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Asylum detention
According to Article 50 Asylum Code, an asylum seeker shall not be detained on the sole ground of seeking international protection or having entered and/or stayed in the country irregularly.[1] However, as mentioned above, the Asylum Code foresees the possibility to detain asylum seekers who have already applied for asylum while at liberty.
Moreover, an asylum seeker may remain in detention if he or she is already detained for the purpose of removal when he or she makes an application for international protection, and subject to a new detention order following an individualised assessment. In this case, the asylum seeker may be kept in detention on the basis of one of the following five grounds:[2]
- in order to determine their identity or nationality;
- in order to determine those elements on which the application for international protection is based which could not be obtained otherwise, in particular when there is a risk of absconding of the applicant;
- when it is ascertained on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that the applicant is making the application for international protection merely in order to delay or frustrate the enforcement of a return decision, if it is probable that the enforcement of such a measure can be affected;
- when he or she constitutes a danger for national security or public order;
- when there is a serious risk of absconding by the applicant, in order to ensure the enforcement of a transfer decision according to the Dublin III Regulation.
For the establishment of a risk of absconding for the purposes of detaining asylum seekers on grounds (b) and (e), the law refers to the definition of “risk of absconding” in pre-removal detention.[3] The relevant provision of national law includes a non-exhaustive list of objective criteria which may be used as a basis for determining the existence of such a risk, namely where a person:[4]
- Does not comply with an obligation of voluntary departure;
- Has explicitly declared that he or she will not comply with the return decision;
- Is in possession of forged documents;
- Has provided false information to the authorities;
- Has been convicted of a criminal offence or is undergoing prosecution, or there are serious indications that he or she has or will commit a criminal offence;
- Does not possess travel documents or other identity documents;
- Has previously absconded; and
- Does not comply with an entry ban.
The fact that national legislation includes a non-exhaustive and indicative list of such criteria and thus other criteria not explicitly defined by law can also be used for determining the existence of the “risk of absconding”, is not in line with the relevant provision of the EU law, according to which said objective criteria ‘must be defined by law’.[5]
Article 50(2)(3) Asylum Code also provided that such a detention measure should be applied exceptionally, after an individual assessment and only as a measure of last resort where no alternative measures can be applied.
As noted above, a detention order under the Asylum Code is issued following prior notification by the Head of the Asylum Service. However, the final decision on the detention lies with the Police. The number of information notes to this end made by the Asylum Service in 2023 is not available.
Detention of asylum seekers applying at liberty
In addition, the Asylum Code provides for the possibility of detaining asylum seekers even when they apply for international protection when not detained, on the basis of any of the grounds provided by article 8 of the Directive 2013/33/EU. According to such grounds, an applicant may be detained only:
- in order to determine or verify his or her identity or nationality;
- 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 by the applicant;
- in order to decide, in the context of a procedure, on the applicant’s right to enter the territory;
- when he or she is detained subject to a return procedure under Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (9), in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision;
- when protection of national security or public order so requires;
- in accordance with Article 28 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (10).
The interpretation of the legal grounds for detention in practice
There is a lack of a comprehensive individualised procedure for each detention case, despite the relevant legal obligation to do so. This is of particular concern with regard to the proper application of the lawful detention grounds provided by national legislation, as the particular circumstances of each case are not duly taken into consideration. Furthermore, the conditions and the legal grounds for the lawful imposition of a detention measure seem to be misinterpreted in some cases. These cases include the following:
Detention on public order or national security grounds
As repeatedly reported in previous years, public order grounds are used in an excessive and unjustified manner, both in the framework of pre-removal detention and detention of asylum seekers.[6] This continues to be the case. The Return Directive does not foresee detention on public order grounds,[7] and thus the relevant Greek provision on pre-removal detention – Article 30(1)(c) L 3907/2011 – is an incorrect transposition of EU law. For both detainees subject to removal and asylum seekers, detention on public order grounds is usually not properly justified.
The Authorities issue detention orders without prior examination of whether the ‘applicant’s individual conduct represents a genuine, present and sufficiently serious threat’, in line with the jurisprudence of the Council of State and the CJEU.[8] This is particularly the case where these grounds are based solely on a prior prosecution for a minor offence, even if no conviction has ensued, or in cases where the person has been released by the competent Criminal Court after the suspension of custodial sentences.
In addition, detention on national security or public order grounds has also been ordered for reasons of irregular entry into a territory, contrary to Article 31 of the Refugee Convention and the prohibition on detaining asylum seekers on account of their irregular entry or presence.
This is for example the case of a Pakistani single-woman asylum seeker, supported by GCR, who immediately after her arrival was convicted to a seven-month sentence due to her illegal entry, which has been suspended for 3 years and against which she has appealed. Subsequently, she has been placed in immigration detention on public order grounds due to illegal entry.[9]
Detention despite the lack of actual prospect of return
Greek Police continue to impose prolonged detention against persons whose removal is not feasible due to the situations prevailing in their country of origin or the suspension of readmissions to Türkiye since March 2020. This practice is applied against both persons who have not applied for asylum and asylum seekers. For example, a total number of 1,752 detention orders have been issued against Afghan nationals during 2023.[10]
A number of Court decisions acknowledged that in the absence of an actual prospect of removal, detention lacks a legal basis.[11] Following dozens of cases of successful litigation before domestic Court as well as repeated interventions of the Greek Ombudsman during at least the last two years, this practice has been to a certain degree limited in certain parts of the country. However, the practice is still applicable is detention facilities at the north of Greece (Paranesti and Xanthi PRDCs), in particular against persons from Afghanistan, who remain in prolonged administrative detention despite the lack of any prospect of removal.
Detention of applicants who have already asked for asylum though the online platform
As mentioned above, persons willing to apply for asylum in the mainland have to present themselves in a mainland RIC (see Access to the procedure on the mainland). Yet before doing so, they need to first book an appointment thought an online platform established by the MoMA. However, during the period from accessing the platform to the day of their appointment, they remain in a legal limbo, they are not protected from arrest, issuance of a removal decision and pre-removal detention and in practice they are arrested and placed in prolonged pre-removal detention. Thus, a number of applicants who have booked a registration appointment through the Ministry’s platform have been held in detention despite holding a document proving the existing appointment, in violation of national and European legislation. This pattern was widespread until the end of 2023 and, as a result, a growing number of asylum seekers have been detained in pre-removal detention under L 3386/2005 and L 3907/2011. In February 2023, the Administrative Court of Kavala ruled in a case of an Afghan national represented by GCR that he was unlawfully detained since he had already booked a registration appointment and thus, according to the law, he had to be considered as an asylum seeker.[12] Several similar decisions have since been issued by other Administrative Courts in line with CJEU case law.[13]
Delays in the asylum procedure resulting in prolonged detention
Due to the lack of interpretation and adequate capacity of the Asylum Service, the registration of the asylum cases or the conduct of the asylum interview may be delayed for significant periods resulting in prolonged detention. For example, in Korinthos PRDC the full registration of an asylum application may take place after 1 -1 ½ month after the expression of the will of the detained to apply for asylum. In Paranesti PRDC, the postponement and rescheduling of asylum interviews due to lack of interpretation may also leads to prolonged detention of asylum seekers.
Overpassing procedures prescribed by national legislation
National legislation provides that newly arrived persons should be initially subjected to reception and identification procedures prior to any assessment of the possibility to impose detention measures. However, in GCR’s experience, newly arrived persons arriving in locations where no RICs/CCACs are in operations (for example Crete, Kalamata etc) are frequently subject to automatic detention in mainland PRDCs instead of Reception and Identification procedures, contrary to national legislation and despite the fact that as a rule they are persons belonging to vulnerable groups as shipwrecks survivors and survivors of dangerous sea journeys.
Detention without legal basis or de facto detention
Apart from detention of asylum seekers under the Asylum Code and pre-removal detention under L 3386/2005 and L 3907/2011, detention without legal basis in national law or de facto detention measures are being applied for immigration purposes. These cases include the following:
Detention upon entry in RICs or in the ‘Closed Controlled Access Centres’ (CCAC)
Since mid-2022 persons willing to apply for asylum on the mainland have to present themselves to Malakasa Reception and Identification Centers (RIC) – for South Greece- or Diavata RIC – for North Greece, in order to undergo reception and identification procedures and for the full registration of their asylum application. Similarly, on the islands, newly arrived persons are transferred to Closed Controlled Access Centers (CCAC) for reception and identification procedure purposes and for the registration of their asylum application (see sections on The domestic framework: Reception and Identification Centres & Registration of the asylum application).
In both cases, as prescribed by Article 40 Asylum Code, all persons in mainland RICs or CCAC on the islands are subject to an up to 25-day restriction of their personal liberty within the premises of the RIC/CCAC, a measure amounting to de facto detention, applied in a generalised, indiscriminate manner.[14] Depending on the registration capacity/workload of the Authorities, prior of the Decision restricting the liberty within the premises of RIC, additional “waiting periods” within the premises of RICs/CCAC are applied which may also amount to de facto detention. This means that, in practice, the only option for persons willing to apply for asylum in Greece is to be subjected to a de facto detention measure. An infringement letter has been sent to the Greek Authorities by the EU Commission on the ground that this provision leads to blanket and de facto detention of asylum seekers, while in accordance with EU law, the detention of asylum seekers can only be imposed exceptionally and under the condition that one of the grounds prescribed in Directive 2013/33/EU is met.[15]
Other forms of de facto detention such as detention pending transfer to RICs, de facto detention in RIC, de facto detention in transit zones, detention of recognised refugees and detention in the case of alleged pushbacks continued to occur during 2023 according to information received by GCR.
[1] Article 50(1) Asylum Code.
[2] Article 50(3) Asylum Code
[3] Article 18(g) L 3907/2011, cited by Art. 50(2-b) and 50(3-b) Asylum Code.
[4] Article 18(g)(a)-(h) L 3907/2011.
[5] Article 3(7) Directive 2008/115/EC; see also mutandis mutandis CJEU, C-528/15, Al Chodor, 15 March 2017, available at: https://bit.ly/3q7nVTY, para. 47, ‘Article 2 (n), in conjunction with Article 28 (2) of the Dublin III Regulation, has the meaning that it requires the Member States to lay down, by means of a binding provision of general application, the objective criteria on the basis of which it is assumed that there is a risk of absconding of the applicant being subjected to a transfer procedure. The absence of such a provision renders Article 28 (2) of that regulation inapplicable’.
[6] Ombudsman, Return of third-country nationals, Special Report 2018, p. 17, available at: https://tinyurl.com/4k73tnnh.
[7] European Commission, revised Return Handbook, 27 September 2017, no longer available online, pp. 78-79.
[8] CJEU, Case C-601/15 PPU J.N., 15 February 2016, available at: https://bit.ly/3BXp7vY, paras 65-67. See e.g., Greek Council of State, Decisions 427/2009, 1127/2009 and 2414/2008, which highlight that a mere reference to a criminal conviction does not suffice for the determination of a threat to national security or public order.
[9] See, e.g., Administrative Court of Athens, Decision ΑΡ2818/2023.
[10] Directorate of the Hellenic Police 18 January 2024.
[11] Administrative Court of Kavala Decisions ΑΡ504/2023, ΑΡ728/2023, ΑΡ1098/2023 Administrative Court of Komotini Decisions ΑΡ309/2023,
[12] Administrative Court of Kavala, Decision 163/2023. See also GCR’s press release for two subsequent cases, 21 March 2023, available in Greek at: https://bit.ly/3IYJqNv.
[13] Administrative Court of Kavala Decisions ΑΡ379/2023, ΑΡ382/2023 and ΑΡ421/2023, Administrative Court of Athens ΑΡ721/2023 and ΑΡ741/2023, Administrative Court of Xanthi ΑΡ209/2023 Administrative Court of Corinth Π1473/2023.
[14] Inter alia also see Joint Civil Society Statement, Not Again in 2024: Call for upholding human rights in the Samos Closed Control Access Centre, January 2024, available at: https://tinyurl.com/4x79wrs4, p. 2.
[15] European Commission, January Infringements package: key decisions, 26 January 2023, available at: https://bit.ly/45tH02U.