General (scope, time limits)
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 2022, the total number of applications lodged before the RAOs of Lesvos, Samos, Chios, Leros and Kos was 11,408, which represents approximately 1/3 of the total number of applications lodged in Greece in the same year (37,362).
The impact of the EU-Türkiye Statement has been, inter alia, a de facto dichotomy of the asylum procedures applied in Greece. This is because, the fast-track procedure is applied in cases of applicants subject to the EU-Türkiye Statement, i.e. applicants who arrived on the Greek Eastern Aegean islands after 20 March 2016 and have lodged applications before the RAO of Lesvos, Chios, Samos, Leros and Kos. However, 5,052 applications lodged before the Asylum Unit of Fylakio by persons who entered through the Greek-Turkish land border and remain in the RIC in Fylakio in Evros are not examined under the fast-track border procedure.
Different procedures were applied for arrivals in Rhodes, as, up until November 2022, certain arrivals were considered as residing illegally in Greece and they were transferred to the Pre- Removal Detention Centre of Kos while others were given a police note and transferred to the mainland. No reception services were provided for either category. Since November 2022 the procedure has changed and those newly arrived in Rhodes are finally considered new arrivals and are being transferred to the Kos RIC (now CCAC), where they are being provided with reception services and their asylum applications are being processed.
Asylum procedures are currently regulated by the new law on asylum (Asylum Code), L. 4939/2022. More particularly, Article 95(3) Asylum Code foresees that the fast-track procedure can be applied 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 30 December 2020, foresees the application of the fast-track border procedure under Article 90 (3) for those who arrived at the Greek Eastern Aegean Islands. The JMD was in force until 31 December 2021, and it has not been extended through a new JMD since that date.
Main features of the fast-track border procedure under the Asylum Code
The fast-track border procedure under Article 95(3) Asylum Code, repeats the previous legal framework and provides amongst others that:
- 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 are not sufficient.
- The asylum seeker interview may also be conducted by Greek language personnel deployed by EUAA. However, Article 95(3) also introduced the possibility, “in particularly urgent circumstances”, that the interview can be conducted by trained personnel of the Hellenic Police or the Armed Forces –as long as they have received specific training, as opposed to the strict limitation to registration activities under previous L. 4375/2016.
- The asylum procedure shall be concluded in a short time period.
This may result – and it often has resulted- in compromising the procedural guarantees provided by the international, European and national legal framework, including the right to be assisted by a lawyer. As these extremely brief 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 95(3)(c) Asylum Code:
- the Asylum Service shall issue a first instance decision within seven days;
- the deadline for submitting an appeal against a negative decision is ten days;
- the deadline for, and submission of, the appeal does not always have an automatic suspensive result, as provided by Article 110 (3) Asylum Code and a separate application for suspension of removal needs to be submitted before the Appeals’ Authority, within the deadline for the submission of the appeal;
- the examination of an appeal shall be carried out within four days. The appellant is notified within one day to appear for a hearing before the Appeals’ Committees or to submit supplementary evidence; and
- the second instance decision shall be issued within seven days.
It should be noted that these very short time limits seem to be exclusively at the expense of applicants for international protection in practice. In fact, whereas timelines are, by general principle, not compulsory for the authorities and case processing at the borders takes several months on average, applicants still have to comply with the very short time limits provided by Article 95(3) Asylum Code. In 2022, the average time between the full registration of the asylum application and the issuance of a first instance decision under the same procedure was not available.
The Greek Asylum Service is under 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. The FRA concerns related to the very limited processing time imposed in the scope of the previous legal framework and the impact that this could have on the quality of the procedure still remain. More specifically, FRA emphatically underlined that “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 60(4) L.4375/2016 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.”
In 2022, the fast-track border procedure has continued being 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:
- The Asylum Service issued a total of 2,286 in-merit and inadmissibility decisions during 2022 in the framework of the fast-track border procedure. Out of the above, 462 were inadmissibility decisions, 74 were manifestly unfounded rejections, and 1,824 in merit decisions. Out of the 1,824 in-merit decisions, 1,580 were positive decisions, demonstrating a remarkably high recognition rate.
- In parallel, notes by the Readmission Unit of the Hellenic Police Headquarters confirmed that Türkiye has indefinitely suspended returns from Greece since 16 March 2020. Due to this suspension, the Greek authorities stopped sending readmission requests to Türkiye based on the Common EU- Türkiye Statement for rejected asylum seekers. Despite this suspension, the Greek authorities refused to examine applications for international protection on their merits, as required by Article 91(5) of Asylum Code.
As a consequence, applicants whose applications have been/are rejected as inadmissible based on the “safe third country” concept end up in a state of legal uncertainty in Greece, exposed to a direct risk of destitution and detention, without access to an in-merit examination of their application and without the means to lodge a subsequent asylum application. As already explained in the section on Admissibility, this has been criticised by the European Commission.
Generally, in 2021, a large number of asylum seekers with specific profiles (i.e. asylum seekers from Palestine, Eritrea and Yemen) had been granted refugee status on the basis of their administrative file, without undergoing an asylum interview, although this was not a consistent practice of the Asylum Service throughout the year or even between different Regional Asylum Offices applying the border procedure. This practice changed during 2022 and asylum seekers with specific profiles, where before their asylum application would have been examined on the basis of their administrative file, had to undergo asylum interviews. In Lesvos, at least since April 2022, Eritrean nationals had to undergo asylum interviews, while before their asylum application had been examined on the basis of their administrative file. In Lesvos, Chios and Kos, all asylum seekers from Palestine had to undergo an asylum interview, while in Kos all Palestinians coming from Syria are being examined on admissibility and the safe third country basis.
Applications by asylum seekers from countries listed in the national list of countries of origin characterised as safe, according to Article 92 paragraph 5 of Asylum Code, have been examined on their merits only to the extent of their claims against the application of the safe country of origin assumption.
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 EUAA’s undisclosed internal guidelines, which frame the hotspot asylum procedures in order to implement the EU-Türkiye statement.”
Exempted categories from the fast-track border procedure under the Asylum Code
As opposed to previous legislation, the Asylum Code repeals the exception of persons belonging to vulnerable groups and applicants falling under the Dublin Regulation from the fast-track border procedure (see Identification and Special Procedural Guarantees). In any case, in 2022 only seven cases were exempted from the border procedures on grounds of vulnerability and need for special procedural guarantees.
In Lesvos, legal aid actors observed that, since June 2022, RAO has automatically applied non-border procedures for applicants where the first instance decision has not been notified to them within 28 days from registration, without however issuing any decision for a referral to the normal procedure (as it is not foreseen in the law, according to RAO). In these cases, the deadline for the appeal is automatically extended as follows: for admissibility, the 10 days turn automatically to 20 days and for eligibility they turn from 10 to 30 days. This practice is based on article 95 paragraph 2 of law 4939/2022, however the JMD regulating this procedure has not been issued for 2022.
In Kos this practice was first noticed at the beginning of 2023, however, during 2022, all asylum applications were examined under the border procedure regardless of whether a first instance decision had been issued and served to the asylum seekers within 28 days of the registration of the asylum application.
Furthermore, the total number of unaccompanied minors examined under border procedures in 2022 is not available. In particular, as far as unaccompanied minors are concerned, Article 80 (7) Asylum Code provides that applications filed by minors under the age of 15, as well as minors who are victims of human trafficking, torture, rape or other serious forms of psychological, physical or sexual violence shall be examined under the regular procedure. However, Article 95 (4) Asylum Code provides that unaccompanied minors are examined under the fast-track border procedure in the case that:
- the minor comes for a country designated as a safe country of origin in accordance with the national list (according to article 92 (5) Asylum Code);
- 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 their identification documents or travel document, under the conditions that they or their guardian will be given the opportunity to provide sufficient grounds on this.
According to Article 69 (1) of the Asylum Code, asylum applicants are already required at the stage of registration of their asylum application before RAOs, to give exhaustive reasons for fleeing their country of origin. If they fail to mention all reasons during the registration, they have no right to develop claims which are only for the first time mentioned during their asylum interview. However, in practice the registration of the asylum application in the islands is by no means exhaustive and it mostly includes some very basic information.
Moreover, it should be underlined that in all of the islands the full registration of asylum applications is processed by the Reception Service (RIS). More specifically the RISs in Kos and Samos first introduced this practice at the end of 2021, and later, in 2022, the rest followed. It has been observed that ever since the registration of asylum applications was removed from the Asylum Service and was undertaken by the RIS, the registration form very often only includes very limited information. Nevertheless, in practice, asylum seekers have the opportunity during their interviews to present their claims, even if no mention of said claims has been included in their registration form.
In any case, persons newly arrived on the islands had the full registration of their asylum application immediately after the end of the quarantine/first reception (waiting) area, where they could not have access to legal consultation (see the Reception and Identification Procedure). Subsequently, in most cases, their interviews were scheduled within 1-3 days after the registration, preventing them from having enough time to access legal aid and prepare for their asylum interview.
In Lesvos, the issue of unavailability of interpreters in Somali remained, as the majority of organisations either did not have Somali interpretation or had very limited capacity. The lack of Somali interpretation combined with the fact that very often all newly arrived were scheduled for their interview on the same day, leaving them almost no time for preparation before the interview, hindered their access to legal aid even further.
Moreover, the Lesvos UNHCR Field Office observed that interviews for asylum applicants with rare mother languages (i.e. Amharic or Tigrinya) were postponed depending on the availability of the interpreters. When there were no available interpreters in the Krio language, applicants from Sierra Leone had the full registration of their asylum applications made in English; in most cases, people had only basic English knowledge. In Kos, the same practice was observed and the newly arrived asylum applicants who spoke rare languages were receiving invitations for the conduct of their asylum interview within one day of their asylum application registration or within three days in case they had been assessed as vulnerable, however, their interviews were postponed due to the lack of proper interpretation.
According to Article 82(4) of Asylum Code, asylum applicants that have been considered vulnerable, may have reasonable time to prepare for their interviews and consult a lawyer, if the interview is scheduled within 15 days from the submission of the asylum application. The preparation time may not exceed three days. If the interview is scheduled within more than 15 days from the submission of the asylum application, no reasonable time is granted for their interview preparation. If the interview is postponed, no time is granted again for their interview preparation. Decisions at first instance shall be issued within seven (7) days, according to Article 95(3)(c) of the Asylum Code.
However, in practice in most cases the interviews of the newcomers are being scheduled and conducted before examination by the competent Medical and Psychosocial Units, thus they undergo the interview procedure without prior evaluation of their potential vulnerabilities. Most of the time, the authorities proceed with a typical medical screening and record only manifest vulnerabilities. In any case, there is no information exchange mechanism between the RIS’ Vulnerability Focal Point (VFP) and RAO, and no relevant joint process to ensure that interviews are scheduled after the vulnerability assessment is completed. Even when RAO caseworkers refer the case to RIC’s Medical and Psychosocial Unit for a further vulnerability assessment, they do so after the interview has been completed. No postponements have been granted for interviews despite the applicants’ and their legal representatives’ relative requests that vulnerability assessments have not been completed. Accordingly, no reasonable time for their preparation can be granted on the basis of their vulnerabilities, since they have not been identified as such.
According to Article 74(3) Asylum Code, it is expressly foreseen that communication with asylum applicants (including interviews) may be conducted in the official language of their country of origin, or in another language that it is reasonably considered that the asylum applicant comprehends, if it has been proven manifestly impossible for the authorities to provide interpretation in that language. A refusal of the applicants to undergo procedures in the official language of their countries of origin, rather than their native languages, may be considered a violation of their obligation to cooperate with the authorities and lead to the rejection of their application.
According to Article 95(3)(b) Asylum Code, the personal interview may be conducted by Asylum Service staff or EUAA personnel or, “in particularly urgent circumstances”, by trained personnel of the Hellenic Police or the Armed Forces. With regard to the possibility of personnel of Hellenic Police or Armed Forces conducting 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”. This has not been applied in practice so far. Yet, it has been applied as regards the full registration of the asylum applications.
As regards EASO, now the EUAA, 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-Türkiye 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 (face-to-face and remote) in different asylum procedures, drafting opinions and recommending decisions to the Asylum Service throughout 2017, 2018, 2019, 2020 and 2021. A similar role is foreseen in the Operational & Technical Assistance Plan to Greece 2022-2024, including in the Regular procedure.
In practice, in cases where the interview is conducted by an EUAA Greek language caseworker, they provide an opinion / recommendation (πρόταση / εισήγηση) on the case to the Asylum Service, that remains the competent authority for the issuance of the decision. The transcript of the interview and the opinion / recommendation are written in Greek, while in 2020, they could be written either in Greek or in English, which is not the official language of the country. The issuance of an opinion / recommendation by EASO/EUAA personnel to the Asylum Service is not foreseen by any provision in national law and thus lacks a legal basis. 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 interview transcript and recommendation provided by EASO/EUAA.
In 2022, the number of interviews carried out by EUAA caseworkers in Greece further decreased to interviews in the asylum cases of 16,639 applicants. Of these, 85% related to the top 10 citizenships of applicants interviewed by the EUAA, in particular Afghanistan (3,799), Bangladesh (1,957), Somalia (1,804), Palestine (1,403), Syria (1,396) and Democratic Republic of Congo (1,158). The number of concluding remarks issued by EUAA decreased to 5,071 in 2022, almost half of those issued in 2021 (9,230). This is due to the fact that, following the new Joint Ministerial Decision designating Türkiye as a safe third country for applicants from five of the most common countries of origin in Greece, the drafting of concluding remarks by EUAA caseworkers is no longer required for a large share of cases, that is those examined on admissibility.
Particularly, the RAOs had no consistent practice regarding the examination of allegations of pushbacks during the asylum interview and it is unknown if the Asylum Service collects these transcripts. The caseworkers had discretion as to whether to devote time during the interview and ask further questions regarding the reported “pushback” incident by the asylum applicant.
Moreover, it remains unclear whether the newly appointed EUAA Fundamental Rights Officer (FRO) has any intention to develop a system to collect asylum applicants’ testimonies on alleged pushbacks. Additionally, it remains unclear how the EUAA case workers manage any information on criminal acts and violation of EU and international law in EU external borders that come into their possession in the exercise of their duties and if the EUAA FRO will be willing to create a relevant reporting mechanism/ procedure.
In an unknown number of cases, following internal SOPs of the Asylum Service, interviews on admissibility and on their merits have been conducted on the same day (the one after the other) by RAOs on the islands, when admissibility criteria were “obvious” (e.g. when a period of more than one year had elapsed since their transit via the third country). Additionally, certain interviews were even conducted by case workers of RAOs of other islands. In a number of cases, decisions have been issued by different RAOs and/or AAUs from those where the interviews have been conducted, operating supportively to the latter.
In Lesvos, the applicants continued to receive an invitation for their interview, according to which they needed to present themselves before the RAO at the day of their interview either at 6:30 or at 7:30 in the morning, without any information regarding the actual time that their interview was scheduled. In practice, this meant that there were many applicants that appeared before the RAO’s gate at 6:30 only to start their interviews at 12:00 or even at a later time.
Quality of interviews
The quality of interviews conducted by EUAA and RAO caseworkers has been highly criticised. 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 continue to be reported.
In 2022, legal aid actors continued to observe issues concerning the quality of the interviews as well as the procedural fairness of how they are conducted. Specifically, concerns were raised about the use of inappropriate communication methods and unsuitable questions related to past experience of harm and/or persecution which included 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 and/or illiteracy), 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. Moreover, concerns have been raised regarding the use of inappropriate methods and questions unsuitable for a) the applicants’ age, in cases of alleged minors, and more generally, violations of the right to a child-friendly environment and procedure, b) gender based violence (GBV) survivors, and c) LGBTQI+ persons. In general, no individualised assessment of the specific profile and circumstances of the asylum applicant or gender-sensitive assessment was taking place.
Moreover, in 2022 a significant number of asylum applicants continued to report that, during their interview, they were not granted sufficient time and, as a result, their asylum claims were not examined thoroughly. An additional issue relates to the fact that the caseworkers do not follow a standard procedure on the examination of allegations regarding previous pushbacks that are being mentioned during the asylum interview. According to lawyers, in certain cases the caseworkers disregard allegations, claiming that they are not relevant to the interview, while other caseworkers proceed to further investigate the incidents by asking focused questions.
In 2022 the issue of the use of outdated sources in a number of decisions for cases especially concerning the examination of the safe third country concept vis-a-vis Türkiye still remains. Additionally, in a number of cases, an absence of country-of-origin information with regard to the examination of the merits of the applications was noted (such as absence of sources regarding gender-based violence, honour crimes and persecution of rare ethnic origin groups in the country of origin).
In 2022, a total of 1,880 appeals were lodged on the islands against first instance decisions by the Asylum Service.
Changes in the Appeals Committees
As noted in the Regular procedure, according to Article 116 IPA (that remains in force after the publication of the Asylum Code), the Appeals Committees shall consist of three judges and the Independent Appeal Committees may operate in a single or three-member composition.
Rules and time limits for appeal
Similar to the first instance fast-track border procedure, truncated time limits are also foreseen in the appeal stage. In particular, the deadline for appealing a negative decision is 10 days, instead of the 30 days deadline foreseen in the regular procedure. The Appeals Committee examining the appeal must make a decision within 7 days, contrary to 30 days in the regular procedure. In practice, this very short deadline is difficult for the Appeals Committees to meet, while it raises serious concerns over the quality of the decisions issued.
As a rule, the procedure before the Appeals Committees must be written, based on the examination of the dossier, except from cases, provided by the article 102(3) Asylum Code, where the Appeals Committee decides to call for an oral hearing.
As far as the appeal procedure is concerned, apart from the concerns related to the admissibility of appeals in general (see Regular Procedure) it shall be noted that it is practically impossible for the applicants to submit an appeal on their own –without legal aid–. Specifically, Article 98 of the Asylum Code requires, for the appeal to be admissible, inter alia, reference and development of specified reasons for the appeal. At the same time, the negative decisions are served to the applicants in Greek, so it is impossible for them to read and be aware of the basis on which their asylum application has been rejected. It is evident that without legal aid applicants cannot adequately articulate the legal and factual grounds on which their appeals are based, particularly taking into consideration the requirement that such appeals be submitted in Greek.
The provisions of the Asylum Code 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 been actually informed about the decision.
In Lesvos and Kos, since the second quarter of 2022, an order for voluntary departure from the country (usually with a seven-day deadline) was incorporated in the first instance negative decisions issued by the RAO. In Chios, since March 2022, the same practice has been applied in first instance negative decisions issued by the RAO.
In Kos and Chios, many asylum seekers reportedly departed from the islands after being informed about the voluntary departure order. Concerns were raised by legal aid organisations regarding the provision (or not) of sufficient information by the RAOs to asylum seekers, specifically regarding the asylum seekers’ understanding of the departure order and their right to appeal the negative decision. Concerns were also raised with regards to whether the asylum seekers that had departed from the islands would practically have access to the mainland’s RAOs in order to submit their appeal.
Following the amendment of Article 83(3) Asylum Code, the obligation to present oneself before the Appeal Committees remains waived for the appellants who are either under geographical restriction or reside in a Reception/Accommodation facility. In case the appellant cannot be represented by a lawyer or another authorised person/ consultant, a certification shall be submitted before the Appeal Authority. More specifically, for the appellants who reside in a Reception/Accommodation facility a residence written certification shall be issued by the Director of the Reception/Accommodation facility, upon application that should not be filed earlier than 3 days before the date of examination of the appeal. This certification confirms that the appellant resided in the facility on the day that the application for the certificate was filed. Appellants, against whom a geographical restriction is imposed must submit a written certification issued by the Police or a Citizens’ Service Centre (ΚΕΠ) located at the area of the geographical restriction by the day before the examination of their appeal, confirming that they presented themselves before said authorities. The application for such a certificate must not be filed longer than two days before the date of the appeal’s examination. In case the appellant does not submit the aforementioned certification, it is presumed that they have implicitly revoked their appeal according to Article 86 of Asylum Code.
Moreover, in the case of force majeure, such as serious illness, serious physical disability or the case of an insurmountable impediment that made the in-person appearance of the appellant impossible, the obligation for the in-person appearance is suspended throughout the duration of the force majeure. In these cases, the appellant needs to submit a relevant application, and invoke in a particular manner the incidents that constitute force majeure or unsurmountable impediment that made their appearance in- person impossible; the allegation needs to be proved with written documents and relevant certifications or certificates from a public service. In case the reasons constituting force majeure or insurmountable impediment are proven and under the condition of the in- person appearance of the appellant before the competent authorities, the consequences of the non-appearance are lifted.
However, it has been noted that for a considerable period following the above amendment, the information provided to the appellants by the RAOs regarding the issuance and submission of the residence certificates before the Appeals Authority was not accurate. Indeed, the written information provided within the ‘Document – Proof of Submission of the Appeal’ explicitly stated that appellants are obliged to submit a residence certificate before the Appeals Authority up to the day before the examination of their appeal. No mention was made of the obligation to apply for the certificate no earlier than three days before the date of examination of the appeal. As a result, in several cases, appellants had submitted outdated residence certificates before the Appeals Authority, and, subsequently, in some of these cases, appeals were rejected by the Appeals Committee (with no examination either of the admissibility or the merits of the asylum applications) on the grounds of the submission of an out-of-date residence certificate by the Head of the RIC. GCR has introduced cases such as these before the Greek administrative courts, which are still pending examination.
More specifically, in Lesvos, there have been cases where the applicants reported to their lawyers that they had not been properly informed about their obligations, namely their obligation to submit the residence certificate to the Appeals Authority, once they had received it from the RIS. Legal actors also observed that the practice regarding the submission of residence certificates was not consistent, as there were cases where the RIS staff did not deliver the attestation to the applicants, stating that they would be sent directly to the RAO instead, in order to be included in the applicants’ files. Additionally, there were cases where the Appeals Authority rejected appeals due to lack of residence certificates, and at least one such case was rejected although a residence certificate had been included in the applicant’s administrative file on time.
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 also applicable to appeals in the context of fast-track border procedures.
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 Asylum Code 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 and file a relevant application before the Appeals Committee reasoning why he/she should be granted with the right to remain in the Greek territory.
It should be noted that Article 110(3) Asylum Code has incorrectly transposed Art 46(7) of the recast Asylum Procedures Directive. Instead of cross-referring to Article 110(2) Asylum Code on the categories of appeals stripped of automatic suspensive effect, Article 110(3) Asylum Code provides that “the possibility to derogate from the right to remain” may be applied in border procedures subject to requirements including interpretation, legal assistance and at least one week. Accordingly, the law incorrectly suggests that the derogation from the right to remain on the territory may be imposed in any decision taken in a border procedure, insofar as the above guarantees are complied with in practice, the derogation from the right to remain has been generally applied to the fast-track border procedure on the Eastern Aegean islands, including in “safe third country” cases which should have suspensive appeals according to the law. In any case, as it has been already mentioned, the Appeals Committees proceed to the examination of the suspension application the same day that the appeal is being examined.
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 might be immediately detained upon the notification of the second instance negative decision. In the past and in particular up until March 2020, this would mean that they would be in imminent risk of readmission to Türkiye However, since readmissions remain frozen for the last three years, the detention of the people with a second negative decision serves no purpose whatsoever and is considered a disproportionate measure.
In general, the Asylum Service registered subsequent asylum applications despite pending applications for annulment before the Administrative Court; both procedures can run in parallel.
Concerns regarding the effective access to judicial review for appellants for whom their appeal has been rejected within the framework of the fast-track border procedure, i.e. who remain under a geographical restriction on the Aegean Islands or are detained on the Aegean Islands following the notification of the second instance decision were not abolished by the new Asylum Code, as the relevant article 115 (2) IPA remains in force. More specifically, 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 to applications 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. Furthermore, legal aid actors on the islands mention as a further impediment in the overall procedure, that most of the notaries operating on the islands deny to proceed with cases of rejected asylum seekers that wish to submit legal remedies against the second negative decision and have to appoint their legal representative via a notary. This is a serious obstacle in the submission of a legal remedy, especially in the cases of rejected applicants under geographical limitation that are restricted to leave the island of their arrival.
Given the constraints that individuals geographically restricted or detained in the Aegean Islands face vis-à-vis access to legal assistance, the fact that legal aid is not foreseen by law at this stage, as well as that an application for annulment 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.
The Asylum Code 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.
During the quarantine period, newly arrived asylum seekers were held in the quarantine area in isolation and without access to legal information or other information with regards to the reception, identification and asylum procedures. In general, only RIS personnel had access to the newly arrived individuals who were detained in quarantine; neither UNHCR personnel nor legal aid organisations had access to the newly arrived asylum seekers. According to information provided by the RIS, the RIS personnel provided general information to the quarantine detainees, however, this stood in contrast to the testimonies of individuals released from quarantine given to legal aid organisations, who reported that they did not receive any information regarding their rights and the asylum procedure during quarantine. Moreover, the reception and identification procedures were only carried out once the asylum seekers had been moved out of quarantine. No official registration of the asylum seekers was taking place during the quarantine period. This means that during the quarantine period, asylum seekers remained unregistered, without access to their rights and without any assessment of potential vulnerabilities.
In Kos, throughout 2022, containers within the Pre-Removal Detention Centre (PRDC) section of the new CCAC were used to quarantine newly arrived asylum seekers. During the quarantine period, individuals held in the containers could not communicate with anyone outside of the detention area and had no access to legal aid, as their phones were arbitrarily confiscated upon arrival.
In parallel, legal aid organisations’ and lawyers’ access to asylum applicants for provision of legal aid was hindered in multiple ways.
In May 2022, GCR was denied access to visit VIAL (Chios RIC). The RIS claimed that the number of residents had significantly decreased and there was no longer a need for legal information and assistance.
In parallel, legal assistance was further hindered by a new rule requiring all NGO personnel, including lawyers, to present a smart card with a photo, personal details as well as fingerprints, in order to access the centres. This led the Athens Bar Association to issue a legal opinion (under protocol number 185/1-12-2022), following requests from registered legal organisations, stating that according to the Lawyers’ Code of Conduct (L.4194/2013), lawyers can freely enter Ministries and all public facilities (See section on Regular Procedure: Legal Assistance).
In January 2023, lawyers working for a registered legal aid NGO operating in Samos CCAC, reported that the CCAC administration had informed them that they would no longer have access to the CCAC unless they had been issued a smart card.
As of 16 February 2021, and according to the final lists of the Ministry of Migration and Asylum concerning the Registry of the lawyers providing legal assistance to asylum seekers at the second instance, 24 lawyers were appointed on the islands. These lawyers have been appointed to provide free legal aid under the state funded legal aid scheme at second instance as follows: 12 lawyers on Lesvos, 2 lawyers on Samos, 4 lawyers on Chios, 2 lawyers on Kos, 2 lawyers on Rhodes, and 2 lawyers on Leros. In reality, however, there were never that many lawyers operational, due to administrative obstacles and issues.
Since June 2020, by decision of the administration of Central Asylum Service, there has been a “Provision of legal assistance through video conference to the Regional Asylum Services of Leros, Samos, Chios and Lesvos due to increased needs in the provision of legal aid services in the second degree to applicants for international protection”. However, in practice in a significant number of cases taken over by lawyers on the mainland, the latter had no communication with the rejected applicants before drafting the appeals. This is something that continued throughout 2021 and 2022. As a result, appeals have only taken into consideration the material already included in the file and the appellants had no way to communicate to their appointed lawyer any new elements related to their case and/or new significant documents. Moreover, some asylum applicants reported communication issues with their state-registered lawyers and the short duration of their preparation meetings.
More specifically, in Lesvos, legal aid organisations observed recurring problems regarding the representation of asylum applicants by the Registry lawyers. In particular, there have been complaints about a) the preparatory meetings between the asylum seekers and the lawyers not taking place, b) issues with the interpretation, which was available to the Registry lawyers for a maximum of 2 hours, and c) gaps in legislation concerning the second instance procedure further to the submission and the examination of the appeal; namely, there were no provisions as regards to the provision of legal aid services in the additional hearings before the Appeals Committee, for additional consultations with the clients when needed, for efficient means of communication between the asylum applicants and the Registry lawyers representing them.
In 2022, free legal assistance by the Registry of Lawyers was requested in 1,122 cases in the Eastern Aegean islands’ RAOs.
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.
 Reply of the Ministry to the Greek Parliament
 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.
 According to information provided by the GCR lawyer operating in Kos.
 Joint Ministerial Decision for the application of the provisions of par. 3 and 5 of article 90 of IPA, No 15996/30.12.2020, Gov. Gazette 5948/B/31.12.2020.
 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’.
 Reply of the Ministry to the Greek Parliament.
 Information acquired during the Lesvos LAsWG meeting, 3 May 2022.
 Information acquired during the GCR’s mission to Chios and visit to Chios RAO, 24-26 May 2022, from the GCR lawyer operating in Kos and legal actors operating on the field in Lesvos
 Reply of the Ministry to the Greek Parliament.
 Information acquired during the Lesvos LAsWG meeting, 25 October 2022.
 Information acquired during the Lesvos LAsWG meeting, 17 May 2022.
 Information provided by the GCR lawyer based in Kos.
 Article 95(3)(b) Asylum Code.
 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.
 EASO, Special Operating Plan to Greece 2017, December 2016, available at: http://bit.ly/2h1M2dF, 9; EASO, Operating Plan to Greece 2018, December 2017, available at: http://bit.ly/2BO6EAo, 13-14, EASO, Operating Plan to Greece 2019, 19 December 2018, available at: https://bit.ly/2W6vJB2, 14-15, EASO, Operational & Technical Assistance Plan to Greece, 20 December 2019, available at: https://bit.ly/2VUAj6P, 14.
 Previously, the transcript of the interview and the opinion/recommendation had being written either in Greek or in English, which was not the official language of the country. This issue, among others, had been 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.
 Article 60(4)(b) L 4375/2016 and 90(3)(b) only refer to the conduct of interviews by EASO staff.
 Information provided by the EUAA, 28 February 2023.
 Information provided by the EUAA, 28 February 2023.
 Article 148 Asylum Code.
 Article 95(3)(c) Asylum Code.
 Article 95(3)(c) Asylum Code.
 Article 106(1)(a) Asylum Code.
 Article 102(3) Asylum Code.
 Article 87 and 108 Asylum Code.
 Information acquired during the Lesvos LAsWG meeting, 28 June 2022 and from the GCR lawyer based in Kos.
 Information acquired during GCR mission to Chios and visits to the Chios RAO and Police Station, 24-26 May 2022.
 Information acquired during the Lesvos LAsWG meeting, 28 September 2022.
 Article 110(3) Asylum Code.
 According to input provided by the RSA
 Article 148(a) Asylum Code.
 Mutandis mutandis ECHR, Kaak v. Greece, Application No 34215/16, Judgement of 3 October 2019.
 MoMA, Decision No 1836/21, 16 February 2021.
 Information acquired during the Lesvos LAsWG meeting, 28 June 2022.