Safe third country

Greece

Country Report: Safe third country Last updated: 19/06/24

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

According to Article 91 (1) of the Asylum Code, a country shall be considered as a “safe third country” for a specific applicant when all the following criteria are cumulatively 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;
  • The 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 move to it.

The Asylum Code provides the possibility for the establishment of a list of safe third countries by way of Joint Ministerial Decision.[2] On 7 June 2021, a Joint Ministerial Decision of the Deputy Minister of Foreign Affairs and the Minister of Migration and Asylum was issued, designating Türkiye as “safe third country” in a national list for asylum seekers originating from Syria, Afghanistan, Pakistan, Bangladesh and Somalia, without providing any legal reasoning.[3] The aforementioned Joint Ministerial Decision was amended by a subsequent JMD under Article 86(3) IPA, previously in force, declaring Türkiye a safe third country for the said nationalities, again, without providing any legal reasoning.[4] The abovementioned JMD designated Albania as a safe third country for the first time for people entering Greece from the Albanian-Greek borders, and North Macedonia as a safe third country for people entering the Greek territory from the borders between North Macedonia and Greece. [5] Subsequently, on 12 December 2022, a new JMD[6] was issued pursuant to which JMD 42799/03.06.2021[7], as amended by the JMD 458568/15.12.2021, upon review of the existing information (domestic legislative status of the third country, bilateral or multilateral inter-governmental agreements or agreements of the third country with the European Union, as well as internal practice) [8], remains in force..

It must be stressed that these JMDs provide no reasoning as to why and on the basis of which information Türkiye was designated as a safe third country for the five nationalities. Instead, they refer to “Opinions” of the Head of the Asylum Service, whichhave not been made public, in contravention of Articles 12(1)(d) and 38(2)(c) of the Asylum Procedures Directive and Articles 86(3) IPA, previously in force and 91(3) of the Asylum Code. According to Article 91(3) of the Asylum Code, the information (domestic legislative status of the third country, bilateral or multilateral inter-governmental agreements or agreements of the third country with the European Union, as well as internal practice)” taken into account for the adoption of a JMD designating a country as a “safe third country”, must be “up to date and come from credible sources of information, in particular from official domestic and foreign diplomatic sources, EASO, the legislation of the other Member States in relation to the concept of safe third countries, the Council of Europe, and UNHCR. The European Commission shall be informed of any decision designating a country as a safe third country.

The European Commission has expressly stated that:[9]

‘Article 12(1)(d) of Directive 2013/32/EU provides that such information, when taken into account by the deciding authority, should also be accessible to the applicant and his/her legal advisers. To the extent Opinion 8815/14.05.2021 of the Director of the Asylum Service contains information referred to in Article 10(3)(b) of Directive 2013/32/EU, and the deciding authority takes the opinion into account for the purpose of taking a decision on an application for international protection, it should be made accessible to the applicant and his/her legal advisers’.

Contrary to Article 91(3) of the Asylum Code, the Opinion was simply a compilation of sources of information about Türkiye and contains no legal reasoning as to why this information leads to the conclusion that Türkiye is a safe third country for asylum seekers from the five countries concerned. In fact, the sources mentioned in the “Opinion” seem to rather substantiate the opposite conclusion. Finally, it should be mentioned that the “Opinion” has still not been published by the authorities nor is it included as part of the applicants’ file in the inadmissibility decisions.[10]

As a result, from the entry into force of the JMDs, the applications lodged by those nationalities can be rejected as “inadmissible” without their applications being examined on their merits.

Prior to any analysis of the statistics, it must be noted that ‘Full and transparent publication of asylum statistics has been a core demand of MPs and civil society in Greece from the re-establishment of the Ministry of Migration and Asylum to present […] monthly reports of the Ministry of Migration and Asylum do not disaggregate first and second instance decisions by country of origin. However, detailed figures by country and type of decisions have been secured through parliamentary questions’.[11]

In 2022, 6,105 inadmissibility decisions were issued in application of JMD 42799/2021, out of which 3,409 first instance inadmissibility decisions and 2,696 second instance inadmissibility decisions.[12]

The criteria provided by the Asylum Code are to be assessed in each individual case, except where a third country has been declared as generally safe in the national list.[13] Such provision seems to derogate from the duty to carry out an individualised 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 individualised examination of the fulfilment 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.[14]

Up 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, previously in force, on the islands for those that arrived after 20 March 2016 and subject to the EU-Türkiye Statement, and in particular vis-à-vis Syrians, who fall under the EU Türkiye Statement, namely those who have entered Greece via the Greek Aegean islands and a geographical restriction is imposed to them.

Since June 2021, all applications for international protection submitted by nationals of Syria, Afghanistan, Somalia, Pakistan and Bangladesh throughout the Greek territory are examined under the safe third country concept pursuant to JMD 42799/2021, as amended by JMD 485868/2021 and 734214/2022. Based on this new policy, asylum applications of people from the aforementioned five nationalities are not examined on the basis of their individual circumstances and the risks they face in their country of origin. Instead, they are presumed to be safe in Türkiye, and only if Türkiye is proven not to be safe, these applications are deemed ‘admissible’, and the competent decision authorities proceed to the examination of the applications for international protection on the merits. Three out of the five nationalities mentioned in the JMD 42799/03.06.2021 are those who are most often recognised as refugees in Greece. In 2020, before the said JMD, 92% of Syrians, 66% of Afghans, and 94% of Somalis (median acceptance rate: 84%) received refugee or subsidiary status. However, following the JMD, rejections have increased significantly.[15]

In addition to the above, according to the official statistics of the Ministry of Migration and Asylum published in December 2022, ‘Returns under the EU – Türkiye Joint Declaration have not been made since March 2020 due to Covid-19. It should be noted that despite the lifting of the Covid-19 measures the requests of missions-returns of the Greek authorities have not been answered’.[16]

Furthermore, the suspension of returns/readmissions under the EU-Türkiye Statement is publicly acknowledged by both the European Commission and the competent Ministers of the Greek government.[17] The European Commission in the 12 October 2022 report about Türkiye explicitly states, inter alia, the following: ‘Türkiye maintained the suspension of returns from the Greek islands that it put in place in March 2020 […] The return of irregular migrants from the Greek islands under the EU-Türkiye Statement continued to be suspended, as it has been since March 2020.’[18] while in its 6th Annual report clearly points out that Türkiye was no longer using COVID-19 as a pretext for refusing returns. In particular, it this report, it is explicitly stated that: ‘Although resettlements from Türkiye resumed as of July 2020, returns from Greece remain suspended. Responding to repeated requests from the Greek authorities and the European Commission regarding the resumption of return operations, Türkiye has stated that no return operation would take place unless the alleged pushbacks along the Turkish-Greek border stop and Greece revokes its decision to consider Türkiye a Safe Third Country’.[19] The Minister of Citizen Protection has explicitly stated that Türkiye refuses to implement the Statement and invokes the COVID-19 pandemic as grounds for suspending readmissions. The Minister of Migration and Asylum noted in early 2022 that “Türkiye has unilaterally suspended admission of those who do not qualify international protection since March 2020, under the pretext of COVID”. In a previous statement, the Minister stressed that Türkiye “has refused to implement its commitments, and continues to refuse to engage in any way on the issue”.[20] Besides, the Readmission Unit of the Migration Management Directorate of the Hellenic Police, in response to relevant questions submitted by GCR, systematically confirms the absence of any prospect of removal of refugees from the Eastern Aegean islands to Türkiye, while the Administrative Courts on judicial review of detention affirm the manifest lack of prospects of readmission to Türkiye, highlighting that the procedure for the readmission of third-country nationals to Türkiye has already been suspended since 16 March 2020 and there is no evidence that this suspension will be lifted immediately, that the police authority has not proceeded to any action to execute the readmission decision, as well as that precondition for the readmission of third-country nationals to Türkiye is the submission of a relevant return application by the competent Greek authority, however, no requests have been submitted for the applicants’ return to Türkiye nor does it appear that there is any intention to do so, due to the indefinite suspension of the relevant procedures on the part of the Turkish authorities.[21]

It is also worth noting that due to this suspension, the Greek authorities do not send readmission requests to the Turkish authorities regarding persons whose applications have been examined under the safe third country concept[22].

Article 38(4) of the Asylum Procedures Directive, which provides that “where the third country does not permit the applicant to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II”, was transposed into Greek law through Article 91(5) of the Asylum Code,[23] pursuant to which “where the safe third country does not allow the applicant to enter its territory, his/her application shall be examined on the merits by the competent Examination Authorities”.

Despite the suspension of returns to Türkiye since March 2020,[24] and the aforementioned provision of Article 91(5) of the Asylum Code, the Greek asylum authorities systematically applied the safe third country concept during 2022 vis-à-vis applicants originating from Syria, Afghanistan, Somalia, Pakistan and Bangladesh, leading to a large number of applicants having their claims dismissed as inadmissible and being ordered to return to Türkiye, without any prospects of readmission. As already noted above, as many as 6.105 asylum applications (at first and second instance) were dismissed as inadmissible based on the safe third country concept in 2022.. The overwhelming majority of those decisions concerned the procedure on the mainland[25]. Subsequent applications lodged following a final rejection of an application for international protection as inadmissible are channelled again into admissibility procedures and dismissed based on the safe third country concept or due to a lack of new elements. In 2022, 109 claims by Somalis, 80 by Afghans and 22 by Syrians, normally lodged following rejection of the initial claim on “safe third country” grounds, were dismissed as inadmissible subsequent claims[26].

Only a few decisions, to the knowledge of GCR, have exceptionally been issued by the Committees of the Appeals Authority, pursuant to which the applications for international protection were deemed admissible as it was certain that Türkiye would not allow the appellants to enter its territory, given the refusal of Türkiye to admit the applicants on its territory and the practice of absolute exclusion of returns of migrants/refugees who had irregularly entered Greece through its territory[27].

This practice exposes applicants for international protection to a legal limbo whereby they are not granted access to an examination of their applications on the merits, contrary to the purpose of the Geneva Convention and of the Asylum Procedures Directive. It also leads to the exclusion of people from reception conditions, resulting in no access to dignified living standards or to cater for their basic subsistence needs, including health care and food.

The issue on non-compliance by Greece with Article 38(4) of the Asylum Procedures Directive has been raised before the European Commission by the European Parliament[28], while the issue of the implementation of the safe third country concept in Greece has been raised by civil society organisations[29] as well as by applicants for international protection affected by these violations.[30]

Ιn response to the parliamentary questions raised by the European Parliament, the European Commission stated that:

‘Türkiye suspended returns from Greece in March 2020, in the context of COVID-19 related restrictions and albeit repeated calls from Greece and the Commission to resume returns pursuant to the EU-Türkiye Statement, Türkiye has not so far resumed operations. Article 38(4) of the Asylum Procedures Directive provides that ‘where the third country does not permit the applicant to enter its territory, Member States shall ensure that access to [an asylum] procedure is given’. In line with that provision, applicants whose application has been declared inadmissible are therefore able to apply again. In re-examining and deciding on those applications, Greece will need to take into account the circumstances at the time of the (re-) examination of the individual applications, including with regard to the prospect of return in line with the EU-Türkiye Statement’.[31]

‘In the Commission’s view, to the extent inadmissible applicants are not being permitted to enter Türkiye, Article 38(4) of the directive should also be applied in relation to these applications and access given to the asylum procedure on the basis of their merits’[32].

‘The condition for the application of Article 38(4) of the Asylum Procedures Directive is that ‘the third country does not permit the applicant to enter its territory’. If that condition is met, Member States shall ensure that access to a procedure on substance is given, and therefore shall not reject the subsequent application as inadmissible on the basis of the safe third country concept.’[33]

‘Different factual or legal situations may result in an applicant not being permitted to enter the territory of a country designated as a safe third country in accordance with Article 38 of the Asylum Procedures Directive. Such situations include the suspension by either party of a bilateral readmission agreement, or the failure by the third country to respond within the relevant deadlines to readmission requests made by the Member State. To the extent the applicant is not permitted to enter the territory of the safe third country, in particular if the underlying situation preventing entry persists since 2018 or 2020, the Member State shall ensure, in accordance with the Asylum Procedures Directive, that access to a procedure is given to the applicant’.[34]

Following the 27 October 2022 report of the European Commission, civil society organisations co-signed a letter addressed to the Director of the Asylum Service on the very same day, copied to the Ministers of Migration and Asylum, Foreign Affairs, as well as to the Deputy Minister of Foreign Affairs, the Executive Director of the Appeals Authority and the Deputy Director-General for Migration and Home Affairs of the European Commission. In the letter they urged the Director of the Asylum Services and the Ministries of Migration and Asylum and of Foreign Affairs to: ‘1. Immediately repeal the national list of safe third countries set out by JMD 42799/2021, as amended by JMD 458568/2021. 2. Publish previous and upcoming opinions of the Director of the Asylum Service regarding the designation of safe third countries, which should be made available to asylum seekers subject to the application of the list according to the European Commission. 3. Stop dismissing asylum applications as inadmissible based on the “safe third country” concept.[35]

It should also be noted that as of 2021 ‘the Commission has requested the Greek authorities to apply Article 38(4) of the Asylum Procedures Directive (2013/32/EU), to the extent the conditions are met, to applicants whose applications have been deemed inadmissible on the basis of the Safe Third Country Concept under the Joint Ministerial Decision of 7 June 2021, in order to avoid the legal limbo you refer to. The Commission will continue to monitor the situation on the ground’.[36]

Moreover, the Greek Ombudsman highlighted that:[37]

‘if readmission to that country is not possible, the application must be examined by the Greek authorities on the merits. Otherwise, this creates a perpetual cycle of admissibility assessments of applications for international protection, without ever examining their merits and without readmission to seek protection in the safe third country being possible. As a result, the fulfilment of the objective of the Geneva Convention and of relevant European and national legislation on refugee protection is essentially rendered null and void.’

According to internal SOP of the Asylum Service in October 2021, still in force, asylum seekers of these nationalities that had crossed from Türkiye a year ago or more must be considered as not having a special link with the country or that in any case the special link with Türkiye had been breached. Subsequently, this was the rationale, applied to the majority of cases examined before the RAOs on the islands, leading to admissibility decisions and an examination of the asylum applications on their merits. Several first instance decisions with the same reasoning have been issued since October 2021, namely since the aforementioned SOP started to be implemented. This has been of great importance for all Syrian cases, and even Afghanis and Somalis stuck in “limbo” in Greece for more than a year, many of whom were waiting for the examination of their subsequent applications. However, this practice was not consistent. For instance, there were cases, where the Asylum Service had applied the new JMD even to the cases of old arrivals that had been already referred to the regular procedure.

On 7 October 2021, GCR and Refugee Support Aegean (RSA) filed a judicial review before the Greek Council of State for the annulment of the JMD 42799/03.06.2021 designating Türkiye as a safe third country for nationals of Syria, Afghanistan, Somalia, Pakistan and Bangladesh.[38] On 4 March 2022, requests for the continuation of the hearing were filed before the Council of State for the annulment of the subsequent JMD, 458568/15.12.2021, of the Minister of Migration and Asylum and the Deputy Minister of Foreign Affairs. The application for annulment was examined before the Plenary of the Council of State on 11 March 2022.

On 3 February 2023, the Plenary of the Council of State issued the decision No 177/2023,[39] which postpones the final judgment and refers the following questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling, given that there are reasonable doubts as to the meaning of Article 38 of the Directive:

  1. Must Article 38 of the Asylum Procedures Directive, read in conjunction with Article 18 of the Charter of Fundamental Rights of the European Union, be interpreted as precluding national legislation, designating a third country as generally safe for certain categories of applicants for international protection, which has undertaken the legal obligation to readmit those categories of applicants to its territory, but it follows that for a long time (in case more than twenty months) this country has refused readmissions and that the possibility to change the country’s attitude in the near future does not appear to have been explored? Or,
  2. Must this Article be interpreted as meaning that readmission to the third country is not a cumulative condition for the adoption of the national act designating a third country as safe for these categories of applicants, but it is a cumulative condition for the adoption of an individual act rejecting a specific application for international protection as inadmissible on the ground of ‘safe third country’? Or,
  3. Must Article 38 be interpreted as meaning that the possibility of readmission to the ‘safe third country’ must be established only at the time of enforcement of the decision, where that decision to reject the application for international protection is based on the ‘safe third country’ ground?[40]

 

Safety criteria

Applications lodged by Syrian, Afghan, Somali, Bangladeshi and Pakistani nationals

In 2022, the Asylum Service issued 8,611 first instance decisions regarding applications lodged by Syrian (initially subject to the fast-track border procedure), Afghans, Somalis, Bangladeshis and Pakistanis applicants, including third country nationals of Palestinian Origin with previous habitual residence in Syria. The applications submitted by the aforementioned applicants were examined under the safe third country concept.[41] According to the official figures provided by the Ministry of Migration and Asylum to the Hellenic Parliament, the Asylum Service dismissed 3,409 claims as inadmissible based on the “safe third country” concept (Afghanistan: 1,095, Bangladesh: 231, Pakistan: 249, Somalia: 577, Syria: 1,257).[42]

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 Türkiye 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.[43]

Specifically, the Asylum Service, reaches the conclusion that Türkiye is a safe third country for Syrian nationals, relying on:

  • the provisions of Turkish legal regime in force, i.e. the Turkish Law on Foreigners and International Protection (LFIP), published on 4 April 2013,[44] the Turkish Temporary Protection Regulation (TPR), published on 2014[45] and the Regulation on Work Permit for Applicants for and Beneficiaries of International Protection, published on 26 April 2016,[46] without taking into consideration its critical amendments, based on emergency measures;[47]
  • the letters, dated 2016, exchanged between the European Commission and Turkish authorities,[48]
  • the letters, dated 2016, exchanged between the European Commission and the Greek authorities,[49]
  • 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 Türkiye and
  • 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 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.[50]

Accordingly, negative first instance decisions, qualifying Türkiye 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 Türkiye, and the actual regime in the country, given the absolute nature of the protection afforded by Article 3 ECHR.

It is worth noting that as regards negative first decisions qualifying Türkiye as a safe third country for all the other nationalities, namely Afghans, Somalis, Bangladeshis, Pakistanis, they are based inter alia on the aforementioned letters dated 2016, exchanged between the European Commission and Turkish authorities, the letters exchanged between the European Commission and the Greek authorities as well as the letters of UNHCR to the Greek Asylum Service. Nevertheless, it has to be highlighted that these letters, apart from the fact that they are outdated, they concern only Syrian nationals.

As the same template decision has been 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 Türkiye as a safe third country and reject the application as inadmissible: this makes them practically unreviewable”)[51] 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 2022, 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. Since June 2021, applications submitted by nationals of Afghanistan, Somalia, Pakistan and Bangladesh are also rejected as inadmissible based on JMD 42799/2021.

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, 2019,2020 and 2021 respectively. These findings are still relevant as the same template has been 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.

Greece, throughout 2022 maintained the use of the fast-track border procedure under the derogation provisions of Article 95(3) of the Asylum Code.[52]

In contravention of the boundaries of the border procedure, however, the Asylum Service continued to systematically use the border procedure in the CCAC of Lesvos, Chios, Samos, Leros and Kos in 2022 without there being circumstances of “mass arrivals” or regulations to tthat end after the effects of JMD 15596/2020 ceased at the end of 2021. The Asylum Service took 2,286 first instance decisions in the border procedure in 2022. Yet, only 462 of those were inadmissibility decisions and 74 were manifestly unfounded rejections. This means that the majority of decisions (1,750) exceed the scope of Article 95(1) of the Asylum Code and should not have been issued in that procedure.[53]

Decisions under the fast-track border procedure [article 90(3)] and JMD 42799/2021

While the JMD 42799/2021 was in force from 7 June to 31 December 2021, a total of 2,000 decisions by the Committees of the Appeals Authority were issued under the fast-track border procedure [article 90(3) IPA] regarding the five main nationalities (Syria, Afghanistan, Somalia, Pakistan and Bangladesh). Out of the 2,000 decisions under the safe third country concept, 1,635 considered the applications “inadmissible”, (Syria: 542, Afghanistan: 417, Bangladesh: 126, Pakistan: 498 and Somalia: 52).[54] The number of applications deemed admissible under the JMD by the Appeals Committees was 216, and the number of appeals pending by the end of the year reached 1,601. Similarly to previous years, it is worth noting that the statistics provided by the Ministry of Migration and Asylum continue to show inconsistencies.[55]

Decisions under the JMD 42799/2021

During 2022, 2.709 decisions were issued under the JMD 42799/2021 from the Appeals Committee. Out of these decisions, 2.696 applications of Syrians, Afghans, Somalis, Pakistanis and Bangladeshis nationals, were deemed “inadmissible” (Afghanistan: 1.113,Bangladesh: 345, Pakistan: 626, Somalia: 307, Syria: 305).[56]

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 Türkiye.[57] Even where reliable reports on risks of non-compliance by Türkiye 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.[58] 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 Türkiye, 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 2021, the Appeals Committees cited the aforementioned letters and selected provisions of Turkish legislation as reliable evidence of compliance by Türkiye with the principle of non-refoulement.[59] In addition, Appeals Committee decisions in 2021 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), to “systematic violations” (συστηματικές παραβιάσεις) or to “mass refoulement” (μαζικές επαναπροωθήσεις) of Syrian refugees from Türkiye.[60]

To the knowledge of GCR, there have been certain appeals of Syrians and Afghans which have been considered as admissible at second instance.[61]. For example, in a case of a Syrian single man, his subsequent application was deemed admissible, as, the fact that a long period of time has elapsed since the rejection of his application as inadmissible, during which his readmission to Türkiye has not been completed, was considered to be a new and substantial element. Furthermore, the Appeals Committee took into consideration the information available, pursuant to which there is no imminent change in Türkiye’s position and it therefore decided that it must be accepted that the relevant application cannot be dismissed as inadmissible.[62]

Few appeals of Syrians who used to reside in Syrian areas were Türkiye 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 Türkiye in their region of origin. Also, GCR is aware of a second instance decision which considered the appeal of a Syrian who remained in Türkiye 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.

 

Connection criteria

Article 91(1)(f) of the Asylum Code 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[63] as to the connections considered “reasonable” between an applicant and a third country,[64] the IPA, as amended by the Asylum Code, 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:[65]

  • Length of stay;
  • 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;
  • Stay prior to transit e.g. long-stay visits or studies;
  • Presence of relatives, including distant relatives;
  • Existence of social, professional or cultural ties;
  • Existence of property;
  • Connection to a broader community;
  • Knowledge of the language concerned;
  • Geographical proximity to the country of origin.

The 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 Türkiye 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 such provision with the EU acquis should be further assessed, in particular by taking into consideration the 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”.[66]

It is worth noting that since October 2021, the applications for international protection of asylum seekers originating from Syria, Afghanistan, Pakistan, Bangladesh and Somalia are deemed admissible whether a period of more than one year has elapsed since the applicants’ transit from the third country – Türkiye and the applicants have not maintained relations (economic, social, etc.) with that country during that period. Hence, it is considered that the precondition of the link as per Article 91(1)(f) of the Asylum Code is no longer fulfilled and as such it would be not reasonable for the applicants to return to that country. The aforementioned admissibility decisions are based on the internal Guidelines of the Asylum Service issued in October 2021, which have nevertheless not been made public to date.

As regards the subsequent applications after a safe third country decision, on 6 July 2021, the Ministry of Migration and Asylum issued a Circular as per which,

‘Specifically, for those applicants entering from Türkiye, the invocation of new and substantial elements must relate exclusively as foreseen in the law and the EU-Türkiye Joint Statement, to the finding on the initial application as to whether Türkiye – as the country of transit of the applicant – is safe or not for them in accordance with the national and European legislation. In the absence of any new and substantial elements as provided above, the subsequent application shall be rejected by the competent examination authorities as inadmissible, in accordance with [Article 94(4) of the Asylum Code].”60 According to the above Circular, the fact that readmissions to Türkiye have been suspended since March 2020 is not considered as a new and substantial element.’[67]

In these cases, the applicants were expected to provide new and substantial elements as to why Türkiye could not be considered a safe third country for them, albeit in the end, once the application was found admissible based on the new elements provided, the final judgment of the Asylum Service invoked the lapse of the one-year period as the basis on which the admissibility of the request was judged, in terms of the application of the safe third country concept.[68]

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 case law of the CJEU.[69] 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.[70]

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 Türkiye, even in cases of very short stays and in the absence of other links.[71]

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 Türkiye, the “free will and choice” of the applicants to leave Türkiye and “not organise their lives in Türkiye”, “ethnic and/or cultural bonds” without further specification, the proximity of Türkiye to Syria, and the presence of relatives or friends in Türkiye without effective examination of their status and situation there. Additionally, in line with the 2017 rulings of the Council of State,[72] 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 fulfilment 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 Türkiye 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 2022 regarding Afghan and 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.[73]

 

 

 

[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 foresee 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 91(3) of the Asylum Code.

[3] MD 42799/03.06.2021, Gov. Gazette 2425/Β/7-6-2021, available in Greek at: https://bit.ly/3zbSojR.

[4] JMD 458568/15.12.2021, Gov. Gazette 5949/B/16.12.2021, available in Greek at: https://bit.ly/3IQer3d.

[5]  Ibid.

[6] JMD 734214/06.12.2022 (Gov. Gazette 6250/B/12-12-2022), available in Greek at: https://bit.ly/427H9GU.

[7]  JMD 42799/03.06.2021 (Gov. Gazette 2425/Β/7-6-2021, as above.

[8]   JMD 458568/15.12.2021, Gov. Gazette 5949/B/16.12.2021, as above.

[9] European Commission, Reply to parliamentary question E-3532/2021, 4 October 2021, available at: https://bit.ly/3Q7dFTJ.

[10] Equal Rights Beyond Borders, Hias Greece and RSA, The state of the Border Procedure on the Greek islands, September 2022, available at: https://bit.ly/3VbNjU5, 19-20.

[11]  RSA, The Greek asylum procedure in figures in 2022, Analysis of main trends in refugee protection, available at: https://bit.ly/4482hhP, 2.

[12]  MoMA, Reply of the Ministry to the Greek Parliament, 156079/2023, 16 March 2023, available at: https://bit.ly/3JIy0y6, 12.

[13]   Article 91(2) of the Asylum Code.

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

[15] EU-Türkiye Statement: Six years of undermining refugee protection, 8 NGOs warn that policies implemented in Greece keep displaced people from accessing asylum procedures, despite clear need of protection, available in Greek at: https://bit.ly/3tMP7GU, 1.

[16] MoMA, Report A, December 2022, available in Greek at: https://bit.ly/41NFmqu, 19.

[17] European Commission, Türkiye Report 2021, SWD(2021) 290, 19 October 2021, available at: https://bit.ly/3DiPMTP, 48; Reply to parliamentary question, Answer given by Ms Johansson
on behalf of the European Commission, Question reference: P-000604/2021, 1 June 2021, available at: https://bit.ly/3IIx2hW; European Commission, Commission Staff Working Document: Türkiye 2020 Report, 6 October 2020, available at: https://bit.ly/3xgt4aK, 48.

[18] European Commission, Türkiye 2022 Report, SWD(2022) 333 final, 12 October 2022, available at: https://bit.ly/3HmE7X0, 5, 8. European Commission, Sixth Annual Report on the Facility for Refugees in Türkiye, COM(2022) 243, 24 May 2022, available at: https://bit.ly/40N9H7r, 2, 3.

[19] European Commission, Sixth Annual Report on the Facility for Refugees in Türkiye, COM(2022) 243, 24 May 2022, available at: https://bit.ly/3LakP8y, 3.

[20]  RSA, Greece arbitrarily deems Türkiye a ‘safe third country’ in flagrant violation of rights, February 2022, available at: https://bit.ly/3iIFsen, 3; MoMA, ‘Request by Greece towards the EU for the immediate return 1,450 third country nationals under the Joint EU-Türkiye Statement’, 14 January 2021, available in Greek at: https://bit.ly/3izPzmA.

[21]  Administrative Court of Kavala, AR779/2022, 14 July 2022, para 4, Administrative Court of Athens ΑΡ831/2022, 26 May 2022, para 4, Administrative Court of Korinthos, Π2424/2022, 24 June 2022, para3, Administrative Court of Rhodes, ΑΡ46/2022, 24 March 2022, para 4, ΑΡ72/2022, 25 May 2022, para 4, ΑΡ78/2022, 21 June 2022, para 3, ΑΡ79/2022, 21 June 2022, para 3, ΑΡ515/2021, 16 December 2021, para 3; ΑΡ514/2021, 16 December 2021, para 3; ΑΡ450/2021, 3 November 2021, para 4; ΑΡ136/2021, 24 March 2021, para 4; ΑΡ122/2021, 4 March 2021.

[22] See e.g. Hellenic Police, 4666/3-123706, 14 February 2022; 4666/3-123672, 2 February 2022; 4666/3-123670, 31 January 2022; 4666/3-123598, 20 January 2022; 4666/3-123580, 17 January 2022; 4666/3-123567, 15 January 2022; 4666/3-123539, 11 January 2022; 4666/3-229920, 27 December 2021; 4666/3-229748, 29 November 2021.

[23]  L. 4636/2019, Gov. Gazette A’ 169/01.11.2019.

[24] European Commission, Türkiye 2022 Report, SWD(2022) 333 final, 12 October 2022, available at: https://bit.ly/41KEpPW, p. 5, 8, 21, RSA, Greece arbitrarily deems Türkiye a ‘safe third country’ in flagrant violation of rights, February 2022, available at: https://bit.ly/3JGol9L, p. 2-3, EASO, Asylum Report 2021, 29 June 2021, 242; Hellenic Parliament, Defence & Foreign Affairs Committee, 17 December 2021, available at: https://bit.ly/3g864nv.

[25]  RSA, The Greek asylum procedure in figures in 2022, Analysis of main trends in refugee protection, available at: https://bit.ly/3VgNoG3, 10.

[26] MoMA, Reply of the Ministry to the Greek Parliament, 156079/2023, 16 March 2023, available at: https://bit.ly/3JIy0y6, 7.

[27] 3rd Appeals Committee, No 345521/2022, 18 June 2022; 21st Appeals Committee, No 364000/2021, 4 November 2021; No 115795/2022, 28 February 2022

[28] European Parliament, Written Questions P-000604/2021, 1 February 2021; E-4131/2021, 8 September 2021; E-5103/2021, 12 November 2021; E-1347/2022, 5 April 2022.

[29] Joint Civil Society Letter to Commissioner Johansson: Implementation of the safe third country concept in Greece, 8 March 2022 Reference No: β/50/4.3.2022, available at: https://bit.ly/3iN3RPI.

[30] CHAP(2021)02261, 7 June 2021; CHAP(2021)02274, 8 June 2021, CHAP(2021)02994, 31 July 2021. See also RSA, Asylum seekers in Greece lodge complaint on infringement of Asylum Directives, 16 June 2021, available at: https://bit.ly/3tkl5ZV.

[31]  European Commission, Reply to parliamentary question P-000604/2021(ASW), 1 June 2021, available at: https://bit.ly/44otFZl.

[32] European Commission, Reply to parliamentary question E-004131/2021(ASW), 21 December 2021, available at: https://bit.ly/45w7rFb.

[33] European Commission, Reply to parliamentary question E-005103/2021(ASW), 25 January 2022, available at: https://bit.ly/3Q3NugU.

[34] European Commission, Reply to parliamentary question E-001347/2022(ASW), 22 June 2022, available at: https://bit.ly/3oZYIqU.

[35] Letter to the Director of the Asylum Service by co-signing civil society organisations, European Commission dispels Greece’s designation of Türkiye as a ‘safe third country’ for refugees – Repeal the national list of safe third countries, Ref. no: β/72/27.10.2022, 27 October 2022, available in Greek at: https://bit.ly/40Lhq5J.

[36] European Commission, Directorate General for Migration and Home Affairs, Ref.Ares(2021)7836311, 17 December 2021.

[37] (RSA, Greece arbitrarily deems Türkiye a ‘safe third country’ in flagrant violation of rights, February 2022, available at: https://bit.ly/3iIFsen, 5; Ombudsman, Letters 301551/41050/2021 and 301755/41017/2021, 22 July 2021.

[38] GCR, ‘Decision declaring Türkiye a ‘safe third country’ brought before Greek Council of State’, 7 October 2021, available at: https://bit.ly/3iLkeMJ.

[39] Plenary of the Council of State, 177/2023, available in Greek at: https://bit.ly/426WSpv. See also RSA, Key points of the Greek Council of State ruling on the ‘safe third country’ concept’, 17 February 2023, available at: https://bit.ly/3FB91KC.

[40] European Legal Network on Asylum (ELENA), ‘Greece: Preliminary reference regarding Türkiye as a safe third country’, 3 February 2023, available at: https://bit.ly/3LhmQzH.

[41] MoMA, ‘Parliamentary Control’, Protocol No 9715717.02.2022, available in Greek at: https://bit.ly/3qGGT16, 8.

[42] MoMA, Reply of the Ministry to the Greek Parliament, 156079/2023, 16 March 2023, available at: https://bit.ly/3JIy0y6, 12.

[43] ECRE, The role of EASO operations in national asylum systems, 29 November 2019, available at: https://bit.ly/2RVALRt, 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.

[44]  Türkiye: 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://bit.ly/3LhAJhk.

[45] National Legislative Bodies / National Authorities, Türkiye: Temporary Protection Regulation, 22 October 2014, available at: https://bit.ly/2YM9F3T.

[46] National Legislative Bodies / National Authorities, Türkiye: Regulation on Work Permit of International Protection Applicants and International Protection Status Holders, 26 April 2016, available at: https://bit.ly/3oTLij3.

[47] Venice Commission, Opinion No. 865 / 2016, Opinion on the Emergency Decree Laws Nos. 667-676 adopted following the failed coup of 15 July 2016, adopted at its 109th plenary session, 9-10 December 2016, Doc. CDL-AD(2016)037, available at: https://bit.ly/3tK5YKt; International Commission of Jurists, Türkiye: Justice suspended, Access to justice and the State of Emergency in Türkiye, available at: https://bit.ly/3DlcsTi, 2.

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

[49]  Ibid.

[50] ACCORD, Türkiye COI Compilation, August 2020, available at: https://bit.ly/3iKTfRv; Syrian Observatory for Human Rights, Türkiye’s involvement in Libya war | 150 Syrian children recruited and sent to fight in Libya, 16 killed, May 13, 2020, available at: https://bit.ly/3iIE2QT; UD Department Of State: 2019 Country Reports on Human Rights Practices: Türkiye, available at: https://bit.ly/3wMJaM1; European Asylum Support Office, Syria: Internally displaced persons, returnees and internal mobility, April 2020, available at: https://bit.ly/35nygBg; ECRE – European Council on Refugees and Exiles: Country Report: Türkiye, April 2020, available at: https://bit.ly/3wKv5i6; Report: Türkiye, 2019 Update, 30 April 2020, available at: https://bit.ly/3wLBmu1; European Commission, European Civil Protection and Humanitarian Aid Operations, ECHO Factsheet Türkiye: Refugee Crisis, Last updated 17/05/2021, available at: https://bit.ly/3JJyaml; Republic of Türkiye, Regulation on Work Permit of International Protection Applicants and International Protection Status Holders, 26 April 2016 (Unofficial translation by UNHCR Türkiye), available at: https://bit.ly/3INTB4y, Country Report on Human Rights Practices: Türkiye, 30 March 2021, https://bit.ly/3xonaaJ; European Commission, Türkiye 2020 Report [SWD(2020) 355 final], 6 October 2020, available at: https://bit.ly/38aSyyW; UNHCR, Key information for non-Syrians, Livelihoods, undated, available at: https://bit.ly/3Djkufi; AAN, Afghan Exodus: Migrant in Türkiye left to fend for themselves, 22 December 2020, available at: https://bit.ly/3LptQZT; UNHCR, Key information for non-Syrians, Medical and psychological assistance, undated, available at: https://bit.ly/3iPQ8Yk; UNHCR, Key information for non-Syrians, Education, undated, available at: https://bit.ly/3iLI9eY; UNHCR, Türkiye Education Sector Achievements; as of March 2021, March 2021, available at: https://bit.ly/3wRJ3z3; Respond, Susan Beth Rottmann – Özyeğin University, Türkiye Country Report, Integration Policies, Practices and Experiences, Global Migration: Consequences and Responses, Paper 2020/50, June 2020, available at: https://bit.ly/3qJOJXE.

[51] 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.

[52]   Article 95(3) Asylum Code.

[53] RSA, The Greek asylum procedure in figures in 2022, Analysis of main trends in refugee protection, available at: https://bit.ly/4482hhP, 12.

[54]   Information provided by the Appeals Authority, 11 March 2022.

[55] RSA, The Greek asylum procedure in figures: most asylum seekers continue to qualify for international protection in 2021, available at: https://bit.ly/3qH3qeo, 9.

[56]  MoMA, Reply of the Ministry to the Greek Parliament, 156079/2023, 16 March 2023, available at: https://bit.ly/3JIy0y6, 12.

[57] 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.

[58]         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.

[59] 13th Appeals Committee, Decision 2727/2020, 9 April 2020, para 19; 16th Appeals Committee, Decision 19219/2019, 15 May 2020, para 16.

[60] 5th Appeals Committee, Decision 202946, 25 August 2021, 5th Appeal Committee, 202789/2021, 25 August 2021.

[61] Greek Council for Refugees (GCR), HIAS Greece and RSA, Greek Asylum Case Law Report, 1/2021, available in Greek at: https://bit.ly/3DmHWs9, Greek Asylum Case Law Report 1/2022, June 2022, available in Greek at: https://bit.ly/3oLmN7P, Greek Asylum Case Law Report 2/2022, December 2022, available in Greek at: https://bit.ly/3Ldr3EB.

[62]         19th Appeals Committee, Decision 761318, 19 December 2022.

[63]  Article 56(1)(f) L 4375/2016.

[64]  Article 56(1)(f) L 4375/2016.

[65]  Article 86(1)(f) IPA and 91(1)(f) of the Asylum Code.

[66]  Article 91(1)(f) of the Asylum Code.

[67]  RSA, The state of the border procedure on the Greek islands, September 2022, available at: https://bit.ly/3oPTIZ0, 22.

[68]  Ibid, 23-24.

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

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

[71]  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 Template Decision in AIDA, Country Report Türkiye, 2017 Update, March 2018.

[72]  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.

[73] Greek Council for Refugees (GCR), HIAS Greece and RSA, Greek Asylum Case Law Report 1/2021, December 2021, available in Greek at: https://bit.ly/3VeqUW4, Greek Asylum Case Law Report 1/2022, June 2022, available in Greek at: https://bit.ly/3oLmN7P, Greek Asylum Case Law Report 2/2022, December 2022, available in Greek at: https://bit.ly/3Ldr3EB.

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