According to Article 46 IPA, 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 IPA 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 for one of the following 5 grounds:
- in order to determine 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 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 of 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 explicit 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 46(2)(3) IPA 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 IPA is issued following prior information by the Head of the Asylum Service. However, the final decision on the detention lies with the Police. The number of information notes made by the Asylum Service in 2021 is not available.
Detention of asylum seekers applying at liberty
The IPA 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:
(a) in order to determine or verify his or her identity or nationality;
(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) in order to decide, in the context of a procedure, on the applicant’s right to enter the territory;
(d) 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;
(e) when protection of national security or public order so requires;
(f) 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 2021 asylum seekers, who have 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 the 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 are not applied to asylum seekers. As it was also the case in previous years, in a case supported by GCR, the Administrative Court of Piraeus ordered the release from detention of a man from Syria, who was detained for the purpose of his transfer back to Samos on the basis that, inter alia, he is an asylum applicant and could not be detained for return purposes.
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 law 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 a case supported by GCR in 2021, the Administrative Court of Athens accepted objections against the detention of a Syrian national who was administratively detained in Tavros pre-removal detention center (Athens), on the grounds that, inter alia, he was accused with criminal charges. The Court declared, inter alia, that the nature of the attributed crime was of low importance and considering his personal circumstances he cannot be considered as a threat for public order. Thus the court ordered his release from detention.
In addition, detention on national security or public order grounds has been also ordered for reasons of irregular entry into the 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. For instance, in a case supported by GCR, an Afghan asylum seeker remained in administrative detention for reasons of public order related to the fact that he entered illegally in the country. The Administrative Court of Athens accepted objections against the detention of the applicant, claiming that the sole fact of the irregular entrance in the country does not allow detention on public order grounds.
Moreover, a further consequence of the events that unfolded after 28 February 2020, was the decision by certain prosecutors to criminally charge migrants with illegal entry into the country according to the provisions of Law 3386/2005. More precisely, between 28 February and 14 March 2020, the single-member Misdemeanours Court in Orestiada sentenced 103 persons to imprisonment under the above-mentioned regulation. The CPT expressed serious misgivings about the way in which these cases were conducted and asked the Greek authorities to ensure that all Public Prosecutors and Misdemeanour Courts are fully cognisant of Greece’s international legal obligations. However, in a case supported by GCR the Administrative Court of Athens rejected objections against detention of an Afghan applicant, who was sentenced to imprisonment for irregular entry and remained in criminal detention for a period of one year and in administrative detention for a period of eleven months. The Court asserted that he can be considered as a threat of public order on the basis of his conviction as well as that there was a risk of absconding.
Furthermore, as the Ombudsman has highlighted 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 Turkey 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 to objective criteria or individual circumstances. For instance, in a case supported by GCR, the Administrative Court of Athens ordered the release of an Afghan asylum seeker after his subsequent application had been considered admissible by the Autonomous Asylum Unit of Amygdaleza. He had been previously detained on the basis that there are reasonable grounds to believe that he applied for international protection to delay or prevent the enforcement of the return decision.
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 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
At the end of 2021, residents in the new EU-funded ‘Closed Controlled Access Center’ in Samos without a valid asylum seeker’s card were barred from leaving the camp. The practice was applied to individuals who have had their cards withdrawn as a result of unsuccessful asylum applications or newcomers yet to be issued with a card. According to unofficial estimates, in early December 2021 around 100 of the approximately 450 residents have been prevented from leaving the prison-like premises for more than two weeks, in violation of their right to liberty.
In a case of an Afghan national residing in KEDN of Samos supported by GCR, the Administrative Court of Syros concluded that the restriction of movement amounts to arbitrary detention and considered the exit ban from the camp unlawful.
Detention of newly arrived persons under quarantine
Greek authorities maintain an automatic quarantine policy for asylum seekers arriving on the Eastern Aegean islands, thereby detaining them for a two-week quarantine period–regardless of their vaccination status or COVID-19 infection status –in order to prevent the potential spread of coronavirus. During this quarantine period, asylum seekers are typically escorted by police to a guarded quarantine facility which they cannot leave, amounting to an arbitrary deprivation of liberty and de-facto detention. The detainees are not registered as asylum seekers by Greek authorities until after the quarantine and they are not served with an administrative detention order. As a result, they are not entitled to procedural safeguards–such as a legal avenue to challenge improper quarantine procedures or conditions.
Other forms of de facto detention such as detention pending transfer to RIC, 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 2021 according to GCR’s knowledge.
 Article 46(1) IPA.
 Article 46(3) IPA
 Article 18(g) L 3907/2011, cited by Art. 46(2-b) and 46(3-b) IPA.
 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, 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”.
 Administrative Court of Piraeus, Decision 23/2021.
 Ombudsman, Return of third-country nationals, Special Report 2018, available at: https://bit.ly/37jgpGz, 17.
 CJEU, Case C-601/15 PPU J.N., Judgment of 15 February 2016, 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 etc., idem.
 Administrative Court of Athens, Decision AP 19/2021.
 Administrative Court of Athens, Decision AP 2150/2021.
 Council of Europe’s anti-torture Committee calls on Greece to reform its immigration detention system and stop pushbacks, available at: https://bit.ly/2Slm255.
 Administrative Court of Athens, Decision ΑΡ1985/2021.
 Administrative Court of Athens, Decision ΑΡ119/2022.
 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.
 Equal Rights beyond borders, REPORT OF THE SPECIAL RAPPORTEUR ON THE HUMAN RIGHTS OF MIGRANTS HUMAN RIGHTS VIOLATIONS AT INTERNATIONAL BORDERS: TRENDS, PREVENTION AND ACCOUNTABILITY, available at: https://bit.ly/3JAt8IY.
 AIDA, Report on Greece, 2020 Update.