instance is made available only by NGOs based on capacity and areas of operation, while the scope of these services remains severely limited, bearing in mind the number of applicants subject to the fast-track border procedure.

As regards the second instance, as of 31 December 2019, there were in total 5 lawyers registered in the register of lawyers, under the state-funded legal aid scheme, who had to provide legal aid services to the rejected applicants at the appeal stage under the fast-track border procedure on the five islands of Eastern Aegean and Rhodes. More specifically, there was one lawyer on Lesvos, one lawyer on Chios, one lawyer on Kos and two lawyers on Rhodes.[69] No lawyers under the state-funded legal aid scheme were present as of 31 December 2019 on Samos – one of the two islands with the largest number of asylum seekers and Leros.

By decision of the Asylum Service issued as of 31 December 2019, 9 lawyers were appointed on the islands in order to provide free legal aid on the second instance. These lawyers have been appointed to provide free legal aid under the state funded legal aid scheme at second instance as follows: 2 lawyers on Lesvos, 1 lawyer on Samos, 1 lawyer on Chios, 1 lawyer on Kos, 2 lawyers on Rhodes.[70]

Given the number of the lawyers appointed under the state funded legal aid scheme and the number of persons who are in need of legal assistance, the provision of free legal aid for appellants under the fast track border procedure remains limited, if not available.

As underlined in a report issued by Oxfam and GCR, “[o]n the Greek islands the situation is far worse, with only two out of 100 people able to get the free legal aid needed to appeal their cases. On Lesvos, for most of 2018, there were no state funded lawyers for the appeal stage and now, in 2019, there is only one. Every month approximately 50 to 60 asylum seekers who are rejected in the first instance require legal aid at the appeal stage. But the single state-appointed lawyer only has capacity to assist a maximum of 10 to 17 new cases, depending on the month”.[71]

As also mentioned in the Regular Procedure: Legal assistance no tailored state funded free legal aid scheme exists for submitting judicial remedies before Courts against a second instance negative decision.


[1] Information provided by the Asylum Service, 17 February 2020.

[2] GCR, Παρατηρήσεις επί του νόμου 4375/2016, 8 April 2016, available in Greek at: http://bit.ly/1Sa2lmH.

[3] IRIN, ‘Greek asylum system reaches breaking point’, 31 March 2016, available at: http://bit.ly/1RNCKja.

[4] Human Rights Council, Report of the Special Rapporteur on the human rights of migrants on his mission to Greece, A/HRC/35/25/Add.2, 24 April 2017, available at: http://bit.ly/2rHF7kl, para 78.

[5]Human Rights Council, Report of the Special Rapporteur on the human rights of migrants on his mission to Greece, A/HRC/35/25/Add.2, 24 April 2017, para 82.

[6] FRA, Update of the 2016 Opinion of the European Union Agency for Fundamental Rights on fundamental rights in the ‘hotspots’ set up in Greece and Italy, February 2019, FRA Opinion – 3/2019, Vienna, 4 March 2019, available at: https://bit.ly/2XYgI8B, p. 7.

[7] UNHCR, Head of UNHCR calls for urgent response to overcrowding in Greek island reception centres, Europe to share responsibility, 28 November 2019, available at: https://bit.ly/2zbDe3o. See also, UNHCR urges Greece to strengthen safeguards in draft asylum law, 24 October 2019, available at: https://bit.ly/3cyl1LU.

[8] Joint Ministerial Decision for the application of the provisions of par. 4 of article 60 of the Law 4375/2016, No 13257/31.08.2016, Gov. Gazette 3455/B/26.10.2016, available at: https://bit.ly/2x1kx1I.

[9] Article 80(26) L 4375/2016, as initially in force.

[10]Article 80(26) L 4375/2016, as amended by Article 86(20) L 4399/2016.

[11] Article 80(26) L 4375/2016, as amended by Article 96(4) L 4485/2017.

[12] Article 80(26) L 4375/2016, as amended by Article 28(23) L 4540/2018.

[13] Article 80(26) L 4375/2016, as amended by Article 7(3) L 4587/2018.

[14] Submission of the Greek Council for Refugees to the Committee of Ministers of the Council of Europe in the case of M.S.S. v. Belgium & Greece (Appl. No 30696/09) and related case, 9 May 2019, available at: https://bit.ly/2XYhHpj

[15]Information provided by the Asylum Service, 17 February 2020.

[16] Article 80(13) L 4399/2016.

[17] Ministerial Decision 3385, Gov. Gazette B’ 417/14.2.2018.

[18] Information provided by the Asylum Service, 17 February 2020.

[19] Article 60(4) L 4375/2016, as was amended by Article 28(4) L 4540/2018.

[20] Article 62(8) L 4375/2016, inserted by Article 28(20) L 4540/2018. The Ombudsman has stated that this provision limits effective access to judicial protection: Ombudsman, Παρατηρήσεις στο σχέδιο νόμου Προσαρμογή της Ελληνικής Νομοθεσίας προς τις διατάξεις της Οδηγίας 2013/33/ΕΕ (αναδιατύπωση 29.6.13) σχετικά με τις απαιτήσεις για την υποδοχή των αιτούντων διεθνή προστασία κ.ά. διατάξεις, April 2018, available in Greek at: https://bit.ly/2unUcpH.

[21] Article 60(4)(f) L 4375/2016, citing Articles 8-11 Dublin III Regulation and the categories of vulnerable persons defined in Article 14(8) L 4375/2016.

[22] See e.g. Administrative Court of Appeal of Piraeus, Decision 558/2018, available in Greek at: https://bit.ly/2WbqvDY; Administrative Court of Appeal of Piraeus, Decision 642/2018, available in Greek at: https://bit.ly/3eFglpq; Administrative Court of Appeal of Piraeus, Decision 563/2018, available in Greek at: https://bit.ly/2FgXcdR.

[23] Administrative Court of Appeal of Piraeus, Decision 519/2018, available in Greek at: https://bit.ly/2JiaUB0; See also, Decision 231/2018, available in Greek at: https://bit.ly/3eFglpq.

[24] Administrative Court of Appeal of Piraeus, Decision of 21 February 2020, on file with the author.

[25] UNHCR, Greece – Sea arrivals dashboard, December 2019, available at: https://bit.ly/2KukO0k. Arrivals during 2019 are 84% higher than those in 2018.

[26] Joint Ministerial Decision for the application of the provisions of par. 3 and 5 of article 90 of IPA, No 1333/30.12.2019, Gov. Gazette 4892/B/31.12.2019.

[27] FRA, Update of the 2016 FRA Opinion on fundamental rights in the hotspots set up in Greece and Italy, 4 March 2019, available at: https://bit.ly/2HeRg79, 26. 

[28] Information provided by the Asylum Service, 17 February 2020.

[29] FRA, Update of the 2016 FRA Opinion on fundamental rights in the hotspots set up in Greece and Italy, 4 March 2019, 26 “in Kos, the average time from the lodging of the application until the first interview with EASO was 41 days while from the date of the interview until the issuance of the recommendation by EASO was 45 days”.

[30] Greens/EFA, The EU-Turkey Statement and the Greek Hotspots: A failed European Pilot Project in Refugee Policy, June 2018, available at: https://bit.ly/2sJM2H4, 17.

[31] Article 90(3)(b) IPA.

[32] EASO, Special Operating Plan to Greece 2017, December 2016, available at: http://bit.ly/2h1M2dF, p. 9; EASO, Operating Plan to Greece 2018, December 2017, available at: http://bit.ly/2BO6EAo, p. 13-14, EASO, Operating Plan to Greece 2019, 19 December 2018, available at: https://bit.ly/2W6vJB2, p. 14-15.

[33] EASO, Operational & Technical Assistance Plan to Greece, 20 December 2019, available at: https://bit.ly/2VUAj6P, p. 14.

[34]  European Ombudsman, Decision in case 735/2017/MDC on the European Asylum Support Office’s’ (EASO) involvement in the decision-making process concerning admissibility of applications for international protection submitted in the Greek Hotspots, in particular shortcomings in admissibility interviews, 5 July 2018, available at: https://bit.ly/2XVUfXq, para 33.

[35] European Ombudsman, Decision in case 1139/2018/MDC on the conduct of experts in interviews with asylum seekers organised by the European Asylum Support Office, 30 September 2019, available at: https://bit.ly/3azSi7Y, para. 18 

[36] This issue, among others, was brought before the Council of State, which ruled in September 2017 that the issuance of EASO opinions / recommendations in English rather than Greek does not amount to a procedural irregularity, insofar as it is justified by the delegation of duties to EASO under Greek law and does not result in adversely affecting the assessment of the applicant’s statements in the interview. The Council of State noted that Appeals Committees are required to have good command of English according to Article 5(3) L 4375/2016: Council of State, Decisions 2347/2017 and 2348/2017, 22 September 2017, para 33. 

[37] Article 60(4)(b) L 4375/2016 and 90(3)(b) only refer to the conduct of interviews by EASO staff.

[38] Information provided by the Asylum Service, 17 February 2020.

[39]AIRE Centre, et al., Third party intervention in J.B. v. Greece, 4 October 2017, available at: http://bit.ly/2qSRxoU, 10-11. 

[40] GCR, “Απόρριψη 28 αιτούντων άσυλο από Αφρικανικές χώρες λόγω έλλειψης διερμηνείας – Ανησυχία εκφράζουν νομικές οργανώσεις για την άνευ προηγουμένου και αντίθετη στο ελληνικό, ευρωπαϊκό & διεθνές δίκαιο διοικητική πρακτική του Περιφερειακού Γραφείου Ασύλου”, 22 November 2019, available in Greek at: https://bit.ly/2WRV3wE; Refugee Support Aegean, Rejection of 28 asylum seekers from African countries due to the lack of interpreters, 24 November 2019, available at: https://bit.ly/2Y0dKAo.

[41] See inter alia Decision of the 3rd Appeals Committee as of 14 February 2020, on file with the author.

[42] Priority question for written answer to the Commission, Rule 138, 25 November 2019, available at: https://bit.ly/3bAzc2Q.

[43] European Commission, EL, P-004017/2019, 5 February 2020, available at: https://bit.ly/34Ty205.

[44] Efsyn.gr, Απόρριψη ασύλου σε 5 λεπτά και με 7 λέξεις, 10 February 2020, available at: https://bit.ly/2yuk7Bn.

[45] Article 78(9) and 88(2) IPA.

[46]  Amnesty International, Submission on the Human Rights implications on the Government proposal to change the Greek Law on international protection, reception and returns, 24 October 2019, available at: https://bit.ly/2XYyY1D.

[47] See AIDA, Country Report Greece, 2017 Update, March 2018, 71-72.

[48] European Ombudsman, Decision in case 735/2017/MDC on the European Asylum Support Office’s’ (EASO) involvement in the decision-making process concerning admissibility of applications for international protection submitted in the Greek Hotspots, in particular shortcomings in admissibility interviews, 5 July 2018, available at: https://bit.ly/2XVUfXq, para 46.

[49] Greens/EFA, The EU-Turkey Statement and the Greek Hotspots: A failed European Pilot Project in Refugee Policy, June 2018, 19.

[50] ECRE, the role of EASO operations in national asylum systems, November 2019, 24.

[51] European Ombudsman, Decision in case 1139/2018/MDC on the conduct of experts in interviews with asylum seekers organised by the European Asylum Support Office, 30 September 2019, available at: https://bit.ly/2yEqUs6, para. 18 

[52] See e.g. NCHR, ‘Δημόσια Δήλωση για την τροπολογία που αλλάζει τη σύνθεση των Ανεξάρτητων Επιτροπών Προσφυγών’, 17 June 2016, available in Greek at: http://bit.ly/2k1Buhz.

[53] NCHR, ‘Public Statement regarding the amendment of the composition of the Independence Appeals Committees’, 17 June 2016, available at: http://bit.ly/2k1Buhz. Unofficial translation by the author.

[54]European Commission, Joint Action Plan on Implementation of the EU-Turkey Statement, 8 December 2016, available at: https://bit.ly/2JwpFQS

[55] Article 5(4) L 4375/2016, as amended by Article 28(3) L 4540/2018.

[56] Article 61(1)(d) L 4375/2016.

[57] Article 90(3)(c) IPA.

[58] Article 82 and 103 IPA.

[59] Article 104(3) IPA.

[60] Article 90(3)(c) IPA.

[61] Article 101(1)(a) IPA.

[62] Article 97 IPA.

[63] Article 82 and 103 IPA.

[64] Human Rights Council, Report of the Special rapporteur on the human rights of migrants on his mission to Greece, A/HRC/35/25/Add.2, 24 April 2017, para 85.

[65] 9th Independent Appeals Committee, Decisions 20802/25.9.2018 and 20898/26.9.2018, 25 September 2018, available at: https://bit.ly/2CjbmcD.

[66] Information provided by the Appeals Authority on 21 April 2020.

[67] Ombudsman, Return of third-country nationals – Special Report 2017, 2018, available at: https://bit.ly/2TG2wjv.

[68]Mutandis mutandis ECHR, Kaak v. Greece, Application No 34215/16, Judgment of 3 October 2019. 

[69] Information provided by Asylum Service.

[70] Asylum Service, Decision No 20165/2019, 13 December 2019.

[71]Oxfam and GCR, No-Rights Zone. How people in need of protection are being denied crucial access to legal information and assistance in the Greek islands’ EU ‘hotspot’ camps, available at: https://go.aws/3azMUly.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation