Fast-track border procedure (Eastern Aegean islands)

Greece

Country Report: Fast-track border procedure (Eastern Aegean islands) Last updated: 30/05/22

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Greek Council for Refugees Visit Website

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 2021, the total number of applications lodged before the RAO of Lesvos, Samos, Chios, Leros, Rhodes and Kos was 6,320 , which represents  less than the 25% of a total of 28,360  applications lodged in Greece the same year. 6,050 new applicants were channeled into the fast-track border procedure in 2021, while the Asylum Service issued a total of 6,945 inadmissibility and in-merit decisions.[1]

The impact of the EU-Turkey Statement has been, inter alia, a de facto dichotomy of the asylum procedures applied in Greece.[2] This is because, the procedure is applied in cases of applicants subjected 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 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.

In October 2021, 375 asylum seekers that were on board a Turkish flagged vessel and were left in international waters for 4 days finally arrived in Crete and were subsequently transferred to Kos, where the fast–track border procedure were applied. However, other arrivals in Crete were transferred to the mainland, where the regular procedure was applied. Similarly, different procedures were applied for arrivals in Rhodes, as certain arrivals were transferred to Kos or Leros where the fast- track border procedure was followed, while others were transferred to the mainland.

As of January 2020, asylum procedures are regulated by the new law on asylum (IPA), L. 4636/2019, amended in May 2020 by Law 4686/2020.More particularly, Article 90(3) IPA foresees that  the fast track 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 30 December 2020, foresees the application of the fast track border procedure under Art. 90 (3) for those arrived at the Greek Eastern Aegean Islands. The JMD was in force until 31 December 2021,[3] and it was not extended through a new JMD until the time of publication of the report.

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:

  • 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.
  • The interview of asylum seekers may also be conducted by Greek language 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 long as they have received specific training, as opposed to the strict limitation to registration activities under the previous L. 4375/2016.
  • The asylum procedure shall be concluded in a short time period.

This may result –and it often has- 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 90(3)(c) IPA:

  • The Asylum Service shall issue a first instance decision within 7 days;
  • The deadline for submitting an appeal against a negative decision is 10 days
  • The deadline and submission of the appeal does not always have an automatic suspensive result, as provided by Article 104(3) IPA 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 4 days. The appellant is notified within 1 day to appear for a hearing before the Appeals’ Committees or to submit supplementary evidence.
  • The second instance decision shall be issued within 7 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 90(3) IPA.[4] In 2021, the average time between the full registration of the asylum application and the issuance of a first instance decision under the same procedure is not available.

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. The FRA concerns related with the very limited processing time imposed in the scope of the previous legal framework and the impact that this could have to 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.”[5]

In 2021, 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:

  • 6,050 new applicants were channelled into the fast-track border procedure.
  • The Asylum Service issued a total of 6,945 in-merit and inadmissibility decisions during 2021 in the framework of the fast-track border procedure. 2,199 concerned Afghans. Out of the above, 75 were issued in the context of the safe third country concept application. 1,057 concerned Syrians; among these decisions, 751 were issued in the context of the safe third county. Of the 1,037 decisions that concerned Somalians140 were issued in the context of the safe third country. 696 decisions concerned Nationals of DRC.
  • Until June 2021, applications by non-Syrian asylum seekers have been examined only on the merits. However, on 7 June 2021, a new Joint Ministerial Decision (JMD) of the Ministry of Foreign Affairs and the Ministry of Migration and Asylum was issued, designating Turkey as “safe third country” in a national list for asylum seekers originating from Syria, Afghanistan, Pakistan, Bangladesh and Somalia. Accordingly, the examination of asylum applications and the interviews of these particular new arrivals took place and shall be taking place in the context of the new JMD.  As a result, the use of the admissibility procedures in the context of the fast-track border procedure, prior only applied to Syrians, has been expanded to four additional nationalities. This means that the applications lodged by those nationalities can be rejected as “inadmissible” without being examined on the merits. Afghans, Somalis and Syrians are the main nationalities of the newcomers on the Greek islands.
  • In parallel, notes by the Readmission Unit of the Hellenic Police Headquarters from 25 and 27 October 2021 confirmed that Turkey has indefinitely suspended returns from Greece since 16 March 2020. Due to this suspension, the Greek Authorities stopped sending readmission requests to Turkey based on the Common EU- Turkey Statement for rejected asylum seekers.[6] Despite this suspension, the Greek authorities refused to examine applications for international protection on the merits, as required by Art. 86 (5) of L.4636/19.

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.

In July 2021, the Greek Ombudsman intervened before the RAOs in Chios and Samos with regard to the examination of subsequent asylum applications by a Syrian family and two Syrian single men, respectively, arguing that:

“If readmission to this [third] country is not possible, the application should be examined by the Greek authorities on the merits. Otherwise, a perpetual cycle of examination on the admissibility of applications for international protection is established, without ever examining their merits and without [asylum seekers] being able to be readmitted to apply for protection in the “safe third country” with the result that the fulfillment of the purpose of the Geneva Convention and the relevant European and national legislation on refugees’ protection is effectively canceled […] Following the above, we call your services under their competence to examine the subsequent asylum application of the aforementioned according to article 86 (5) L.4636/2019, taking into consideration the current suspension of readmissions to Turkey…”[7]

A large number of asylum seekers with specific profiles (i.e. asylum seekers from Palestine, Eritrea, Yemen and, before the implementation of the new JMD, single women/single-parent families from Afghanistan and Somalia) have been granted refugee status on the basis of their administrative file, without undergoing an asylum interview. However, this has not been a consistent practice of the Asylum Service throughout the year or even between different Regional Asylum Offices applying the border procedure.

Applications by asylum seekers from countries listed in the National List of countries of origin characterized as safe, according to Article 87 par. 5 of the IPA, have been examined in the 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 EASO’s undisclosed internal guidelines, which frame the hotspot asylum procedures in order to implement the EU-Turkey statement.”[8]

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 Identification and Special Procedural Guarantees). 1,569 asylum applications were exempted from the fast-track border procedure and referred to the regular procedure for reasons of vulnerability and inability to access adequate support, pursuant to Article 67(3) IPA, during 2021.[9] The majority of those concerned nationals of Syria (525), Afghanistan (453) and DRC (227).[10]

Furthermore, the total number of unaccompanied minors examined under border procedures in 2021 is not available. In particular, as far as unaccompanied minors are concerned, Article 75 (7) IPA provides that application filled 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 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 (according to article 87 par.5 IPA)
  • 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 65 (1) of the IPA, asylum applicants are already required at the stage of the complete registration of their asylum application before RAOs to be exhaustive about the reasons for fleeing their country of origin; if they fail to mention all reasons during the complete 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 before the RAOs in the islands is by no means exhaustive and it mostly includes some very basic information. It should be underlined that in certain RAOs, such as the RAO in Kos, the registration of the asylum application is being processed by the Reception Service, while in other RAOs, such as in Lesvos, the registration is being handled by the Asylum Service. In the cases that the Reception Service is handling the procedure, the registration form 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 were transferred to RAOs for the full registration of their asylum application immediately after the end of the quarantine, where they could not have access to any kind of information and legal consultation (see the Reception and Identification Procedure Chapter). 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.

Another issue that has been observed on Lesvos, relates to the unavailability of interpretation in Somali, as the majority of organizations either did not have Somali interpretation or had very limited capacity.[11] The lack of Somali interpretation combined with the fact that very often all newly arrived were all 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.

According to Article 77 (4) of the IPA, 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 90(3)(c) of the IPA. However, in practice in most cases the interviews of the newcomers are being scheduled and conducted before their 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.

Under the amendment of the IPA in May 2020 (L 4686/2020), it is expressly foreseen that communication with asylum applicants (including interviews) may be conducted in the official language of their country of origin, if their native language is rare and 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 as a violation of their obligation to cooperate with the Authorities and lead to the rejection of their application.

According to Article 90(3)(b) IPA, 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.[12] 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”.[13] This has not been applied in practice so far.

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-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 (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.[14] A similar role is foreseen in the Operational & Technical Assistance Plan to Greece 2022-2024, including in the Regular procedure.[15]

In practice, in cases where the interview is conducted by an EASO 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.[16] 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.[17] 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.[18]

In 2021, the number of interviews carried out by EASO caseworkers further increased to 20,658 interviews. Of these, 94% related to the top 10 citizenships of applicants interviewed by EASO, in particular Afghanistan (9,649), Syria (1,937), Pakistan (1,760), Somalia (1,288), Bangladesh (1,272) and Iraq (1,088).[19]  However, the number of concluding remarks issued by EASO decreased to 9,230 in 2021. This is due to the fact that, following the new Joint Ministerial Decision designating Turkey 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 examined on admissibility.

Additionally, the EU Asylum Agency (EUAA) launched the pilot phase of the “Surveys of Asylum-related Migrants” (SAM) research project in October 2021 in Lesvos, Greece.[20] The pilot project which remained operational until December 2021, collected testimonies directly from asylum seekers on the reasons why they left their countries, their journeys, and their plans for the future, with the aim of improving the understanding of the root causes of asylum-related migration and onward movement within Europe. Following the successful completion of this pilot phase the project will be expanding in 2022 in reception centres within Cyprus, Greece, Italy and Malta.

It remains unclear whether alleged pushbacks’ testimonies have been part of this research project and/or generally, if the EUAA has any intention to develop a system to collect asylum applicants’ testimonies on alleged illegal pushbacks. Particularly, the RAO in Lesvos 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. There were cases where the caseworker devoted almost an hour to questions regarding the reported “pushback” incident by the asylum applicant and others where no further questions were asked after the asylum applicant’s reference to “pushback” incidents.[21]

In unknown number of cases, following internal SOPs of the Asylum Service, interviews on admissibility and on the 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. Moreover, 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.

Quality of interviews

The quality of interviews conducted by EASO and RAO caseworkers has been highly criticized. 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.[22]

In 2021, concerns about the quality of the interviews as well as about the procedural fairness of how they are conducted continued to be raised. 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 applicants’ age, in cases of alleged minors, and more generally, violations of the right to a child-friendly environment and procedure. In general, no individualised assessment of the specific profile and circumstances of the asylum applicant or gender-sensitive assessment was taking place.

On Lesvos, negative decisions were issued by RAO for applicants who were not in a position to take part in the interview (i.e. deaf applicants and applicants who had suffered a stroke and could not speak), in absolute disregard for the procedural guarantees that should be applied to vulnerable applicants.[23]

Moreover, a significant number of asylum applicants reported that, during the interview, they were not granted sufficient time and, as a result, their asylum claims were not examined thoroughly. Furthermore, 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 the allegations claiming that they are not relevant to the interview, while other caseworkers proceed to further investigate the incidents by asking focused questions.

In 2021 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 Turkey 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, honor crimes, persecution of rare ethnic origin groups in the country of origin).

According to information provided during the Lesvos Legal Aid sub-Working Group meetings, participants observed that, especially, in cases of Somali applicants, all inadmissibility decisions for male applicants had the exact same argumentation/grounds for the decision; an individualized assessment of the specific profile and circumstances of the asylum-seekers did not take place.[24] Instead, for female applicants, numerous asylum applications have been rejected on the merits, on the grounds of lack of credibility, while the decision had no reference to the reasons for the admissibility.[25]

Another issue that has been observed was the fact that in Lesvos the applicants received 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 7:00 in the morning, without any information regarding the actual time that their interview was scheduled. It should be noted that the Lesvos RAO operated in two shifts, one starting at around 8:00 and the second one at 12:00. This means that there were many applicants that appeared before the RAO at 6:30 only to start their interviews at 12:00 or even at a later time. GCR lawyers have experienced cases of pregnant women on their last month of their pregnancy waiting for over six hours for their interview to begin, despite the constant pleas on behalf of the lawyers to prioritise these particular interviews. On the other hand, on Samos, up until the transfer of the RAO and RIS services to the new facility, the local RAO was operating in shifts that would work up until 22:00 at night, however, the invitations for the interviews were at least accurate and the applicants would appear before the RAO and they would not have to wait for hours for the interview to begin. At the same time, on Samos it has been widely reported that interviews of asylum seekers who did not have legal representation did not last more than an hour and they did not go in depth examination of the applicants’ claims.

 

Appeal

In 2021, a total of 5,124 appeals were lodged on the islands against first instance decisions by the Asylum Service.[26]

Changes in the Appeals Committees

As noted in the Regular procedure, according to Article 116 IPA, 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, although a few improvements have been made following the introduction of the IPA. In particular, the deadline for appealing a negative decision is now 10 days, instead of the 30 days deadline foreseen in the regular procedure.[27] The Appeals Committee examining the appeal must take a decision within 7 days,[28] contrary to 3 months in the regular procedure.[29] In practice 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, except from cases, provided by the article 97(3) IPA, where the Appeals Committee decides to call for an oral hearing.[30]

In specific Lesvos cases, the 11th Appeals Committee applied the new JMD 42799/2021 designating Turkey as a safe third country for the first time at second instance, while asylum applications at first instance had been examined on the merits. In one of the cases, the Appeals Committee postponed the discussion and requested for a supplementary memorandum regarding Turkey, whereas in another case, the Committee postponed the discussion and requested a hearing to examine admissibility according to the new JMD.[31]

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– as they could so before the implementation of the IPA. Specifically, Article 93 of the IPA 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 writing in Greek language.

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.[32]

Another matter of concern that endangered asylum applicants’ right to an effective remedy relates to Article 14 of Law 4686/2020 that amended Art. 82 of IPA and provides that the notification of decisions to applicants may be carried out via electronic means, as has been described in the section on the Regular Procedure. On Lesvos, legal actors observed that RAO caseworkers were asking and registering the e-mail addresses of asylum applicants, without informing them properly or at all regarding the intended use of their e-mail addresses, i.e. the delivery of decisions via e-mail. Additionally, there was no official/required form used with questions related to applicants’ access to e-mail, internet connection and electronic devices before RAO caseworkers were registering the e-mail. In practice, the caseworkers just asked the applicants if they have an e-mail address. In the RIC of Mavrovouni, residents did not even have access to electricity for the most part of the day. Moreover, while the decision is considered to be delivered 48 hours after the sending of the e-mail according to the provision, no information was provided by the authorities to applicants with regard to the time of service. Lesvos LAsWG submitted (on 27 January 2022) a Letter/Intervention to the Lesvos RAO, Appeals Authority and the Greek Ombudsman regarding the RAO’s malpractice of delivery of decisions to applicants via e-mail. Similar concerns were raised in Kos, where even detainees were being served their negative decisions via e-mail, despite the obvious limited access to their email address. This malpractice led to the late submission of appeals, in certain cases that came to the attention of legal actors.

Following the amendment of Article 78 IPA (by virtue of Article 11 L. 4686/2020), 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 these cannot be represented by a lawyer or another authorized 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 at the day that the application for the certificate was filed.  Appellants, against whom a geographical restriction is imposed must submit by the day before the examination of their appeal a written certification issued by the Police or a Citizens’ Service Centre (ΚΕΠ) located at the area of the geographical restriction, confirming that they presented themselves before said authorities. The application for such a certificate must not be filed longer than 2 days before the date of the appeal’s examination.

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 aforementioned residence certificates before the Appeals Authority have not been accurate; indeed, the written information provided within the ‘Document – Proof of Submission of the Appeal’ explicitly stated that the appellants’ are obliged to submit a residence certificate before the Appeals Authority until the day before the examination of their appeal. No mention was made for their obligation to apply for said certificate no earlier than 3 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 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 RIC. Such cases have been introduced by GCR before the Greek administrative courts and are still pending for examination.

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.

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 and Accelerated Procedure). With regard to applications rejected at first instance within the framework of the fast-track border procedure, the IPA 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 shall be granted with the right to remain in the Greek territory.[33]

It should be noted that Article 104(3) IPA, as amended by L 4686/2020, has incorrectly transposed Art 46(7) of the recast Asylum Procedures Directive. Instead of cross-referring to Article 104(2) IPA on the categories of appeals stripped of automatic suspensive effect, Article 104(3) IPA 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.[34] 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.

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). 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 Turkey. However, since readmissions remain frozen for the last two years, the detention of the people with a second negative decision serves no purpose whatsoever and is considered a disproportionate measure.  In 2021, Appeals Committees issued second instance decisions granting a period of ten (10) days or more for leaving the country in numerous cases.

A second instance negative decision issued by the 17th Appeals Committee referred to two different asylum case numbers, two different applicants and two different applicants’ histories/claims, demonstrating the botched procedure of the appeals’ examination.[35]

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 IPA. 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 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.[36]

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.

 

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).

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 of 16 February 2021, and according to the final tables of the Ministry of Migration and Asylum concerning the Registry of the lawyers providing legal assistance to asylum seekers on 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, 2 lawyers on Leros.[37]

Even though the number of Registry lawyers was significantly raised compared to the only 9 lawyers that were appointed to provide legal assistance on the islands,[38] in reality there were never that many lawyers operational, due to administrative obstacles and issues.

In a number of cases, due to the non-provision of state free legal aid, “standardized appeals”, provided by legal aid NGOs, have been submitted by rejected applicants, asking for a postponement of the appeal examination until their access to free legal aid is ensured, stating in parallel the unavailability of limited NGO legal actors to undertake those applicants’ cases. The results regarding the admissibility of these “standardized appeals” before the Appeals Committee have been varied by case and by responsible for the examination of the appeal each time Appeals Committee.

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, and this is something that continued throughout 2021 as well, 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. As a result, appeals have taken into consideration solely 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; please note that often enough the applicants have not even been informed that a state run lawyer has been appointed to represent them neither by the Asylum Service nor by the lawyer him/herself). In practice, there was no provision for informing the rejected applicants applying for legal aid whether a Registry lawyer has been appointed for their case or not; the majority of the applicants for legal aid services at second instance have been informed regarding the availability or not of legal aid after the expiration of the 10-day period for filing their appeal; there are numerous cases where an appeal has been submitted by the Registry lawyer without the applicant’s knowledge.

Due to the global pandemic and the fire that destroyed the Moria camp in September 2020, the RAO in Lesvos had informally suspended – without a prior legislative act – the deadline for the submission of appeals against first instance rejections that had been notified until 8 September 2020. In parallel, the notification of negative decisions had been postponed for several months for all applicants on Lesvos, on the basis that in-person submission of appeals was impossible within the 10-days deadline from the notification of the decision, according to the provisions of the fast-track border procedure. On 11 January 2021, the RAO in Lesvos began notifying applicants on Lesvos with first instance rejections, without the guarantee of state free legal aid from the Registry of Lawyers of the Asylum Service. According to information received from Lesvos RAO, free legal aid from the Register of Lawyers was not available, presumably partly as a result of the inability of the Coordination Department of Legal Aid to function due to the restructuring of the Ministry of Asylum and Migration. In practice, this meant that applicants who were receiving negative first instance decisions and all those who could not submit an appeal due to the destruction of the Moria RIC, were not able to effectively lodge appeals as their right to free legal aid at second instance was not guaranteed. Following an intervention by Lesvos LAsWG,[39] the notification of negative first instance decisions was adapted to the availability of the state-registered lawyers. Given that the Registry of Lawyers was not fully operational, notifications of first instance negative decisions were sometimes completely suspended during the year, however.[40]

The difficulty to access legal aid and the appeal procedure on Lesvos affected more than one hundred cases pending to submit an appeal since September 2020.

Moreover, some asylum applicants reported communication issues with their state-registered lawyers and the short duration of their preparation meetings.

In November 2021, the GCR and Metadrasi lawyers based in Kos intervened to ensure asylum seekers’ access to state legal aid they were unable to lodge appeals against negative first instance decisions by the Kos RAO While the Kos RAO personnel had referred asylum seekers to apply online for legal aid, in practice the technical obstacles (i.e. no access to cellphones or to internet, e-literacy) made it very difficult for them to secure legal aid. Following the intervention by the NGO lawyers, access to RAO was permitted and applications for legal assistance were submitted by the asylum seekers in person before the RAO personnel rather than via electronic means.

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

 

 

 

[1] RSA, The asylum procedure in figures: most asylum seekers continue to qualify for international protection in 2021, March 2022, available at: https://bit.ly/3IVqBro.

[2] 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

[3] 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. It is noted that it has not been replaced by a new one by the time of writing.

[4] 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. 

[5] 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”.

[6] Fenix, Fenix calls the Greek authorities to examine the merits of asylum applications rejected on admissibility, 1 February 2022, available at: https://bit.ly/3wUxsyN.

[7]  The Interventions by the Greek Ombudsman were shared within the framework of the National Legal Aid Working Group. The relevant cases were represented by Metadrasi.

[8] 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.

[9] RSA, The asylum procedure in figures: most asylum seekers continue to qualify for international protection in 2021, available at: https://bit.ly/3iQlKgy, 6.

[10] Information provided by the Asylum Service, 31 March 2021.

[11] Information acquired during the Lesvos LAsWG meeting, 26 October 2021.

[12] Article 90(3)(b) IPA.

[13] 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.

[14] 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.

[15] EASO, Operating Plan to Greece 2022-2024, 9 December 2021, available at: https://bit.ly/3uIsWCt, 20-21.

[16] 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. 

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

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

[19] Information provided by EUAA, 28 February 2022.

[20] EUAA, Data Analysis and Research, Research programme, Surveys, available at: https://euaa.europa.eu/asylum-knowledge/data-analysis-and-research.

[21] Information acquired during the Lesvos LAsWG meeting, 9 November 2021.

[22] See AIDA, Country Report Greece, 2020 Update, June 2021, 99.

[23] Information acquired during the Lesvos LAsWG meeting, 29 June 2021.

[24] Information acquired during the Lesvos LAsWG meeting, 21 December 2021.

[25] Ibid.

[26] RSA, The asylum procedure in figures: most asylum seekers continue to qualify for international protection in 2021, available at: https://bit.ly/3IVqBro, 6.

[27] Article 90(3)(c) IPA.

[28] Article 90(3)(c) IPA.

[29] Article 101(1)(a) IPA.

[30] Article 97 IPA.

[31] Information acquired during the Lesvos LAsWG meetings. The relevant cases were represented by Metadrasi and Fenix.

[32] Article 82 and 103 IPA.

[33] Article 104(3) IPA.

[34] According to input provided by the Refugee Support Aegean (RSA)

[35] Information acquired during the Lesvos LAsWG meeting, 23 November 2021.

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

[37] Ministry of Migration and Asylum, Decision No 1836/21, 16 February 2021.

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

[39] Intervention by Lesvos LAsWG: Legal Actors express serious concerns regarding the lack of state free legal aid for asylum applicants in Lesvos, available at: https://bit.ly/3JARxOi.

[40] Information provided during the Lesvos LAsWG meeting, 16 March 2021.

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