Author
Asylum seekers may move freely within the territory of Greece or the area assigned by a regulatory (κανονιστική) decision of the Minister of Citizen Protection (formerly, the Minister of Migration Policy).[1] Restriction of freedom movement within a particular geographical 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, asylum seekers’ freedom of movement may also be restricted through assignment to a specific place, 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. The limitation is imposed by the Head of the Asylum Service and is mentioned on the asylum seekers’ cards.[3]
Applicants are required to notify the competent authorities of any change of their address, as long as the examination of their asylum application is pending.[4]
Finally, applicants have the right to lodge an appeal (προσφυγή) before the Administrative Court against decisions that restrict their freedom of movement.[5] 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-Turkey statement and the Fast-Track Border Procedure, whose movement is systematically restricted within the island where they have arrived, under a “geographical restriction”. As mentioned in Reception and Identification Procedure, the geographical restriction on the given island is imposed both by the Police Authorities and the Asylum Service.
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,[6] 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 the intention to seek asylum upon arrival, thus prior to the issuance of a deportation decision.[7] 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.[8]
Imposition of the “geographical restriction” by the Asylum Service: The imposition of the geographical restriction on the islands in the context of the asylum procedure was initially based on a June 2017 Decision of the Director of the Asylum Service.[9] This decision was annulled by the Council of State on 17 April 2018, following an action brought by GCR. The Council of State ruled that the imposition of a limitation on the right of free movement on the basis of a regulatory (κανονιστική) decision is not as such contrary to the Greek Constitution or to any other provision with overriding legislative power. However, it is necessary that the legal grounds, for which this measure was imposed, can be deduced from the preparatory work for the issuance of this administrative Decision, as otherwise, it cannot be ascertained whether this measure was indeed necessary. That said the Council of State annulled the Decision as the legal grounds, which permitted the imposition of the restriction, could not be deduced neither from the text of said Decision nor from the elements included in the preamble of this decision. Moreover, the Council of State held that the regime of geographical restriction within the Greek islands has resulted in unequal distribution of asylum seekers across the national territory and significant pressure on the affected islands compared to other regions.[10] A new regulatory Decision of the Director of the Asylum Service was issued three days after the judgment and restored the geographical restriction on the Eastern Aegean islands.[11] This Decision was replaced in October 2018 by a new Decision of the Director of the Asylum Service.[12] Following an amendment introduced in May 2019 the competence for issuing the Decision imposing the geographical restriction has been transferred from the Director of the Asylum Service to the Minister of Migration Policy.[13] In June 2019, a decision of the Minister of Migration Policy on the imposition of the geographical restriction has been issued.[14] Following the amendment of the IPA in November 2019, a new decision on the imposition of the geographical limitation has been issued by the Minister of Citizen Protection in December 2019, which remains in effect.[15] A new application for annulment was filed by GCR before the Council of State against said Decisions, however the hearing has been since postponed on several occasions and is still pending examination in December 2021.
The Decision of the Minister of Citizen Protection as of December 2019, which regulates the imposition of the geographical restriction since 1 January 2020, states the following:
“1. A restriction on 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
(a) unaccompanied minors,
(b) persons subject to the provisions of Articles 8 to 11 of Regulation (EU) No 604/2013, under the condition that after the take charge request submitted by the Greek Authorities has been accepted by another member State
(c) persons whose applications can reasonably be considered to be well founded and
(d) persons belonging to vulnerable groups or who are in need of special reception conditions according to the provisions of L. 4636/2019, as long as it is not possible to provide them with appropriate support as per what is provided in article 67 IPA (“applicants in need of special procedural guarantees”)”.
Thus, and in line with said Decisions in force during 2019 and since 1 January 2020, the geographical restriction on each asylum seeker who entered 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, inter alia 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.[16] 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 in case that 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”,[17] 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 limitation imposed;
- No effective legal remedy is provided in order to challenge the geographical limitation imposed by the Minister of Citizen Protection, contrary to Article 26 of the recast Reception Conditions Directive. The remedy provided under article 112(1) (formerly introduced by the amended Article 24 L 4540/2018 in December 2018) remained 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). A fortiori, no legal remedy is provided by the IPA to challenge said restriction.
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 applied, not least, due to diverging practices between locations (also see Lift of geographical Restriction).
In all cases, the lifting of the geographical restriction does not necessarily amount to an immediate change in living conditions or the actual departure from the islands. For instance, in a case documented by RSA, an elderly woman who had her geographical restriction lifted in August 2020 with a view to her Dublin transfer remained under inappropriate living conditions on in the RIC of Lesvos for six months. She was only placed in suitable accommodation after repeated complaints to the Ombudsman and an interim measure request to the ECtHR.[18] Similarly, in another case handled by GCR concerning a vulnerable family of 5 living in highly unsuitable conditions in the RIC of Lesvos, with the spouse in advanced pregnancy, and one of the children with a serious medical issue that could not be addressed on the island, the geographical restriction was lifted in March 2021. Yet the family was not allowed to leave until 5 months later, after consecutive interventions by GCR’s lawyer inter alia to the Greek Ombudsman in August 2021. The reasoning provided by the administration to the family’s lawyer for the delay was that there was no organised transfer off the island scheduled and that the family would not be allowed to leave the island on their own, despite the lift of the restriction.
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 increase the number of applicants stuck on the Greek islands and serves as a constant risk that can deteriorate the conditions there.
Throughout 2020, a total of 5,543 persons had their geographical restriction lifted, following a decision of the RIS on the islands of Lesvos (1,513), Samos (1,777), Chios (1,491), Leros (457) and Kos (305).Such data is not available for 2021.
In sum, the practice of indiscriminate imposition of the geographical restriction since the launch of the EU-Turkey Statement has consistently led to significant overcrowding in the island RICs. People are obliged to reside for prolonged periods in overcrowded and/or unsuitable facilities, where food and water supply have been consistently reported insufficient, sanitation is poor and security highly problematic (see Conditions in Reception Facilities).
In September 2020,[19] the Greek National Commission for Human Rights (GNCHR) reiterated its firm and consistently expressed position, calling 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”. 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. She urges 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.” The Commissioner also 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”[20].
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. Moreover, access to asylum is also restricted to those who have not complied with the geographical restriction since, according to the practice of the Asylum Service, their applications are not lodged outside the area of the geographical restriction and/or the applicant in case he or she has already lodged an application, cannot renew the asylum seeker card and the examination is interrupted.
[1] Article 45(1) IPA.
[2] Ibid.
[3] Article 45(2) IPA.
[4] Article 45(6) IPA).
[5] Article 112(1) IPA.
[6] Pursuant to Article 78 L 3386/2005.
[7] Article 34(d) L 4375/2016 (replaced by article 2(c) IPA) clarifies that a person who expresses orally or in writing the intention to submit an application for international protection is an asylum seeker.
[8] 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.
[9] Asylum Service Director Decision 10464, Gov. Gazette Β 1977/7.06.2017.
[10] Council of State, Decision 805/2018, 17 April 2018, EDAL, available at: https://bit.ly/2GmvbTI.
[11] Asylum Service Director Decision 8269, Gov. Gazette B 1366/20.04.2018. See GCR and Oxfam, ‘GCR and Oxfam issue joint press release on CoS ruling’, 24 April 2018, available at: https://bit.ly/2N0Rwqv.
[12] Asylum Service Director Decision 18984, Gov. Gazette B 4427/05.10.2018.
[13] Art. 7 L.4540/2018 as amended by L. 4609/2019.
[14] Ministerial Decision 13411/2019, Gov. Gazette 2399/B/19.6.2019.
[15] Ministerial Decision 1140/2019, Gov. Gazette 4736/B/20.12.2019.
[16] Article 7 recast Reception Conditions Directive.
[17] Article 17(2) recast Reception Conditions Directive.
[18] RSA, ‘Refugees unprotected against COVID-19 risks in Greece’, 12 March 2021, available at: https://bit.ly/3JAmF0R.
[19] National Commission for Human Rights, Report on the refugee and migration issue (“Έkθεση αναφοράς για το προσφυγικό και to μεταναστευτικό ζήτημα”), September 2020, available at: https://bit.ly/3vuIqre, 44.
[20] 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.