Article 46 L 4376/2016 regulates the detention of asylum seekers. According to this provision, an asylum seeker shall not be detained on the sole reason of seeking international protection or having entered and/or stayed in the country irregularly.1
An asylum seeker, who is already detained for the purpose of removal when he or she makes an application for international protection, can only be kept in detention, albeit subject to a new detention order following an individualised assessment to establish whether detention can be ordered on asylum grounds.2
An asylum seeker may be kept in detention for one of the following 5 grounds:3
- in order to determine his or her identity or nationality;
- in order to determine those elements on which the application for international protection is based which could not be obtained otherwise, in particular when there is a risk of absconding of the applicant;
- when it is ascertained on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that the applicant is making the application for international protection merely in order to delay or frustrate the enforcement of a return decision, if it is probable that the enforcement of such a measure can be effected;
- when he or she constitutes a danger for national security or public order;
- when there is a serious risk of absconding of the applicant, in order to ensure the enforcement of a transfer decision according to the Dublin III Regulation.
For the establishment of a risk of absconding for the purposes of detaining asylum seekers on grounds (b) and (e), the law makes reference to the definition of “risk of absconding” in pre-removal detention.4 This provision includes a non-exhaustive list of objective criteria which may be used as a basis for determining the existence of such a risk, namely where a person:5
- Does not comply with an obligation of voluntary departure;
- Has explicit declared that he or she will not comply with the return decision;
- Is in possession of forged documents;
- Has provided false information to the authorities;
- Has been convicted of a criminal offence or is undergoing prosecution, or there are serious indications that he or she has or will commit a criminal offence;
- Does not possess travel documents or other identity documents;
- Has previously absconded; and
- Does not comply with an entry ban.
Article 46(2) L 4375/2016 also provides that such a detention measure should be applied exceptionally, after an individual assessment and only as a measure of last resort where no alternative measures can be applied. A new detention order should be also issued by the competent police authority,6 which must be fully and duly motivated.7 With the exception of the “public order” ground, the detention order is issued following a recommendation (εισήγηση) by the Head of the Asylum Service. However, the final decision on the detention lies with the Police.
In 2015, the Asylum Service made 1,391 recommendations for prolonging detention,8 while in 629 cases it advised against detention and in 181 cases withdrew its recommendation in favour of detention.9 Data for 2016 are not available.
There is a lack of a comprehensive individualised procedure for each detention case, despite the relevant legal obligation imposed by the law.10 This is of particular concern with regard to the proper application of the lawful detention grounds provided by national legislation, as the particular circumstances of each case cannot to be taken duly into consideration. Furthermore, the terms, the conditions and the legal grounds for the lawful imposition of a detention measure seem to be misinterpreted in some cases. These cases inter alia include the following:
Detention on public order / “law-breaking conduct” grounds
As repeatedly reported in the past,11 “public order” grounds are used in an excessive and on numerous occasions unjustified manner, both in the framework of pre-removal detention and detention of asylum seekers. Beyond the fact that detention on public order grounds is not covered by the Return Directive,12 and thus the relevant Greek provision on pre-removal detention – Article 30(1)(c) L 3907/2011 – is an incorrect transposition of the EU law in this respect, for both detainees subject to removal and asylum seekers, detention on public order grounds is usually not properly justified. This is particularly the case where these grounds are based solely on a prior prosecution for a minor offence, even if no court decision has been issued, or in cases where the person has been released by the competent Criminal Court as the latter has suspended the custodial sentences.
In the context of Objections against detention (see Judicial Review of the Detention Order) imposed on national security or public order grounds, lodged by GCR before Administrative Courts from the end of 2013 until early 2015, the Courts found in 16 out of 17 cases that “from the nature of the offense it cannot be inferred that he presents a threat to national security or public order” or that “the gravity of the offense charged against him is not of such gravity as to attribute a danger to public order” or that “the details of the case do not justify detention on public order grounds.”13
Apart from these cases, as mentioned above a police circular of 18 June 2016 provided that third country nationals with “law-breaking conduct’ will be transferred from the islands and detained in pre-removal centres on the mainland and a number of about 1,600 persons were transferred and detained on the mainland. Following this circular, for example, in June 2016, 43 persons were transferred from Lesvos to the pre-removal facilities in the mainland, where they remained detained for alleged reasons of public order. GCR visited a number of these persons at Corinth detention facility. Despite the allegation of public order reasons / “law-breaking conduct”, in a number of cases that GCR followed up, there were no relevant elements in support of such, a fortiori any criminal prosecution, while the persons claimed that they were arrested in the framework of a sweep police operation.14
That was also the case of 29 unaccompanied minors who were transferred in July 2016 from Leros to Petrou Ralli and Amygdaleza detention facilities, due to alleged involvement in riots in the hotspot.15 After a GCR visit to the unaccompanied minors,16 it was observed, apart from the fact that detention conditions were absolutely inacceptable, that the relevant allegations were not deduced by any evidence or circumstances.
Detention of applicants considered to apply merely in order to delay or frustrate return
Based on GCR findings from on the field, it seems that the use of the detention ground relating to abusive asylum applications, provided in Article 46(2)(c) L 4375/2016, is systematically invoked with regard to the continuation of detention of third-country nationals subject to the EU-Turkey statement who have applied for asylum while in detention.
Detention orders based on this ground are imposed after a relevant recommendation of the Asylum Service. Despite the fact that Article 46(2)(c) L 4375/2016 requires the authorities to “substantiate on the basis of objective criteria […] that there are reasonable grounds to believe” that the application is submitted “merely in order to delay or frustrate the enforcement of the return decision”, GCR has observed that both the Asylum Service recommendation and the detention order are not properly justified, as they merely repeat part of the relevant legal provision, while no objective criteria or reasonable grounds are invoked or at least deduced by the circumstances. Moreover, it should be also noted that, as every newly arrived person subject to the EU-Turkey statement is automatically detained, it is clear that the persons concerned had not “already had the opportunity to access the asylum procedure” while at liberty, as the relevant provision requires.
In a case supported by GCR regarding a Syrian asylum seeker transferred from an island and detained on the mainland on the basis of the “abusive asylum application” ground under Article 46(2)(c), the Administrative Court of Corinth stated that the detention order lacked “specific, clear and comprehensive reasoning as required by law, due to the fact that the applicant comes for Syria, where as it is commonly known a civil war is taking place and the reasoning on which the first instance asylum decision was rejected cannot supplement the insufficient reasoning of the decision.”17
Pursuant to the provisions of Article 46(2) L 4375/2016, Greek legislation allows the detention of an asylum seeker only where the person in question submits an asylum application while in detention. However, and in particular with regard to newly arrived persons arrested on the islands with a view to be transferred to in the mainland and detained there, it seems that this is not always the case. GCR has documented cases where newly arrived third-country nationals who were initially detained upon arrival on the islands, then released under a “geographical limitation”, then applied for asylum before the competent Regional Asylum Offices at liberty and obtained an asylum seeker’s card (see Registration), were subsequently re-arrested, transferred and detained in the mainland, despite the fact that they have not submitted “an application for international protection while in detention.”18
On a more general remark, among others FRA has observed that:
“Upon arrival all migrants in the Greek islands are systematically issued a return decision indicating that they will be readmitted to Turkey. This decision also contains a detention order based on a presumed risk of absconding, a ground considered as legitimate by national legislation (as well as by Article 15 of the Return Directive). This risk is, however, assumed automatically and is not supported by any specific arguments.”19
This is exactly the case described by the EU Return Handbook: “Any automaticity (such as ‘illegal entry = risk of absconding’) must be avoided and an individual assessment of each case must be carried out.”20 It is therefore difficult to presume that this procedure is taking “place in full accordance with EU and international law” and that all newly arrived persons are “protected in accordance with the relevant international standards and the principle of non-refoulement”, as declared in the EU-Turkey statement.
- 1. Article 46(1) L 4375/2016.
- 2. See Administrative Court of Trikala, Decision 17/2016, available at: http://bit.ly/2kXnxjX.
- 3. Article 46(2) L 4375/2016.
- 4. Article 18(g) L 3907/2011, cited by Article 46(2)(b) and (e) L 4375/2016.
- 5. Article 18(g)(a)-(h) L 3907/2011.
- 6. That is the Aliens Division Police Director of Attica or Thessaloniki in cases falling under the competence of the two General Police Directorates, or the relevant Police Director in other cases: Article 46(3) L 4375/2016.
- 7. Article 46(3) L 4375/2016.
- 8. According to the standardised text of the Asylum Service recommendations, the latter recommends that detention should be prolonged “if it is judged that alternative measures may not apply”.
- 9. Aitima, Forgotten: Administratively detained irregular migrants and asylum seekers, October 2016, available at: http://bit.ly/1JPKp9F, 79.
- 10. GCR, The implementation of Alternatives to Detention in Greece, December 2015, available at: https://goo.gl/bynXIh.
- 11. Greek Ombudsman, Document 171931/37998/2013 and Return of third-country nationals: Special Report 2014, May 2015, available in Greek at: http://bit.ly/2k40chi, 4; UNHCR, Greece as a Country of Asylum - UNHCR's Recommendations, 6 April 2015, available at: http://bit.ly/2ke9lpA, para VI.10.
- 12. European Commission, Return Handbook, 1 October 2015, available at: http://bit.ly/2jBHMGa, 78-79.
- 13. See e.g. Administrative Court of Athens, Decision 1537/2015; Administrative Court of Komotini, Decision 45/2015; Administrative Court of Piraeus, Decision 45/2014. See further GCR, The implementation of Alternatives to Detention in Greece, December 2015, available at: http://bit.ly/2nyMG5R, 33.
- 14. See GCR, Document No 466/2016.
- 15. FRA, Opinion on fundamental rights in the ‘hotspots’ set up in Greece and Italy, December 2016, 29; Efsyn, ‘Αναζητούνται ανθρώπινες δομές για προσφυγόπουλα’, 18 July 2016, available in Greek at: http://bit.ly/2jqkm35.
- 16. See GCR, Document 400/2016.
- 17. Administrative Court of Corinth, Decision 675/2015.
- 18. See GCR, Document No 370/2016. See also FRA, Opinion on fundamental rights in the ‘hotspots’ set up in Greece and Italy, December 2016, 49: “In practice, the migrants, virtually all of whom apply for asylum, are generally released from the hotspot (with the exception of unaccompanied children…) after a period necessary to complete the first registration procedures and are free to move around the island. The suspended return decision, however, remains valid and the person can be detained at any point.”
- 19. FRA, Opinion on fundamental rights in the ‘hotspots’ set up in Greece and Italy, December 2016, 48-49.
- 20. European Commission, Return Handbook, 1 October 2015, 12.