Safe third country

Greece

Country Report: Safe third country Last updated: 30/11/20

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The “safe third country” concept is a ground for inadmissibility (see Admissibility Procedure).

According to Article 56 (1) L 4375/2016, previously in force, a country shall be considered as a “safe third country” for a specific applicant when all the following criteria are fulfilled:

  1. The applicant's life and liberty are not threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion;
  2. This country respects the principle of non-refoulement, in accordance with the Refugee Convention;
  3. The applicant is in no risk of suffering serious harm according to Article 15 of PD 141/2013;
  4. The country prohibits the removal of an applicant to a country where he or she risks to be subject to torture or cruel, inhuman or degrading treatment or punishment, as defined in international law;
  5. The possibility to apply for refugee status exists and, if the applicant is recognised as a refugee, to receive protection in accordance with the Refugee Convention; and
  6. The applicant has a connection with that country, under which it would be reasonable for the applicant to move to it.

The said six criteria were repeated in Article 86(1) IPA. A more detailed provision with regards the connection criteria has been provided by Article 86(1-f) IPA. Additionally, the IPA has provided the possibility for the establishment of a list of safe third countries by way of Joint Ministerial Decision.[1] There is no list of safe third countries in Greece at the time of writing. 

According to the law, the aforementioned criteria are to be assessed in each individual case, except where a third country has been declared as generally safe in the national list.[2] Such provision seems to derogate from the duty to carry out an individualized assessment of the safety criteria where the applicant comes from a country included in the list of “safe third countries”, contrary to the Directive and to international law. Even where a country has been designated as generally safe, the authorities should conduct an individualized examination of the fulfillment of the safety criteria. Moreover, there should be a possibility to challenge both the general designation of a country as safe and the application of the concept in an individual case.[3]

Until the end of 2019, the safe third country concept was only applied in the context of the Fast-Track Border Procedure under Article 60(4) L 4375/2016 on the islands for those arrived after 20 March 2016 and subject to the EU-Turkey Statement, and in particular vis-à-vis nationalities with a recognition rate over 25%, thereby including Syrians, Afghans and Iraqis. Since applications of persons identified as vulnerable or falling within the scope of the Dublin Regulation family provisions, they were exempted from this procedure and they were not subject to the safe third country concept.

 

Safety criteria

 

Applications lodged by Syrian nationals

In 2019, the Asylum Service issued 3,746 first instance Decisions regarding applications submitted by Syrian applicants initially subject to the fast-track border procedure. Out of those, the vast majority of applications submitted by Syrian applicants and examined under the safe third country concept, i.e. not exempted by the fast track border procedure for reasons of identified vulnerability or application of Dublin provisions, have been rejected as inadmissible on the basis of the safe third country concept.[4]

Since mid-2016, namely from the very first decisions applying the safe third country concept in the cases of Syrian nationals, until today, first instance decisions dismissing the applications of Syrian nationals as inadmissible on the basis that Turkey is a safe third country in the Fast-Track Border Procedure, are based on a pre-defined template provided to Regional Asylum Offices or Asylum Units on the islands, and are identical, except for the applicants’ personal details and a few lines mentioning their statements, and repetitive.[5]

Specifically, the Asylum Service, reaches the conclusion that Turkey is a safe third country for Syrian nationals, relying on (a) the provisions of Turkish legal regime in force, i.e. the Turkish Law on Foreigners and International Protection (LFIP), published on 4 April 2013,[6] the Turkish Temporary Protection Regulation (TPR), published on 2014[7] and the Regulation on Work Permit for Applicants for and Beneficiaries of International Protection, published on 26 April 2016,[8] b) the letters, dated 2016, exchanged between the European Commission and Turkish authorities,[9] (c) the letters, dated 2016, exchanged between the European Commission and the Greek authorities,[10] (d) the 2016 letters of UNHCR to the Greek Asylum Service, regarding the implementation of Turkish law about temporary protection for Syrians returning from Greece to Turkey and (e) on sources, indicated only by title and link, without proceeding to any concrete reference and legal analysis of the parts they base their conclusions.

Although a number of more recent sources[11] have been added to the endnotes of some decisions issued since late 2018 and up until today, their content is not at all assessed or taken into account and applications continue to be rejected as inadmissible on the same reasoning as before. No 2019 source is mentioned.

Similarly, as reported in a comparative analysis issued in 2019:

  • most EASO opinions reviewed with regards admissibility cases of Syrian nationals, “do not examine the individual safety criteria of Article 38(1) of the recast Asylum Procedures Directive in order, and deem that the safety criteria are met. None of the reviewed opinions makes an assessment of the connection requirement under Article 38(2)(a) of the Directive [….] Caseworkers affirm that the applicant can access and benefit from protection in accordance with the 1951 Refugee Convention and is not at risk of persecution, serious harm or refoulement in Turkey”.[12]
     
  • “based on the sample of cases reviewed, it appears that the citation of sources such as AIDA by both EASO and the Asylum Service is selective. The opinions and decisions systematically cite introductory passages of the report referring to Turkey’s legal framework, while critical passages documenting gaps in practice and legislation in areas such as access to employment, or the derogation from the non-refoulement principle introduced since 2016, are not included in the vast majority of cases”.[13]
     
  • “the country information cited in opinions and decisions is often out of date. For example, several opinions of EASO on Syrians cite the December 2015 version of the AIDA Country Report on Turkey, and not the more recent updates of the report. The Asylum Service decisions have updated some of the sources cited… Yet, the content of the decision remains intact despite the updated footnotes”.[14]

Accordingly, negative first instance decisions, qualifying Turkey as a safe third country for Syrians, are not only identical and repetitive – failing to provide an individualised assessment, in violation of Articles 10 and 38 of the Directive 2013/32/EU, but also outdated insofar, as they do not take into account developments after 2016, failing to meet their obligation to investigate ex officio the material originating from reliable and objective sources as regards the situation in Turkey, and the actual regime in the country, given the absolute nature of the protection afforded by Article 3 ECHR.

As the same template decision is used since 2016, the finding of the United Nations Special Rapporteur on the human rights of migrants in 2017, that “admissibility decisions issued are consistently short, qualify Turkey as a safe third country and reject the application as inadmissible: this makes them practically unreviewable”[15] remain valid. Respectively, as far as GCR is aware, second instance decisions issued by the Independent Appeals Committees for Syrian applicants systematically uphold the first instance inadmissibility decisions, if no vulnerability is identified.

As mentioned above, during 2019, as a rule applications submitted by Syrians applicants, for whom no vulnerability has been identified or the Dublin Regulation is not applicable, are rejected as inadmissible on the basis of the safe third country concept. However, as it was also the case in previous years, in 2019 a number of first instance decisions issued for Syrian applicants declared the application admissible. As far as GCR is aware, such decisions include: cases of Syrian single women whose application has been considered admissible on the basis that the rights of a single refugee woman are not effectively protected in practice in Turkey; Syrian applicants of Kurdish origin; and applicants of Palestinian origin with former habitual residence in Syria who cannot access temporary protection status as they have not arrived in Turkey directly from Syria. However, this line of reasoning is not always consistently applied and contradictions between the reasoning and the outcome of similar cases occur. 

For a detailed analysis of the first instance decisions rejecting applications submitted by Syrian as inadmissible on the basis of safe third country, see Safe third country, AIDA Report on Greece, update 2016, 2017 and 2018 respectively. These findings are still relevant as the same template is used since mid-2016.

An indicative example of a first instance inadmissibility decision can be found in the 2017 update of the AIDA report on Greece, which remains the same up until today.

Respectively, as far as GCR is aware, second instance decisions issued by the Independent Appeals Committees for Syrian applicants systematically uphold the first instance inadmissibility decisions, if no vulnerability is identified.

In this regard, it should be recalled that in 2016, the overwhelming majority of second instance decisions issued by the Backlog Appeals Committees rebutted the safety presumption.[16] However, following reported pressure by the EU with regard to the implementation of the EU-Turkey statement,[17] the composition of the Appeals Committees was – again – amended two months after the publication of L 4375/2016.

In 2017, contrary to the outcome of second instance decisions issued by the Backlog Appeals Committees in 2016, 98.2% of the decisions issued by the new Independent Appeals Committees upheld the inadmissibility decisions on the basis of the safe third country concept.

In 2018, the Independent Appeals Committees issued 78 decisions dismissing applications as inadmissible on the basis that Turkey can be considered as a safe third country for Syrian applicants. As far as GCR is aware, in 2018 there have been only two cases of Syrian families of Kurdish origin, originating from Afrin area, in which the Appeals Committee ruled that Turkey cannot be considered as a safe third country for said Syrian applicants due to the non-fulfillment of the connection criteria.[18]

Respectively, in 2019 and as far as GCR is aware, all cases of Syrian applicants examined under the fact track border procedure have been rejected as inadmissible on the basis of the safe third country concept (29 Decisions),[19] if no vulnerability was identified or no grounds in order the case to be referred for humanitarian status were present. To the knowledge of GCR, there have been only two Appeals Committee’s Decision, issued in 2020, in cases supported by GCR, that reversed the first instance inadmissible decision and in which the Appeals Committee accepted the Appeals and declared them as admissible. Both cases concerned a Syrian family with minor children of Kurdish origin. The Committee considered that the safe third country concept with regards Turkey could not be applied in these cases, on the basis that the connection requirement was not satisfied. The Committee took into consideration the short stay of the applicants in Turkey (10 days and 15 days respectively), the lack of supportive network, the lack of any living or professional ties in that country and the involvement of Turkey in the Syrian war, due to “any tie of the Applicants with said country has been destroyed”.

Decisions of the Appeals Committees rejecting the case as inadmissible follow the line of reasoning of the Asylum Service to a great extent. Second instance decisions rely on the information provided by the letters of the Turkish authorities, considered as diplomatic assurances “of particular evidentiary value”, on the relevant legal framework of Turkey, without taking into consideration any amendment or its application in practice and on a selective use of available sources, so as to conclude in a stereotypical way that the safety criteria are fulfilled.

For a more detailed analysis of Appeals Committees’ decisions and the Council of State Decision on safe third country concept vis-a vis Turkey, with regards Syrian Applicants, see the 2017 update of the AIDA report on Greece.

Applications lodged by non-Syrian nationalities with a recognition rate over 25%

As mentioned above, the examination of admissibility of applications by non-Syrians is applied only for applications lodged by persons belonging to nationalities with a recognition rate over 25%.

In 2019, a total of 29,476 asylum applications have been submitted on the islands by non-Syrian nationals from countries with a recognition rate over 25% and 29,639 first instance decisions have been issued.[20]

As far as GCR is aware, decisions on these applications generally conclude that the criterion set out in Article 56(1)(e) L 4375/2016 (“the possibility to apply for refugee status exists and, if the applicant is recognised as a refugee, to receive protection in accordance with the Geneva Convention”) is not fulfilled. In 2019, no first instance “inadmissibility” decision has been taken with regards applications submitted by non-Syrians belonging to nationalities with a recognition rate over 25%, based on the “safe third country” or “first country of asylum” concept.[21]

More precisely, decisions accepting the admissibility of the application, largely based on the same correspondence between EU institutions, Turkish and Greek authorities and UNHCR, as is the case of decisions for Syrian applicants, concluded that:

 “In Turkey, despite the fact that the country has signed the Geneva Convention with a geographical limitation, and limits its application to refugees coming from Europe, for the rest of the refugees there is the possibility for international protection to be requested (conditional refugee status/subsidiary protection), as foreseen by the relevant legislation. However, it is not clear from the sources available to the Asylum Service that there will be a direct access (άμεση πρόσβαση) to the asylum procedure, while assurances have not been provided by the Turkish authorities as to such direct access for those returned from Greece. In addition, there is no sufficient evidence to show that ‘conditional refugee status’ is granted to all of those who are eligible for it (in particular statistical data on recognition rates and the average duration of the asylum procedure).

Moreover, data available to the Asylum Service for the time being show that in case international protection would be granted to the applicant, this will not be in accordance with the Geneva Convention. According to the data available to the Asylum Service, conditional refugee status beneficiaries do not have the right to family reunification, contrary to those granted with subsidiary or temporary protection. Furthermore, the regime granted to [beneficiaries of conditional refugee status] lasts only until their resettlement by the UNHCR.”

Given the fact that, the possibility of direct access (άμεση πρόσβαση) to the asylum procedure is not clear, the applicant has not been granted refugee status in the past, the applicant does not have neither relatives, who are permanently residents in that country, nor ethic or cultural ties with that country, it is concluded that the he/she does not have connection with that country under which it would be reasonable for him/her to move to it”.[22]

It should be noted, however, that even though the Asylum Service has not considered Turkey as a safe third country for non-Syrian applicants, EASO caseworkers systematically issue opinions recommending that these cases be dismissed inadmissible on the basis of the “safe third country” concept.

As noted in a comparative research issued by ECRE in 2019, the overwhelming majority of EASO opinions seen by ECRE recommend inadmissibility for non-Syrians on the basis that Turkey is a safe third country for them, whereas the Asylum Service overturns the opinions and declares the applications admissible without exception. There is mutual acknowledgment that the examination of the safe third country concept is a redundant step in “merged procedure” cases, and the Asylum Service is in favour of forgoing the admissibility assessment for these cases. Nonetheless, EASO does not intend to change its practice or to revisit the instructions given to Caseworkers. This is seen as a political priority that cannot be revisited at operational level.[23] As mentioned this could also been seen as an evidence of the pressure Turkey to be qualified as a safe third country for Syrians and non-Syrians like.[24]

 

Connection criteria

 

Article 86(1)(f) IPA requires there to be a connection between the applicant and the “safe third country”, which would make return thereto reasonable. Whereas no further guidance was laid down in previous legislation[25] as to the connections considered “reasonable” between an applicant and a third country,[26] the IPA has introduced further detail in the determination of such a connection. Transit through a third country may be considered as such a connection in conjunction with specific circumstances such as:[27]

  1. Length of stay;
  2. Possible contact or objective and subjective possibility of contact with the authorities for the purpose of access to the labour market or granting a right to residence;
  3. Stay prior to transit e.g. long-stay visits or studies;
  4. Presence of relatives, including distant relatives;
  5. Existence of social, professional or cultural ties;
  6. Existence of property;
  7. Connection to a broader community;
  8. Knowledge of the language concerned;
  9. Geographical proximity to the country of origin.

The proposed article attempts to incorporate into Greek law the decision of the Plenary Session of the Council of State No 2347-2348/2017, which ruled on the resignation of Turkey as a safe third country for Syrian citizens. However, in view of the strong minority of 12 members out of a total of 25 advocating for the referral of a preliminary question to the Court of Justice of the European Union, the judgment of the majority of the Plenary Session of the Council of State cannot be regarded as a reliable case-law, neither at a national, nor at European and International level, so as to be integrated in Greek law. It should be noted that among the issues raised in the Plenary Session, the issue of the applicant's safe connection with the third country was of particular concern as well as whether the applicant's simple transit through that country was sufficient in this respect, in combination with certain circumstances, such as the duration of their stay there and the proximity to their country of origin. Said provision adopts uncritically the rationale of the majority of the Plenary Session, despite the strong minority.

The compatibility of said provision with the EU acquis should be further assessed, in particular by taking into consideration the recent CJEU Decision, C‑564/18 (19 March 2020) in which the Court ruled that “the transit of the applicant from a third country cannot constitute as such a valid ground in order to be considered that the applicant could reasonably return in this country”.[28]

Moreover, as no provision on the methodology to be followed by the authorities in order to assess whether a country qualifies as a “safe third country” for an individual applicant, the compatibility of national legislation with Art. 38 of the Directive 2013/32/EU should be assessed, in particular under the light of and the recent case law of the CJEU[29]. To this regard, it should also be also mentioned that the lack of a “methodology” provided by national law, could render the provision non-applicable.[30]

In practice, as it appears from first instance inadmissibility decisions issued to Syrian nationals, to the knowledge of GCR, the Asylum Service holds that the fact that an applicant would be subject to a temporary protection status upon return is sufficient in itself to establish a connection between the applicant and Turkey, even in cases of very short stays and in the absence of other links.[31]

Respectively, the Appeals Committees find that the connection criteria can be considered established by taking into consideration inter alia the “large number of persons of the same ethnicity” living in Turkey, the “free will and choice” of the applicants to leave Turkey and “not organize their lives in Turkey”, “ethnic and/or cultural bonds” without further specification, the proximity of Turkey to Syria, and the presence of relatives or friends in Turkey without effective examination of their status and situation there. Additionally, in line with the 2017 rulings of the Council of State,[32] transit from a third country, in conjunction with inter alia the length of stay in that country or the proximity of that country to the country of origin), is also considered by second instance decisions as sufficient for the fulfillment of the connection criteria. It should be recalled that in the case presented before the Council of State where the Court found that the connection criteria were fulfilled, that applicants had stayed in Turkey for periods of one month and two weeks respectively.

As mentioned above, as far as GCR is aware, no second instance decision issued in 2019 regarding Syrian applicants examined under the safe third country concept has found that the safe third country requirements, including the connection criteria, were not fulfilled.  

To GCR knowledge, there have been only two Appeals Committee’s Decision, issued in 2020, in cases supported by GCR, that reversed the first instance inadmissible decisions and in which the Appeals Committee accepted the appeal and declared them as admissible, in particular on the ground that the connection criteria were not fulfilled. These cases concerned Syrian family with minor child/children of Kurdish origin. The Committee considered that the safe third country concept with regards Turkey could not be applied in these cases, on the basis that the connection requirement was not satisfied. The Committee took into consideration the short stay of the applicants in Turkey (10 days and 15 days respectively), the lack of supportive network, the lack of any living or professional ties in that country and the involvement of Turkey in the Syrian war, due to “any tie of the applicants with said country has been destroyed”.[33]

Procedural safeguards

Where an application is dismissed as inadmissible on the basis of the “safe third country” concept, the asylum seeker must be provided with a document informing the authorities of that country that his or her application has not been examined on the merits.[34] This guarantee is complied with in practice.

 


[1] Article 86(3) IPA. 

[2]  Article 86(2) IPA. 

[3] RSA Comments on the International Protection Bill, October 2019, available at: https://bit.ly/3eqsDC0,p. 4-5.

[4] Information provided by the Asylum Service, 17 February 2020; 235 applications have been rejected as inadmissible; 44 applications have been considered as admissible following examination on the basis of the safe third country concept.

[5] ECRE, The role of EASO operations in national asylum systems, An analysis of the current European Asylum Support Office (EASO) Operations involving deployment of experts in asylum procedures at Member State level, 29 November 2019, available at: https://bit.ly/2RVALRt, p. 33 and 35, ECRE et al., The implementation of the hotspots in Italy and Greece, December 2016, 38. On Lesvos, see GCR, GCR Mission to Lesvos – November 2016, available at: http://bit.ly/2kbN7F0, 20; On Samos, see GCR, GCR Mission to Samos – June 2016, available at: http://bit.ly/2kCHMDm, 20 On Leros and Kos, see GCR, GCR Mission to Leros and Kos – May to November 2016, 32.

[6] Turkey: Law No. 6458 of 2013 on Foreigners and International Protection, 4 April 2013, as amended by the Emergency Decree No 676, 29 October 2016, available at: https://www.refworld.org/docid/5167fbb20.html.

[7] National Legislative Bodies / National Authorities, Turkey: Temporary Protection Regulation, 22 October 2014, available at: https://www.refworld.org/docid/56572fd74.html

[8] National Legislative Bodies / National Authorities, Turkey: Regulation on Work Permit of International Protection Applicants and International Protection Status Holders, 26 April 2016, available at: https://www.refworld.org/docid/582c6ff54.html.

[9] Letters between the European Commission and the Turkish and Greek authorities, available at: https://bit.ly/2ygrz32.

[10] Ibid.

[11] Sources made public since 2018 and mentioned in the first instance decision are: AIDA Report on Turkey, Update 2017; United States Department of State, Turkey 2017, Human Rights Report; European Commission, Turkey 2018 Report, SWD(2018) 153 final, 17 April 2018; European Commission, ECHO Factsheet – Turkey Refugee Crisis – June 2018.

[12] ECRE, The role of EASO operations in national asylum systems, An analysis of the current European Asylum Support Office (EASO) Operations involving deployment of experts in asylum procedures at Member State level, 29 November 2019, available at: https://bit.ly/2VcFFLU, pp. 24, 38

[13]Ibid, p. 36.

[14] Ibid, p. 37.

[15] United Nations Human Rights Council, Report of the Special Rapporteur on the human rights of migrants on his mission to Greece, A/HRC/35/25/Add.2, 24 April 2017, para 81.

[16]The United Nations Special Rapporteur on the human rights of migrants commended their independence against “enormous pressure from the European Commission”: Report on the visit to Greece, 24 April 2017, para 85.

[17] 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.

[18] 4th Independent Appeals Committee, Decision 3225/28.02.2020, 28 February 2020. See also, 9th Independent Appeals Committee, Decisions 20802/25.9.2018 and 20898/26.9.2018, 25 September 2018, available at: https://bit.ly/2CjbmcD.

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

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

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

[22] Decisions on file with the author.

[23] ECRE, The role of EASO operations in national asylum systems, An analysis of the current   European Asylum Support Office (EASO) Operations involving deployment of experts in asylum procedures at Member State level, 29 November 2019, available at: https://bit.ly/2VxeDNX, 12 and 26; see also European Court of Auditors, Asylum, Relocation and Returns of migrants: Time to step up action to address disparities between objectives and results, available at: https://bit.ly/3aclLVs, p. 39.

[24]Amnesty International, Greece: Lives on hold – Update on situation of refugees and migrants on the Greek islands, EUR25/6745/2017, 14 July 2017, available at: http://bit.ly/2wuiiSx, 4.

[25] Article 56(1)(f) L 4375/2016.

[26] Article 56(1)(f) L 4375/2016.

[27] Article 86(1)(f) IPA.

[28] Article 86(1)(f) IPA.

[29] CJEU, Case C-564/18, LH v Bevándorlási és Menekültügyi Hivatal, 19 March 2020; see Refugee Support Aegean, Comments on the Reform of the International Protection Act, https://bit.ly/3dLzGUt, p.14

[30]CJEU, Case C-528/15, Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v Salah Al Chodor, 15 March 2017; see Refugee Support Aegean, Comments on the Reform of the International Protection Act, idem. 

[31] Note that the decision refers to the applicant’s “right to request an international protection status”, even though persons under temporary protection are barred from applying for international protection, see Tempalte Decision in AIDA, Country Report Turkey, 2017 Update, March 2018.

[32] Council of State, Decision 2347/2017, 22 September 2017, para 62; Decision 2348/2017, 22 September 2017, para 62. Note the dissenting opinion of the Vice-President of the court, stating that transit alone cannot be considered a connection, since there was no voluntary stay for a significant period of time.

[33]Decision on file with the author.

[34] Article 56(2) L 4375/2016 and Article 86(4) IPA.

 

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