Regular procedure

Greece

Country Report: Regular procedure Last updated: 30/11/20

Author

Greek Council for Refugees Visit Website

General (scope, time limits)

 

The Asylum Service received 77,287 new applications in 2019, which amounts to an increase of 15.4% compared to 2018. Out of the 77,287 new applications 39,505 were initially channeled under the Fast-Track Border Procedure. Of those, 18,849 were referred to the regular procedure due to vulnerability and 1,432 due to the application of the Dublin Regulation.[1]

According to the new IPA, an asylum application should be examined “the soonest possible” and, in any case, within 6 months, in the framework of the regular procedure.[2] 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.[3] The previous L.4375/2016 provided such an extension also where complex issues of fact and/or law were involved or where the delay could be attributed to the applicant.[4]. According to the new IPA, in any event, the examination of the application should not exceed 21 months.[5]

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 new IPA, “this does not constitute an obligation on the part of the Asylum Service to take a decision within a specific time limit.”[6]

Decisions granting status are given to the person of concern in extract, which does not include the decision’s reasoning. According to the new 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.[7] If a special legitimate interest is not proven, the Asylum Service refuses to deliver the entire decision in practice.[8]

Duration of procedures

Following the significant increase of asylum applications in recent years, the length of the examination of asylum applications is a serious matter of concern. Out of the 87,461 applications pending at the end of 2019, more than half (51.48%) were pending for more than six months since the day they were lodged:

Pending applications at first instance from full registration: 31 December 2019

Length of pending procedure

Number

< 6 months

42,436

> 6 months

45,025

Total

87,461

Source: Asylum Service.

 

In practice, the average processing time is longer if the period between pre-registration and Registration of the application is taken into consideration. Thus, the average time between the applicant’s expression of intention to apply for asylum and the interview in 2019 was 10.6 months, due to the average 44-day delay between pre-registration and Registration of the application, and the average delay of 276 days between registration and the personal interview.[9]

The average processing time between pre-registration and the issuance of a first instance decision was 10.3 months; 44 days on average between pre-registration and Registration and 281 days on average between registration and issuance of first-instance decision.[10]

Moreover, out of the total number of 87,461 applications pending by the end of 2019, the Personal Interview had not yet taken place in 71,396 (81.6%) of them. In 23,519 of the applications pending as of 31 December 2019, the interview has been scheduled within the first semester of 2020, while in the rest, namely 47,877 of cases the interview is scheduled within the second semester of 2020 or even after 2020.[11]

A rescheduled appointment following a cancelled interview is usually set within several months. However, GCR is aware of cases in which the examination has been rescheduled with significant delays. These include:[12]

  • The case of an Iranian (Arabic speaker) whose interview was scheduled for January 2024 by the RAO of Thessaloniki;
  • The case of a Palestinian whose interview was scheduled for 2022 by the RAO of Thessaloniki;
  • The case of a Bangla unaccompanied minor boy whose interview was scheduled for January 2022 by the RAO of Piraeus;
  • The case of an unaccompanied minor girl from India whose interview was scheduled for January 2022 by the RAO of Athens;
  • The case of a Turkish whose interview was scheduled for 2024 by the RAO of Athens;
  • A number of applications of Pashtu speakers, which have been postponed due to lack of Pashtu interpretation and have been rescheduled for 2022 by the RAO of Piraeus;
  • The case of a single parent Afghani family (one the children of the family faced a severe health issue) whose interview has been rescheduled for June 2022 by the RAO of Piraeus.

Taking into consideration the number of applications pending for more than 6 months and the number of applications pending without an interview having been conducted (81.6%), as well as the suspension of all activities of the Asylum Service from 11 March to 15 May 2020 due to Covid-19, the backlog of cases pending for prolonged periods is likely to increase in the future.

As noted by UNHCR “delays in interview scheduling times all over Greece are indicative of the extent of the current challenges. In Attica, the Fast-track Syria Unit applicants receive interview appointments for 2021, while in Thessaloniki interview dates are currently given for 2024 for applicants from Turkey, Iran and Afghanistan, and for late 2023 for Iraq and for African countries. While the Asylum Service has issued a large number of decisions in 2018 (46,155 in total), demonstrating the positive results of its capacity enhancement, the size of the caseload and the constant increase in the number of new asylum applications requires further significant increase in capacity and performance of the Asylum Service”.[13]

 

Prioritised examination and fast-track processing

The IPA that entered into force 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:

  1. Applicants undergoing reception and identification procedures who do not comply with an order to be transferred to another reception facility;[14]
  2. Applicants who are detained.[15]

Processing by way of “absolute priority” means the issuance of a decision within 20 days.[16]

Second, the law provides that an application may be registered and examined by way of priority for persons who:[17]

  1. Belong to vulnerable groups, insofar as they are under a “restriction of liberty” measure in the context of Reception and Identification procedures;
  2. Fall under the scope of the Border Procedure;
  3. Are likely to fall within the Dublin Procedure;
  4. Have cases which may be considered as manifestly unfounded;
  5. Represent a threat to national security or public order; or
  6. File a Subsequent Application;
  7. Come from a First Country of Asylum or a Safe Third Country;
  8. Have cases reasonably believed to be well-founded.

In comparison to the previous Article 51(6) L 4375/2016, the new provision of the IPA has mainly introduced the abovementioned point (g) on the First country of Asylum and Safe Third Country as a new ground to trigger the use of fast-track procedures, as the latter was not foreseen in previous legislation. 

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 the 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”.[18]

In 2019, a total of 3,690 positive decisions were issued in the framework of the Syria fast-track procedure, compared to 3,531 in 2018, 2,986 in 2017 and 913 in 2016.[19]

 

Personal interview

 

According to the IPA, the personal interview with the applicant may be omitted where:[20]

  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.

In comparison, the previous L.4375/2016 also foresaw that, “when the applicant or, where applicable, a family member of the applicant was not provided with the opportunity of a personal interview due to their being unfit or unable to be interviewed, the Police or Asylum Service had to “make reasonable efforts” to provide them with the possibility to submit supplementary evidence.”[21] This provision has been abolished by the IPA.

Nevertheless, the previous provision of L.4375/2016 which foresaw that the omission of a personal interview does not adversely affect the decision on the application – as long as the decision states the reasons for omitting the interview – remained in the new IPA.[22]

Moreover the IPA 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 so as 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.[23]

As mentioned in Regular Procedure: General, significant delays continue to be observed in 2019 with regard to the conduct of interviews. The interview has not been conducted in 71,396 applications, which amounts to 81.6% of the total number of applications pending at the end of 2019. In 23,519 of these cases, the interview has been scheduled within the first semester of 2020, while in the rest, namely 47,877 cases the interview is scheduled within the second semester of 2020 or even after 2020.[24] In a number of cases, interviews were set more than 2 years after the registration of the application, while cases of rescheduled interviews were set with great delays.

Under the regular procedure, the interview takes place at the premises of the RAO on the designated day and is conducted by one caseworker.

Since September 2018, the geographical limitation of vulnerable asylum seekers is lifted at the time of the registration or once the vulnerability is identified. Following the lift of the geographical limitation they are allowed to leave the island and travel the mainland. The pending regular procedure interview of applicants transferred to the mainland in the scope of transfers organised by the Ministry of Migration Policy, are rescheduled before a RAO or a AAU of the mainland.[25] Applicants who – following the lift of the geographical limitation and the referral of their case to the regular procedure – travelled from the islands to the mainland by their own means, will have to return on said island in order to undergo their regular procedure interview. 

According to both L.4375/2016 and the new 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.[26] Moreover, the personal interview must take place under conditions ensuring appropriate confidentiality.[27] However, GCR has expressed concerns relating to confidentiality in certain RAO or AAU due to the lack of appropriate spaces. This is for example the case in the RAO of Samos, where the office used for the interview cannot guarantee confidentiality because of the inadequacy of the facility.

According to both L.4375/2016 and the new IPA, 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.[28] 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.[29]   

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.[30]

Following the amendments introduced by L 4540/2018, which have been maintained in the IPA,[31]  EASO can now be involved in the regular procedure,[32] while the EASO personnel providing services at the Asylum Service premises are bound by the Asylum Service Rules of Procedure.[33] EASO caseworkers have started conducting interviews under the regular procedure since the end of August 2018.[34] The main form of support provided by EASO caseworkers involves the conduct of interviews with applicants and drafting of opinions to the Asylum Service, which retains responsibility for issuing a decision on the asylum application.

Contrary to the fast-track border procedure, EASO support in the regular procedure in Greece is provided solely through Interim Experts deployed to the Asylum Service. This is due to an express requirement in the law for personnel to be Greek speakers.[35] Accordingly, both interviews and eligibility opinions are done in Greek, albeit using the same structure as those in the fast-track border procedure.

As of July 2019, there were approximately 60 EASO caseworkers involved in the fast-track border procedure and 30 in the regular procedure.[36] Moreover, during the first half of 2019, EASO conducted 1,685 interviews and delivered 1,363 opinions in the regular procedure, which marks a significant increase compared to 2018.[37] During the whole year of 2018, EASO had conducted only 841 interviews and delivered 461 opinions, way below what was achieved in the first half of the year 2019.[38] While figures for the whole year 2019 are not available, the role of EASO in the regular procedure is likely to increase as EASO announced that Agency’s operations in Greece are expected to double in size to over 1,000 personnel in 2020.[39]

Quality of interviews and decisions

The Asylum Service has established quality assurance and control mechanisms throughout the whole asylum procedure and has a dedicated Training, Quality and Documentation Department to that end.[40] Caseworkers of the Asylum Service are advised to discuss their case with a supervisor or a more experienced caseworker in case of doubt or ambiguity regarding the examination of the asylum claim. Moreover, they have access to a database managed by the Training, Quality and Documentation Department of the Asylum Service, which contains selected first instance decisions that have met certain quality standards. The database is classified by country of origin and type of asylum claim.[41]

Moreover, the Training, Quality and Documentation Department conducts quality checks on a sample of interviews and first-instance decisions and provides opinions and recommendations on the latter. Quality reports based on first instance decisions are also drafted by RAOs, which may subsequently organise relevant sessions, although no further information was provided in this regard.[42] Nevertheless, quality reports are not made publicly available.

In addition, UNHCR supports the Asylum Service with experts who advise the Asylum Service caseworkers upon request on how to conduct interviews, draft decisions on asylum applications and provide on-the-job training. UNHCR assisted in 12,750 instances in 2019.[43]

As stated by UNHCR in May 2019, “while the quality of first instance examination remains largely in line with international and European recommended standards and procedural safeguards, UNHCR has observed a deterioration in quality at first instance as a result of the pressure resulting from the large pending caseload […]  Applications are being examined as fast as possible by a team of caseworkers, many of whom are new and not sufficiently trained and supported locally”.[44] Without underestimating the fact that the recognition rate of the first instance procedure remains high, at 55.9% of in-merit decisions issued in 2019,[45] GCR is aware of a number of first instance cases in 2019 where the way the interview was conducted, the assessment of the asylum claims and/or the decisions delivered raise issues of concern.

Among others, these concern the conduct of the interview, the non-examination of crucial facts of the case, the credibility assessment and the wrong use of country of origin information (COI). For example:

  • In the case of an Iranian applicant whose claim related to the fact that he was bisexual and he had an affair with another man, the caseworker posed rather inappropriate and intimate questions in order to assess the credibility of the applicant. [46]  
  • Two cases of unaccompanied minors handled by the same caseworker, where the applicants have been rejected, following personal interviews that lasted less than an hour. Although there were strong indications that they could be victims of economic exploitation and human trafficking, no thoroughly examination of the above critical circumstances took place and therefore the latter were not properly assessed in the scope of the decision.[47]
  • In the case of a Kurdish Iranian, the decision failed to assess the claims of the applicant regarding his Kurdish origin, as well as regarding the fact that he has been detained and tortured.[48]

As regards the quality of interviews of opinions delivered by EASO caseworkers in the regular procedure, quality control mechanisms have been set up by the Asylum Service, i.e. a review of decisions, which include the corresponding EASO opinions as part of each reviewed case file.[49] Any concerns or observations relating to quality are communicated to EASO. The Quality Assurance Units of the Asylum Service and EASO have organised joint briefings on the islands building on the results of the review of decisions by both units. ECRE’s report on the role of EASO in national asylum systems details the multi-layered Quality Assurance system that has been put in place in Greece.[50]

Interpretation

The law envisages that an interpreter of a language understood by the applicant be present in the interview.[51] 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. 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.

Although interpretation is one of the core rights of the applicants in the scope of the asylum procedure, GCR has been aware of cases in 2019 in which the provision of interpretation has been of poor quality. For example:

  • During the examination of an unaccompanied minor girl who claimed to be victim of abuse, the caseworker asked her how often the alleged abusive incidents were taking place. The minor answered -amongst other- that the incidents took place ‘every day’, fact that has been omitted by the interpreter. Due to the fact that the lawyer of the minor underlined this omission, the caseworker came back asking specifically if the abusive incidents took place every day, only to receive a positive answer by the girl.
  • In a case where the applicant claimed that he has been persecuted due to the fact that he had converted to Christianity, the interpreter appointed for the case was not aware of and therefore could not interpret words related to the religion such as Easter, Pentecost, etc. 

Moreover, often enough, the good quality of remote interpretation is hindered by technical deficiencies and constraints.

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.[52] The applicant may at any time request a copy of the transcript, a copy of the audio file or both.[53]

 

Appeal

 

By the end of 2019, a twofold procedural framework for the examination of appeals against negative first instance decisions remained in place. Appeals submitted after 21 July 2016, i.e. after the operation of the new Independent Appeals Committees under the Appeals Authority, were examined by these Independent Appeals Committees. Appeals against decisions on applications lodged before 7 June 2013, i.e. before the operation of the Asylum Service, and appeals submitted until 20 July 2016 against decisions rejecting applications for international protection lodged after 7 June 2013,[54] were examined by the “Backlog Committees” under PD 114/2010.  No “Backlog Committees” were operational during 2019. Due to non-operation of said Committees, about 3,500 appellants have therefore been waiting for years in order for the examination of their asylum application to be finalised.[55]

The IPA provides that the appeals that are pending before the Backlog Committees are deemed to be rejected by an Act of the Director of the Appeals Authority upon entry into force of the IPA,[56] unless the concerned appellants appear in person before the Appeals Authority within six months upon publication of the IPA. They must further confirm through a written statement that they wish the examination of their appeals.[57] The examination of those appeals, for which the appellant submitted said written statement, is scheduled with an Act of the Director of the Appeals Authority before the Independent Appeals Authorities of the Appeals Authority.[58] Thus, 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.[59]

Following, reported pressure on the Greek authorities by the EU with regard to the implementation of the EU-Turkey Statement[60] and “coincide[ing] with the issuance of positive decisions” [61] of the former Backlog Committees, who did not consider Turkey to be a safe third country in a number of cases, its composition was amended by L 4375/2016 in April 2016 and L 4399/2016 in June 2016. The composition of the Appeals Authorities changed, with the participation of two active Administrative Judges in the new three-member Appeals Committees (Ανεξάρτητες Αρχές Προσφυγών). The third member was a person, 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.[62]

The amendments further restricted the right of the appellant to request an oral hearing before the Appeals Committees. As already noted the modification of the composition of the Appeals Committees and the participation of active administrative Judges raised questions on the compatibility of said reform with the Constitution and compliance with the right to an effective remedy, which however have been rejected by the Council of State.[63]

Appeals Committees with said composition remained active by the end of November 2019. The composition of the Appeals Committees was amended again by the IPA. While the IPA itself entered into force on 1 January 2020, the amendments regulating specifically the composition of the Appeals Committee entered into force already on 1 December 2019. According to the latter, the three-member Appeals Committees are composed by three active Administrative Judges. Moreover, a single member/Judge Committee has been introduced.[64]

These amendments have been highly criticised 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,[65] and the Union of Bar Associations.[66] As already stated by the Council of State as regards single members of administrative bodies composed by active Judges, “it is not permitted to delegate to a member of the judiciary the administrative functions of a single-member body, regardless whether or not that body has a disciplinary, supervisory or judicial character. This is due to the fact that in the case of a single-member body, the responsibility becomes personal to the maximum extent and as a result there is a risk for the member of the judiciary to be challenged in a court of law in respect of their decisions as a single-member body”.[67]

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.[68] 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. [69] The IPA maintained the same tasks for “rapporteurs” provided by EASO. [70] 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.

20 Independent Appeals Committees were operational by the end of 2019.[71] Following the amendment introduced by L 4661/2017, 22 rapporteurs were made available to the Appeal Authority, of whom 11 were deployed to the Appeals Authority by EASO in the course of 2019.[72] Currently, 12 Rapporteurs/Research Officers support the Independent Appeals Committees to issue 2nd instance decisions timely [73]. Since they are seconded to the individual Committees, these Rapporteurs are not supervised or line-managed by EASO.[74]

Number of appeals and recognition rates at second instance

A total of 15,378 appeals were lodged in front of the Independent Appeals Committees in 2019.[75]

 

Appeals before the Independent Appeals Committees: 2019

Nationality

Appeals lodged

Pakistan

5,103

Albania

2,140

Afghanistan

1,426

Iraq

1,357

Bangladesh

1,233

Other

4,119

Total

15,378

 

Source: Appeals Authority, 26 April 2020.

 

The Independent Appeals Committees took 14,573 decisions in 2019 out of which 10,531 on the merits:

Decisions on the merits by the Independent Appeals Committees: 2019

Refugee status

Subsidiary protection

Humanitarian protection

Rejection

312

313

640

9,266

 

Source: Appeals Authority, 26 April 2020.

 

The remaining decisions taken by the Appeals Committees concerned inadmissible applications, appeals filed after the expiry of the deadline or in case that the application has been interrupted.[76]



The launch of the operation of the Independent Appeals Committees after L 4399/2016 has led to a significant drop in the second instance recognition rate of international protection, which has been highly criticised by a number of actors, including the Athens Bar Association.[77]

From 2016 to 2019, the recognition rates were as follows:

 

Recognition rates at second instance: 2016-2019

Year

Refugee

rate

Subsidiary protection rate

Humanitarian protection rate

Total recognition rate

Total rejection rate

2016

0.37%

0.07%

0.67%

1.11%

98.89%

2017

1.84%

0.99%

3.54%

2.83%

93.63%

2018

2.8%

1.5%

4.5%

4.3%

91%

2019

2.9%

2.9%

6.07%

5.93%

87.9%

 

Source: Information provided by the Appeals Authority in absolute numbers. Calculations made by GCR. The figures for the year 2016 refer to the period from 21 July to 31 December 2016 only.

 

The above figures demonstrate that, despite a slight increase since 2016, the recognition rates remain overwhelmingly low at second instance.

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.[78]

According to L 4375/2016, in force until the end of 2019, an applicant was entitled to lodge an appeal against the decision rejecting the application for international protection as unfounded under the regular procedure, as well as against the part of the decision that granted subsidiary protection for the part rejecting refugee status, within 30 days from the notification of the decision.[79] In cases where the appeal was submitted while the applicant was in detention, the appeal should be lodged within 15 days from the notification of the decision.[80]

Since the implementation of IPA, the aforementioned deadlines were modified as follows: 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.[81] 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.[82]

In this regard it should be noted that the IPA further introduced the possibility of a ‘fictitious service’ (πλασματική επίδοση) of the first instance decisions, with a registered letter sent by the Asylum Service to the applicant or by communicating the decision to the authorised lawyers, consultants, representatives, or the Head of the Regional Asylum Office/Independent Asylum Unit where the application was lodged or the Head of the Reception or Accommodation Centre. [83]  From the day following the (fictitious) service, the deadline for lodging a legal remedy shall begin. Moreover, 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. [84]

Due to the provision of the possibility of a “fictitious” service of the first instance decision, from the day following which, the deadline for lodging a legal remedy begins, the 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.[85]

Form of the Appeal

Under the legislation in force until the end of 2019, with the exception of the aforementioned deadlines no particular admissibility requirements were provided by L. 4375/2016 in order for an appeal to be examined on the merits. In practice an applicant could by himself/herself declare before the Asylum Service upon the notification of the first instance negative decision his/her wish to appeal, the Asylum Service filed out an Appeal Form and then the case was transmitted for examination before the Appeals Committees, which was entitled to proceed in a full and ex nunc examination of both facts and points of law of the case on the basis of the content of the file. Additionally a legal note or any additional documents could be submitted before the Appeals Committees, two days before the day of the examination the latest.[86] The procedure followed until the end of 2019, i.e. a procedure in which the applicant could lodge an appeal himself/herself without the support of a lawyer, was a minimum guarantee that access to the appeals procedure was not hindered due to the shortages of the provision of free legal aid, given the significant gaps in the provision of free legal aid scheme.

The IPA in force since 1 January 2020 has radically amended these provisions. According to Article 93 IPA, the Appeal should inter alia be submitted in a written form (in Greek) 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, by taking into consideration 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”.[87]  

Suspensive effect

Appeals before the Appeals Authority had automatic suspensive effect in all procedures under the previous law.[88] The IPA has abolished the automatic suspensive effect for certain appeals,[89] 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”.[90]

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: i) in case that another EU Member State has granted international protection status, ii). in virtue of the first country of asylum concept, iii). 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

According to the IPA, the procedure before the Appeals Committee remains as a rule a written one and the examination of the Appeal is based on the elements in the case file.[91] According to the IPA, the Appeals Committees shall invite the appellant to an oral hearing when:[92]

  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,[93] which is no longer the case. Moreover, despite the fact that the procedure before the Appeals Committees remains written as a rule. Articles 97(2) and 78(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”. 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. a written certification of the Head of the Reception/Accommodation Centre can be sent to the Committee in case the appellant resides in an accommodation centre, by which it is certified that he/she remains there or
  3. 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), by which the appellant declares that he/she resides in the given accommodation/reception centre be sent to the Committee, prior of the date of the examination.   

The extent to which applicants and the Administration itself (Reception/Accommodation Centre Supervisor) will be able to comply with these procedural requirements is questionable, considering the living conditions of a great number of asylum applicants on the islands and the mainland, and the administrative burden that the authorities managing the reception centres face. In any case, 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. 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”.[94]

Under L. 4636/2016 appeals were always examined by the three-member-Committees in a collegial format.[95] While the IPA also provides that appeals are examined under a collegial format,[96] it introduced an exception 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.[97]

According to the law, the Appeals Committee must reach a decision on the appeal within 3 months when the regular procedure is applied.[98]

If the Appeals Committee rejects the appeal on the application for international protection but removal is not feasible due to a violation of the non-refoulement principle or other humanitarian grounds, it shall grant a ban on deportation on humanitarian grounds.[99] As mentioned above, 640 cases (6.07%) were referred as such in 2019.

L 4375/2016 foresaw the possibility of a fictitious service (πλασματική επίδοση) of second instance decisions in case of applications submitted by asylum seekers in detention or in RIC or where the applicant cannot be found at his or her contact address, telephone number etc. In these cases, the notification on the appeal could be made to the representative or lawyer of the appellant who signed the appeal or who was present during the examination of the appeal or submitted observations before the Appeals Committee, the Head of the RIC, or online on a specific database.[100] In case where a second  instance decision had been notified under this procedure, the deadline for judicial review could expire without the appellant having been informed of the decision rejecting his or her appeal.

Similarly, to the fictitious service at first instance described above, the IPA expanded the fictitious service (πλασματική επίδοση) of second instance decisions as it is not restricted to applicants in detention or in RIC or where the applicant cannot be found at his or her contact address. [101]  The IPA provides that the service of the second instance decision can take place with a registered letter or to the authorised lawyers, consultants, representatives, the Head of the Regional Asylum Office/Independent Asylum Unit, where the application was submitted or the Head of the Reception or Accommodation Centre. [102] From the day following the (fictitious) service, the deadline for lodging a legal remedy shall begin.  

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.

Since the initial amendment of the legislation on the provisions of fictitious service the Greek Ombudsman has noted that the 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”.[103]

Persons whose asylum application is rejected at second instance no longer have the status of “asylum seeker”,[104] and thus do not benefit from reception conditions.

Judicial review

According to L 4375/2016, applicants for international protection might lodge an application for annulment (αίτηση ακύρωσης) of a second instance decision of the Appeals Authority Committees[105] before the Administrative Court of Appeals[106] within 60 days from the notification of the decision. As mentioned above, the deadline can start running even with a fictitious notification (πλασματική επίδοση). The possibility to file an application annulment, the time limits, as well as the competent court for the judicial review, must be expressly stated in the body of the administrative decision. Following the application for annulment, an application for suspension (αίτηση αναστολής) can be filed.

Since the entry into force of 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[107] within 30 days from the notification of the decision.[108]

According to the IPA,[109] 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,[110] 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”.[111]
  • The application for annulment and application for suspension/interim order do not have automatic suspensive effect.[112] 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. During 2019, GCR was aware of cases where applicants have been removed to Turkey, while awaiting a decision of the competent Court to be issued on their application for suspension/interim order.
  • 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 of Interior and Administrative Reconstruction and following his relevant replacement, the Minister of Migration Policy, also had the right to lodge an application for annulment against the decisions of the Appeals Committee before the Administrative Court. 

 

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.[113]

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.   

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.[114]

The first Ministerial Decision concerning the free legal aid to applicants, was issued in September 2016.[115] However, the state-funded legal aid scheme on the basis of a list managed by the Asylum Service started operating, for the first time in Greece, on 21 September 2017.

According to Ministerial Decision 3686/2020, currently in force,[116] 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 and 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.[117] The decision also explicitly provides for the possibility of legal assistance through video conferencing in every Regional Asylum Office.[118] The fixed fee of the Registry’s lawyers has been raised from €120 (in 2019) to €160 per appeal.[119]

As of 31 December 2019 there were 37 registered lawyers on the list managed by the Asylum Service countrywide.[120] More precisely, registered lawyers were assigned in the following RAO/AAU:

 

Legal aid scheme managed by the Asylum Service: 2019

Location

Lawyers

Attica

17

Thessaloniki

2

Thrace

4

Corinth

3

Lesvos

1

Rhodes

2

Chios

1

Kos

1

Crete

2

Ioannina

2

Western Greece (Patra)

2

Total

37

 

Source: Asylum Service.  

 

By the end of 2019, a total of 5,152 asylum seekers with applications rejected at first instance had benefited from the scheme,[121] compared to 3,351 assisted asylum seekers through the same scheme in 2018.

Without underestimating the efforts made to operate a state-funded legal aid scheme at second instance, and a certain increase of the number of appellants benefitting from the scheme in 2019, the figures illustrate that the capacity of the second instance legal aid scheme remains limited. The majority of appellants in 2019, as it was also the case in 2018, did not have access to the scheme.

More precisely, out of a total of 15,355 appeals lodged in 2018, only 3,351 (21.8%) asylum seekers benefited from the state-funded legal aid scheme.[122] In 2019, out of a total of 15,378 appeals lodged in 2019, only 5,152 (33 %) asylum seekers benefitted from the state-funded legal aid scheme. Therefore compliance of the Greek authorities with their obligations under national legislation and the recast Asylum Procedures Directive remains a matter of concern and should be further assessed. Moreover, the above figures demonstrate “an administrative practice incompatible with Union law, when it is to some degree, of a consistent and general nature”.[123]

In October 2019, the Dutch Council of State ruled against the Dublin transfer of an applicant to Greece, due to inter alia limited access to legal aid by international protection applicants in appeals procedures and its impact on access to effective remedies. [124]



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

[2] Article 83(3) IPA.

[3] Ibid.

[4] Article 51(3) L 4375/2016.

[5] Article 83(3) IPA.

[6] Article 83(6) IPA.

[7]Article 69(5) IPA

[8] Asylum Service, Document no 34200/15.9.2016 “Request for a copy”. 

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

[10] Ibid.

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

[12] Case numbers on file with the author.

[13] UNHCR, Communication in the M.S.S. and Rahimi groups v. Greece case (Applications No.30696/09, 8687/08), 15 May 2019.

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

[15] Ibid, citing Article 46(8) IPA.

[16]  Ibid.

[17]  Articles 39(2) and 83(7) IPA.

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

[19] Ibid.

[20] Article 77(7) IPA.

[21]Article 52(9) L 4375/2016.

[22] Article 77(9) IPA.

[23] Article 77(4) IPA.

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

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

[26]Article 77(10) IPA.

[27] Article 77(11) IPA.

[28] Article 77(12)(a) IPA.

[29] Article 77(5) IPA.

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

[31]  Article. 65(16) IPA.

[32] Article 65(16) IPA.

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

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

[35] Article 65(16) IPA.

[36] ECRE, The Role of EASO Operations in national asylum systems, November 2019, available at: https://bit.ly/3cSt5rs, 11.

[37] Ibid.

[38] Ibid.

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

[40] ECRE, Asylum authorities: An overview of internal structures and available resources, October 2019, available at: https://bit.ly/2Trh98o, 51.

[41] Ibid. 54

[42] Ibid. 55.

[43] UNHCR, Factsheet: Greece, 1-31 December 2019.

[44] Information provided by UNHCR,15 May.2019.

[45] Information provided by the Asylum Service, 17 February 2020. The EU-28 first instance recognition rate in 2019 was 38.8% (including decisions on humanitarian grounds): Eurostat, First instance decisions on asylum applications by type of decision – annual aggregated data, available at: https://bit.ly/3exCvd1.

[46] Decision and transcript on file with the author

[47] Decisions on file with the author

[48] Decision on file with the author

[49] ECRE, The Role of EASO Operations in national asylum systems, November 2019, available at: https://bit.ly/3cSt5rs, 15.

[50] Ibid, 15-16.

[51] Article 77(3) IPA.

[52] Article 77(13)-(15) IPA.

[53] Article 77(13)-(15) IPA. .

[54] Article 80(4) L 4375/2016, as amended by Article 28(22) L 4540/2018.

[55] For the composition and the Procedure before the “Backlog Committees” see AIDA, Report on Greece, update 2018, March 2019. 

[56] Article 113(1) IPA.

[57] Article 113(2) IPA.

[58] Article 113(4) IPA.

[59]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

[60] New Europe, ‘EU Council: Why Greece should consider Turkey safe for Syrian refugees’, 9 June 2016, available at: http://bit.ly/2lWDYOa; Keep Talking Greece, ‘EU presses Greece to change asylum appeal committees that consider “Turkey is not a safe country”’, 11 June 2016, available at: http://bit.ly/2kNWR5D.

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

[62] 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.

[63] See in details AIDA, Country Report Greece: 2018 Update, March 2019. 

[64Article 116(2) and (7) IPA.

[65]  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.

[66] 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.

[67] Council of State, Decision 2980/2010.

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

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

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

[71] Joint Ministerial Decision 1061/2019, Gov. Gazette 1035/6-12-2019. See also the previous Joint Ministerial Decision No 17403/2018, Gov. Gazette 3710/B/29-8-2018.

[72] EASO, Operating Plan to Greece 2019, 19 December 2018, available at: https://bit.ly/2W6vJB2, p. 16.

[73] EASO, Operational & Technical Assistance Plan to Greece, 20 December 2019, available at: https://bit.ly/3d1A9Sd, 14-15.

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

[75] Information provided by the Appeals Authority, 6 March 2019. 

[76] Information provided by the Appeals Authority, 6 March 2019.

[77] Athens Bar Association, Επιτροπή για θέματα Προσφύγων και Μεταναστών: Άσυλο, προβλήματα στη λειτουργία των Επιτροπών Προσφυγών και ανάγκη μεγαλύτερης αξιοποίησης των δικηγόρων, 21 September 2017, available in Greek at: http://bit.ly/2orUlpv.  

[78] Article 61(1)(a)-(b) L 4375/2016, as amended by L 4399/2016, Article 92(1) IPA.

[79]  Article 61(1)(a) L 4375/2016, as amended by L 4399/2016.

[80] Article 61(1)(b) L 4375/2016, as amended by L 4399/2016.

[81] Article 92(1)(a) IPA.

[82] Article 92(1)(b) IPA.

[83] Article 82 and 103 IPA.

[84]Article 71 (7) 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] Art. 61 and 62 L. 4375/2016.

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

[88]Article 104(1) IPA.

[89] Article 104(2) IPA.

[90] Article 104(1) IPA.

[91]Article 97(1) IPA.

[92]Article 97(3) IPA.

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

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

[95] Article 5(2) L 4375/2016

[96] Article 116(2) IPA.

[97] Article 116(2) IPA.

[98] Article 101(1)(a) IPA.

[99] Article 104(4) IPA.

[100] Article 62(8) L 4375/2016, as inserted by Article 28(20) L 4540/2018.

[101] Article 82 and 103 IPA.

[102]Article 82 and 103 IPA.

[103]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.

[104] Article 2(c) IPA.

[105]  Article 34(e) L 4375/2016, as amended by Article 28(5) L 4540/2018.

[106] Article 64 L 4375/2016 citing Article 15(3) L 3068/2002, as amended by Article 49 L 3900/2010.

[107] Article 108 and 115 IPA.

[108] Article 109 IPA.

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

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

[111] Ibid.

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

[113] Article 71(1) IPA.

[114] 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.

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

[116] 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.

[117]  Article 1(3) MD 3686/2020.

[118] Article 1(7) MD 3686/2020. 

[119] Article 3 MD 3686/2020. 

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

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

[122] Information provided by the Appeals Authority, 6 March 2019; Information provided by the  Asylum  Service, 26 March 2019.

[123]See CJEU, Commission v Czech Republic, Case C‑525/14, EU C 2016 714, para 14.

[124] Dutch Council of State, Decision 3537/2019, 23 October 2019; EDAL, The Netherlands: Assurances of access to legal aid required in transfers to Greece, 23 October 2019, available at: https://bit.ly/2z5yoou.

 

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