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The IPA, in force since 1 January 2020, introduced extensive provisions on the detention of asylum seekers and lower significant guarantees for the imposition of detention measures against asylum applicants,^[1] threatening to undermine the principle that detention of asylum seekers should only be applied exceptionally and as a measure of last resort.

The amendments introduced by IPA with regards the detention of asylum seekers include:

• The possibility of detaining asylum seekers even when they apply for international protection when not detained, on the basis of an extensive list of grounds justifying detention.^[2]

Art. 46(2) IPA provides that an asylum seeker who has already applied for asylum at liberty may be detained:

(a) in order to determine or verify his or her identity or nationality or origin;

(b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;

(c) when there is a risk of national security or public order;

(d) when there is a significant risk of absconding within the meaning of Art. 2(n) of Regulation (EU) 604/2013 and in order to ensure the implementation of the transfer procedure in accordance with the Dublin Regulation;

(f) in order to decide, in the context of a procedure, on the applicant’s right to enter the territory;

• The extension of the maximum time limits for the detention of asylum seekers.

According to Article 46 (5) IPA, the detention of an asylum seeker can be imposed for an initial period up to 50 days and it may be successively prolonged up a maximum time period of 18 months. Furthermore, according to Art. 46(5), the detention period in view of removal (return/deportation etc) is not calculated in the total time, and thus the total detention period of a third country national within the migration context may reach 36 months (18 months while the asylum procedure + 18 months in view of removal).

The possibility to extend the period of detention of asylum seekers up to 18 months, raises serious concerns as of its compliance with the obligation as a rule to impose asylum detention “only for as short a period as possible” and to effectuate asylum procedures with “due diligence” in virtue of Article 9 Directive 2013/33/EU.

• The abolition of the safeguard to impose the detention of an asylum seeker only upon a prior recommendation of the Asylum Service.

The IPA provided that the detention of an asylum seeker could only be imposed following a prior relevant recommendation of the Asylum Service, with the exception of cases that detention was ordered on public order grounds, in which the detention could be ordered directly by the Police Director. Art. 46(4) IPA abolished the requirement of a recommendation issued by the Asylum Service and provides that the detention of an asylum seeker on any ground is imposed directly by the Police upon prior information of the Asylum Service. As the Asylum Service is the only authority that may assess the need of detention based on the specific elements of the application and substantiate the grounds for detention as required by law, said amendment raises concerns inter alia as of the respect of the obligation for an individual assessment and the principle of proportionality before the detention of an asylum applicant.

In May 2020, further amendments were introduced to the legal framework of detention.^[3]  As noted by UNHCR regarding the May 2020 amendment “the combination of reduced procedural safeguards with provisions related to the detention of asylum seekers and to the detention of those under forced return procedures, compromises the credibility of the system and is of high concern to UNHCR. L. 4686/2020 further extends the practice of detention, which is essentially turned into the rule while it should be the exception, both for asylum seekers and those under return. For the latter it should be noted that they may not have had an effective access to the asylum process or may have gone through an asylum process with reduced procedural safeguards”.^[4]

More precisely, on May 2020, five months after the entry into force of L. 4636/2019, L. 4686/2020 has introduced new amendments to the IPA, regarding the detention of asylum seekers and their rights while in detention. Moreover L. 4686/2020 introduced a new type of “closed” facilities and amended relevant provision of L. 3907/2011 with regards pre-removal detention.

As of the detention of asylum seekers and their rights while in detention L. 4686/2020:

• further accelerates the procedure for asylum seekers in detention by providing that in the case of a second instance Appeal, a decision should be issued in 10 days (instead of 20 days pursuant to the initial version), art. 46(9) IPA as amended by L. 4686/2020.
• provides the possibility first instance asylum decisions to be communicated to detainees by the police, which may significantly underestimate the right of asylum seekers in detention to appeal against the decision, art. 82(4) IPA as amended by L. 4686/2020. According to said provision there is no obligation the Decision to be communicated with the presence of an interpreter and only a written information is provided to the detainee with regards the content of the decision and the possibility to submit an appeal. Thus detainees may not be in the position to understand the content and the legal importance of the document and a fortiori the procedure which they have to follow in order to submit an Appeal. In this way, detained asylum seekers risk to be improperly informed about their rights, the examination of their asylum application to be terminated and to remain in pre-removal detention in view of return, without their asylum application having been properly assessed.
• foresees that the right to remain in the country is terminated by the time that the second instance decision is issued and not by the time that second instance decision is communicated to the Applicant, Art. 104(1) IPA as amended by L. 4686/2020. On the basis of this amendment police authorities consider that a person against whom a second instance negative decision on his/her asylum application can be lawfully arrested and detained in view of removal, irrespectively of the communication of the decision. Consequently, failed asylum seekers are in risk of being detained in view of removal without knowing the existence of the second instance asylum decision and without having the possibility to effectively challenge it in accordance with the law.
• provides that “in case that the Appeal [against a second instance decision] is rejected, the applicant […] is detained in a Pre-removal Facility, up until his/her removal is completed or his/her application to be finally accepted. The submission of a subsequent application and/or application for annulment and/or application for suspension does not imply ipso facto the lift of the detention”, art. 92(4) IPA as amended by L. 4686/2020. Including in national legislation a legally binding provision foreseeing that in case that the appeal is rejected, the applicant “is detained in a Pre-removal Detention Facility” is not in line with EU standards with regards the imposition of detention measures. A person whose application for asylum has been rejected is a third country national in irregular situation and thus his/her case is regulated by EU Return directive, which inter alia provides that detention is imposed only as last resort and in case that alternatives to detention cannot be applied. Moreover, the issue of whether detention measure will remain in force following the submission of legal remedies against a second instance asylum decision (application for annulment/application for suspension) is an issue closely linked with the reasonable prospect of effectuating the removal of the detainee and cannot be regulated in abstracto by law.^[5]

1. 4686/2020 also introduced a new type of “closed” facility. Article 30(4) L. 4686/2020 amending article 8(4) L.4375/2016 foresees the establishment of the so called “Closed Temporary Reception Facilities” for asylum seekers against whom a detention decision has been issued and the “Islands’ Closed Controlled Facilities”, for asylum seekers, persons under a removal procedure and persons under geographical limitation. The provision does not specify further information, such as the general operation of such centers, the reasons for placing third country nationals in such facilities, the possibility of and procedures for entry and exit, general conditions, the maximum period of stay etc and up today such centers have not yet been established.^[6] Following protests from local communities, the creation of such detention facilities in the Aegean islands was suspended at first but the new Closed Controlled Access Center of Samos started operating during 2021,^[7] and two new closed controlled structures for migrants were inaugurated in Leros and Kos.^[8]

Moreover, L. 4686/2020 introduced a radical amendment of the relevant provision with regard to pre-removal detention of third country nationals, Art. 30 L. 3907/2011, which reverse the rule that migration detention is only applied exceptionally, as a last resort and under the conditions that alternatives to detention cannot be applied, contrary inter alia to Art. 15 of the Return Directive. According to the new version of Art. 30(1) L. 3907/2011:

“Third country nationals subject to return procedures […] are placed in detention in order to prepare the return and carry out the removal process. In case that the competent police officer considers that:

1. there is no risk of absconding or
2. the third-country national concerned is cooperative and does not hamper the preparation of return or the removal process or
3. there are no national security grounds,

other less coercive measures are applied as those provided in para. 3 of Art. 22, if considered effective”

In August 2021, a draft bill reforming the deportation and returns procedures, was tabled in Parliament and voted upon in early September 2021. The new law further extends inter alia the possibility of the Authorities to circumvent the guarantees of the Return Directive, including those regarding the potential imposition of detention measures.^[9] More precisely, the new law provides the possibility of a deportation decision to be issued against rejected asylum seekers, based on the provisions of the national legislation on deportation (L. 3386/2005) and not on those of L. 3907/11 transposing EU Return Directive 2008/115/EC. Said exceptions are not in line with Article 2 para. 2(a) of the Return Directive defining the Directive scope.^[10]

Despite the fact that no readmission to Turkey has been implemented for more than two years,^[11] and for the time being no reasonable prospect of readmission to Turkey exists, third country nationals, including asylum seekers rejected as inadmissible on the basis of safe third country concept, remain detained for prolonged periods reaching several months, and in some cases, for periods exceeding a year. Moreover, Greek Authorities have not taken any measure to release Afghan citizens in detention[12] despite the rapid deterioration in the security and human rights situation in their country of origin since August 2021 onward and the fact that returns to Afghanistan has been suspended.^[13]

Moreover, most people arriving in Kos are being held in detention upon arrival and in certain cases both asylum and RIS’s procedures were initiated while the newcomers were still in quarantine. Up until July 2021, detention upon arrival was imposed to all newcomers, with the exception of persons with obvious vulnerabilities. Since October 2021, it seems that a new practice is being applied whereby the police releases individuals after twelve months without further prerequisites instead of holding them in detention for 18 months which is the maximum in law. Also, in Kos the majority of the applicants who received a negative second instance decisions and refused to voluntarily depart from Greece within 10 days were arrested and transferred to PRDC KOS for the purpose of pre-removal detention. In case they agreed to voluntary departure, they were obliged to leave RIC, under the order of RIC’s Director and relevant guidelines from First Reception upon notification of the second instance decision. There have been several cases of detainees, who were released upon notification of the second instance decision providing a deadline of departure and who have been arrested again after the deadline expired due to the prohibition of leaving Kos.

Finally, at the end of 2021 residents of the new Closed Controlled Access Centre of Samos (KEDN of Samos) without a valid asylum seeker’s card, were subject to a ‘prohibition of exit’ measure applied without any written decision to be communicated to the persons in question. The Administrative Court of Syros confirmed on 17 December 2021 that said measure amounts to arbitrary detention and characterized the prohibition to exit the camp as unlawful.^[14]

Statistics on detention

At the end of 2021, the total number of third-country nationals detained in pre-removal detention centres countrywide was 2,335.^[15] Out of these, 1,309 persons (56.05%) were asylum seekers.^[16] An additional 380 third-country nationals were detained in police stations or other facilities countrywide by the end of the year, out of which, 35 persons (9.21 %) were asylum seekers. Furthermore, the total number of unaccompanied children in pre-removal detention centres countrywide was 22 at the end of 2021, and the number of unaccompanied children in other detention facilities such as police stations was 2.^[17]

Detention in pre-removal centres

The number of asylum seekers detained in pre-removal detention facilities in Greece slightly decreased in 2021, as well as the total number of third country nationals under administrative detention.

Source: Directorate of the Hellenic Police, 21 January 2017; 29 January 2018; 23 January 2019; 8 February 2020, 11 February 2021, 8 March 2022.

The number of persons who remained in pre-removal detention facilities was 2,335 at the end of 2021, out of which 1,309 were asylum seekers.^[18]

The breakdown of detained asylum seekers and the total population of detainees per pre-removal centre is as follows: ^[19]

Source: Directorate of the Hellenic Police 8 March 2022.

The breakdown of unaccompanied children under administrative detention per pre-removal centre is as follows:

Source: Directorate of the Hellenic Police 8 March 2022.

Although the number of persons detained during the past few years has significantly increased in proportion to the number of the arrivals,^[20] this has not been mirrored by a corresponding increase in the number of forced returns. 20,219 detention orders were issued in 2021 compared to 27,515 in 2020. The number of forced returns decreased to 3,276 on 2021 from 3,660 in 2020.^[21] It is also to be mentioned that out of the 3,276 detainees who were forcibly returned, 2,655 were Albanian nationals. These findings corroborate that immigration detention is not only linked with human rights violations but also fails to effectively contribute to return.

There were 7 active pre-removal detention centres in Greece at the end of 2021. This includes five centres on the mainland (Amygdaleza, Tavros, Corinth, Xanthi, Paranesti, Fylakio) and one on the islands (Kos). Lesvos pre-removal detention center has temporarily suspended its operation. The total pre-removal detention capacity is 2,900 places.^[22] A new pre-removal detention centre established in Samos in 2017 is not yet operational.

In 2021, a total of 119 persons were returned to the Eastern Aegean islands after being apprehended outside their assigned island, up from 282 in 2020:

Source: Directorate of the Hellenic Police 11 February 2021.

The number of persons lodging an asylum application from detention in 2021 was not made available.

The number of first instance decisions on applications submitted from detention issued by the Asylum Service in 2021 is not available.

Detention in police stations and holding facilities

In addition to the above figures, there were 380 persons, of whom 35 were asylum seekers, detained in several other detention facilities countrywide such as police stations, border guard stations etc at the end of 2021.^[23]

Furthermore, as stated above, at the end of 2021, the total number of unaccompanied children in detention in several detention facilities countrywide was 22.^[24]

As the ECtHR has found, these facilities are not in line with Art. 3 ECHR’s guarantees given “the nature of police stations per se, which are places designed to accommodate people for a short time only”.^[25]

[1] UN High Commissioner for Refugees (UNHCR), “UNHCR urges Greece to Strengthen Safeguards in Draft       Asylum Law,” 24 October 2019, available at:  https://bit.ly/2IzauTV.

[2] Article 46(2) IPA.

[3] L. 4686/2020, Gov. Gazette A’ 96/12.05.2020.

[4] UNHCR, UNHCR’s Intervention at the hearing for actors to the Standing Committee of Public Administration, Public Order and Justice of the Hellenic Parliament regarding the Draft Law on the Improvement of Migration Legislation, available at: https://bit.ly/3uv0Oj7.

[5] CJEU, Kadzoev, C-357/09 PPU, para. 64, “As is apparent from Article 15(1) and (5) of Directive 2008/115, the detention of a person for the purpose of removal may only be maintained as long as the removal arrangements are in progress and must be executed with due diligence, provided that it is necessary to ensure successful removal”.

[6] See inter alia UN High Commissioner for Refugees (UNHCR), UNHCR Comments on the Draft Law “Improvement of Migration Legislation, amendment of provisions of Laws 4636/2019 (A’ 169), 4375/2016 (A’ 51), 4251/2014 (A’ 80) and other Provisions”, 12 June 2020, available at: https://bit.ly/39RD7tl , p. 9.

^[7] Reuters, Greece opens new migrant holding camp on island amid tougher policy, available at: https://reut.rs/36z4wkU.

^[8] Kathimerini, Page turns as new centers open on Leros, Kos, available at: https://bit.ly/3CWFvfC.

[9] L. 4825/2021 “Reform of Deportation and Return procedures of third country nationals etc.”

[10] See UNHCR, UNHCR intervention during the hearing of actors on the Draft Law for the reform of deportation and return procedures, 31 August 2021, available at: https://bit.ly/3N6W50u; see also Commission Recommendation (EU) 2017/2338 of 16 November 2017 establishing a common ‘Return Handbook’ to be used by Member States’ competent authorities when carrying out return-related tasks, Annex “Return Handbook”, available at: https://bit.ly/3FA3dzW, 97: “even if – after final rejection of the asylum application – they become again “illegally staying”, they must not be excluded from the scope of the Directive […]”.

[11] Ministry for Migration and Asylum, Factsheet July 2021, «removals within the framework of the EU-Turkey Statement have not been implemented since March 2020», https://bit.ly/3lvS76h, 11.

[12] According to information provided by the Directorate of the Hellenic Police on 8 March 2022, during 2021 there have been 1328 return decisions as well as 874 return decision imposing detention on Afghan citizens.

[13] Information provided by the Directorate of the Hellenic Police, 8 March 2022.

[14] GCR, ‘Παράνομo έκρινε το Διοικητικό Πρωτοδικείο Σύρου το μέτρο απαγόρευσης εξόδου σε Αφγανό αιτούντα άσυλο από την νέα Κλειστή Ελεγχόμενη Δομή (Κ.Ε.Δ.) Ζερβού Σάμου’, available in Greek at: https://bit.ly/3Jyvjg8.

[15] Unaccompanied minors are also included.

[16] Information provided by the Directorate of the Hellenic Police, 8 March 2022.

[17] Ibid.

[18] Information provided by the Directorate of the Hellenic Police, 11 February 2021.

[19] Unaccompanied minors included.

[20] According to UNHCR the total number of arrivals by land and sea was 15,696 in 2020 and 9,157 in 2021. Information available at: https://bit.ly/3t8i3GD

[21] Ombudsman, Return of third-country nationals, Special Report 2018, available at https://bit.ly/3bv0GYm; Information provided by the Directorate of the Hellenic Police, 8 February 2020, 11 February 2021 and 8 March 2022.

[22] Information provided by the Directorate of the Hellenic Police, 8 March 2022.

[23] Information provided by the Directorate of the Hellenic Police, 8 March 2022.

[24] Ibid.

[25] H.A. and Others v. Greece, application no. 19951/16, 28 February 2019; S.Z. v. Greece, application no. 66702/13, 21 June 2018, para. 40.