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By Catharina Ziebritzki, Max Planck Institute for Comparative Public Law and International Law and Robert Nestler, Refugee law clinics abroad

   

The judgement of the Greek Council of State of 17th April 2018: Assessing the illegality of the geographical restriction

Under the EU Hotspot Approach as originally implemented in the Eastern Aegean islands as from the entry into force of the EU Turkey Statement,  hotspots were designed as detention centers. The initially applied detention scheme was later replaced by the so-called geographical restriction limiting asylum seekers’ freedom of movement to the respective island. On 17th April 2018, the Greek Council of State annulled the administrative decision imposing this geographical restriction. On 20th April already, a new decision of the Greek Asylum Service reinstated the geographical restriction. In parallel, a new bill that transposes the Recast Reception Conditions Directive into the Greek legislation was adopted on 15th May 2018 with the aim, among other issues, to justify the imposition of the geographical restriction.

What are the implications of these developments for the EU Hotspot Approach and for the EU-Turkey Statement? Why is the restriction of asylum seekers’ freedom of movement a central issue when it comes to the implementation of the return policy foreseen by the EU-Turkey Statement?

(1) Implementing return policy by restricting asylum seekers’ freedom of movement

The geographical restriction imposed by the Greek Asylum Law 4375/2016 is conceptually more than a simple restriction of the freedom of movement and residence requirement: Asylum seekers are kept on the respective Aegean island located at about twenty ferry minutes from Turkey – and at about eight ferry hours from the Greek mainland.

From the perspective of the European Commission and the Greek government, striving to fulfill the aim of facilitating swift returns from the islands to Turkey, keeping asylum seekers on the islands is an essential policy element. Restricting asylum seekers’ freedom of movement to the respective island has the effect of preventing irregular secondary movements to other Member States while at the same time keeping them close to Turkey where they are to return according to the EU Turkey Statement. Moreover, restricting asylum seekers’ freedom of movement to an area close to the border triggers the applicability of the so-called “border procedure” according to Art. 60 (4) Greek Asylum Law 4375/2016 as currently interpreted by the Greek administration. This particular procedure is substantially different to the one applied on the Greek mainland due to the administrative practice on the islands being shaped by the aim to implement the EU Turkey Statement. Firstly and most importantly, it allows for the rejection of an asylum claim as inadmissible in case Turkey is considered as a “safe third country” according to Art. 56 Law 4375/2016 and Art. 38 Asylum Procedures Directive or a “first country of asylum” according to Art. 55 Law 4375/2016 and Art. 35 Asylum Procedures Directive. Secondly, it allows for a considerably enhanced operational support by the European Asylum Support Office (EASO), in particular when it comes to conducting the so-called admissibility interviews.

Since the relevance of limiting asylum seekers’ freedom of movement when it comes to the implementation of the return scheme under the EU Turkey Statement has always been entirely clear to the European Commission, there has been some form of restriction since its entry into force on 20th March 2016. On that day, the hotspot facilities have been “with the support of the Commission and of Frontex […] adapted to facilitate swift returns to Turkey from the islands.” The most prominent “adaptation” was the introduction of a policy of systematic detention, i.e. an initial period of  deprivation of liberty of all newly arriving asylum seekers in the hotspot facilities, based on Art. 14 (2) Law 4375/2016. Detention was inherent in the original Hotspot Approach as the Commission was aware that asylum seekers would try to escape by travelling to the mainland or to other EU Member States. After a few weeks and protests from several actors, including UNHCR, it became clear that through this process it would not be possible to meet the requirements of Art. 43 (2) Asylum Procedures Directive which limits the applicability of the so-called border procedure to four weeks. Thus, the detention scheme was replaced by a geographical restriction to the respective island that was systematically imposed to every newly arrived person. The geographical restriction was implemented by an administrative decision issued by the Director of the Greek Asylum Service on 31 May 2017 based on Art. 41 (d) (iii) Law 4375/2016 which provides that the “[International Protection Applicant] Card may restrict the applicant’s movement to a part of the Greek territory after a decision by the Director of the Asylum Service”. The provision must be read in context with Art. 6 (5) of Presidential Decree 220/2007 which transposes Art. 7 (2) of the Reception Conditions Directive providing that “Member States may decide on the residence of the applicant for reasons of public interest, public order or, when necessary for the swift processing and effective monitoring of his or her application for international protection.”

What exactly does the “geographical restriction” impose and what does it mean for asylum seekers? The measure restricts the asylum seekers’ freedom of movement to the respective island. This automatically entails a respective residence requirement. The exact place of residence on the island is also imposed: asylum seekers are required to stay – the term “take residence” seems inappropriate – in the confined area designated as EU Hotspot, i.e. the refugee camps consisting of an accumulation of an insufficient number of containers and tents. Only “very vulnerable” individuals are eligible for the accommodation scheme provided also on the islands with the support of UNHCR. Even if the residence requirement does not explicitly prohibit to privately rent an apartment on the island, the legal design of the measure together with practical factors makes this impossible: access to material reception conditions such as food, and access to other services, such as medical services etc. are in practice conditional upon residence in the refugee camp or one of the so-called “UNHCR apartments”. Notifications concerning following steps of the asylum procedure – which if failed to be complied with are usually considered as withdrawal of the application – are usually made only in the hotspot facility which is located next to the camp, i.e. often an area not accessible without private car due to lack of public transport. To this one must add that in any case most asylum seekers lack the financial means to rent an apartment on the touristic islands. Even in case they were able to cover their living costs, most landlords would de facto not be willing to rent an apartment to refugees. For asylum seekers, the geographical restriction therefore entails in particular two consequences: substandard living conditions in the still overcrowded refugee camps that have been characterized as “open-air prisons” and impending return to Turkey.

From a legal perspective, the geographical restriction is thus a two-fold measure: It is a restriction of the freedom of movement and at the same time a residence requirement. Only vulnerable persons and those who are eligible for family reunion under Arts. 8 to 11 of the  Dublin III Regulation are exempted from the geographical restriction and the border procedure according to Art. 60 (4) of Law 4375/2016. These groups are instead allowed to travel to the Greek mainland where they are subject to the regular asylum procedure under Art. 51 Law 4375/2016.

(2) Illegality of the geographical restriction and the judgement of the Greek Council of State of 17 April 2018

On 17th April 2018, the Greek Council of State annulled the decision of the Director of the Greek Asylum Service which established the geographical restriction. The judgment has not yet been published officially, but has been leaked to the press (you may find the most important parts of the judgement unofficially translated by Evita Armouti to English here).

The Court mainly deals with two issues, namely the competence to issue the administrative decision in question according to Greek Constitutional law, and the decision’s compatibility with the remaining provisions of the Greek Constitution, Law 4375/2016 and “[overriding] provisions” (para 15), in particular the Reception Conditions Directive and the Geneva Refugee Convention.

Concerning the delegation of administrative regulatory power to the director of the Greek Asylum Service, the compatibility of the decision with Art. 43 (2) of the Greek Constitution was approved by the Court (para 12 to 14) and will not be discussed further here. Concerning the question of compatibility with Law 4375/2016 and overriding provisions, the Court simply stated that due to a lack of motivation, it could not be assessed whether the decision was “necessary” within the meaning of Art. 31 (2) Geneva Convention.

In the opinion of the Council of State, the administrative decision does not include any reasoning for the adoption of the geographical restriction. Although 20 March 2016, the day from which the EU-Turkey Statement was implemented, is stated as the cut-off date, no explicit link to the EU-Turkey Statement was made. The text and the motives for the decision therefore did not give rise to any “serious and imperative reasons of public interest and migration policy” which could establish “necessity” within the meaning of Art. 31 (2) Geneva Convention. The Court thus decided that as it could therefore not be assessed whether the decision “lays within the limits of Art. 41 (d) (iii) Law 4375/2016, […] [it] must be annulled” (para 15). However, it also stated that “due to the difficulties which would arise with regard to the large number of asylum seekers on the respective islands in case of a retroactive annulment, the annulment only applies for the future” (para 18). Furthermore, the uneven distribution of asylum seekers across different parts of the country in the face of the financial crisis was unfair according to the Court. This would lead to a “serious risk of generating social unrest with further consequences on the public order and the economy of these regions”, in particular because they are touristic destinations (para 15). The Court does not tie its concerns in this regard to any legal provision or general principle of law.

While the outcome of the ruling is welcome, the obvious weakness lies in the Council of State’s line of argument. The judgement could have been an opportunity for the Council of State to clearly pronounce itself on the material illegality of the geographical restriction. However, the Court based its ruling on the formal illegality due to the lack of justification. As the decision nevertheless refers to some aspects concerning the material questions, it  could be read as a guide – handed on a silver platter – as to how the legislator could establish a legally binding geographical restriction in the next attempt, which would then possibly withstand a judicial review. The Court however did not answer the essential legal question regarding the material legality: Does the geographical restriction violate the rights of asylum seekers?

(3) Incompatibility with Art. 31 (2) and Art. 26 of the Geneva Convention

Interestingly, the Court does not refer to Art. 26 but only to Art. 31 (2) Geneva Convention in its analysis. While Art. 31 (2) permits “necessary” restrictions on freedom of movement, the general rule of Art. 26 guarantees refugees the right to move freely in the territory of the contracting state subject only to restrictions enforced to aliens in general. Art. 31 (2) applies to refugees “unlawfully in the country of refuge”, while Art. 26 is linked to lawful presence.

The discussion about when presence is “lawful” within the meaning of Art. 26 is almost as old as the Convention itself and cannot be replicated here. It is surprising however, that the Court completely ignores the discussion and implicitly assumes the applicability of Art. 31 (2).

This is indeed disputed and one could come to different conclusions regarding the “lawful” presence of asylum seekers. The German Federal Constitutional Court, for example, has repeatedly stated that Art. 26 Geneva Convention is only applicable to refugees whose status has been finally established (cf. here, para 64). On the contrary, UNHCR in its third party intervention regarding the Saadi v. UK case, has established that with the issuance of a provisional document – such as the International Protection Applicants Cards on the respective islands – the presence would be actively legalized (para 20). That asylum seekers are “lawfully present” within the meaning of Art. 26 Geneva Convention can also be based on the history and telos of the Convention. Finally, according to Art. 7 and recital 8 of the Asylum Procedures Directive, Member States must grant asylum seekers the right to remain in the Member State pending the examination of the application. The only clear exception is contained in Art 43(2) of the Asylum Procedures Directive concerning border procedures. A contrario then, normally, entry to the territory is granted to all asylum seekers in order for the application to be processed (see Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law, Art. 7 Reception Directive, para 8 et seq): Only in the case of applications lodged at the border or in transit zones can entry be withheld, and then only for four weeks.

If one follows the assumption that asylum seekers are lawfully present within the meaning of Art. 26 Geneva Convention, Art. 7 Reception Conditions Directive is in violation of this provision. According to this legal opinion, asylum seekers are not lawfully present within the meaning of Art. 26 Geneva Convention only in the case of border procedures as regulated in Art. 43 Asylum Procedures Directive – to which the EU Hotspot approach is actually tailored. This legal opinion therefore comes to the conclusion that a Geneva Convention-compliant imposition of the geographical restriction would only be conceivable for the scenario of a border procedure lasting a maximum of four weeks  (cf. Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law, Art. 7 Reception Directive, para 8 et seq). It is important to note that border procedures in Greece take well over four weeks and therefore that hotspot procedures infringe Art. 43 Asylum Procedures Directive.

If one follows the reasoning of the Court assuming the applicability of Art. 31 (2), this provision  prohibits imposing “[…] restrictions to the movements […] other than those which are necessary”. Every decision restricting the freedom of movement must be individualised (see Noll, in Zimmermann, Geneva Convention, Art. 31, para 98). However, in the Greek islands, the geographical restriction was imposed generally i.e. without individual examination by the challenged decision of the Director of the Greek Asylum Service. Moreover, “necessary” measures can only be those that are in line with international human rights law. It has been reported on several occasions that the implementation of the EU Hotspot approach, particularly in connection with the implementation of the EU-Turkey Statement, leads to massive human rights violations. The inhumane conditions in the various camps suggest a violation of Art 3 ECHR. In its November 2016 report, the Fundamental Rights Agency of the European Union already highlighted numerous violations of fundamental rights, much of which are systematic in nature. More recent reports on the situation in the EU Hotspots paint a similar picture. Finally, the “necessity” also requires that the application of geographical restriction is not arbitrary and disproportionate (cf. e.g. Noll, in Zimmermann, Geneva Convention, Art 31, para 105). Namely there must not be any less onerous way of achieving the aim and the measure must be reasonable, considering the competing interests of different groups (cf. here). The geographical restriction on the islands, on the contrary, is imposed without any case-by-case examination or assessment of proportionality. In particular, the geographical restriction is imposed without an individual time limit and is generally not limited to a certain period of time. Quite a few applicants actually await the final outcome of only the admissibility procedure more than one year on the respective island.

(4) Incompatibility with Art. 7 Reception Conditions Directive

The Reception Conditions Directive of course equally requires compatibility with human rights. Its Art 7 (1) exceptionally allowing for restrictions of the freedom of movement of asylum seekers, however, goes further by providing: “The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive”. Notwithstanding the questions concerning the compatibility of this provision with the Geneva Convention, it is clear that restricting the freedom of movement of asylum seekers to the respective Greek islands is in violation of Art. 7 (1) Reception Conditions Directive. As stated above, the medical, legal and other infrastructure available to asylum seekers on the Aegean islands is so inadequate that it does clearly not meet the requirements neither of the Reception Directive nor of fundamental rights. Apart from the mentioned violation of inalienable human rights, and in particular regarding the standards of the Reception Directive, the lack of access to education (Art. 14), the lack of access to the labour market (Art. 15) and insufficient medical care must be considered.

The basis of the Court’s conclusion in par. 12 that “in Art. 7 (1) of directive 2013/13/EU are not set any criteria which should be taken into account for the imposition of the restriction of movement of international protection applicants in the area assigned to them by the host Member State” remains completely unclear. Although this provision does not offer a catalogue of possible scenarios, it requires that the minimum standards of the Reception Directive must be granted. By succinctly dismissing this, the Council of State undermines the objective and the content of the Reception Directive.

Art. 7 (2) Reception Conditions Directive allows Member States to “decide on the residence of the applicant for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application for international protection.” First, the proportionality test required under Art. 7 (2) is very close to the requirements of necessity under Art. 31 (2) Geneva Convention. Therefore, reference is made to the above arguments. Second, any measure which leads to a violation of fundamental rights and in particular prevents access to the benefits and rights granted by the Reception Conditions Directive itself, is in violation of Art. 7 (2) of that Directive as well.

The Court has raised the essential provisions but has not dealt with the substance of any of them. However, since such a geographical restriction violates both the Geneva Convention and the Reception Directive, a substantive dispute could have nipped the simple adoption of a new law in the bud. In this sense, the judgement is a missed opportunity.

(5) Implementing return policy of the EU Turkey Statement – without geographical restriction?

It is being repeated that one central priority of the European Commission and obviously of the EU Coordinator for the implementation of the EU Turkey Statement in Greece is to facilitate the implementation of the EU-Turkey Statement in order to overcome effectively the already existing “difficulties with regards to realising the return policy”. In this respect, the judgement of the Greek Council of State posed one further question: would returns to Turkey as a presumed “safe third country” be possible without geographical restrictions? As explained above, the particularity of the geographical restriction is that it not only ensures that asylum seekers stay on the islands close to the Greek-Turkish border, but that it also legally entails the applicability of the inadmissibility procedure, which in turn provides the legal basis for return to Turkey.

From a perspective supporting the political aim of implementing returns, there were thus at first sight essentially two possibilities in order to ensure the return scheme despite the judgement of the Council of State: The first possibility would be the enhanced use of detention as an alternative to the geographical restriction. This would thus (not only) trigger the applicability of the aforementioned “border procedure” and subsequently the inadmissibility check. A second option would require to accept the dispersion of asylum seekers throughout the Greek territory and seek to ensure that, in that case, returns are facilitated through the applicability of the relevant features of the “border procedure” (in particular inadmissibility check based on the safe third country concept, and possibly also enhanced operational support by EASO) to the whole country. Both options are not far-fetched as they have been already mentioned in the Joint Action Plan on the implementation of the EU Turkey Statement concluded between the responsible EU Coordinator and Greece in December 2016. Both options face legal and practical obstacles which are discussed in the second part of this blog post.

Against the backdrop of the existing difficulties with regards to implementing the forced return scheme and the ensuing political pressure upon Greece, it is not surprising that Greece opted for a “simpler” solution: re-introduction of the geographical restriction. This has been indeed realised by the new decision of the director of the Asylum Service of 20th April 2018. In parallel, on 15th May, a new bill has been introduced which in its Art. 7 transposes the Reception Conditions Directive with regards to the restriction of movement of asylum seekers. Both these new legal developments and the aforementioned two possibilities as alternatives to geographical restrictions will be assessed in the upcoming part 2 of this contribution.

To conclude, the judgement of the Greek Council of State did not have any effects in practice. The geographical restriction has been re-imposed on 20 April 2018 – despite its illegality under international and EU law.