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By Catharina Ziebritzki, Max Planck Institute for Comparative Public Law and International Law       
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This blog post is up to date as of 29 June 2016.

Legal uncertainty seems inherent to the Hotspot system and the “absence of legal clarity, worrying”. The EU-Turkey statement which came into effect on 20 March 2016 has caused major changes to the administrative procedure in the Greek Hotspots. On 1 April 2016, Greek Law 4375 reforming the Asylum System was adopted. Shortly after its last parts took effect on 1 June, it was amended again on 16 June. These recent developments have increased legal uncertainty. The Greek asylum system still suffers from “systemic deficiencies”. This, in combination with the highly politicised nature of recent developments in Greece and the chaotic and tense situation in the Hotspots, has created a significant degree of misinformation, or indeed lack of any information at all, both among potential information providers as well as those that should potentially be entitled to receive information. “Administrative limbo and uncertainty in the Aegean” are the results.

This blog contribution aims to give an overview of the current administrative procedure in the Greek Hotspots and to shed light on some procedural questions. Other crucial issues concerning implementation of the EU-Turkey statement and the Hotspot scheme in general – such as reception conditions which are undeserving of this name, systematic detention since 20 March, detention of unaccompanied minors, conditions of detention and restriction of freedom to an island – are beyond the scope of this article. The anything but decent living conditions however greatly increases the need for working procedures and for asylum-seekers to have information about what will happen to them.

(1) Who is doing what in the Hotspots?

Currently about 2300 migrants, mostly of Syrian, Afghan or Iraqi nationality, are staying on Chios either in the “official” Hotspot camp Vial, or the “unofficial” camps Souda and Depethe. All of them arrived after 20 March. The situation is similar on the other East Aegean islands: Lesvos, Kos, Samos and Leros.

The operation of the Greek Asylum Service ( ‘Asylum Service’) is governed by Law 4375. Currently, the Asylum Service has about three officers on Chios and about five on Lesvos. Article 4 (1) Law 4375 establishes the new Appeals Authority – part of which are the Appeals Committees. These are responsible for examining “quasi-judicial appeals” against Asylum Service decisions. Article 8 (1) and 80 of Law 4375 in conjunction with Ministerial Decision N° 16931 of 19 May 2016 establish the new Reception and Identification Service which is the legal successor of the First Reception Service and responsible for procedures and facilities for receiving and identifying third country nationals entering Greece irregularly. The Reception and Identification Centres form part of the Reception and Identification Service and serve as “Hotspot facilities” or “official” camps. The Hellenic Police, Port Authorities and the Hellenic Armed Forces are involved at various procedural stages. The Army was temporarily given leadership of the Hotspots while the Police are responsible for the security of the “official” camp premises.

The “Hotspot approach” proposed by the European Commission in May 2015 envisages Hotspots as platforms for operational support by EU agencies. Regarding the administrative procedure, the most relevant agencies are Frontex and the European Asylum Support Office (EASO). Europol, Eurojust and FRA are also involved . The task of the EU agencies is to “help deal with the immediate challenge faced by Member States in the frontline [sic] of migrant arrivals” in order to “swiftly identify, register and fingerprint incoming migrants”. Currently, on Chios there are 90 Frontex officers and 46 “EASO-led staff” (27 “Member State experts under the EU-Turkey Agreement”, 1 member of EASO staff and 18 interpreters; below simply “EASO staff” for all); on Lesvos: 205 Frontex and 18 EASO staff. The agencies’ operation in the Hotspots shall be coordinated by the European Union Regional Task Force (EURTF) based in Piraeus.

UNHCR, IOM and several NGOs are also present in the Hotspots. Like many NGOs, UNHCR  seriously limited its activities after 20 March in order to avoid supporting systematic detention. Now its main role in the Hotspots is the identification of vulnerable persons. IOM assists with voluntary return. The tasks of numerous small and big NGOs range from providing food, clothes and shelter; to medical assistance, camp security and legal aid. Due to the often weak state presence, the influence of some NGOs is  quite important.

(2) Regulatory frameworks governing the “Hotspot procedure”

Law 4375 governs the status of residence and the procedures in the Reception and Information Centres as well as the procedure for granting and withdrawing international protection. The Operating Plans, agreed upon between EU agencies and national authorities, set out cooperation in more detail. The operation of UNHCR and IOM is regulated by Memoranda of Understanding as provided for in Law 4375.

Although conceptualised independently, the Commission added “implementation of the relocation scheme” to the already manifold purpose of the Hotspots. Currently however, the main effect of the Relocation Decisions is to give hope to people staying in the camps and fuel rumours.

After 20 March, the Hotspot procedure has been “adapted” to the EU-Turkey statement: “the current focus on registration and screening before swift transfer to the mainland [has been] replaced by the objective of implementing returns to Turkey”. Regardless of its questionable legal nature, the statement has considerably affected the application of the above mentioned body of national and EU law – drawing a clear line between pre- and post-20 March arrivals.

More general regulatory frameworks, such as the readmission agreements between Greece and respectively the EU and Turkey, general Greek administrative law, the ECHR and the EU Charter of Fundamental Rights, are obviously relevant too.

In short: the call for a comprehensive “stand-alone legal instrument” launched in a study done for the European Parliament is very understandable.

(3) The Hotspot procedure after 20 March: Law 4375

This is an overview of the current usual process: practice can change from one day to another and even the authorities are sometimes uncertain, since in many cases there seem to be “no standard operating procedures on what to do”.

Upon arrival at the Greek shores, Frontex usually conducts a debriefing interview in order to gather information about smugglers. The person is then transferred to the Reception and Identification Centre in Vial where a “nationality screening” and fingerprinting for Eurodac take place, both carried out by Frontex and the Police.

The next step is the reception and identification procedure by the Reception and Identification Service, article 9 Law 4375. This includes registration, data verification and medical screening. An intention to seek asylum is usually first documented at this stage (tickbox on the “registration sheet”); vulnerable cases shall be identified. As from 20 March, a decision on restriction of liberty to the Reception and Identification Centre “until the completion of these procedures and for a period not exceeding twenty-five days” is issued subsequently. Most people have been detained for this maximum period. Law 4375 allows detention for up to three months under certain conditions.

Upon release, the person is issued an order to stay in the official Hotspot camp and to not leave the island. While the first part is currently not strictly enforced – people stay in “unofficial” camps as well – the second part is actually enforced in practice.

The next step is to wait for the admissibility interview – which is the stage most persons are at currently. This interview has been introduced on the islands as from 20 March. The EU-Turkey statement reads: “[only] Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with [the Asylum Procedures Directive] will be returned to Turkey.” According to article 54 of Law 4375 implementing article 33 of the Asylum Procedures Directive, a claim shall be rejected as inadmissible in particular if a third country is considered as first country of asylum or safe third country for the applicant (article 55 and 56 of Law 4375). Up to now, authorities have only interviewed Syrian nationals, probably due to their potential status in Turkey, and have left other nationalities for later processing. Cases of vulnerable people shall be exempted from the admissibility interview. However if they have not been identified as vulnerable and therefore have not been exempted, as happens very often, their claims shall be considered as admissible on grounds of vulnerability.  

If the claim is considered admissible, the applicant is issued an Asylum Seeker’s Card. The Asylum Service used to inform upon request that the applicant would then be referred to Athens for the substantive interview. However, since mid-June, the authorities have informed that the whole asylum procedure will be carried out on the islands. This would be legally possible but at the moment it must be doubted whether this announcement will be implemented.

If the claim is considered inadmissible, the applicant can appeal to the Appeals Committees within five days and this remedy has automatic suspensive effect.

(4) The admissibility interview

At least in the vast majority of cases, EASO staff conduct the admissibility interview. The decision on admissibility is then issued by the Asylum Service. Even leaving aside the crucial question of competence arising with regard to article 2(6) of the EASO Regulation, this leads to uncertainty regarding the procedural rights during the interview. Neither the EASO Regulation nor the “rules of conduct” of the Operating Plans contain procedural rights. Article 52 (2) to (7) of Law 4375 grant the right to translation, the right to be interviewed by a female officer if needed, the right to be given an adequate opportunity to explain etc. These rights coincide with information given by the Asylum Service upon request. It is unclear whether the view of the Asylum Service is that national procedural rules have to be respected by EASO staff. According to the view of EASO Chios, Greek Law is not applied by EASO – indeed, Law 4375 is considered by some EASO officers a “side issue” which is basically not needed since all staff are “very experienced asylum experts”. The question remains legally unresolved.

Another issue is the relation between “Dublin-admissibility” and “safe-third-country-admissibility”: can an application be rejected as inadmissible by Greece on the grounds of Turkey being a safe third country even where according to the Dublin responsibility allocation criteria another Member State is responsible? The Commission’s view as well as practice on the ground is that those whose cases should be examined by another Member State than Greece according to the Dublin criteria, should not be subject to deportation to Turkey but be transferred to the responsible Member State instead. Legally, this is uncertain: Article 54 (1) of Law 4375 lists both kinds of inadmissibility without specifying the relation between the two. Article 3 (3) Dublin III Regulation as well as Article 33 (1) Asylum Procedures Directive could be understood in either way. This example clearly shows the problems of legal uncertainty created by the overlaying of EU secondary law with the EU-Turkey statement. Although current practice is actually in favour of  applicants, this is not legally guaranteed but an expression of a political decision. The Commission’s proposal for a reform of the Dublin System indeed foresees precedence of the “safe-third-country-admissibility”. It can be doubted whether this is in line with article 8 ECHR in cases relating to articles 8 to 11 of the Dublin III Regulation.

The crucial issue is whether Turkey can qualify as safe third country or first country of asylum, in particular with regard to article 56 (1) (f) of Law 4375 requiring “a connection with that country, on the basis of which it would be reasonable for the applicant to go to that country”. So far, most Asylum Service decisions found that Turkey would not be safe for the applicants i.e. the claims were found admissible. The same is true for the Appeals Committees: until now, out of about 70 inadmissibility decisions by the Asylum Service, only two have been confirmed by the Appeals Committees. Judicial remedies against these appeals’ decisions have been lodged.

(5) Appeals and the amendments of 16 June 2016

The appeal has to be lodged within five days from notification, pursuant to article 61 (1) (d) of Law 4375. Taking into account the absence of legal information and legal aid,one may wonder if this is in line with article 46 (1) (a) (ii), (3) of the Asylum Procedures Directive requiring “reasonable time limits […] for the applicant to exercise his or her right to an effective remedy”. Article 61 (4) of Law 4375 provides for automatic suspensive effect. This provision is applied in practice and in line with article 46 (6) Asylum Procedures Directive.

The amendment of 16 June, adopted with (at least) political support of the Commission and despite doubts regarding its constitutionality in the Greek Parliament, contains two provisions concerning appeals authorities. First, the majority in the Appeals Committees has been shifted from human rights experts to state representatives: previously composed of one representative of the Ministry of Interior, one UNHCR representative and one expert proposed by the national commission for Human Rights; now it is made up of two administrative judges and one UNHCR representative. Second, article 62 (1) (e) of Law 4375 allowing a second hearing before the Appeals Committee upon request has been abolished. This is questionable with regard to Article 46 (1) (a) (ii), (3) of the Asylum Procedures Directive requiring “an effective remedy [providing] for a full and ex nunc examination of both facts and points of law”.

(6) Border procedures

Article 60 of Law 4375, based on article 43 of the Asylum Procedures Directive, provides for a special border procedure. Its paragraph (4) amends the “normal asylum procedure” in several regards, in particular prescribing very short time limits. Vulnerable persons and persons falling under articles 8 to 11 of the Dublin III Regulation are exempted from these border procedures.

It is not clear whether some or all of the Hotspot procedures are dealt with under the scheme of article 60. The applicability of “border procedures” is limited to a period of 28 days from the date of application for international protection. It is thus important to know when exactly the actual application for international protection takes place. This, however, is unclear (see below at (7))

(7) Family reunification

Many applicants on the Greek islands have close family members in other Member States. Family reunification is thus an omnipresent issue. So far, there have not been any transfers from the islands; however, the Greek Asylum Service and Dublin Units in some other Member States are aware of the issue.

Articles 8 to 11 of the Dublin III Regulation i.e. “family reunification under Dublin” require an “application for international protection”. The Dublin III Regulation adopts the definition of article 2 (h) Qualification Directive: “a request […] for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status”. For an unbiased jurist, it seems quite clear that at the latest the statement “I wish to apply for international protection” on the “registration sheet” meets this definition. However, practice and prevailing opinion in Greece and other Member States do not deem the mere “intention to apply” (sometimes referred to as “application” or “pre-registration”) as sufficient, but require a more formal “application for asylum” (sometimes referred to as “registration”). The differentiation between an “application for international protection” and a later “registration” can be based on article 6 (1) Asylum Procedures Directive and is reflected in article 36 Law 4375. However, article 20 (1) Dublin III Regulation only requires an “application for international protection” for the start of the Dublin procedure.

Family reunification independent of the asylum procedure is not part of the “Hotspot procedure” as such but is relevant in this context. Regarding family reunification to Germany, a common scenario, the German Embassy in Athens used to refer all persons who arrived after the 20 March to representations in Turkey. For the last few weeks, the German version of the homepage informs that appointments are assigned if the person has the possibility to travel to Athens. The English version is not that clear. As the earliest appointments are in Spring 2017, it remains to be seen whether national authorities will issue permissions to leave the island.

(8) Relocation

Despite the fact that up to now the relocation program is quite dysfunctional, it is perceived as a realistic option on the islands.

To be eligible for the relocation program, the Relocation Decisions require an application for international protection in the sense of the Qualification Directive (see above at (7)). Nevertheless, authorities on the island inform that either a positive admissibility decision or even a positive substantive decision is a precondition for relocation.

Most importantly, is not clear whether relocation is available for persons who arrived after 20 March. In the view of the Commission, “provision of information on the relocation scheme in the Hotspot is suspended for migrants arriving after 20 March”. Accordingly, the Asylum Service regards the 20 March as the “cut-off date for relocation”. This is consistent with the logic of the EU-Turkey statement, but not in line with the Relocation Decisions which do not confine eligibility to persons who arrived before 20 March. The Commission’s proposed amendment would not change this. The Asylum Service in Chios used to inform asylum-seekers that the date of arrival is irrelevant for relocation. Very recently, the Asylum Service seems to have aligned itself to the Commission’s opinion.

Procedural rights concerning the “relocation interview” – which has interestingly been described as “sui generis procedure” by an Asylum Service officer – are not clear either.

Conclusion

Greek Law 4375 (in particular articles 14 (7), 38, 41, 44, 51 (5)) as well as the Asylum Procedures Directive (in particular articles 6 (1), 8, 12 (1) (a), 19 to 23) oblige the State to provide legal information and under certain conditions free legal assistance and representation. On the ground, legal information by national authorities is rare and incoherent, given to only few people upon request, while some information is available online. The same is true of information by EU agencies. This is not only due to the overly complex, quickly changing and therefore uncertain legal situation, but also due to severe staff shortages and a lack of coordination. While in Lesvos, NGOs and UNHCR provide some legal aid, in Chios there is hardly any professional legal information or legal aid so far.

Since 20 March, there have been regular demonstrations and violent riots in the camps; fights between different groups of migrants; attacks on tents and on containers serving as offices of authorities, agencies, UNHCR and NGOs; attempted suicides including of unaccompanied minors; and finally violent attacks of refugees by certain political groups. The lack of security not only hinders the work of the authorities and NGOs but, most importantly, endangers the lives of the people staying in the camps.

Remarkably, hunger strikers on Chios on 20 May 2016 did not complain about their living conditions but primarily asked for “lawyers […] to speak on our behalf for our international protection and relocation […]”. Applying the laws in place would be enough to comply with their demands.