All but last resort: The last reform of detention of asylum seekers in Greece
Unlawful deprivation of liberty is a longstanding and amply highlighted concern in the Greek asylum system. Greece consistently resorts to systematic detention of people seeking international protection at its borders and on its soil. In 2018, during which 66,969 applicants registered claims with the Asylum Service, the Hellenic Police detained 18,204 asylum seekers in pre-removal detention centres alone, while holding many more in unsuitable police stations. This is almost double the number of asylum seekers held in pre-removal centres in 2017 (9,534). Albeit reflecting only part of detention landscape in the country, these figures reveal the continuation of a policy of migration management largely based on coercion.
Against that backdrop, the latest iteration of hasty reform of asylum legislation introduced by the Greek government to “amend the detention regime in order to avoid thousands of foreigners evading authorities’ oversight” should give one pause. The International Protection Act (Greek IPA), approved by the Parliament on 31 October 2019 within two weeks of presentation of a bill to a truncated public consultation, has attracted deep concerns from the United Nations High Commissioner for Refugees (UNHCR) and civil society organisations (e.g. Refugee Support Aegean, Greek Council for Refugees, Médecins Sans Frontières, Amnesty International, Human Rights Watch). Critiques point to the government’s doubling down on coercive measures and weakening procedural guarantees in the areas of reception and asylum procedures. They also flag the lack of prior evaluation of the successive asylum reforms carried out in recent years and of due justification for new legislation.
Various provisions of the Greek IPA further undermine the right to liberty in Greece by pushing the legal boundaries of detention of asylum seekers, by entrenching previously blurred boundaries as well as by seemingly introducing new places of detention. While the exact impact of the reform is yet to be seen in practice, the changes made to the domestic framework are liable to expose more people seeking refuge to the damaging effects of detention.
Pushing legal boundaries: detention under the Greek IPA
Through layers of amendments to its predecessor (Article 46 Law 4375/2016), the Greek IPA broadens the applicability of deprivation of liberty for the purposes of the asylum procedure in several respects, in dereliction of the country’s duty to make use of detention only as a measure of last resort. In essence, the Greek IPA renders more asylum seekers detainable, for longer periods, and with less procedural guarantees.
First, whereas asylum detention was previously permissible only in cases where persons sought asylum while in pre-removal detention, Article 46(2) Greek IPA also allows detention of persons who have applied for asylum at liberty. The Greek IPA has inserted more grounds for detention by transposing Article 8(3)(c) of the recast Reception Conditions Directive, thereby enabling the Greek authorities to detain asylum seekers for the purpose of deciding in a border procedure on their right to enter the territory. The reform has therefore eliminated the more favourable provisions of Law 4375/2016 compared to European Union (EU) law and reduced domestic law protection of the right to liberty to the minimum standards foreseen by the Directive.
Second, the Greek IPA extends the general duration of asylum detention orders from 45 days to 50, subject to prolongation for another 50 days. More worryingly, however, it stretches the maximum period for which an applicant may be detained from 3 months to 18. Previous periods of time spent in pre-removal detention are not counted in the calculation of said time limit. As pointed out by civil society organisations, the design of the law could lead to situations where the combined effect of asylum and return regimes would expose individuals to deprivation of liberty for up to three years.
Third, asylum detention orders are no longer preceded by a binding recommendation (εισήγηση) of the Asylum Service to the competent police authorities. Under Article 46(4) Greek IPA, the Police should have received instead prior information (προηγούμενη ενημέρωση) from the Asylum Service when issuing a detention order, which is not binding. The repeal of the requirement of a recommendation exacerbates risks of arbitrariness, since it strips the Asylum Service of a crucial role in the determination of whether detention is necessary for effectively carrying out the asylum procedure. In fact, the Asylum Service has often advised against the use of detention, with 13,587 out of 21,492 recommendations issued in 2018 (63%) calling for the release of the applicants concerned.
Fourth, the procedure of ex officio judicial review of detention orders by the President of the Administrative Court is only foreseen in case of prolongation. The remedy was previously available both upon issuance of the initial detention order and upon prolongation under Law 4375/2016. It appeared to be ineffective in practice, as the vast majority of detention orders were rubberstamped by the courts; only 0.3% of 1,192 asylum detention orders reviewed by the Administrative Court of Athens in 2018 were quashed, according to Asylum Information Database (AIDA) statistics. Without the option of ex officio review against initial detention orders, however, asylum seekers’ only recourse to challenge their initial detention lies in a largely dysfunctional objections procedure (αντιρρήσεις) before the President of the Administrative Court. The European Court of Human Rights has consistently found the practical accessibility of the objections procedure to be incompatible with Article 5 of the European Convention on Human Rights (ECHR), including in its recent judgments in O.S.A. and Kaak.
Entrenching blurred boundaries: de facto detention upon arrival
Despite its explicit aim of consolidating asylum legislation in one instrument to eliminate inconsistencies between disparate frameworks, the IPA has done little to address the ambiguity surrounding the freedom-restrictive measures applied to newly arrived asylum seekers subject to “reception and identification procedures” (διαδικασίες υποδοχής και ταυτοποίησης) at the border. The provision on reception and identification (Article 39 Greek IPA) has now been brought under the Reception Heading of the Act. What remains intact, however, is the uneasy distinction between detention of asylum seekers and “restriction of liberty” within the premises of Reception and Identification Centres (RIC) where such first arrival procedures are implemented.
Similar to its predecessor (Article 14(2)-(3) Law 4375/2016), Article 39(4) Greek IPA refers to a regime of “restriction of liberty within the premises of the Centre” (περιορισμός της ελευθερίας εντός του κέντρου), ostensibly discrete from detention. Yet, it is clearly established in human rights law that the official designation of a measure interfering with the right to liberty is immaterial to the assessment of deprivation of liberty. Insofar as it amounts to a prohibition on exiting the premises of a facility located at the border or on an island, the “restriction of liberty” under Article 39 IPA should be understood as a de facto detention measure in Greek law. The existence of such a measure per se creates tension with the right to liberty, regardless of whether or not it is strictly enforced in practice (it is currently applied in the RIC of Evros, though not in those of Lesvos, Chios, Samos, Leros and Kos).
In light of this, the reform has exacerbated the risk of arbitrary deprivation of asylum seekers’ liberty upon arrival. Whereas its predecessor set out an initial “restriction of liberty” period of three days, subject to an extension for a further 25 days, Article 39(4)(a) Greek IPA foresees an initial five-day period, subject to a 25-day prolongation. Crucially, the initial decision to maintain the applicant within the premises of the centre is not based on an assessment of grounds to detain, necessity and proportionality, nor is it amenable to judicial review.
The detention infrastructure: old wine in new bottles?
The Greek IPA has established a new category of detention facilities in which asylum seekers may be held. These are referred to as “Closed Temporary Reception Facilities” (Κλειστές Δομές Προσωρινής Υποδοχής) in Article 116(5) or “Closed Reception Centres” (Κλειστά Κέντρα Υποδοχής) in Article 39(7)(c). This move appears to echo the commitment of the July 2019 electoral programme of the government to establish “closed temporary first reception centres” (κλειστά κέντρα προσωρινής πρώτης υποδοχής). The programme had also referred to asylum procedures being conducted within six weeks in those centres.
The concept of “closed reception” seems to mirror the terminology used by countries such as Bulgaria to designate detention of asylum seekers. As such, it should be understood as detention stricto sensu under the circumstances set out in Article 46 Greek IPA. The wording, however, contributes to existing confusion around the regime and degree of interference with the freedom of people seeking protection in Greece. As highlighted above, official designation has no bearing on the assessment of deprivation of liberty in the eyes of the ECHR and the Charter of Fundamental Rights of the European Union.
Further ambiguity stems from the provisions on the management and structure of those facilities. On the one hand, Article 116(5) Greek IPA provides that the Closed Temporary Reception Facilities are managed by the Reception and Identification Service, the authority responsible for Reception and Identification Centres and other facilities. On the other hand, Article 116(9) specifies that the Closed Temporary Reception Facilities are to be developed on the model of pre-removal detention centres, managed by the Police. The risk of confusion is all the more palpable on reading Article 47 Greek IPA on detention conditions. Article 47(1) states that asylum seekers are held in pre-removal detention centres, without any mention of Closed Temporary Reception Facilities. It remains therefore unclear whether the law entails the creation of new infrastructure or a rebranding of existing places of detention. More importantly, ambiguity remains as to whether, as a rule, people subject to asylum detention will be under the responsibility of the Reception and Identification Service, the Police, or both.
At the same time, notwithstanding the apparent creation of dedicated facilities for asylum detention, the Greek IPA has left the provisions permitting detention of asylum seekers in police stations intact. Detention conditions in Greek police stations amount to inhuman and degrading treatment contrary to Article 3 ECHR standards, as recalled by a recent round of condemnations from Strasbourg in S.Z., H.A. and Sh.D. Arbitrary detention, including of unaccompanied children, in police stations without access to outdoor spaces nevertheless remains standard practice, despite recent interim measures granted by the Strasbourg Court in several cases.
The multidimensional expansion of detention brought about by the Greek IPA is liable to entail severe human cost for people seeking asylum in Greece, in addition to substantial administrative and financial costs with no clear benefits for asylum authorities.
Contestation of those measures should go well beyond judicial redress in individual cases. Litigation avenues, national and international, are available to individuals but to varied accessibility and effectiveness. Courts can challenge restrictions on individual rights but cannot substitute legislators. They lack the institutional means to shape the national policy framework, yet are too readily criticised or warned not to disrupt it. Even where it succeeds, litigation is no panacea if the state does not take measures towards compliance. The numerous Strasbourg judgments ordering that Greek detention conditions be brought in line with Article 3 ECHR are yet to be properly executed.
EU institutions have a responsibility to monitor and act upon systemic concerns. Like any piece of domestic legislation, the IPA should be reviewed by the Asylum Unit of the Directorate-General for Migration and Home Affairs (DG HOME) in order for the European Commission to be satisfied of its compatibility with EU law. However, the Commission has regrettably taken limited steps to carry out its monitoring and evaluation obligations under the asylum acquis, and shied away from taking robust action against Member States that violate the legal standards of the Common European Asylum System (CEAS) in recent years. The reasons for limited action do not lie in complacency alone. The Commission has directly encouraged Member States to widely resort to detention to effect returns by laying down lengthy detention periods in domestic law and by bringing “detention capacity in line with actual needs”. There is thus little reason to believe that (the continuation of) Greek efforts to increase returns through more coercion will be met with anxious scrutiny, at least not without sufficient pressure on the Commission from accountability mechanisms in Greece and elsewhere.