The impact of the new EU Pact on Europe’s external borders: The case of Greece

Forum on the new EU Pact on Migration and Asylum in light of the UN GCR

Contribution by Eleni Karageorgiou
Postdoctoral fellow at Department of Law, Lund University
28 September 2020

1. Introduction

One of Europe’s major gateways since the early 2000s, Greece is, arguably, the European Union’s asylum policy laboratory. It has long served as a stark reminder of the limits of European asylum solidarity and of the shortcomings of the so-called Common European Asylum System (CEAS) as reflected in the narrowness of the logic of its cornerstone, i.e. the Dublin system. The present contribution provides a brief analysis of the implications of the new EU Pact on Migration and Asylum (hereinafter ‘the Pact’) on countries located at the external borders of the EU, with focus on Greece.

The analysis highlights the extent to which measures on procedures, detention and expulsions proposed in the Pact, essentially, institutionalize a number of formal and ad hoc informal measures already carried out by Greece, which have made it hard for refugees to access asylum, have their claims examined in substance and rely on effective remedies. The transformation of these measures, from national practices within the context of an alleged temporary emergency situation into mandatory rules applicable throughout the EU, raise a number of questions concerning the self-proclaimed role of the EU as human rights guarantor in the region, the compatibility of EU law with international standards, and the fate of European refugee policy.

The analysis proceeds in two parts: the first part provides a brief overview of the evolution of asylum policy in Greece. It discusses the ways in which the CEAS instruments have informed Greek law and policy, and the extent to which Greek policy itself has influenced developments at EU level. The second part looks more specifically at the CEAS reforms suggested in the Pact in relation to procedures, detention, and expulsions and what these reforms imply for Greece and the EU’s periphery more broadly.

2. Greece and the constant state of ‘crisis’

2.1. Phase One: The ‘exceptionality’ of the Greek case

The asylum situation in Greece has been treated as being at a constant state of ‘crisis’ since 2010. Scarcity of resources and frustration against the inequality of the Dublin system has left Greece with little incentives to improve its piecemeal approach to asylum. After a series of infringement proceedings initiated against it in 2009 and 2010 concerning the implementation of the EU asylum acquis, Greece committed to reform its asylum and migration policy based on a national Action Plan.

Although progress has been made especially after the establishment of the new Asylum Service, access to asylum and reception conditions for international protection seekers remained challenging. European Courts have repeatedly condemned Greece for failing to respect the fundamental rights of migrants and applicants for international protection: inhumane detention conditions, asylum seekers’ destitution, and lack of procedural guarantees during refugee status determination and expulsion processes, as reported by the Council of Europe, the UN, NGOs, and civil society.

2.2. Phase Two: Syrian refugees and the 2015/2016 EU reception and solidarity crisis

As a response to increased asylum demands in peripheral EU countries in 2015, the EU adopted in the context of its Agenda on Migration two solidarity measures, the emergency relocation decisions and the EU-Turkey statement. Arguably, both measures have proved to be inadequate to relieve Greece from excessive administrative, procedural, and substantive burdens it faced following the arrival of a substantial number of refugees on its territory. They have made sure that a new set of obligations is imposed on those states within the context of the “hotspots approach”.

The amendments introduced by the Greek government to domestic legislation in order to render those EU measures immediately operational have raised serious concerns for access to asylum and human rights. The Greek Law 4375/2016 enabled national authorities to adopt exceptional measures at the borders in line with the “hotspot approach”, considerably restricting the procedural guarantees available to asylum-seekers subject to border procedures contrary to European Courts case law and to the recast Asylum Procedures (e.g. Art. 35, 43) and Reception Conditions Directive (Art. 8). The processing of asylum applications on the Greek islands was designed to facilitate the return to Turkey of all “irregular” migrants and asylum-seekers arriving from there, broadening the possibilities for declaring an asylum application inadmissible, as envisioned in the EU-Turkey statement.

2.3. Phase Three: Dealing with the consequences of the 2015/2016 crisis

In the aftermath of 2015, Greece remained with thousands of people stranded in overcrowded facilities on the Greek islands and in the mainland, following the reintroduction of temporary border controls applied by other EU Member States. At the end of 2019, Greece hosted approximately 186,200 refugees and asylum-seekers, receiving more asylum applications in 2019 than during the 2015/2016 crisis. Based on recent statistics, Greece has currently a backlog of nearly 100.000 asylum applications.

Containment of refugees and asylum-seekers on the Greek islands has been the norm since 2015, despite a ruling by the Council of State in the opposite direction. The newly introduced Law 4636/2019 on ‘international protection and other provisions’, essentially, crystallizes and advances already existing confinement and deterrence practices.

Some of the major reforms introduced by the new Law have included increasing of the maximum detention time for rejected asylum-seekers, speeding up of refugee status determination procedures involving one judge, narrowing the definition of vulnerable groups by excluding persons suffering from PTSD and lowering the standard of protection a third country would have to provide to render an asylum seeker’s claim inadmissible in Greece. These have been criticized as limiting protection contrary to European and international standards.

2.4. Current phase: The containment crisis

It is against the background described above that a number of humanitarian emergencies have been unfolding lately at the Greek-Turkish border and on the Greek islands. Following bombings in Idlib, Syria in February 2020, Greece violently refused entry to Syrians arriving at the Evros land border, following Turkey’s decision to open the doors for asylum-seekers and refugees to leave its territory for Europe. The measures taken by Greece as a way to avert “an organized, mass, illegal attack of violation of its borders” have been fully endorsed by the Council of Europe.

From being the irresponsible gatekeeper and defector in earlier instances, Greece was now praised for being Europe’s aspida (shield) in deterring migrants and refugees from entering Europe. On top of that, the Greek government, invoking an emergency situation, passed a legislative act suspending the right to claim asylum for a month, despite UNHCR’s concerns about possible breaches of international refugee law. At the same time, criminal charges for those who did manage to enter Greece irregularly, and cases of extrajudicial detention, were reported. In the same non-entre mindset, Greece has been lately accused for engaging in clandestine expulsion practices whereby refugees confined in camps on Greek islands were forcibly sailed on international waters and then abandoned in inflatable life rafts.

As regards the reception conditions on the hotspots, the EU hotspot in Moria, Lesvos has been described as “the single most worrying fundamental rights issue that we are confronting anywhere in the European Union’. With covid-19 case rising on the island, approximately 9000 people have already moved from the burnt down Moria to a newly improvised tent camp in Kara Tepe, where living conditions are equally poor. Despite the Council of Europe’s Commissioner for Human Rights call to urgently move asylum-seekers out of the camps on the Aegean islands, the Greek government appears to insist on its earlier plans, to eventually move asylum-seekers into close pre-removal detention centers.

3. The new EU Pact and its implications on Greek law and policy

The above short chronicle of the extent to which Greece has absorbed EU norms on migration and of the way it has unilaterally responded to immediate asylum demands illustrates the following point: mere financial assistance, ad hoc relocation, and support from EU agencies in controlling borders have proved inadequate to ensure a European migration policy that is ‘fair towards third country nationals’ (Art 67 TFEU), and a truly common EU asylum system based on solidarity (Art. 78-80 TFEU).

In the following, the European Commission’s suggestions for CEAS reforms on procedures and detention are analyzed. Does the EU Pact include measures designed to remedy the shortcomings of the CEAS as exemplified by the Greek case and to address the persisting challenges for solidarity and human rights?

3.1. Procedures

The proposal for a Regulation on external border screening combined with the new amendments to the 2016 proposal for an Asylum Procedure Regulation, appear to advance an intensification of the “hotspot approach” originally meant to facilitate the emergency relocation system. This means that Greece is no longer under the provisional obligation to accommodate hotspots for as long as it is under particular migratory pressure. Rather, it is required to introduce pre-entry procedures consisting of screening and mandatory RSD for certain categories of applicants at designated crossing points.

In practice, this does not alter much for Greece, but rather replicates the alarming situation currently witnessed on the Greek islands. Provisions covering asylum procedures at the borders, targeting particularly individuals who have transited through third countries, raise important questions in relation to access to asylum, discrimination, and availability of effective remedial mechanisms to protection seekers in countries located at the external borders.

3.2. Detention

The Pact envisages the possibility whereby screening procedures might require detention of the person in question, in which case the modalities of how this is to be applied, are left to domestic law. Given that individuals undergoing screening procedures are not presumed –according to the Pact- to have been authorized entry, detention of refugees who, in principle, do not fulfil entry conditions is legitimized. This administratively convenient but highly questionable from an international law perspective presumption of ‘irregularity’ is expected to affect the rights of the majority of asylum-seekers and refugees who reach the borders of the EU.

Containment of asylum applicants at border zones is also made possible in cases where an application qualifies for an asylum border procedure instead of a regular procedure within the Member State’s territory. Along the same lines, the right to prolong the screening and border procedures is recognized for states confronted with a ‘crisis’. Such an approach, allows room for excessive restrictions of movement, normalizing existing practices of detention en masse on the Greek islands and close to land borders.

3.3. Expulsions

As stressed in the kick-off brief to this Forum, the EU Pact blurs protection and return. This curtails procedural safeguards such as the issuance of separate asylum and return decisions as well as the automatic suspensive effect of appeals. Moreover, it allows for blanket application of third country rules to “any country where the person has transited departed or has other particular tie”. This is likely to reinforce recent Greek practice -conducted with the support of EU agencies– of summary returns to Turkey based on fixated decisions. It might mean, for instance, that asylum applications by beneficiaries of temporary protection in a third country can be dismissed as inadmissible even if the country does not satisfy the existing criteria of a “safe third country”.

With regard to crisis management, the following remarks are due: first, the Pact proposal for a Regulation addressing situations of crisis permits Member States under pressure to introduce a number of derogations form the CEAS rules applicable in normal times. For example, access to territory and to asylum procedures may be denied for persons apprehended in direct connection with irregular border crossings. Also, Member States may invoke capacity constraints to limit access to asylum at border crossing points for irregular entrants. This seems to legitimize measures taken recently by the Greek government, such as the suspension of the right to lodge an asylum application followed by an immediate expulsion decision, or the initiation of criminal action against refugees who have irregularly entered the territory.

Member States faced with a ‘crisis’ situation may also derogate from regular asylum procedures and grant ‘immediate protection’ status to persons who risk being subject to indiscriminate violence in a situation of armed conflict upon return. Although this may temporarily prevent removals, relocation or responsibility transfers under the new Asylum and Migration Management Regulation will still be applicable and should be scrutinized. In terms of the content of protection, past experience has revealed states’ tendencies to use ‘temporary protection’ as a substitute to formal refugee status in order to deter arrivals.

Finally, ‘flexibility’ in the way states shall cope with crisis situations, promoted in the Pact, is highly questionable. It seems that wide discretion is left on national authorities which is why strong monitoring mechanisms need to be established to ensure human rights compliance. For example, short time limits for lodging an application or an appeal may considerably restrict the procedural guarantees available to asylum-seekers subject to border procedures, increasing the likelihood of expulsion. This flexibility approach might very well be seen as the Commissioners’ response to a demand by Greece, Cyprus and Bulgaria asking for ‘an emergency and flexibility clause’ to be integrated into the new Pact to ‘reinforce the frontline states’ capacity to effectively tackle exceptional migration circumstances’. Does this offset the maintenance and expansion of the first entry criterion in the new Asylum and Migration Management (Dublin) Regulation?

4. By way of conclusion

The provisions of the new EU Pact for the processing of asylum applications at the borders broaden the possibilities for declaring an application inadmissible or for rejecting it on the merits in the absence of proper individualized fair and effective procedures. Pre-screening procedures curtail procedural rights and guarantees enshrined in EU and Council of Europe (CoE) law and may thus result in cases of refoulement, taking the form of mass expulsions and readmission. 

The Greek case confirms that an approach to migration and asylum with a continued focus on borders and externalization is not sustainable. The fragility of safe third country arrangements was very well illustrated in February 2020 when the Turkish president deliberately ignored the EU-Turkey statement and let migrants and refugees reach the Greek border. Confinement in border regions has led to unnecessary human suffering contrary to international and European standards and has hindered confidence of local populations towards European and national institutions to maintain social cohesion. The continuation and normalization of such practices risk undermining the values and principles the CEAS is grounded on.

As rightly pointed out, the EU Pact is a crash test for the fate of refugee protection in the region. Restoring mutual trust between EU states requires restoring faith to institutions. Attendance to national reception conditions and asylum procedures and addressing the fundamental inequalities permeating the European asylum system remain the main challenges for the years to come.