Safe third country

Greece

Country Report: Safe third country Last updated: 10/06/21

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Greek Council for Refugees Visit Website

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

According to Article 86 (1) IPA, a country shall be considered as a “safe third country” for a specific applicant when all the following criteria are fulfilled:

  • The applicant’s life and liberty are not threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion;
  • This country respects the principle of non-refoulement, in accordance with the Refugee Convention;
  • The applicant is in no risk of suffering serious harm according to Article 15 of IPA;
  • 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;
  • 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
  • The applicant has a connection with that country, under which it would be reasonable for the applicant to move to it[1]. The transit of the applicant from a third country may, in combination with specific circumstances, in particular (a) the time of stay there, (b) any contact or objective and subjective possibility of contact with the authorities, for access to work or granting right of residence, (c) possible, prior to transit, residence such as long-term visits or studies, (d) existence of any, even distant, kinship, (e) existence of social or professional or cultural relations, (f) existence of property, (g) connection with a wider community; (h) knowledge of the language concerned; (i) geographical proximity of the country of origin, be considered as the applicant ‘s connection with the third country, on the basis of which it would be reasonable to

The IPA provides the possibility for the establishment of a list of safe third countries by way of Joint Ministerial Decision.[2] 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.[3] 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.[4]

Until the end of 2020, the safe third country concept was only applied in the context of the Fast-Track Border Procedure under Article 84 IPA on the islands for those arrived after 20 March 2016 and subject to the EU-Turkey Statement, and in particular vis-à-vis Syrians, who fall under the EU Turkey Statement, namely those who have entered Greece via the Greek Aegean islands and a geographical restriction is imposed to them. Syrians whose geographical limitation is lifted are channeled to the mainland and are examined under the regular procedure.

According to the official statistics of the Ministry of Migration and Asylum published in January 2021[5], “Returns under the EU- Turkey Joint Declaration have not been made since March [2020] due to Covid-19 [and] despite the lifting of the measures for the pandemic, from 01/06[/2020] the requests of missions-returns of the Greek authorities have not been answered.” Moreover, article 86(5) IPA provides that “when the safe third country does not allow the applicant to enter its territory, his/her application should be examined on the merits from the competent Authorities”. However, despite the suspension of returns to Turkey since March 2020 and the aforementioned provision of article 86(5) IPA, during 2020 the applications lodged by Syrians in the Eastern Aegean Islands whose geographical restriction was not lifted, were still examined in the context of the safe third country concept and the Fast-Track Border Procedure.

On 7 June 2021, a new Joint Ministerial Decision of the Ministry of Foreign Affairs and the Ministry of Migration and Asylum was issued, designating Turkey as “safe third country” in a national list for asylum seekers originating from Syria, Afghanistan, Pakistan, Bangladesh and Somalia. As a result, the applications lodged by those nationalities can be rejected as “inadmissible” without being examined on the merits.

Safety criteria

Applications lodged by Syrian nationals

In 2020, the Asylum Service issued 11,099 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, have been rejected as inadmissible on the basis of the safe third country concept.[6]

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.[7]

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,[8] the Turkish Temporary Protection Regulation (TPR), published on 2014[9] and the Regulation on Work Permit for Applicants for and Beneficiaries of International Protection, published on 26 April 2016,[10]

(b) the letters, dated 2016, exchanged between the European Commission and Turkish authorities,[11] (c) the letters, dated 2016, exchanged between the European Commission and the Greek authorities,[12]

(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[13] 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 2020 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”.[14]
  • “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”.[15]
  • “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”.[16]

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”[17] remains 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.

As mentioned above, during 2020, as a rule applications examined under the Fast Track Border Procedure submitted by Syrians applicants are rejected as inadmissible on the basis of the safe third country concept. However, as it was also the case in previous years, in 2020 a number of first instance decisions issued for Syrian applicants were declared admissible. As far as GCR is aware, such decisions include: certain applications filed by single women or single – parent families, citizens of Syria, have been deemed admissible by the RAO of Samos and Leros. However, this shall not be considered as common practice, since GCR is aware of cases with similar profiles, which have been rejected at first instance as Turkey has been considered as a safe third country for them- i.e. the application of a Syrian single mother with eight children has been rejected as inadmissible by the RAO of Lesvos.

For a detailed analysis of the first instance decisions rejecting applications submitted by Syrian as inadmissible on the basis of safe third country, see Admissibility, AIDA Report on Greece, update 2016, 2017, 2018 and 2019 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.[18] However, following reported pressure by the EU with regard to the implementation of the EU-Turkey statement,[19] the composition of the Appeals Committees was – again – amended two months after the publication of L 4375/2016.

In 2020 and as far as GCR is aware, most cases of Syrian applicants examined under the fact track border procedure have been rejected at 2nd instance as inadmissible on the basis of the safe third country concept (1,234 applications were found inadmissible and 302 admissible)[20].

Decisions of the Appeals Committees rejecting the case as inadmissible follow the line of reasoning of the Asylum Service to a great extent. Appeals Committees have continued to refrain from taking into consideration up-to-date, reliable sources of information concerning risks of inhuman or degrading treatment and refoulement facing individuals in Turkey.[21] Even where reliable reports on risks of non-compliance by Turkey with the principle of non-refoulement are cited in decisions, Committees have not engaged with available evidence in their legal analysis of the applicability of the safety criteria of the “safe third country” concept and the risks of exposure of individuals to ill-treatment.[22] 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. In a number of decisions issued in 2020, the Appeals Committees cited the aforementioned letters and selected provisions of Turkish legislation as reliable evidence of compliance by Turkey with the principle of non-refoulement.[23] In addition, Appeals Committee decisions in 2020 have dismissed alleged risks of refoulement on the ground that the evidence put forward by the appellants did not point to “structural problems” (δομικού χαρακτήρα),[24] to “systematic violations” (συστηματικές παραβιάσεις)[25] or to “mass refoulement” (μαζικές επαναπροωθήσεις) of Syrian refugees from Turkey.[26]

To the knowledge of GCR, there have been certain appeals of Syrians of Kurdish origin, which have been considered as admissible in second instance. For instance, two Appeals Committee’s decisions, issued in 2020, in cases supported by GCR, reversed the first instance inadmissible decision and declared the appeals as admissible (cases concerning two Syrian families 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”. In addition, certain appeals of Syrian single woman have been considered as admissible. In one of the cases, the Commission considered that despite the existence of a protection system in Turkey, the applicant stayed in Turkey for a particularly short period of time (18 days) without being able to access a support network and did not have the right to live in one of the accommodation centers. Furthermore, the applicant had no contact with the Turkish authorities or other links with the country, such as previous long-term visits or studies. The Commission took in to consideration that the appellant is an unmarried woman without a supportive family environment, which would make it particularly difficult to obtain social and employment ties in Turkey. Also, it took into account the problems regarding accessing protection and services, as well as the gender discrimination and the living and working conditions of Syrian women prevailing in Turkey. Following the above the Committee considered that in this case the legally required condition of ‘connection’ on the basis of which it would be reasonable for the appellant to return to Turkey is not established and, therefore, Turkey could not be considered a safe third country for her. Thus, under said second instance decision the appeal of the Syrian woman has been considered admissible and she was granted with subsidiary protection status.

Lastly, few appeals of Syrian who used to reside in Syrian areas were Turkey has military activity have been considered admissible due to the fact that the condition of ‘connection’ could not be fulfilled given the violent military intervention of Turkey in their region of origin. Lastly, GCR is aware of a second instance decision which considered the appeal of a Syrian who have remained in Turkey for the short period of 15 days as admissible, on the ground that transit per se shall not be conceived in itself sufficient or significant connection with the country.

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.

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[27] as to the connections considered “reasonable” between an applicant and a third country,[28] 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:[29]

  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”.[30]

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[31]. 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.[32]

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.[33]

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,[34] 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, a few second instance decisions issued in 2020 regarding Syrian applicants examined under the safe third country concept have found that the safe third country requirements, including in some cases the connection criteria, were not fulfilled[35]. In one case, the Appeals Committee deemed a 45-day stay in Turkey, of which 30 days were spent in prison, as sufficient to establish a connection between the applicant and the country.[36] In another case, the three-week stay of a family was deemed sufficient per se to substantiate a connection.[37] There have also been negative decisions of Appeals Committees where the connection criterion has been fully disregarded.[38]

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.[39] This guarantee is complied with in practice.

 

 

[1]   In LH the CJEU examined the compatibility of said provision with Article 38(2) of the Recast Asylum Procedures Directive 2013/32/EU and 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”, C-564/18 (19 March 2020). Moreover, contrary to Article 38(2) of the Directive, national law does not foresees 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.

[2] Article 86(3) IPA.

[3] Article 86(2) IPA.

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

[5]  Ministry of Migration and Asylum, MoMa Yearly Report 2020, December 2020, available at: https://bit.ly/3uBkAJC , p. 5

[6] Information provided by the Asylum Service, 31 March 2021; 2,812 applications have been rejected as inadmissible; 306 applications have been considered as admissible following examination on the basis of the safe third country concept.

[7] 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.

[8]  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.

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

[10] 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.

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

[12]  Ibid.

[13]  Sources made public since 2018 and mentioned in the first instance decision are: UNHCR, Turkey: Key facts and figures, May 2019; 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.

[14] 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

[15] Ibid, p. 36.

[16] Ibid, p. 37.

[17] 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.

[18] 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.

[19] 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.

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

[21] See e.g. 6th Appeals Committee, Decision 25449/2019, 20 January 2020; 6th Appeals Committee, Decision 2411/2019, 28 February 2020; 17th Appeals Committee, Decision 3576/2020, 10 March 2020, para 12; 13th Appeals Committee, Decision 2727/2020, 9 April 2020; 14th Appeals Committee, Decision 4334/2020, 9 April 2020.

[22] See e.g. 6th Appeals Committee, Decision 2411/2019, 28 February 2020, paras 11, 14 and 15; 13th Appeals Committee, Decision 2727/2020, 9 April 2020, para 19; 6th Appeals Committee, Decision 5892/2020, 27 May 2020, paras 12 and 15.

[23] 13th Appeals Committee, Decision 2727/2020, 9 April 2020, para 19; 16th Appeals Committee, Decision 19219/2019, 15 May 2020, para 16.

[24] 6th Appeals Committee, Decision 25449/2019, 20 January 2020, para 12; 6th Appeals Committee, Decision 2411/2019, 28 February 2020, para 15; 6th Appeals Committee, Decision 5892/2020, 27 May 2020, para 15.

[25] 14th Appeals Committee, Decision 2548/2020, 24 April 2020, 11: Information provided by RSA, 4 January 2021.

[26]  13th Appeals Committee, Decision 6722/2020, 9 April 2020, 12: Information provided by RSA, 4 January 2021.

[27]  Article 56(1)(f) L 4375/2016.

[28]  Article 56(1)(f) L 4375/2016.

[29]  Article 86(1)(f) IPA.

[30] Article 86(1)(f) IPA.

[31] 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

[32] 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.

[33] 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.

[34] 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.

[35] Decisions on file with the author.

[36] 14th Appeals Committee, Decision 4334/2020, 9 April 2020, para 13: Information provided by RSA, 4 January 2021.

[37] 13th Appeals Committee, Decision 2727/2020, 9 April 2020, para 24: Information provided by RSA, 4 January 2021.

[38]  6th Appeals Committee, Decision 25449/2019, 20 January 2020: Information provided by RSA, 4 January 2021.

[39]   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