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Law 4939/2022, in force since 10 June 2022, introduced extensive provisions on the detention of asylum seekers and significantly less guarantee during the imposition of detention measures against asylum applicants, following previous legislative amendments,[1] to the extent that they threaten to undermine the principle that detention of asylum seekers should only be applied exceptionally and as a measure of last resort. In particular, Law 4939/2022 foresees:

• The possibility of detaining asylum seekers even when they apply for international protection when not detained, on the basis of an extensive list of grounds justifying detention.[2] Art. 50(2) Asylum Code provides that an asylum seeker who has already applied for asylum at liberty may be detained:
  • in order to determine or verify his or her identity or nationality or origin;
  • in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;
  • when there is a risk of national security or public order;
  • when there is a significant risk of absconding within the meaning of Art. 2(n) of Regulation (EU) 604/2013 and in order to ensure the implementation of the transfer procedure in accordance with the Dublin Regulation;
  • in order to decide, in the context of a procedure, on the applicant’s right to enter the territory;

• Extensive maximum time limits for the detention of asylum seekers. According to Article 50 (5) Asylum Code, the detention of an asylum seeker can be imposed for an initial period of up to 50 days and may be successively prolonged up to a maximum of 18 months. Furthermore, according to Article 46(5), the detention period in view of removal (return/deportation etc.) is not considered when calculating the total time, and thus the total detention period of a third country national within the migration context may reach 36 months (18 months while the asylum procedure + 18 months in view of removal).

The possibility to extend the period of detention of asylum seekers up to 18 months raises serious concerns about its compliance with the obligation to impose asylum detention “only for as short a period as possible” and to effectuate asylum procedures with “due diligence” in virtue of Article 9 the Reception Conditions Directive (2013/33/EU).

• The abolition of the safeguard to impose the detention of an asylum seeker only upon a prior recommendation of the Asylum Service. The IPA provided that the detention of an asylum seeker could only be imposed following prior relevant recommendation by the Asylum Service, with the exception of cases that detention was ordered on public order grounds, when the detention could be ordered directly by the Police Director. Article 50(4) of the Asylum Code abolished the requirement for a recommendation issued by the Asylum Service and provides that the detention of an asylum seeker on any ground may be imposed directly by the police upon prior notification by the Asylum Service. As the Asylum Service is the only authority that may assess the need for detention based on the specific elements of the application and substantiate the grounds for detention as required by law, this amendment raises concerns inter alia of the respect of the obligation for an individual assessment and the principle of proportionality before the detention of an asylum applicant.

For further amendments previously introduced to the legal framework of detention, see AIDA report on Greece 2021.[3]

During 2022, despite the fact that no readmission to Türkiye has been implemented for more than three years,[4] and for the time being no reasonable prospect of readmission to Türkiye exists, third-country nationals, including asylum seekers whose applications have been rejected as inadmissible on the basis of the safe third country concept, remain detained for prolonged periods reaching several months, and in some cases, for periods exceeding a year. Moreover, the Greek Authorities have not taken any measures to release Afghan citizens in detention[5] despite the rapid deterioration in the security and human rights situation in their country of origin since August 2021 and the fact that returns to Afghanistan has been suspended.[6]

Statistics on detention

At the end of 2022, the total number of third-country nationals detained in pre-removal detention centres countrywide was 2,500.[7] Out of these, 1,006 persons (40.24%) were asylum seekers.[8] An additional 316 third-country nationals were detained in police stations or other facilities countrywide by the end of the year, of whom, 35 persons (11.07%) were asylum seekers. Furthermore, the total number of unaccompanied children in pre-removal detention centres countrywide was 14 at the end of 2022, and the number of unaccompanied children in other detention facilities such as police stations was nine.[9]

Detention in pre-removal centres: The number of asylum seekers detained in pre-removal detention facilities in Greece slightly increased in 2022, as well as the total number of third-country nationals under administrative detention.

Source: Directorate of the Hellenic Police, 29 January 2018; 23 January 2019; 8 February 2020, 11 February 2021, 8 March 2022, 2 February 2023.

The number of persons who remained in pre-removal detention facilities was 2,500 at the end of 2022, of whom 1,006 were asylum seekers.[10]

The breakdown of detained asylum seekers and the total population of detainees per pre-removal centre is as follows: [11]

Source: Directorate of the Hellenic Police 2 February 2023.

The breakdown of unaccompanied children under administrative detention per pre-removal centre is as follows:

Source: Directorate of the Hellenic Police 2 February 2023.

Although the number of persons detained during the past few years has significantly increased in proportion to the number of the arrivals,[12] this has not been mirrored by a corresponding increase in the number of forced returns. 24,058 detention orders were issued in 2022 compared to 20,219 in 2021. The number of forced returns decreased to 2,763 in 2022 from 3,276 in 2021.[13] Also to note that out of the 2,763 detainees who were forcibly returned, 2,022 were Albanian nationals. These findings corroborate that immigration detention is not only linked with human rights violations but also fails to effectively contribute to return.

There were seven active pre-removal detention centres in Greece at the end of 2022. This includes five centres on the mainland (Amygdaleza, Tavros, Corinth, Xanthi, Paranesti, Fylakio) and one on the islands (Kos). Lesvos pre-removal detention centre has temporarily suspended its operation. The total pre-removal detention capacity is 3,676 places.[14] A new pre-removal detention centre established in Samos in 2017 is not yet operational.

In 2022, a total of 31 persons were returned to the Eastern Aegean islands after being apprehended outside their assigned island, down from 119 in 2021:

Source: Directorate of the Hellenic Police, 2 February 2023

The number of persons lodging an asylum application from detention in 2022 was not made available. The number of first instance decisions on applications submitted from detention issued by the Asylum Service in 2022 is not available.

Detention in police stations and holding facilities: In addition to the above, there were 316 persons, of whom 35 were asylum seekers, detained in several other detention facilities countrywide such as police stations, border guard stations etc. at the end of 2022.^[15]

Furthermore, at the end of 2022, the total number of unaccompanied children in detention in several detention facilities countrywide was 14.[16]

As the ECtHR has found, these facilities are not in line with Article 3 ECHR’s guarantees given ‘the nature of police stations per se, which are places designed to accommodate people for a short time only’.[17]

^[1]  UNHCR, ‘UNHCR urges Greece to Strengthen Safeguards in Draft Asylum Law’, 24 October 2019, available at:  https://bit.ly/2IzauTV.

^[2] Article 50(2) Asylum Code.

^[3] AIDA, Country Report – Greece, update on the year 2021, May 2022, available at: https://bit.ly/3MRVkLf.

^[4]  MoMA, Removals within the framework of the EU-Türkiye Statement have not been implemented since March 2020, July 2021, available in Greek at: https://bit.ly/3lvS76h, 11.

^[5]  According to information provided by the Directorate of the Hellenic Police on 2 February 2023, during 2022 there were 1,895 return decisions as well as 1,272 return decision imposing detention on Afghan citizens.

^[6]  Information provided by the Directorate of the Hellenic Police, 2 February 2023.

^[7]  Unaccompanied minors are also included.

^[8] Information provided by the Directorate of the Hellenic Police, 2 February 2023.

^[9]  Ibid.

^[10] Ibid.

^[11] Unaccompanied minors included.

^[12] According to UNHCR the total number of arrivals by land and sea was 9,157 in 2021 and 18,780 in 2022: see UNHCR, ‘Operational data portal, Mediterranean Situation, Greece’, available at: https://bit.ly/3t8i3GD.

^[13]  Ombudsman, Return of third-country nationals, Special Report 2018; Information provided by the Directorate of the Hellenic Police, 8 February 2020, 11 February 2021, 8 March 2022 and 2 February 2023.

^[14] Information provided by the Directorate of the Hellenic Police, 2 February 2023.

^[15] Information provided by the Directorate of the Hellenic Police, 2 February 2023.

^[16] Ibid.

^[17]  H.A. and Others v. Greece, application no. 19951/16, 28 February 2019, available in French at: https://bit.ly/3OI4fAf; S.Z. v. Greece, application no. 66702/13, 21 June 2018, available at: https://bit.ly/45tcBBL, para. 40.