According to Article 50 Asylum Code, an asylum seeker shall not be detained on the sole reason of seeking international protection or having entered and/or stayed in the country irregularly. 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 5 grounds:
- 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. 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:
- 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 providing that said objective criteria ‘must be defined by law’.
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 2022 is not available.
Detention of asylum seekers applying at liberty
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).
Up until the end of 2022 asylum seekers, who had applied for asylum at liberty in one of the Eastern Aegean islands and were subject to a geographical restriction, were detained as a rule if arrested outside their assigned area in order to be transferred back to that island. In these cases, a detention order was imposed contrary to the guarantees provided by law for administrative detention and without their asylum seeker legal status being taken into consideration: the detention order was unlawfully issued based on L 3907/2011 and/or L 3386/2005, which refers to the deportation of irregularly staying third-country nationals to their country of origin, as these legal frameworks should not be applied to asylum seekers.
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 terms, 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. This continues to be the case. The Return Directive does not cover detention on public order grounds, 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 case of the Council of State and the CJEU. 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. The Ombudsman has once again in 2019 criticised this practice.
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 under Article 46(1) IPA. Furthermore, as highlighted by the Ombudsman on the practice of imposing detention on public order grounds solely based on a prior conviction by which custodial measures have been suspended, the mere suspensive effect of the sentence granted by the competent Criminal Court proves that the person is not considered a threat to public order, while his administrative detention on public order grounds raises questions of misuse of power on behalf of the police.
Detention of applicants considered to apply merely in order to delay or prevent return
Applicants subject to the JMD designating Türkiye as a safe third country together with applicants submitting a subsequent asylum application were systematically detained on the basis that “there are reasonable grounds to believe that the application is submitted merely in order to delay or prevent the enforcement of the return decision”. The detention order and the recommendation of the Asylum Service issued in such detention cases are lacking proper justification. Instead, they simply repeat part of the relevant legal provision, without due consideration of objective criteria or individual circumstances. Regarding those subjected to the JMD, it should also be mentioned that the actual prospect of return is never considered, neither from the police nor from the Asylum Service, despite suspending returns to Türkiye in March 2020. Moreover, those who apply for asylum in detention are often detained ‘in order to decide, in the context of a procedure, on the applicant’s right to enter the territory’ despite the fact that this reason can only justify detention of those who have applied for international protection in liberty.
It should also be noted that, as stated before, since a number of persons are immediately detained upon arrival, it is clear that these asylum seekers have not ‘already had the opportunity to access the asylum procedure’ while at liberty, as required by the law.
Detention despite the actual prospect of return
During 2022, applicants for international protection as well as rejected asylum seekers continued to remain systematically detained without any proper consideration of the prospect of return to Türkiye despite returns being suspended since March 2020. A number of court decisions acknowledged that in the absence of an actual prospect of removal, detention lacks a legal basis.
Detention of applicants who have already asked for asylum though the platform
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 2022 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’s Legal Unit 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.. Following the abovementioned decision, a number of similar decisions have been issued by several Administrative Courts.
Detention without legal basis or de facto detention
Apart from detention of asylum seekers under IPA 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 in the ‘closed-controlled centre’ (KEDN) of Samos
According to the Greek General Regulation on the Operation of the Islands’ CCACs, residents are only permitted to enter and exit the centre from 8am-8pm daily, which restricts their freedom of movement and access to basic goods and services. However, in practice, in Samos and Kos CCACs, all newly arrived asylum applicants are only permitted to exit the centre after 25 days, not including the quarantine period, as a general and unjustified 25-day restriction of freedom of movement has been applying to new arrivals. Specifically: following an illegal de facto detention practice implemented in the first months of the Samos CCAC’s operation, from mid-April 2022 administrative delays in the issuance of the applicants’ cards resulted in them not being allowed to exit the centre. At least since July 2022, a general and unjustified 25-day restriction of freedom of movement has been applied to new arrivals. According to the administration of Samos CCAC, all newly arrived asylum applicants are only permitted to exit the centre after 25 days, despite being fully identified and registered within the first five days of their arrival. Therefore, there is no justification for the extension of the restriction of residents’ freedom of movement which the law provides by way of exception. According to UNHCR, the 25-day movement restriction did not include the five or more days of mandatory quarantine.
Detention of newly arrived persons under quarantine
Throughout 2022, Greece continued to subject newly arriving asylum seekers to several days of quarantine in Reception and Identification Centres, Closed Controlled Access Centres and other reception facilities throughout its territory, citing COVID-19 prevention reasons. There was no permanent presence of staff in quarantine sites, even for emergency cases. The policy had no basis insofar as all other movement restrictions previously imposed in light of the pandemic had been lifted for the remainder of the population. Furthermore, the authorities still refrained from notifying deprivation of liberty orders in the form of administrative decisions to the persons affected.
Detention upon entry in RICs
Upon entry in the Reception and Identification Centres (RICs) beneficiaries may face decisions of restriction of their personal liberty for a period of up to 25 days (de facto detention), according to Article 40 of the Asylum Code. In January 2023 the European Commission launched an infringement procedure against Greece following several letters of notice to Greece over failure to comply with EU law including in relation to the reception and detention of asylum seekers and refugees and de facto detention in the RICs.
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 push backs continue to occur during 2022 according to information received by GCR.
 Article 50(1) Asylum Code.
 Article 50(3) Asylum Code
 Article 18(g) L 3907/2011, cited by Art. 50(2-b) and 50(3-b) Asylum Code.
 Article 18(g)(a)-(h) L 3907/2011.
 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’.
 Ombudsman, Return of third-country nationals, Special Report 2018, 17.
 European Commission, Return Handbook, 27 September 2017, available at: http://bit.ly/2nITCQ, 78-79.
 CJEU, Case C-601/15 PPU J.N., 15 February 2016, available at: https://bit.ly/3BXp7vY, paras 65-67. See e.g. 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.
 Ombudsman, Return of third-country nationals, Special Report 2018.
 GCR, 2018 Detention Report; and Ombudsman, Return of third-country nationals, Special Report 2018.
 Administrative Court of Corinth Decisions Π2424/24-06-2022, Π2806/ 19-07- 2022, Π3179/21-09-2022, Π3166/19-09-2022, Π2814/20-07-2022, Π4118/27-10-2022, Π4123/31-10-2022, Π4194/09-11-2022, Π3633/17-10-2022, Π4248/15-11-2022 Administrative Court of Athens Decision ΑΡ831/2022, Administrative Court of Kavala Decision ΑΡ779/2022, Administrative Court of Rhodes Decisions ΑΡ515/2021, ΑΡ514/2021, ΑΡ450/2021, ΑΡ136/2021, ΑΡ122/2021, ΑΡ96/2022, ΑΡ97/2022, ΑΡ98/2022, ΑΡ99/2022.
 Administrative Court of Kavala, Decision 163/2023. See also GCR’s press release for two subsequent cases available in Greek at: https://bit.ly/3IYJqNv.
 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.
 European Commission, ‘January Infringements package: key decisions’, 26 January 2023, available at: https://bit.ly/45tH02U.