“My husband used to hit me, he accused me unfairly of adultery and I was sentenced to 50 lashes.
I took my daughter and we left.
I did not want her to live my life”.
- Α.Ζ. Refugee from Iran who was recognized due to her membership to a particular social group.
International, European and national law as well as the European acquis provide answers to these questions and to many more:
The 1951 Geneva Convention relating to the Status of Refugees is the principal legal text, which has been ratified by 145 states and defines who is a refugee, their rights and the legal obligations of the states. International law therefore:
- defines refugees as people who are unable or unwilling to return to their countries, owing to a well-founded fear of being persecuted for reasons of race, religion, political opinion, nationality or membership to a particular social group (article 1(Α) 2 of the Convention). According to the firm position of the Greek courts, a person shall hold refugee status, provided that the relevant conditions set out in the Geneva Convention are met. Their a posteriori recognition as refugees by the competent authorities of the country where they seek asylum, is not an act establishing their refugee status, but merely an act recognizing said status[i]. It is moreover noted that in Greece, during 2020, the majority of people who came to seek asylum are women and children, who come from countries to which the Greek administration grants refugee status at a high rate.[ii]
- provides for the non-imposition of penalties to refugees on account of their illegal entry or presence (article 31 of the Convention). It should be noted that Greek Courts[iii] have repeatedly interpreted correctly this provision in cases of illegal entry of refugees in the Greek territory, with settled case-law in favor of their acquittal, taking into account the particular situation in which refugees find themselves.
- establishes as a fundamental principle the non-refoulement, according to which a refugee should not be returned in a country - any country- where their life or freedom would be threatened (article 33 of the Convention, 19 Charter of Fundamental Rights of the European Union, article 78 par. 1 Treaty on the Functioning of the European Union). The right of a person to seek and enjoy the protection of asylum is enshrined in the 1948 Universal Declaration of Human Rights[iv] as well as the Charter of Fundamental Rights of the European Union[v]. The non-refoulement principle is a logical complement to the right to asylum. It includes any measure which may be taken by a state and which could result in the return of an asylum seeker or refugee to the borders of territories where their life or freedom is threatened, or where there is a risk of persecution. The meaning of such measures includes deterrence at the border, interception and indirect push-back, either in the case of an individual asylum seeker or in situations of mass influx of refugees[vi]. The principle of non-refoulement is essentially a barrier to the absolute competence of States to grant asylum or not and is the most important commitment undertaken by the contracting parties favoring the refugee. The non-refoulement principle is inextricably linked with the obligation to implement a personalized, fair and effective procedure[vii] to identify third-country citizens in need of international protection. While control of the national borders is an exercise of the sovereign power of each state, there is no prohibition on crossing borders when there is a risk of violation of articles 2 and 3 of the European Convention on Human Rights as well as the principle of non-refoulement.
- imposes on the contracting states the obligation to facilitate the integration, assimilation and finally naturalization of refugees. (article 34 of the Convention)
“Taliban killed my father because he refused to cooperate with them.
I was the first boy of the family.
In order to live, I had to either work with them or leave.”
-Κ.Μ. Recognized refugee from Afghanistan,
persecution due to political opinions
The current legal framework for international protection in Greece (Law 4636/20219), has been repeatedly criticized by national and international human rights organizations, including the Greek Ombudsman, the National Commission for Human Rights, the High Commissioner for Refugees and the civil society organizations, inter alia, as an attempt to lower the protection standards and create unjustified procedural and substantive barriers for people seeking international protection[viii].
From the moment of entry of refugees in the country to their coveted integration into Greek society, there are multiple problems:
- degrading reception conditions,
- generalized administrative detention[ix],
- difficulty accessing the asylum procedure,
- lack of adequate legal assistance,
- inadequacies in the procedures for identifying and adequately protecting vulnerable groups, such as children, victims of torture, etc.
- controlled closed reception centers away from urban areas,
- inability of children to access education, as the Greek Ombudsman has pointed out in a report[x].
Moreover, in recent times, both the legal framework and the policies followed by the authorities have become even stricter, resulting in a further reduction of the guarantees for asylum seekers and refugees. Not only is the protection of refugees not strengthened within the framework of the European acquis, but instead conditions are exacerbated where:
- they can easily be excluded from international protection without their needs being assessed, exposing them to the risk of refoulement.
- their integration into Greek society gets even more difficult.
Among other things, the recent announcements and legislative initiatives[xi] bring about:
- further reduction of the guarantees as to the right to stay of the asylum seekers in the country[xii],
- abolition of the humanitarian status, even for particularly vulnerable persons such as children[xiii]
- introduction of an obligation to pay a fee for the submission of a subsequent asylum application[xiv]
- reduction of return guarantees for rejected asylum seekers>[xv]
- interruption in the provision of reception conditions to asylum seekers without prior personalized judgment[xvi],
- stricter conditions for the acquisition of Greek nationality, which deny the possibility of naturalization to people who have been living in our country even for decades with their families, people who pay taxes and who are fully integrated into Greek society[xvii].
In addition to the above, according to a recent Joint Ministerial Decision (JMD) [xviii] Turkey is deemed to be a safe third country, at a time where Turkey does not even accept readmissions (since March 2020). Thus, asylum applications by people, even from countries with high rates of refugee status [xix], such as Syria, Afghanistan and Somalia, are rejected at the admissibility stage, on the basis that Turkey, from which they pass to come to Greece, provides them with an adequate protection framework. However, it should be noted that Turkey applies the Geneva Convention only to European citizens seeking asylum in that country, while recently withdrew, amid an international outcry, from the Istanbul Convention for the Protection of Victims of Gender-Based Violence. International reports refer to pushbacks of refugees from Turkey even in war zones. Turkey is among the countries with the most convictions by the European Court of Human Rights for violations of the European Convention on Human Rights. According to international law, when applying the concept of a safe third country, the state applying it has an obligation to ensure that the third country respects and observes, in practice and not merely in law, the rights provided for in the Geneva Convention and the guarantees of protection of asylum seekers transferred to it, such as the principle of non-refoulement, access to a fair and effective asylum procedure, access to medical care and social security, education, employment, etc. However, a number of reliable sources[xx] show that the protection granted in Turkey is not effective within the meaning of international and EU law, in order to be considered a safe third country.
The JMD is an evolution of a policy being implemented in Greece since 2016, when the EU-Turkey Statement was signed, leading to the establishment of camps like Moria and the entrapment of thousands of vulnerable people in degrading living conditions[xxi]. Its implementation will further exacerbate the situation for thousands of poor people, the majority of which are women and children, who will find themselves “undocumented” and homeless, with no resources to live and socially excluded. International organizations and civil society organizations are reacting and are calling on the Greek State to withdraw this decision[xxii].
And in this particularly difficult situation in the field of refugee protection, reports by refugees regarding illegal forced removals and pushbacks from the Greek authorities are dramatically increasing. Such practices have also been condemned by the UN, EU and national institutions[xxiii] .
In summary:
The responsibility of each state to provide effective protection for asylum seekers and refugees against violations of both the principle of non-refoulement and the prohibition of inhuman and degrading treatment is intact.
Policies for the externalization of the responsibility for the protection of refugees and its transfer to third countries, policies and practices to prevent and reduce their protection guarantees raise serious issues of violation of international and EU law, the principle of non-refoulement (article 33 Geneva Convention) and the European Convention on Human Rights[xxiv] (right to life, prohibition of torture, inhuman or degrading treatment [xxv], article 2 and 3 ECHR), which are part of the European Union law (articles 18 and 19 of the Charter of Fundamental Rights of the European Union).
There has been a lot of talk lately about strategies of the neighboring country to use refugees as “pawns”. But it is Europe that has been closing its borders to refugees, it is Europe who has been called “Fortress Europe”, it is Europe that has concluded agreements for the transfer of responsibility for their protection to third countries. And Greece has been implementing these policies, lowering the protection guarantees for refugees, implementing illegal practices, accepting the role of the “protector” of the European borders. But the refugee issue does not relate only to others, the neighbors. And it does not only concern people fleeing from wars and armed conflicts. The lack of democracy, the deprivation of rights, the unequal and/or cruel treatment of people, discrimination and intolerance are the root causes, forcing people to uproot their lives and seek a safe environment to live. The rule of law, democracy, justice and the fight for human dignity concerns us all.
Maria Papamina
Coordinator of the GCR Legal Unit
[i] See for example: Three-member Misdemeanor Court of Patras 2745/1996· Three-member Appellate Court of Aegean 47/2006
[ii] Ministry of Migration and Asylum, 2020 Annual Briefing Note, 19 January 2021, available at: https://bit.ly/3p0HVlF.
[iii] See for example: Misdemeanor Court of Chios No. 233/1993· Misdemeanor Court of Mytilene No. 585/1993· Appellate Council of Aegean No. 60/1993· Misdemeanor Court of Patras No. 2475/96· Supreme Court 1498/1999 and Supreme Court 1513/2007 [judicial decision], 125/2003 Appellate Council of Thrace, 3762/2011 Single-member Court of First Instance of Thessaloniki
[iv] Art.14 par. 1 of the Universal Declaration of Human Rights: “Everyone has the right to seek and to enjoy in other countries asylum from persecution”.
[v] Article 18: “[…] The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as 'the Treaties')”.
[vi] UNHCR, Note on international protection, 13 September 2001, par. 16, at http://www.unhcr.org/refworld/docid/3bb1c6cc4.html
[vii] See also: CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE (European Court of Human Rights, sitting as a Grand Chamber: HIRSI JAMAA AND OTHERS v. ITALY JUDGMENT)
See also: In Becker v. Denmark (no. 7011/75, Commission decision of 3 October 1975, Decisions and Reports (DR) 4, p. 236) concerning the repatriation of a group of approximately two hundred Vietnamese children by the Danish authorities, the Commission defined, for the first time, the “collective expulsion of aliens” as being “any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group”.
[viii] See for example: UN High Commissioner for Refugees, The UNHCR urges Greece to strengthen safeguards in draft asylum law, https://www.unhcr.org/gr/en/13170-unhcr-urges-greece-to-strengthen-safeguards-in-draft-asylum-law.html
[ix] In addition to the ECHR judgments regarding detention in a Police State, the report of the European Committee for the Prevention of Torture of the Council of Europe should be noted, inter alia, highlighting that “the current approach towards immigration detention must change” and that “Greek authorities must now take decisive steps [...] and reform their immigration detention system accordingly.” https://rm.coe.int/1680a06a86
[x] Greek Ombudsman, 20/04/2021 – Finding – “Educational integration of children living in Sites and RICs of the Ministry of Migration & Asylum”: “…. The survey data showed a serious violation of the basic rights of these vulnerable populations of minors to education, due to delays in the various procedures, inaction on the part of the administration (especially in the RICs), under-staffing (in reception classes, RFREs, etc.), problems in the transport of students, prolonged exclusions of the sites due to the pandemic, lack of places in schools and lack of timely creation thereof...”. https://www.synigoros.gr/?i=stp.el.porismata&yearFilter=2021
[xi]See also the article by V.Papadopoulos, “A draft law with unacknowledged intentions - Return to the undocumented foreign national status” 25/06/2021 https://www.gcr.gr/el/news
[xii] See article 18 of the Draft law that is under consultation “Reforming the procedures for deporting and returning third-country nationals, residence permits issues and the procedures for granting international protection and other provisions under the competence of the Ministry of Migration and Asylum and the Ministry of Citizen Protection”.
[xiii] Similarly, see article 39 of the proposed draft law
[xiv] Similarly, see article 21, par. 10 of the draft law
[xv] Similarly, see article 23 of the draft law
[xvi] See press release by organizations: “A big setback in integration: The cut in aid to asylum seekers”, 24/06/2021, https://www.gcr.gr/en/news/press-releases-announcements/item/1742-a-big-setback-in-integration-the-cut-in-aid-to-asylum-seekers
[xvii] See Online event: “Naturalization stories: An adventure for few people”, https://www.gcr.gr/el/news?start=4
[xviii] Joint Ministerial Decision No. 42799/2021 GG 2425/Β/7-6-2021
[xix] As an indication, for 2020, the percentage of positive decisions issued by the Asylum Service for asylum seekers from Somalia was 94.1%, from Syria 91.6% and from Afghanistan 66.2%. RSA, “Asylum statistics for 2020”, 11 February 2021, available at: https://rsaegean.org/en/asylum-statistics-for-2020-a-need-for-regular-and-transparent-official-information/
[xx] Indicatively: https://www.amnesty.gr/news/articles/article/24450/ellada-i-toyrkia-den-einai-asfalis-gia-toystis-aitoyntesses-asylo , https://www.proasyl.de/en/material/expert-opinion-the-situation-of-afghan-refugees-in-turkey/
[xxi]Among others: GNCHR, Report on the EU-Turkey Agreement of the 18th of March 2016 regarding the refugee/migration issue in Europe in light of Greek Law No. 4375/2016, https://www.nchr.gr/images/English_Site/PROSFYGES/GNCHR%20Report%20EU-Turkey%20Agreement.pdf (25 April 2016)
UN High Commissioner for Refugees (UNHCR), Legal considerations on the return of asylum seekers and refugees from Greece to Turkey as part of the EU-Turkey Cooperation in Tackling the Migration Crisis under the safe third country and first country of asylum concept, 23 March 2016,
http://www.refworld.org/docid/56f3ee3f4.html.
[xxii] See press release: Greece deems Turkey “safe”, but refugees are not: The substantive examination of asylum applications is the only safe solution for refugees https://www.gcr.gr/en/news/press-releases-announcements/item/1735-greece-deems-turkey-safe-but-refugees-are-not-the-substantive-examination-of-asylum-applications-is-the-only-safe-solution-for-refugees
: UN Committee Against Torture, Concluding Observations on the seventh periodic report of Greece, 3 September 2019, CAT/C/GRC/CO/7; Working Group on Arbitrary Detention, Human Rights Council forty-fifth session, Report of the visit to Greece, 29 July 2020, available at https://undocs.org/A/HRC/45/16/add.1; UNHCR, UNHCR concerned with pushback reports, calls for protection of refugees and asylum-seekers, 21 August 2020, available at https://www.unhcr.org/gr/en/16207-unhcr-concerned-by-pushback-reports-calls-for-protection-of-refugees-and-asylum-seekers.html; Council of Europe, Report to the Greek Government on the visit to Greece carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 13 to 17 March 2020, paras 53-60 “The practice of pushbacks across the Turkish border and at sea”, available at https://rm.coe.int/1680a06a86 ; Council of Europe, Commissioner for Human Rights, Time to immediately act and to address humanitarian and protection needs of people trapped between Turkey and Greece, 3 March 2020, available at https://www.coe.int/en/web/commissioner/-/urgent-action-is-needed-to-address-humanitarian-and-protection-needs-of-people-trapped-between-turkey-and-greece ; IOM, IOM Alarmed over Reports of Pushbacks from Greece at EU Border with Turkey, 11 June 2020, available at https://www.iom.int/news/iom-alarmed-over-reports-pushbacks-greece-eu-border-turkey ; GNCHR, Statement with regards the alleged practices of push-backs, 7 July 2020, available at http://www.nchr.gr/images/pdf/apofaseis/prosfuges_metanastes/Dilosi%20EEDA_Anaferomenes%20praktikes%20epanaproothiseon.pdf (in Greek) (accessed on 12 March 2021).
[xxiv] ECHR (Grand Chamber) F.G. v. Sweden, No. 43611/2011 of 23-3-2016, par. 110-111
[xxv] The above prohibition is also provided for in the provisions of Article 3 of the Convention against Torture (ratified with Law 1782/1988) and Article 7 of the International Covenant on Civil and Political Rights (ratified with Law 2462/1997).
