Author
Asylum seekers may move freely within the territory of Greece or an area (περιοχή) assigned by a regulatory (κανονιστική) decision of the Minister of Migration and Asylum[1] (formerly, the Minister of Citizen Protection). This geographical restriction of freedom movement within a particular area should not affect the inalienable sphere of private life and should not hinder the exercise of rights provided by the law.[2]
Following the entry into force of the IPA, on 1 January 2020, and subsequently the Asylum Code that replaced it, asylum seekers’ freedom of movement can also be restricted through assignment to a specific place (τόπος), only if this is necessary for the swift processing and effective monitoring of the applications for international protection or for duly justified reasons of public interest or reasons of public order. This restriction is imposed by the Head of the Asylum Service and is mentioned on the asylum seekers’ cards.[3] Applicants who are subject to this type of restriction are provided with material reception conditions, as long as they reside within the place indicated and, in case of non-compliance, the provision of material reception conditions is interrupted in accordance with article 61 of the Asylum Code[4].
Applicants are required to immediately notify the competent authorities of any changes to their place of residence for as long as the examination of their asylum application is pending.[5]
Finally, applicants have the right to lodge an appeal (προσφυγή) before the Administrative Court against decisions that restrict their freedom of movement.[6] However, as explained below, the remedy regulated by this provision is not available in practice.
The geographical restriction on the Eastern Aegean islands
In practice, the imposition of a restriction on freedom of movement is particularly applied to persons subject to the EU-Türkiye statement and the Fast-Track Border Procedure, whose movement is systematically restricted to the island where they have arrived, under a “geographical restriction”. This is despite the fact that for more than 3 years now (early 2020) Türkiye has been refusing the return of asylum seekers rejected by the Greek authorities, based on the “safe third country” concept,[7] thus making the statement non-operational in practice.
Imposition of the “geographical restriction” by the Police: Following an initial “Deportation decision based on the readmission procedure” issued for every newly arrived person upon arrival, a “postponement of deportation” decision is issued by the Police,[8] by which the person in question is ordered not to leave the island and to reside in the respective RIC ‘until the issuance of a second instance negative decision on the asylum application’. The automatic issuance of a deportation decision upon arrival against every newly arrived person on the Greek islands is highly problematic, given that the majority of newly arrived persons have already expressed their intention to seek asylum upon arrival, thus prior to the issuance of a deportation decision.[9] Moreover, the decision of the Police which imposes the geographical restriction on the island is imposed indiscriminately, without any prior individual assessment or proportionality test. It is also imposed indefinitely, with no maximum time limit provided by law and with no effective remedy in place.[10]
Imposition of the “geographical restriction” by regulatory decision: Following the initial introduction of a regulatory Decision imposing the geographical restriction by the Director of the Greek Asylum Service in 2017, and its subsequent annulment by the Greek Council of State, following an action brought forth by GCR, throughout the years, competence for the issuance of such a decision was transferred at the ministerial level, with the latest such decisions being issued by the Minister of Migration Policy in June 2019 and subsequently, following the amendment of the IPA, by the Minister of Citizen Protection in December 2019 (currently in effect).[11] A new application for annulment was filed by GCR before the Council of State against these Decisions, however the hearing has been since consistently postponed and was still pending examination in December 2023.
The Decision issued by the Minister of Citizen Protection in December 2019 regulates the imposition of the geographical restriction since 1 January 2020,[12] and states the following:
‘1. A restriction of movement within the island from which they entered the Greek territory is imposed on applicants of international protection who enter the Greek territory through the islands of Lesvos, Rhodes, Samos, Kos, Leros and Chios. Said restriction is mentioned on the asylum seekers’ cards.
- The restriction on movement shall be lifted subject to a decision of the Director of the RIC, which is issued as per the provisions of para. 7, article 39 of L.4636/2019, in cases of
- unaccompanied minors,
- persons subject to the provisions of Articles 8 to 11 of Regulation (EU) No 604/2013, as long as another member state, following a request by the Greek authorities, has accepted and undertaken the obligation to receive them in their territory,
- persons whose applications can be reasonably considered to be well founded and
- persons belonging to vulnerable groups or who are in need of special reception conditions as per the provisions of L. 4636/2019, as long as it is not possible to provide them with appropriate support in accordance with the specific provisions of article 67 IPA (“applicants in need of special procedural guarantees”)’.
In line with said Decisions in force during 2019 and since 1 January 2020, the geographical restriction on each asylum seeker who enters the Greek territory through the Eastern Aegean Islands is imposed automatically when the asylum application is lodged before the RAO of Lesvos, Rhodes, Samos, Leros and Chios and the AAU of Kos. The applicant receives an asylum seeker’s card with a stamp on the card mentioning: “Restriction of movement on the island of […]”. In case the applicant holds the new type of “smart card”, a separate category stating whether they are subject to the geographical restriction is included on the card (e.g., stating “Άνευ” if no restriction is applied). No individual decision is issued for each asylum seeker.
The lawfulness of the aforementioned practice is questionable, for the following reasons:
- No prior individual decision for the imposition of the geographical restriction is issued, as the restriction is imposed on the basis of a regulatory (‘κανονιστική’) Decision of the Minister and no proper justification on an individual basis is provided for the imposition of the restriction of movement on each island, within the frame of the asylum procedure.[13] According to the relevant Decisions, any asylum seeker who enters the Greek territory from Lesvos, Rhodes, Samos, Leros, Chios and Kos is initially subject to a geographical restriction on said island. The restriction can be lifted only if the applicant falls within one of the categories provided by the Ministerial Decision. Consequently, the geographical restriction in the asylum procedure is applied indiscriminately, en masse and without any prior individual assessment. The impact of the geographical restriction on applicants’ “subsistence and… their physical and mental health”,[14] on the ability of applicants to fully exercise their rights and to receive reception conditions, by taking into consideration reception conditions prevailing on the islands is not assessed.
- No time limit or any re-examination at regular intervals is provided for the geographical restriction imposed;
- No effective legal remedy is provided in order to challenge the geographical restriction imposed by the Minister of Citizen Protection, contrary to Article 26 of the recast Reception Conditions Directive. The remedy provided under article 118(1) (formerly introduced by the amended Article 24 L 4540/2018 in December 2018) remains illusory, since an individual cannot lodge an appeal pursuant to the Code of Administrative Procedure in the absence of an individual, enforceable administrative act. In addition, no tailored legal aid scheme is provided for challenging such decisions (see Regular Procedure: Legal Assistance). A fortiori, no legal remedy to challenge said restriction is provided by the new Asylum Code that replaced the IPA.
During 2021 and in line with the legal framework in place at that time, the geographical restriction was inter alia lifted in the following cases:
- Persons granted international protection;
- Applicants exempted due to the applicability of the family provisions of the Dublin Regulation;
- Vulnerable applicants for whom appropriate support could not be provided within the area of restriction, though GCR is aware of several cases of vulnerable applicants for whom the restriction was not lifted, even though neither special reception conditions nor special procedural guarantees could be provided, not least, due to diverging practices between locations (also see Lift of geographical Restriction).
As has been the case since 2021, data on the number of persons who had their geographical restriction lifted in 2023 has not been provided, even though it was requested by GCR. Instead, the MoMA’s reply to GCR’s January 2024 request for information makes reference to the availability of relevant “summary and detailed statistical data on the work of the First Reception Service, the Asylum Service and the Appeals Authority” on the MoMA’s website (https://migration.gov.gr/statistika/).[15] Yet, as is the case with other data mentioned throughout this report, so too in the case of data regarding decisions lifting the geographical restriction throughout 2023, these are not to be found in the public sources referenced by the Ministry.
Based on data published by the MoMA on the number of asylum seekers transferred from the islands to the mainland during 2023, it could perhaps be inferred that the geographical restriction might have been lifted in the case of up to 25.736 applicants.[16] However, the specific data published by the MoMA lacks significant information, such as information on the legal status or potential vulnerabilities of the people transferred (or any more specific breakdown whatsoever), thus making it impossible to draw any safe conclusions. Based on statistics issued by the RIS on people registered as vulnerable during the first nine months of 2023, it could also perhaps be inferred that amongst those having their geographical restriction lifted during the year, there might have been up to 1,413 UAM, up to 86 persons with disabilities, up to 55 elderly persons (>65 years old), up to 240 pregnant women or women who had recently given birth, up to 1,323 single parent families, up to 1,422 victims of physical abuse, and up to 90 victims of trafficking.[17] Yet, in this case too, the published data lack significant information, such as the location (islands/mainland) where the specific vulnerable persons were registered,[18] whether they were subject to a geographical restriction, and in case they were, whether this was lifted and whether they were ultimately transferred from the islands to the mainland, thus making it similarly impossible to draw any safe conclusion on the precise number of those who might have had their geographical restriction lifted during the year and with what effect, on account of their vulnerabilities.
Since 1 January 2020, the new regulatory framework for the geographical restriction on the islands has significantly limited the categories of applicants for whom the restriction can be lifted. Thus, the implementation of this framework can further increase the number of applicants stuck on the Greek islands and serves as a constant risk for bottlenecks that can deteriorate conditions there. This was vividly showcased in the latter half of 2023, when following an increase in arrivals by sea, there was a re-emergence of conditions of overcrowding in the island facilities, leading to the severe deterioration in the quality of reception in the CCACs and to procedural delays in inter alia accessing reception conditions.[19]
In addition to broader gaps and shortages, such as water supply shortages in the Samos CCAC or shortages in doctors in both Samos and Kos (see further bellow),[20] which are further accentuated in proportion to the number of CCAC residents, there are also ongoing questions vis-à-vis the CCACs preparedness to effectively accommodate even the number of persons foreseen based on their officially reported capacities, which accuracy needs to be checked. For instance, as reported during the Lesvos Inter-Agency Coordination Meeting, which operates under UNHCR, on 19 January 2022, due to increased arrivals, the CCAC Director had informed that shelter availability in the Lesvos CCAC had become scarce, impacting living conditions therein. Interestingly, at the time, the CCAC reportedly hosted a total of 1,920 persons, which was significantly less than the facility’s officially reported capacity of 8,000.[21] Likewise, in September 2023, RSA reported an unexplained increase in the officially reported capacity for the Samos CCAC, which was increased overnight from 2,040 to 3,659 places.[22] In the same report, RSA highlights how during 2023 new arrivals in the Samos CCAC have been forced to sleep on the floor, without mattresses, in a room originally intended to serve as a restaurant, due to the lack of actual accommodation places.
Amidst these challenges, as observed by legal aid actors in February 2024,[23] a worrying practice has started being implemented in the Samos CCAC. Namely, applicants are given the choice of leaving the island, by having their geographical restriction lifted pursuant to MD 1140/2019, on the condition that they sign a solemn declaration, stating the following: “I do not wish to be accommodated at the CCAC of Samos or any other regional service of RIS. I will live on my own and the address is…… and I have been informed of the consequences of my nonappearance before the examining authority”. Notwithstanding practical questions, such as how it is feasible to ensure that newly arrived applicants, with presumably no previous link to Greece, are able to secure safe accommodation for themselves while stranded on an island, the practice also virtually amounts to applicants’ being called to renounce their right to reception conditions, on account of the State’s inability to meet its obligations under the recast Reception Directive. Crucially, applicants are not informed about the consequences of this practice, including the fact that signing the declaration is tantamount to losing access to financial aid provided in the context of reception and, in case of status recognition, to the Helios integration programme, given both have a residency requirement linked to ongoing stay in the reception system, nor are they provided a copy of this solemn declaration.[24]
In sum, the practice of indiscriminate imposition of the geographical restriction since the launch of the EU-Türkiye Statement has for years been a risk factor, intrinsically linked with the EU’s ongoing externalisation approach, that fosters and maintains conditions of possibility for the constant (re)emergence of overcrowded, substandard reception conditions on the Greek islands. At the same time, based on the aforementioned developments in Samos, it also gives rise to questionable practices, arguably aimed at managing the bottlenecks created by this approach, which nevertheless only end up shifting and widening the problems beyond the scope of reception (i.e., impacting integration as well), at the expense of applicants and beneficiaries’ rights.
In September 2020, the Greek National Commission for Human Rights (GNCHR) reiterated its firm and consistently expressed position, calling on the Greek Government to ‘review the dead-end policy with regards to the imposition of a geographical restriction on the Eastern Aegean islands and to move forward with the abolition of this onerous measure’.[25] The GNCHR also noted that regardless of circumstances, ‘any geographical restriction must be imposed following an individual assessment and a reasoned administrative act, giving the applicant the possibility of effective judicial protection, as this [measure] introduces a restriction on [the applicant’s] freedom of movement’.
In May 2021, amid the lowest levels of overcrowding observed since 2015, the Council of Europe Commissioner for Human Rights similarly underlined that “action to improve the lingering substandard living conditions in the Reception and Identification Centres must not be delayed and that all appropriate standards must be met, and overcrowding prevented. With the new reception facilities reportedly set to operate as closed centres, the Commissioner is concerned that this will lead to large-scale and long-term deprivation of liberty. The Commissioner also ‘urge[d] the Greek authorities to reconsider the closed nature of these centres, in order to ensure that the regime applicable to these facilities safeguards the freedom of movement of their residents, in line with the relevant Council of Europe standards.’ She further reiterated that ‘the policy of containment of refugees, asylum seekers and migrants on the Aegean islands lies at the heart of many of the long-standing problems Greece has experienced in protecting the rights of these persons’..[26]
Despite these calls, which remain relevant to this day, as reported by GCR and Oxfam in a joint submission to the EU Ombudsman in March 2023,[27] ‘[t]he confinement of asylum applicants appears to be a primary objective in the new EU-funded sites [i.e. CCACs]’, with several measures leading to the deprivation of applicants’ liberty. The joint submission was made following the EU Ombudsman’s opening of an own-initiative inquiry to assess how the European Commission ensures respect for fundamental rights in EU-funded migration management facilities in Greece.[28]
Failure to comply with the geographical restriction has serious consequences, including detention of asylum seekers, as applicants apprehended outside their assigned island are – arbitrarily – placed in pre-removal detention for the purpose of returning to their assigned island. They may also be subject to criminal charges under Article 182 of the Criminal Code.
[1] Article 49 (1) Asylum Code.
[2] Ibid.
[3] Article 49(2) Asylum Code.
[4] Article 49(3) Asylum Code.
[5] Article 49(6) Asylum Code.
[6] Article 118(1) Asylum Code.
[7] Also see RSA, “The EU-Turkey deal is collapsing 7 years after its signing”, 16 March 2023, available at: https://bit.ly/4d9CTNj.
[8] Pursuant to Article 78 L 3386/2005.
[9] Article 1 (c) Asylum Code clearly states that a ‘third country national or stateless person who declares orally or in writing before any Greek authority, at entry points or in the Greek territory, that they seek asylum or subsidiary protection […] or asks in any way to not be deported to some country due to fear of persecution […]’ is an asylum applicant.
[10] See e.g. Human Rights Committee, General Comment No 27 – Article 12 (Freedom of Movement, CCPR/C/21/Rev.1/Add.9, 2 November 1999, available at: http://bit.ly/2uG06Fj.
[11] For more, see AIDA, Country Report Greece: 2022 Update, June 2023, available at: https://bit.ly/45vXAir, pp. 153-154.
[12] Ministerial Decision 1140/2019, Gov. Gazette 4736/B/20.12.2019, available in Greek at: https://bit.ly/3Qi4K43.
[13] Article 7 recast Reception Conditions Directive.
[14] Article 17(2) recast Reception Conditions Directive.
[15] MoMA, Analysis and Studies Office, Reply to GCR’s request for information for the preparation of the updated Annual Report on Greece for 2023 in the framework of the Asylum Information Database (AIDA) project, received on 14 February 2024 (protocol number: 55259).
[16] MoMA, Statistics, Consolidated Reports – Overview: December 2023 – International Protection | Appendix A, available at: https://tinyurl.com/yc2stzh7, table 2.
[17] MoMA, Statistics, Reception and Identification Service, 2023, Registered TCNs per category of vulnerability (nine months 2023), available at: https://tinyurl.com/57mbxapd.
[18] The only exception identified concerns the registration of UAMs, for which a separate publication of the MoMA provides some further clarifications. Namely, from a total of 1,413 UAMs registered at border RICs during the first nine months of 2023, it arises that 1,068 were registered in the 5 island facilities. Yet this does not clarify whether and in how many cases a decision lifting their geographical restriction was issued. MoMA, Statistics, Reception and Identification Service, 2023, 2023 UAM per place (nine months 2023), available at: https://tinyurl.com/yfx9txj3.
[19] Amongst others, see Joint CSO Statement, Reception of asylum seekers in Greece: the demand for humane conditions remains, 9 November 2023, available at: https://tinyurl.com/32myr365; The New Humanitarian, ‘This is inexcusable’: What’s behind deteriorating conditions in Greek island asylum camps?, 4 December 2023, available at: https://tinyurl.com/ss7ufmtv.
[20] For more, also see AlJazeera, EU details violations at Greece’s ‘model’ refugee camps, 11 May 2023, available at: https://tinyurl.com/vnmxpfm2.
[21] For instance, see NCCBCIA, National Situational Picture Regarding the Islands at Eastern Aegean Sea (19/01/2022), 20 January 2022 and National Situational Picture Regarding the Islands at Eastern Aegean Sea (31/12/2022), 1 January 2023. Both can also be accessed on the MoMA’s website at: https://bit.ly/3OFlP83, under the label ‘National Situation: Migrant and Refugee Issue’.
[22] RSA, Disgraceful living conditions in the ‘state-of-the-art’ Closed Controlled Access Centre (CCAC) of Samos, 6 February 2024, available at: https://bit.ly/3WelY5Z.
[23] As per information shared in February 2024 by legal aid actors under the newly established Border Legal Aid sub-working group, which covers the islands of Lesvos, Samos and Kos. Information received on 12 March 2024.
[24] Ibid.
[25] National Commission for Human Rights, Report on the refugee and migration issue (‘Έkθεση αναφοράς για το προσφυγικό και to μεταναστευτικό ζήτημα’), September 2020, available in Greek at: https://bit.ly/3vuIqre, p. 44.
[26] Council of Europe, Greek authorities should investigate allegations of pushbacks and ill-treatment of migrants, ensure an enabling environment for NGOs and improve reception conditions, 3 May 2021, available at: https://bit.ly/3fpRIOC.
[27] GCR and Oxfam, Contribution to the European Ombudsman’s own-initiative inquiry OI/3/2022 MHZ on how the European Commission ensures respect for fundamental rights in EU-funded migration management facilities in Greece, 9 March 2023, available at: https://bit.ly/3CjEbnT, p. 3.
[28] For more, see EU Ombudsman, How the European Commission ensures respect for fundamental rights in EU-funded migration management facilities in Greece, Case OI/3/2022/MHZ – Opened on Monday, 11 July 2022, available at: https://bit.ly/43bmmDb.