Regular procedure

Greece

Country Report: Regular procedure Last updated: 10/06/21

Author

Greek Council for Refugees Visit Website

General (scope, time limits)

 

The Asylum Service received 40,559 new applications in 2020, which amounts to a decrease of 47.5% compared to 2019. Out of the 40,559 new applications, 19,742 have been examined under the regular procedure while 20,814 were examined under the Fast-Track Border Procedure.[1] According to the information provided by the Asylum Service, in total a number of 57,347 applications were pending by the end of 2020.[2] Data provided by the Ministry of Migration and Asylum (Annual Factsheet 2020) refer to a number of 76,335 pending applications at first instance on 31 December 2020.[3]

According to the IPA, an asylum application should be examined “the soonest possible” and, in any case, within 6 months, in the framework of the regular procedure.[4] This time limit may be extended for a period not exceeding a further 3 months, where a large number of third country nationals or stateless persons simultaneously apply for international protection.[5] According to the new IPA, in any event, the examination of the application should not exceed 21 months.[6]

Where no decision is issued within the maximum time limit fixed in each case, the asylum seeker has the right to request information from the Asylum Service on the timeframe within which a decision is expected to be issued. As expressly foreseen in the IPA, “this does not constitute an obligation on the part of the Asylum Service to take a decision within a specific time limit.”[7]

Decisions granting status are given to the person of concern in extract, which does not include the decision’s reasoning. According to the IPA, in order for the entire decision to be delivered to the person recognised as a beneficiary of international protection, a special legitimate interest (ειδικό έννομο συμφέρον) should be proven by the person in question.[8]

Duration of procedures

According to the official statistics, for applications lodged on the mainland exclusively within 2020, the average period between the registration and the personal interview, is 61 days, while the average period between registration and the issuance of a first instance decision is 67 days. More precisely, the average period between registration and issuance of first instance decision is 71 days for Afghans applicants, 163 days for Iraqi applicants, 24 days for Syrian applicants (fast track- mainland), 85 days for applicants from Turkey and 94 days for applicants belonging to vulnerable groups[9]. In any event, in practice average processing time is longer, if the period between pre-registration and Registration of the application is taken into consideration. These data are not available.[10]

However, and despite the significant decrease on the number of new asylum applications registered in 2020 and the number of first instance decisions issued during the year, significant delays occur in processing applications at first instance if the total number of pending applications is taken into consideration, i.e. applications registered within 2020 and applications registered the previous years and pending by the end of 2020.

More precisely, more than 1 out of 2 of the applications pending at first instance at the end of 2020 (68.3%), was pending for a period over 12 months since the day they were registered (39,211 out of the total 57,347 applications pending at the end of 2020).

In addition:

  • In 60.85% of the applications pending by the end of 2020, the personal interview has not yet been conducted (34,896 out of the total 57,347 applications pending at the end of 2020).
  • Out of those applications in which the interview has not yet been conducted by the end of 2020:
    • In 15,142 (43.3%) of the pending cases the interview has been scheduled after 2021. This is for example the cases of Turkish applicants to the knowledge of GCR, that the interview is schedules no earlier than 2025.[11]
    • In 13,198 cases (37.8%) the interview has been scheduled within the first semester of 2021 and in 6,599 cases(18.7%) the interview has been scheduled within the second semester of 2021.[12]

Prioritised examination and fast-track processing

The IPA that entered into force on 1 January 2020 sets out two forms of prioritised examination of asylum applications.

First, the Asylum Service shall process “by way of absolute priority” claims concerning:

  • Applicants undergoing reception and identification procedures who do not comply with an order to be transferred to another reception facility;[13]
  • Applicants who are detained.[14]

Processing by way of “absolute priority” means the issuance of a decision within 20 days.[15]

Second, the law provides that an application may be registered and examined by way of priority for persons who:[16]

Moreover, a fast-track procedure for the examination and the granting of refugee status to Syrian nationals and stateless persons with former habitual residence in Syria, is in place since September 2014. Eligible for the fast-track procedure are only Syrians and stateless persons with former habitual residence in Syria in case that:

  1. they hold original documents (especially passports) or;
  2. they have been identified as Syrian/persons with former habitual residence in Syria within the scope of the Reception and Identification Procedure, under the conditions that the EU-Turkey Statement is not applicable in their case, i.e. have been exempted by the “Fast-Track Border Procedure”.[17]

In 2020, a total of 3,894 positive decisions were issued in the framework of the Syria fast-track procedure.[18]

Personal interview

According to the IPA, the personal interview with the applicant may be omitted where:[19]

  1. The Asylum Service is able to take a positive decision on the basis of available evidence;
  2. It is not practically feasible, in particular when the applicant is declared by a medical professional as unfit or unable to be interviewed due to enduring circumstances beyond their control.

Moreover, the IPA foresees that when the applicant is not in the position to continue the interview for reasons attributable to him/her “the interview is terminated”. In this case, the applicant is provided with the opportunity to submit a written memo and supplementary evidences within 5 days.[20]  According to the IPA, the omission of a personal interview does not adversely affect the in merits decision on the application in which the reasons for omitting the interview should be stated.[21]

The IPA furthers provides that, where the interview has been scheduled within 15 days from the lodging of the application and where the applicant is vulnerable, the authorities provide him or her with reasonable time not exceeding 3 days to prepare for the interview and obtain counselling. The possibility to request reasonable time is not granted to asylum seekers who are not vulnerable or whose interview has been scheduled more than 15 days after the submission of the application.[22]

As mentioned above, significant delays continue to be observed in 2020 with regard to the conduct of interviews.

Under the regular procedure, the interview takes place at the premises of the RAO on the designated day and is conducted by one caseworker. According to the IPA, the personal interview takes place without the presence of the applicant’s family members, unless the competent Asylum Service Officer considers their presence necessary.[23] Moreover, the personal interview must take place under conditions ensuring appropriate confidentiality.[24] However, GCR and other civil society organisations express concerns relating to confidentiality in certain RAO or AAU due to the lack of appropriate spaces, lack of isolation and technical difficulties. As reported, this is for example the case in the RAO of Lesvos, in particular for the remote interviews that took place within the COVID-19 prevention measures.[25]

The person conducting the interviews should be sufficiently qualified to take into account the personal or general circumstances regarding the application, including the applicant’s cultural origin. In particular, the interviewer must be trained concerning the special needs of women, children and victims of violence and torture.[26] In case of female applicants, the applicant can request a case worker/interpreter of the same sex. If this is not possible, a note is added to the transcript of the interview.[27]

EASO’s role in the regular procedure

Prior to L 4540/2018, only Asylum Service caseworkers could conduct interviews in the regular procedure, as opposed to the Fast-Track Border Procedure: Personal Interview. In case of applications referred from the fast-track border procedure to the regular procedure following an interview held by an EASO officer (e.g. due to vulnerability), a supplementary first instance interview should be conducted by an Asylum Service caseworker.[28]

Following the amendments introduced by L 4540/2018, which have been maintained in the IPA,[29]  EASO can now be involved in the regular procedure,[30] while the EASO personnel providing services at the Asylum Service premises are bound by the Asylum Service Rules of Procedure.[31] EASO caseworkers have started conducting interviews under the regular procedure since the end of August 2018.[32] According to the relevant provision, said personnel involved in the regular procedure should be consisted by Greek speaking case workers.[33]

According to the announcement of the EASO in early 2020, the Agency’s operations in Greece was about to double in size to over 1,000 personnel in 2020.[34]

The number of interviews and opinions carried out by EASO has significantly increased in comparison to previous years. In 2020, EASO caseworkers carried out a total of 18,394 interviews and drafted a total of 16,406 concluding remarks mainly regarding applicants from Afghanistan, Syria, Somalia, DRC and Iraq.[35]

 Quality of interviews and decisions

Without underestimating the fact that the recognition rate of the first instance procedure remains high (in-merit decisions), a number of first instance cases to the knowledge of GCR, and inter alia the way the interview was conducted, the assessment of the asylum claims and/or the decisions delivered, corroborates concerns already expressed with regards a “deterioration in quality at first instance”.[36] Among other, example of such cases include:

  • The case of a family with minor children for Somalia (Moghadishu). Their application has been rejected on the basis of incorrect use of COI/use of outdated COI contrary to the opinion of the EASO case worker who had conducted the interview, by which the caseworker suggested subsidiary protection pursuant to Art. 15 (c) of Directive 2011/95/EU to be granted to them, by taking into consideration available COI and the the particular circumstances of the case.
  • The rejection of the credibility of an LGBT applicant from Cameroon on the basis of allegations which the applicant has never invoked during the interview or misinterpretation of the allegation of the applicant.
  • The rejection of the applications of a number of applicants from Afghanistan, arrested during the events of March 2020 in Evros land borders, following very short interviews (less than or about 30’) and without assessing any updated COI

Interpretation

The law envisages that interpretation is provided to the applicants for making their application, for submitting their case to the competent authorities, for conducting their interview and at stages at first and second instance.[37] In accordance to an amendment of the IPA in May 2020, in case that interpretation in the language of the choice of the applicant is proven to be not possible, interpretation is provided in the official language of the country of origin or in a language that the applicant may reasonably be supposed to understand.[38]

Interpretation is provided both by interpreters of the NGO METAdrasi and EASO’s interpreters. The capacity of interpretation services remains challenging. The use of remote interpretation has been observed especially in distant RAO and AAU. Technical deficiencies and constraints should be taken into consideration when assessing the quality of remote interpretation. When it comes to rare languages, if no interpreter is available to conduct a direct interpretation from that language to Greek (or English in cases examined by EASO case workers), more interpreters might be involved in the procedure.

Recording and transcript

The IPA envisages audio recording of the personal interview. A detailed report is drafted for every personal interview, which includes the main arguments of the applicant for international protection and all its essential elements. Where the interview is audio recorded, the audio recording accompanies the report. For interviews conducted by video-conference, audio recording is compulsory. Where audio recording is not possible, the report includes a full transcript of the interview and the applicant is invited to certify the accuracy of the content of the report by signing it, with the assistance of the interpreter who also signs it, where present.[39] The applicant may at any time request a copy of the transcript, a copy of the audio file or both.[40]

 Notification of First Instance Decisions

The IPA further introduced the possibility for first instance decisions not to be communicated in person to the applicant  (‘fictitious service’ πλασματική επίδοση) or the first instance decision to be communicated to the applicant by administrative authorities other than the Asylum Service, which both may significantly underestimate the possibility of the applicant to be informed about the issuance of the first instance decision and/or the content of said decision and/or the possibility to lodge an appeal. Consequently deadlines for submitting an appeal against a negative first instance decision may expire without the applicant being actually informed about the decision, for reasons not attributable to him/her. As the Greek Ombudsman has noted with regards the provisions of fictitious service, said provisions effectively limit the access of asylum seekers to legal remedies.[41]

More precisely, according to the IPA, a first instance decision can be communicated:

  • in person or;
  • with a registered letter sent by the Asylum Service to the applicant or;
  • by e-mail to the applicant or;
  • by uploading the Decision on an electronic application managed by the Asylum Service or ;
  • by communicating the decision to the authorized lawyers, consultants, representatives. To this regards it should be mentioned that According to the IPA, once a lawyer is appointed by the applicant at any stage of the procedure, the lawyer is considered as a representative of the applicant for all stages of the procedures, including the service of the decision regardless of the actual representation of the applicant at the time of the fictitious service, unless the appointment of the lawyer will be revoked by a written declaration of the applicant with an authenticated signature.[42]

In these cases the deadline for lodging the Appeal begins on the next day of the fictitious service, with the exception of the cases that the service of the decision is taking place with electronic means; in that case the deadline begins 48 hours after the dispatch of the electronic message.[43] According to Art. 83(2) IPA, together with the decision, a document in the language that the applicant understands or in language that they may reasonably be supposed to understand is also communicated to the Applicant, where the content of the document is explained in a simple language as well as the consequences of the decision and action he/she may pursuit. Alternatively a link to the webpage of the Ministry of Migration and Asylum where relevant information is provided is mentioned to said document.

In cases that the Applicant remains in a Reception and Identification Center or remains detained in a detention facility, the Decision is sent to the Head of the RIC or the Detention facility, who announces the receipt of the Decision and the time schedule so that the Applicant presents himself/herself to receive the decision. The deadline for lodging an Appeal begins 3 days after the communication of the Decision to the Head of the RIC or the Detention Facility.[44]

No force majeure reasons should be invoked in order for a decision to be serviced with one of the ways described above. In case that the Applicant cannot be found/contacted with one of the means/ways described above and no lawyer has been appointed, the Decision is served to the Head of the RAO/AAU of the Asylum Service or the head of the RIC or the detention facility, and following this service of the Decision it is considered that the applicant took knowledge of the Decision.[45]

In practice, for applicants on the mainland among these procedures it is mainly the communication of first instance decisions by a registered letter which has been used by the end of the year. However, in these cases no proof of notification is provided to the applicant, with the exception of a handwritten note and the provision of an official document proving the date of the notification can only be provided by post upon the request of the applicant. Moreover, in these cases and as the communication is not made by the Asylum Service, provision for legal aid for the appeals procedure in practice it is to be requested by the electronic application of the Ministry for Migration and Asylum,[46] which significant hinders access for those not familiar with the use of electronic applications or who do not have access to the required equipment/internet. Moreover, in practice the notification of first instance decisions is also taking place by the Head of the RICs on the islands and Evros and the Head of Pre-removal detention facilities in Athens (Amigdaleza and Tavros). In both cases, inability of the applicants to understand the content of the communicated documents and the procedure they have to follow has been observed.

Appeal

 

Since the entry into force of the IPA on 1 January 2020, the Independent Appeals Committees are the sole administrative bodies competent for the examination of Appeals lodged against first instance asylum decisions.

Establishment and Composition of the Independent Appeals Committees of the Appeals Authority

The legal basis for the establishment of the Appeals Authority was amended several times in recent years and has been further amended by the IPA.[47] More precisely and following an amendment in 2016, the composition of the Appeals Authorities was consisting of the participation of two active Administrative Judges in the new three-member Appeals Committees (Ανεξάρτητες Αρχές Προσφυγών) and a third member, holding a university degree in Law, Political or Social Sciences or Humanities with specialisation and experience the fields of international protection, human rights or international or administrative law.[48] According to the amendment introduced by the IPA, the three-member Appeals Committees are composed by three active Administrative Judges of First Instance Administrative Courts and Administrative Courts of Appeal. Moreover, a single member/Judge Committee has been introduced.[49]

These amendments have been highly criticized and issues of unconstitutionality have been raised due to the composition of the Committees exclusively by active Administrative Judged inter alia by the Union of Administrative Judges,[50] and the Union of Bar Associations.[51] An Application for Annulment with regards inter alia the compliance with the Greek Constitution of the single member/Judge Appeals Committee has been filled by GCR before the Council of State in 2020. The hearing of the case is pending by the time of writing

Moreover, and as mentioned above Appeals Committees are composed by active Administrative Judges of both First Instance and Appeal Administrative Courts. However, and following the entry into force of the IPA, the responsibility for judicial review of the second instance decisions issued by the Appeals Committees has been attributed to the First instance Administrative Courts and thus further issues of constitutionality may occur. In October 2020, the Council of State triggered its pilot procedure upon referral of three cases from the Administrative Court of Athens, supported by RSA, with a view to adjudicating on the constitutionality of the competence of Administrative Courts to judicially review decisions of the Appeals Committees, given that decisions of the second instance decisions on asylum applications may be – and often are – taken by Committees composed by higher-court judges (Administrative Judges of the Administrative Courts of Appeal).[52] The hearing before the Council of State took place in February 2021 and the Decision is pending by the time of writing.

EASO’s role at second instance

Since 2017, the law foresees that “in case of a large number of appeals”, the Appeals Committees might be assisted by “rapporteurs” provided by EASO.[53] These rapporteurs have access to the file and are entrusted with the drafting of a detailed and in-depth report, that will contain a record and edit of the facts of the case along with the main claims of the appellant, as well as a matching of said claims (αντιστοίχιση ισχυρισμών) with the country of origin information that will be presented before the competent Committee in order to decide. [54] The IPA maintained the same tasks for “rapporteurs” provided by EASO. [55] However, according to the IPA, this is not only foreseen “in case of a large number of appeals”. Article 95(4) IPA stipulates that each member of the Appeals Committee may be assisted by “rapporteurs” provided by EASO. On 31 December 2020, 24 Rapporteurs were assisting the Appeals Committees members pursuant to Art. 95(4) IPA.[56] Since they are seconded to the individual Committees, these Rapporteurs are not supervised or line-managed by EASO.[57]

Number of appeals and recognition rates at second instance

A total of 12,929 appeals were lodged in front of the Independent Appeals Committees in 2020.[58]

Appeals before the Independent Appeals Committees: 2020
Nationality Appeals lodged
Pakistan 2,731
Afghanistan 1,757
Albania 1,229
Iraq 1,043
Bangladesh 745
Other 5,424
Total 12,929

Source: Appeals Authority, 2021.

The Independent Appeals Committees took 25,011 decisions in 2020 out of which 17,166 on the merits:

Decisions on the merits by the Independent Appeals Committees: 2020
Refugee status Subsidiary protection Humanitarian protection Rejection
481 564 370 15,751

Source: Appeals Authority, 2021.

The remaining decisions taken by the Appeals Committees concerned appeals rejected as inadmissible on formal grounds (53 cases) or due to the application of the concept of safe third country or appeals filed after the expiry of the deadline etc.[59]As it was also the case in the previous years,[60] the recognition rate at second instance remains significant low in 2020. Out of the total in merits decisions, the rejection rate in 2020 is 91.75% (87.9% in 2019), refugee recognition rate is 2.8% (2.9% in 2019), subsidiary recognition rate is 3.28 (2.9% in 2019) and cases referred for permission to stay on humanitarian grounds was 2.15% (5.93% in 2019).

Time limits for lodging an Appeal before the Appeals Committees

An applicant may lodge an Appeal before the Appeals Committees against a first instance decision of the Asylum Service rejecting the application for international protection.[61]

An applicant may lodge an appeal before the Appeals Committees against the first instance decision of the Asylum Service rejecting the application for international protection as unfounded under the regular procedure, as well as against the part of the decision that grants subsidiary protection for the part rejecting refugee status, within 30 days from the notification of the decision or from the date he or she is presumed to have been notified thereof.[62] In cases where the appeal is submitted while the applicant is in detention, the appeal should be lodged within 20 days from the notification of the decision.[63]

Form of the Appeal

According to Article 93 IPA, the Appeal should inter alia be submitted in a written form and mention the “specific grounds” of the Appeal. If these conditions are not fulfilled the Appeal is rejected as inadmissible without an examination on the merits. Said provision has been largely criticized as severely restricting access to the appeal procedure in practice, and seems to be in contradiction with EU law, namely Article 46 of the recast Asylum Procedures Directive and Article 47 of the EU Charter of Fundamental rights. The requisites set by Article 93 IPA, in practice, can only be fulfilled when a lawyer assists the applicant, which is practically impossible in the majority of the cases, considering the gaps in the provision of free legal aid. Inter alia and as stated by the UNHCR, “[i]n some circumstances, it would be so difficult to appeal against a rejection that the right to an effective remedy enshrined in international and EU law, would be seriously compromised”.[64] Moreover, as noted “the obligation for the applicant to provide specific reasons instead of simply requesting the ex nunc examination of his/her application for international protection, does not seem to be in accordance with the [Asylum Procedural Directive]”.[65] During 2020, the number of the Appeals rejected pursuant to Article 93 IPA remained low (53 Decisions) as the Appels Committees interpreted broadly said provision and considered as admissibly lodged even Appeals written by the Applicants in his/her native language and without mentioning “specific grounds”.

Suspensive effect

Appeals before the Appeals Authority had automatic suspensive effect in all procedures under the previous law.[66] The IPA has abolished the automatic suspensive effect for certain appeals,[67] in particular those concerning applications rejected in the accelerated procedure or dismissed as inadmissible under certain grounds. In such cases, the appellant may submit an application before the Appeals Committees, requesting their stay in the country until the second-instance appeal decision is issued. However, considering the significant lack of an adequate system for the provision of free legal aid, it is questionable if such appellants will actually be able to submit the relevant request. Suspensive effect covers the period “during the time limit provided for an appeal and until the notification of the decision on the appeal”.[68]

More precisely according to Article 104 IPA, the appeal does not have an automatic suspensive effect in case of an appeal against a first instance decision rejecting the application as inadmissible:

  1. in case that another EU Member State has granted international protection status;
  2. in virtue of the first country of asylum concept;
  • the application is a subsequent application, where no new elements or findings have been found during the preliminary examination; in case of an appeal against a second subsequent asylum application, and in a number of cases examined under the Accelerated Procedure.

Procedure before the Appeals Authority

Written procedure: According to the IPA, the procedure before the Appeals Committee is as a rule a written one and the examination of the Appeal is based on the elements in the case file.[69] According to the IPA, the Appeals Committees shall invite the appellant to an oral hearing when:[70]

  1. The appeal is lodged against a decision which withdraws the international protection status (see Cessation and Withdrawal);
  2. Issues or doubts are raised relating to the completeness of the appellant’s interview at first instance;
  3. The appellant has submitted substantial new elements

Under the previous law (L 4375/2016), the appellant could also be invited to an oral hearing if the case presented particular complexity,[71] which is no longer the case.

During 2020, a number of 102 appellants have been invited for an oral hearing before the Appeals Committees.[72]

Obligation of the Appellant to present in person before the Appeals Committees on the day of the examination: Despite the fact that the procedure before the Appeals Committees remains written as a rule Articles 97(2) and 78(2) and (3) IPA impose the obligation to the appellant to personally appear before the Appeals Committee on the day of the examination of their appeals on penalty of rejection of their appeal as “manifestly unfounded”.[73] This is an obligation imposed on the appellant even if he/she has not been called for an oral hearing.

Alternatively,

  1. an appointed lawyer can appear before the Committee on behalf of the appellant; or
  2. in case the appellant resides in a RIC or Accommodation Centre, a written certification of the Head of the RIC or the Accommodation Centre can be sent to the Committee prior of the date of the examination, by which it is certified that he/she remains there. Said certification should have been issued no more than 3 days prior of the examination of the appeal; or
  • in case that a geographical limitation has been imposed to the appellant or an obligation to reside in a given place of residence, a declaration signed by the appellant and the authenticity of the signature of the appellant is verified by the Police or the Citizens Service Centre (KEP), can be send to Committee, prior of the date of the examination. Said certification should have been issued no more than 3 days prior of the examination of the appeal.

As noted these provisions impose an unnecessary administrative obligation (in-person appearance of the applicant/lawyer as well as transmission of extra certifications) and further introduced a disproportionate “penalty”, as the in merits rejection of the Appeals without examination of the substance, raises serious concerns with regard to the effectiveness of the remedy and the principle of non-refoulment. This obligation imposed by the IPA confirms the criticism that the new law on asylum “puts an excessive burden on asylum seekers and focuses on punitive measures. It introduces tough requirements that an asylum seeker could not reasonably be expected to fulfill”.[74] As UNHCR has noted these provisions “are expected to have a negative impact on applicants’ access to the second instance and the proper examination of their appeal, and as such seriously undermine the right to an effective remedy”.[75]

During 2020, GCR has documented cases of appellants residing in RICs Facilities on the islands or Accommodation Facilities on the mainland, whose appeal has been rejected as “manifestly unfounded” and without any in merits examination, due to the fact that the required certifications has not been send on time to the Committees by the administration of the facilities.

These include:

  • The case of a Syrian pregnant woman, residing in Lesvos RIC, whose appeal has been rejected as manifestly unfounded due to the fact that the certification by the Head of the RIC has been sent on the day of the examination of the Appeal and not the day prior of the examination.
  • The case of an asylum seeker from D.R. Congo, residing in an open accommodation facility on the mainland, whose Appeal has been rejected as manifestly unfounded, due to the fact the certification of residence sent by the Head of the Accommodation facility was not issued within the 3 days period prior of the examination of the Appeal.
  • The case of an Afghan asylum seeker, residing in an open accommodation facility in North Greece, whose appeal has been rejected due to the fact no certification of residence has been sent by the facility.

From 1 January 2020 to 31 December 2020, a number of 1,072 Appeals have been rejected as “manifestly unfounded” on the basis of the above mentioned provisions imposing the in person appearance of the appellant or his/her lawyer before the Committee or the communication of a certification to the Committee.[76]

Examination under a single-member Appeals Committee/three members Appeals Committee: the IPA provides that appeals are examined under a collegial format by the three members Committee[77] or in a single judge format when it comes to appeals filed after the deadline as well as for certain appeals in the Accelerated Procedure and the Admissibility Procedure, which should thus be examined by a single-judge.[78] Following an amendment of the Regulation for the functioning of the Appeals Committees, issued in November 2020, the categories of cases examined under a single-judge format has been extended, as all appeals submitted by applicant residing in Lesvos, Samos, Chios, Kos, Leros are examined by a single judge committee irrespectively of the procedure applied.[79]

Issuance of a Decision: According to the law, the Appeals Committee must reach a decision on the appeal within 3 months when the regular procedure is applied.[80]

Following the amendment of the IPA in May 2020, the right to remain in the country is terminated once the second instance decision is issued, irrespectively of the time that the decision is communicated.[81] As noted by the UNHCR, “UNHCR is concerned that such amendment would allow for the removal of a person from the territory before a second instance decision is notified to him/her. The parallel notification of a negative appeal decision is also undermining the right to judicial protection […], as persons whose claims are rejected will not be able to submit an application for annulment or an application for suspension in practice, which could ultimately lead to a violation of the principle of non-refoulement. The deprivation of legal stay before a notification of a negative decision has further premature negative repercussions on the enjoyment of the rights of asylum seekers from which they are to be excluded only following the notification of negative decision (e.g. the right to shelter and cash assistance)”.[82]

Notification of second instance decision: Similarly, to the fictitious service at first instance, the IPA also provides the possibility of a fictitious service (πλασματική επίδοση) of second instance decisions as described above.[83] Once again, as a result of this provision on the possibility of a “fictitious” service of the second instance decision – which triggers the deadline for lodging an appeal – said deadlines for legal remedies against a negative second instance decision may expire without the applicant being actually informed about the decision. To this regards it should be noted that the IPA has reduced the deadline for lodging a legal remedy before Court against a second instance negative decision from a period of 60 days to a period 30 days from the notification of the decision (see Judicial review).[84] As noted by the Greek Ombudsman, already since the initial introduction of the possibility of a fictitious service in 2018, said provisions “effectively limit the access of asylum seekers to judicial protection” and even if “the need to streamline procedures is understandable … in a state governed by law, it cannot restrict fundamental democratic guarantees, such as judicial protection”.[85]

Persons whose asylum application is rejected at second instance no longer have the status of “asylum seeker”,[86] and thus do not benefit from reception conditions.

Judicial review

As mentioned, the IPA reduced the deadlines for submitting a judicial remedy against a second instance negative decision and additionally the IPA provides that said remedies can be lodged solely before the Administrative Court of Athens and Thessaloniki. More precisely, according to the IPA, applicants for international protection may lodge an application for annulment (αίτηση ακύρωσης) of a second instance decision of the Appeals Authority Committees solely before the Administrative Court of First Instance of Athens or Thessaloniki[87] within 30 days from the notification of the decision.[88]

According to the IPA,[89] following the lodging of the application for annulment, an application for suspension/interim order can be filed. The decision on this single application for temporary protection from removal should be issued within 15 days from the lodging of the application.

The effectiveness of these legal remedies is severely undermined by a number of practical and legal obstacles:

  • The application for annulment and application for suspension/interim order can only be filed by a lawyer. In addition, no legal aid is provided in order to challenge a second instance negative decision. The capacity of NGOs to file such application is very limited due to high legal fees. Legal aid may only be requested under the general provisions of Greek law,[90] which are in any event not tailored to asylum seekers and cannot be accessed by them in practice due to a number of obstacles. For example, the request for legal aid is submitted by an application written in Greek; free legal aid is granted only if the legal remedy for which the legal assistance is requested is not considered “manifestly inadmissible” or “manifestly unfounded”.[91] As noted by the UN Working Group on Arbitrary Detention “[i]nadequate legal aid is provided for challenging a second instance negative decision on an asylum application, and the capacity of NGOs to file this application is very limited given the number of persons in need of international protection”.[92]
  • The application for annulment and application for suspension/interim order do not have automatic suspensive effect.[93] Therefore between the application of suspension/interim order and the decision of the court, there is no guarantee that the applicant will not be removed from the territory.
  • The Administrative Court can only examine the legality of the decision and not the merits of the case.
  • The judicial procedure is lengthy. GCR is aware of cases pending for a period of about two years for the issuance of a decision of the Administrative Court of Appeals following an application for annulment.

Moreover, according to Article 108(2) IPA, the Minister on Migration and Asylum, also has the right to lodge an application for annulment against the decisions of the Appeals Committee before the Administrative Court. In 2020, the Minister on Migration and Asylum has lodged one Application for Annulment against a second instance decision of the Appeals Committees. By this decision, the Appeals Committee has ruled that the applicant for whom a decision to discontinue the examination of the asylum application due to implicit withdrawal has been issued, cannot be removed before the nine months period during which she can report again to the competent authority in order to request her case be reopened.

A total number of 1,118 Applications for Annulment before the Administrative Court of Athens and Thessaloniki have been lodged against second instance negative decisions during 2020. By the end of the year a total number of 111 Decisions have been issued on Applications for Annulments, out of which 109 were rejecting the legal remedy and 2 accepted the remedy (1.8%).[94]

To this regard it should be mentioned that since the decision of the Council of State, on 12 October 2020, to initiate a pilot procedure on the constitutionality of the competence of Administrative Courts to judicially review decisions of the Appeals Committees, given that decisions of the second instance decisions on asylum applications may be – and often are – taken by Committees composed by higher-court judges (Administrative Judges of the Administrative Courts of Appeal),[95] the examination of the Applications for Annulment before the First Instance Administrative Courts of Athens and Thessaloniki, has been suspended while waiting the final decision of the Council of State.

Legal assistance

 

Asylum seekers have the right to consult, at their own cost, a lawyer or other legal advisor on matters relating to their application.[96]

Legal assistance at first instance

No state-funded free legal aid is provided at first instance, nor is there an obligation to provide it in law.  A number of non-governmental organisations provide free legal assistance and counselling to asylum seekers at first instance, depending on their availability and presence across the country. The scope of these services remains limited, taking into consideration the number of applicants in Greece and the needs throughout the whole asylum procedure – including registration of the application, first and second instance, judicial review and the complexity of the procedures followed, in particular after the entry into force of the IPA. As noted by the  UN Working Group on Arbitrary Detention “[t]he Working Group urges the Government to expand the availability of publicly funded legal aid so that persons seeking international protection have access to legal advice at all stages of the process, from the moment of filing their application until a final determination is made”.[97]

Legal assistance at second instance

According to the IPA, free legal assistance shall be provided to applicants in appeal procedures before the Appeals Authority under the terms and conditions set in the Ministerial Decision 3686/2020.[98]

The first Ministerial Decision concerning free legal aid to applicants, was issued in September 2016.[99] However, the state-funded legal aid scheme on the basis of a list managed by the Asylum Service started operating, for the first time, on 21 September 2017.

According to Ministerial Decision 3686/2020, currently in force,[100] regulating the state-funded legal aid scheme, asylum seekers must request legal aid at least:

  • 10 days before the date of examination of the appeal under the regular procedure,
  • 5 days before the date of examination of the appeal under the Accelerated Procedure or the application has been rejected as inadmissible,
  • 3 days before the date of examination of the appeal in case the appellant is in RIC or in case of revocation of international protection status.

When Article 90(3) IPA (“fast track border procedure”) applies, the application for legal assistance is submitted at the time of lodging the appeal.[101] The decision also explicitly provides for the possibility of legal assistance through video conferencing in every Regional Asylum Office.[102] The fixed fee of the Registry’s lawyers has been raised from €120 (in 2019) to €160 per appeal.[103]

In practice and given the fact that as described above, first instance decisions may be notified to the applicants with a registered letter or other ways of notification and the fact that access of applicant to RAOs/AAU has been restricted during the year due to COVID-19 preventive measure, requests for legal aid at second instance can be mainly submitted on-line, by filling a relevant electronic form on the electronic application of the Ministry of Migration and  Asylum.[104] This may pose additional obstacles to applicants not familiar with the use of electronic applications or who do not have access to the required equipment/internet.

As of 31 December 2019 there were 37 registered lawyers on the list managed by the Asylum Service countrywide.[105] On September 2020, an open call has been published in order the registry of the Asylum Service to be completed. According to the open call a number of 95 lawyers were about to form the Registry of the Asylum Service.[106]  More recent data regarding the number of the lawyers present by the end of the year are not available.  Moreover, no data are available with regards the number of applicants who received free legal assistance in appeals procedures under the scheme in 2020.

However, as reported and on the basis of cases to the knowledge of GCR , considerable obstacles have been occurred during 2020 in the provision of free legal aid at second instance under the State managed legal aid scheme.

For example these include cases of

  • Applicants in Thessaloniki who expressively asked for the provision of free legal aid upon notification of the first instance decision in July and August 2020, however no legal aid was provided due to the abstention of the lawyers of the registry.
  • Detainee in Xanthi Pre-removal Detention Facility who following the first instance decision on his asylum application in January 2020, requested legal aid for lodging the Appeal, however up until the last day of the deadline for lodging an Appeal no lawyer has been appointed.
  • Detainee in Amigdaleza Pre-removal Detention Facility, to whom the first instance decision has been communicated by the Police in November 2020, was never granted legal assistance for lodging an appeal, despite his request.
  • Notification of first instance negative decision on the island of Lesvos in January 2021, despite the fact that legal aid was not ensured to applicant willing to submit an appeal.[107]

As reported by the National Commission for Human Rights in September 2020,

a basic problem, remaining over the time and which it has not been resolved in practice, despite the corrective actions of the Administration, is the limited capacity of covering all requests of appellants for free legal aid at second instance in line with national and EU law”.

The National Commission for Human Rights notes as “worrying”, the information received by the registry of lawyers of the Asylum Service regarding

an unusual dramatic reduction in the requests submitted for legal aid, after the entry into force of the IPA, as amended by L. 4686/2020. Amendments of the procedure for the notifications of first instance decision (fictitious service to the Head of the RAO/AAU and notification from RICs) and the digitalization of the procedure throughput the platform of the Asylum Service result in the inability of the asylum applicants  to request on time free legal aid. Moreover delays occur in the assignments of cases by the RAOs to Registry’s lawyers, resulting in certain cases […] the assignment of the case to take place after the lodge of the appeal, with an imminent risk the appeal to be rejected as inadmissible”.[108]

 

 

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

[2] Ibid.

[3] Ministry of Migration and Asylum, Ibid.

[4] Article 83(3) IPA.

[5] Ibid.

[6]  Article 83(3) IPA.

[7]  Article 83(6) IPA.

[8]  Article 69(5) IPA

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

[10] Ibid.

[11] see also RSA & Stiftung PRO ASYL  Submission to the Committee of  Ministers of the Council of Europe  in the cases of M.S.S. v. Belgium  and Greece & Rahimi v. Greece, July 2020, available at: https://bit.ly/3sM7YPp

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

[13]  Articles 39(1) and 83(7) IPA, citing Article 39(10)(c) IPA.

[14]  Ibid, citing Article 46(8) IPA.

[15]  Ibid.

[16]  Articles 39(2) and 83(7) IPA.

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

[18] Ibid.

[19] Article 77(7) IPA.

[20] Article 77(7) IPA.

[21]  Article 77(9) IPA.

[22] Article 77(4) IPA.

[23] Article 77(10) IPA.

[24] Article 77(11) IPA.

[25]Diotima et alt., The conduct of (remote) asylum interviews on Lesvos, 8 December 2020, available at: https://bit.ly/3fxZ9oz.

[26] Article 77(12)(a) IPA.

[27]  Article 77(5) IPA.

[28]  Information provided by the Asylum Service, 26 March 2019.

[29] Article. 65(16) IPA.

[30] Article 65(16) IPA.

[31]  Article 1(2) Asylum Service Director Decision No 3385 of 14 February 2018.

[32] Information provided by EASO, 13 February 2019.

[33]  Article 65(16) IPA.

[34] EASO, ‘EASO operations in Greece to expand significantly’ 28 January 2020, available at: https://bit.ly/3cMwXu5.

[35] Information provided by EASO, 26 February 2021.

[36] AIDA, Report on Greece, update 2019, p. 58-59

[37]  Article 77(3) IPA.

[38] Article 69(3) IPA, as amended by L. 4686/2020.

[39] Article 77(13)-(15) IPA.

[40] Article 77(13)-(15) IPA. .

[41] Ombudsman, Παρατηρήσεις στο σχέδιο νόμου Προσαρμογή της Ελληνικής Νομοθεσίας προς τις διατάξεις της Οδηγίας 2013/33/ΕΕ (αναδιατύπωση 29.6.13) σχετικά με τις απαιτήσεις για την υποδοχή των αιτούντων διεθνή προστασία κ.ά. διατάξεις, April 2018.

[42]  Article 71 (7) IPA.

[43] Article 82(3) IPA, , as amended by L. 4686/2020

[44]  Article 82(4) IPA, as amended by L. 4686/2020.

[45] Article 82(5) IPA, as amended by L. 4686/2020.

[46]  See: https://applications.migration.gov.gr/ypiresies-asylou/.

[47] More precisely, it was amended twice in 2016 by L 4375/2016 in April 2016 and L 4399/2016 in June 2016, in 2017 by L 4461/2017 and in 2018 by L 4540/2018; see AIDA Report on Greece, update 2019

[48] Art. 5 L. 4375/2016 as amended; the third member is appointed by UNHCR or the National Commissioner for Human Rights if UNHCR is unable to appoint one. If both are unable, the (now) Minister for Migration Policy appoints one.

[49]  Article 116(2) and (7) IPA.

[50] Union of Administrative Judges, Υπόμνημα Ενόψει της συζήτησης του σχεδίου νόμου του Υπουργείου Προστασίας του Πολίτη «Περί Διεθνούς Προστασίας και άλλες διατάξεις», 30 October 2019, available in Greek at: https://bit.ly/376ZGXW, para 8.

[51] Union of Bar Associations, ‘Επιστολή του Προέδρου της Ολομέλειας των Δικηγορικών Συλλόγων προς τον Υπουργό Προστασίας του Πολίτη για το σχέδιο νόμου για τη Διεθνή Προστασία’, 25 October 2019, available in Greek at: https://bit.ly/32KGSKL.

[52] Council of State, ‘Γνωστοποίηση της υπ’ αριθ. 19/12-10-2020 πράξης της Επιτροπής του άρθρου 1 παρ. 1 του ν. 3900/2010’, 19 October 2020, available in Greek at: https://bit.ly/3kUeHSV; RSA, The Council of State pilot procedure on judicial review in the asylum procedure, 1 February 2021, available at: https://bit.ly/2R8uOTx.

[53]  Article 62(6) L 4375/2016, as inserted by Article 101(2) L 4461/2017.

[54] Article 62(6) L 4375/2016, Article 95(5) IPA.

[55] Article 62(6) L 4375/2016, Article 95(5) IPA.

[56] Information provided by the Appeals Authority, 9 February 2021.

[57] ECRE, The role of EASO operations in national asylum systems, November 2019, available at: https://bit.ly/2VNULrd, 18

[58] Information provided by the Appeals Authority, 9 February 2021. 

[59]  Information provided by the Appeals Authority, 2021.

[60]  See AIDA Report on Greece, update 2019

[61] Article 92(1) IPA.

[62] Article 92(1)(a) IPA.

[63] Article 92(1)(b) IPA.

[64] UNHCR, UNHCR urges Greece to strengthen safeguards in draft asylum law, 24 October 2019.

[65] UN High Commissioner for Refugees (UNHCR), UNHCR Comments on the Law on “International Protection and other Provisions” (Greece) , February 2020, available at: https://bit.ly/31Oh4zm.

[66] Article 104(1) IPA.

[67] Article 104(2) IPA.

[68] Article 104(1) IPA.

[69] Article 97(1) IPA.

[70] Article 97(3) IPA.

[71] Article 62(1)(d) L 4375/2016.

[72] Information provided by the Appeals Authority, 2021.

[73]  Article 97(2) IPA.

[74] UNHCR, UNHCR urges Greece to strengthen safeguards in draft asylum law, 24 October 2019.

[75] UNHCR, UNHCR Comments on the Law on “International Protection and other Provisions” (Greece), Ibid.

[76] Information provided by the Appeals Authority, 2021.

[77] Article 116(2) IPA.

[78] Article 116(2) IPA.

[79] Art. 114, Ministerial Decision 26750, Gov. Gazette B’ 4852/4 November 2020. 

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

[81]  Article 104(1) IPA, as amended by L. 4686/2020.

[82]  UN High Commissioner for Refugees (UNHCR), UNHCR Comments on the Draft Law “Improvement of Migration Legislation, amendment of provisions of Laws 4636/2019 (A’ 169), 4375/2016 (A’ 51), 4251/2014 (A’ 80) and other Provisions” , 12 June 2020, available at: https://bit.ly/3wtPV2V, p. 9.

[83] Article 82 and 103 IPA, as amended by L. 4686/2020.

[84] Article 109 IPA.

[85] Ombudsman, Παρατηρήσεις στο σχέδιο νόμου Προσαρμογή της Ελληνικής Νομοθεσίας προς τις διατάξεις της Οδηγίας 2013/33/ΕΕ (αναδιατύπωση 29.6.13) σχετικά με τις απαιτήσεις για την υποδοχή των αιτούντων διεθνή προστασία κ.ά. διατάξεις, April 2018.

[86] Article 2(c) IPA.

[87] Article 108 and 115 IPA.

[88] Article 109 IPA.

[89]  Article 15(6) L 3068/2002, as amended by Article 115 IPA.

[90]  Articles 276 and 276A Code of Administrative Procedure.

[91]  Ibid.

[92] UN Human Rights Council, Report of the Working Group on Arbitrary Detention, Addendum : Mission to Greece, 29 July 2020, A/HRC/45/16/Add.1, available at: https://bit.ly/3dL8I0U, para. 85.

[93]  See e.g. ECtHR, M.S.S. v. Belgium and Greece, Application No 30696/09, Judgment of 21 January 2011.

[94] Ministry of Migration and Asylum, Annual Factsheet 2020, available at: https://bit.ly/3dKWaXx (in Greek).

[95] Council of State, ‘Γνωστοποίηση της υπ’ αριθ. 19/12-10-2020 πράξης της Επιτροπής του άρθρου 1 παρ. 1 του ν. 3900/2010’, 19 October 2020, available in Greek at: https://bit.ly/3kUeHSV; RSA, The Council of State pilot procedure on judicial review in the asylum procedure, 1 February 2021, available at: https://bit.ly/2R8uOTx.

[96] Article 71(1) IPA.

[97] UN Human Rights Council, Report of the Working Group on Arbitrary Detention, Addendum : Mission to Greece, 29 July 2020, A/HRC/45/16/Add.1, available at: https://bit.ly/3dL8I0U, para. 85.

[98]Ministerial Decision 3686/2020, Gov. Gazette 1009/B/24-3-2020. MD 12205/2016 was repealed by MD 3686/2020 according to Article 6(2) MD 3686/2020.

[99]  Ministerial Decision 12205/2016, Gov. Gazette 2864/B/9-9-2016. 

[100] Ministerial Decision 3686/2020, Gov. Gazette 1009/B/24-3-2020. MD 12205/2016 was repealed by MD 3686/2020 according to Article 6(2) MD 3686/2020.

[101] Article 1(3) MD 3686/2020.

[102] Article 1(7) MD 3686/2020. 

[103] Article 3 MD 3686/2020. 

[104] See : https://applications.migration.gov.gr/ypiresies-asylou/.

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

[106] Decision of the Head of the Asylum Service, 25.9.2020.

[107] Diotima et alt., Legal actors express serious concerns regarding the lack of state free legal aid for asylum applicants in Lesvos, 21 January 2021, available at: https://bit.ly/3rSPlIx.

[108] National Commission for Human Rights, GNCHR Reference Report on the Refugee and Migrant Issue (Part B), September 2020, available at: https://bit.ly/3wzcNhm (in Greek), pp. 61-62. 

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