Freedom of movement

Greece

Country Report: Freedom of movement Last updated: 30/11/20

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Greek Council for Refugees Visit Website

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 be also restricted through assignment to a specific place, when 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 Director 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 provided 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 transfer of the responsibilities of the MoMP to the MoPO and 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.[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 has not taken place by May 2020.  

The relevant Decisions on the imposition of the geographical restriction in force during 2019, stated the following:[16]

“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.

2. The restriction on movement shall not be imposed or should be lifted for persons subject to the provisions of Articles 8 to 11 of Regulation (EU) No 604/2013 as well as persons belonging to vulnerable groups, according to paragraph 8 of article 14 of Law 4375/2016.”

The Decision of the Minister of Public Order 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.

2. 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 of the same Law/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 […]”.  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 limitation is issued, as the limitation 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.[17] 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”,[18] 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 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: Legal Assistance). A fortiori, no legal remedy is provided by the IPA to challenge said restriction.

During 2019, and in line with the legal framework in place at that time, the geographical restriction was lifted in the following cases:

  • Persons granted international protection have their restriction lifted at the time they receive the positive decision;
  • Applicants exempted due to the applicability of the family provisions of the Dublin Regulation have their restriction lifted following the full registration of the application;
  • Applicants exempted due to vulnerability, as far as GCR, is aware had their restriction lifted immediately following the full registration of their application or at the time that their vulnerability was identified, even though in the context of speeding-up the asylum procedure and/or as part of measures to decongest the overcrowded island RICs, changes in practices were observed, resulting in vulnerable applicants having to undergo their interview on the island, before being granted access to the Greek mainland.[19]

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 further deteriorate the conditions there. 

In sum, the practice of indiscriminate imposition of the geographical restriction since the launch of the EU-Turkey Statement has led to significant overcrowding. People are obliged to reside for prolonged periods in overcrowded 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 and October 2019,[20] the Greek National Commission for Human Rights (GNCHR) reiterated its firm and consistently expressed position on the “immediate termination of the entrapment of the applicants for international protection in the Eastern Aegean islands and the lifting of geographical limitations imposed on them.” It similarly reiterated its key recommendation on “the abolition of the measure of geographical limitation…and the adoption of a provision whereby any geographical limitation shall be based on an individual assessment and be imposed by a reasoned administrative decision, providing also the applicants with a right to effective judicial protection, given the nature of the measure, i.e. the restriction of their freedom of movement.”

Respectively, in October 2019, the Council of Europe Commissioner for Human Rights underlined that ““[t]he situation of migrants, including asylum seekers, in the Greek Aegean islands has dramatically worsened over the past 12 months. Urgent measures are needed to address the desperate conditions in which thousands of human beings are living” and added that “without lifting the geographical restriction, this plan [transferring of 20,000 applicants form the island to mainland] is unlikely to significantly reduce the overcrowding in the islands”.[21]

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. The 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.

Lastly, as of 1 January 2020, failure to comply with the geographical restriction leads to the rejection of an application as unfounded on its merits, as per article 81 IPA (“implicit withdrawal”). As of the end of January 2020, GCR is aware of a number of cases in Lesvos island, who have been rejected at first instance because the applicants had not complied with the geographical restriction.[22]

 


[1] Article 7(1) L 4540/2018, as amended by Article 62 L 4609/2019, and now replaced by Article 45(1) IPA.

[2] Ibid.

[3]Article 45(2) IPA.

[4]Article 7(6) L 4540/2018, now replaced by Article 45(6) IPA).

[5] Article 24 L 4540/2018, as amended by Article 5 L 4587/2018, referring to the Code of Administrative Procedure (L 2717/1999). Article 24 L4540/2018 has been replaced by article 112(1) IPA as of the 1st of Jan 2020.

[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] Asylum Service Director Decision 18984, Gov. Gazette B 4427/05.10.2018 and Ministerial Decision 13411/2019, Gov. Gazette 2399/B/19.6.2019

[17] Article 7 recast Reception Conditions Directive.

[18] Article 17(2) recast Reception Conditions Directive.

[19] Indicatively, see MSF, A dramatic deterioration for asylum seekers on Lesvos, July 2017, available at: http://bit.ly/2vCJzAF, p. 3 and AIDA, Country Report Greece, 2018 update, March 2019, p.120.

[20]  National Commission for Human Rights, The GNCHR on the unsettling situation in the Eastern Aegean islands and the recent asylum developments, 6 September 2019, available at: https://bit.ly/38wCBhe, p.2  and National Commission for Human Rights, GNCHR’S Recommendations              on           refugee protection [annex  to GNCHR’S reference report on refugees], October 2019, available at: https://bit.ly/38xvNjG.

[21] Council of Europe, “Greece must urgently transfer asylum seekers from the Aegean islands and improve

living conditions in reception facilities”, 31 October 2019, available at: https://bit.ly/31eNMZL.

[22]  Information provided by the Greek police and UNHCR in Lesvos, in the context of a field mission between 28-31 January 2020.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation