LLM in Human Rights Law, Human rights / asylum lawyer
October 2018, Lesvos, Greece
It is been more than two years since the Members of the European Council held a meeting on 18 March 2016 with their Turkish counterpart, in order to address the so-called ‘migration crisis’ 1. More specifically, their aim was to put a stop to the irregular migration from Turkey to the European Union2.
In the Statement3 that was released following this meeting, under action point 1 referring to the irregularly arriving migrants in the Greek islands from Turkey, it was decided that;
‘All new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey.’ This will take place in full accordance with EU and international law, thus excluding any kind of collective expulsion. All migrants will be protected in accordance with the relevant international standards and in respect of the principle of non-refoulement. It will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order. Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed individually by the Greek authorities in accordance with the Asylum Proce- dures Directive4, in cooperation with UNHCR. “ Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey” 5 (emphasis added).
In accordance with the APD, Member States may consider an application for international protection as inadmissible under Article 33 APD and return the asylum applicants to a third country, namely a non EU Member State, when the country in question qualifies as a ‘first country of asylum’ 6 or a ‘safe third country’ 7.
Closely following the Statement, Greece and Turkey both passed legislation in order to set in place the legal framework needed for the Statement to come into effect. On 3 April 2016, Greece adopted a law8 which specifically set out the concepts of safe third country and safe first country of asylum. On 6 April 2016, Turkey adopted legislation9 to clarify that Syrian nationals readmitted to Turkey under the provisions of the Statement may request and be granted temporary protection. Turkey also provided diplomatic assurances by letter of 12 April 2016 that all returned Syrians will be granted temporary protection upon return10 .
It is not clear whether the ‘temporary protection scheme’ provided for the Syrians in Turkey constitutes ‘sufficient protection’ under article 35 of the APD and whether it is equal to ‘the protection in accordance with the Geneva Convention’, provided for under article 38 of the APD. is controversy was somewhat put to an end on 22 September 2017, when the Highest Administrative Court of Greece (the Council of the State) upheld the decisions issued by the second instance Appeals Committees in the case of two Syrian applicants, declaring that the safe third country principle in relation to Turkey could be applied in their cases11.
More than two years after the Statement was released, the practice on the islands of the Aegean Sea stands as follows; the first stage of the examination of an application for international protection determines - after individual assessment - whether the application is admissible in accordance with the ‘ first country of asylum’ or ’safe third country’ principles in relation to Turkey.
To that end, the European Asylum Support Office (EASO)12 conducts a personal interview with the applicant, after which, an Opinion is issued regarding the admissibility of the application.
If the applicant is found to belong to a vulnerable group13 or is eligible for family reunification under Dublin Regulation, he or she is excluded from the borders procedure and their application is examined outside of the scope of the Statement. Subsequently, the Greek Asylum Service issues a decision on whether Turkey is considered to be ‘a rst country of asylum’ or ‘a safe third country’.
If the decision declares the application admissible, EASO issues a further Opinion, this time on the eligibility of the application, i.e., on whether the applicant should be recognized as being in need of international protection. The Greek Asylum Service issues a decision on the merits, declaring the applicant a refugee or in need of subsidiary protection, otherwise it rejects the application.
The experience14 so far has shown that only ‘non-vulnerable’ Syrian nationals on the islands have their applications for international protection declared inadmissible. So, in practice, if a Syrian asylum seeker lodges an application in Lesvos or Chios or Samos for example, his/her ‘only chance’ of getting recognized as a refugee in Greece is to be recognized first as ‘vulnerable’.
In accordance with Article 20 para 1 of L. 4540/2018, vulnerable persons are;
‘minors, whether unaccompanied or not, separated minors, disabled persons, persons with mental disorders or incurable or serious illnesses, elderly people, pregnant women or women who have recently given birth, single parent families with minor children, persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence or exploitation, victims of female genital mutilation and victims of human trafficking’.
It is sadly a wonder that there are any Syrian nationals, former residents of Syria who – in the light of the atrocities of the war there that is still ongoing- do not fall under any of the abovementioned categories.
Let it be noted that this procedure applies only in the Greek islands, thus, a Syrian asylum seeker who enters the Greek territory from the Northeastern land border in Evros, has his/hers international protection application examined directly regarding its eligibility and is 99% of the time recognized as a refugee.
The conclusion is that if you are a Syrian asylum seeker, in order to be certain you will be allowed to apply for asylum in Greece and not ‘be threatened’ with readmission to Turkey, you need to come from the northern land border. Do not come from the sea.
1. I disagree with the use of the term ‘migrant crisis’, for many reasons; indicatively, because I disagree with the common narrative that the EU is faced with an in ux of irregular migrants; for more on this see Gilbert, Geo . “Why Europe Does Not Have a Refugee Cri- sis.” International Journal of Refugee Law 27.4 (2015): 531-535.
2. European Council: Council of the European Union, EU-Turkey Statement, 18 March 2016, available at: http://www.consilium.europa.eu/ en/press/press-releases/2016/03/18-eu-tur- key-statement/ accessed on 26 April 2016, hereinafter referred to as the ‘Statement’.
4. EU: Council of the European Union, Direc- tive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on com- mon procedures for granting and withdrawing international protection (recast), 29 June 2013, OJ L. 180/60 -180/95; 29.6.2013, 2013/32/ EU, hereinafter referred to as ‘APD’ .
5.Above n 2 .
6. APD Articles 33(2)(b) and 35
7. APD Articles 33(2)(c) and 38
8. Law 4375/2016.
9. Turkey adopted Temporary Protection Regulation no 2014/6883 and Regulation no 2016/8722 to clarify that Syrian nationals re- turning under the new arrangements may re- quest and be granted temporary protection: European Commission, Communication from the Commission to the EU Parliament, the Eu- ropean Council and the Council, First Report on the Progress made in the implementation of the EU- Turkey Statement, COM(2016) 231 nal, 20 April 2016, available at: http:// ec.europa.eu/dgs/home-affairs/what-we-do/ policies/european-agenda-migration/propos- al-implementation-package/docs/20160420/ report_implementation_eu-turkey_agree- ment_nr_01_en.pdf accessed on 27 April 2016. 10. available at http://asylo.gov.gr/wp-con- tent/uploads/2016/12/Turkey-EU-Agree- ment-documents.pdf accessed on 13 October 2018 .
11. Council of State (ΣτΕ Ολομ). 2348/2017. 12. In accordance with L. 4540/2018 .
13. In accordance with L.4375/2016 and L. 4540/2018
14. Here I am drawing on my own experience as a lawyer working with asylum seekers in Lesvos since August 2016, as well as that of other colleagues active on the ground.