Rory O'Keeffe, Koraki
International protection and other provisions: Greece’s new (illegal) refugee law
Updated: Jan 14, 2020
The Greek government has, as expected, passed an Act which will significantly reduce the rights of men, women and children who attempt to claim asylum.
Hallowe’en is celebrated far less widely in Greece than in Western Europe, but there is an irony to the fact that Greece passed, on 31 October, a largely horrifying piece of legislation: an Act which will significantly reduce the rights of men, women and children who hope to apply for asylum in the state.
The Act, which seeks to play upon people’s fear of refugees while subjecting those innocent men, women and children to increasingly harsh and unreasonable treatment, will come into operation on 1 January 2020. It will set Greece back at least 12 years. In almost any other state, that figure would be significantly higher.
We must note, at the outset, that not only is the legislation not designed to achieve any less suffering to men, women and children trapped in detention centres on the Aegean islands – in fact, it means they can be imprisoned for six times as long, despite this being absolutely illegal – it is also extraordinarily unlikely to even deliver the ‘decongestion’ of the islands that some of its proponents claim to desire.
We must also note that this is not a document designed with people in mind. Had it been, the government would have engaged experts on asylum law and the experience of refugees in Greece to contribute to and comment on the Act.
Instead, the government drafted the 237 page document without expert input, and then offered a laughable period of time – less than four working days (9pm on Tuesday 15 October to 4pm on Monday 21 October) – for ‘consultation.
Amnesty International described this decision, on a matter which literally decides the fate – in some cases the life or death – of innocent men, women and children, as ‘outrageous’.
Even so, the Act, under the title ‘International protection and other provisions’ has been passed by the Greek parliament and will enter into Greek law in less than two months.
The reasons for it being passed are stark, alarming, and extremely simple.
First, this is the first truly controversial – and therefore important – piece of legislation the new Greek government has tried to pass. Effectively, it was vital to the government as a signal of its unity and ability to ‘govern in an orderly fashion’ that it passed. As the government has an absolute majority in parliament, it was almost impossible that the Act would not have passed.
Second, the government has, since 2016, presented refugees as a threat to the Greek economy, Greek people and Greece itself. It has also presented its position as being ‘sensible’ and ‘realistic’ while characterising Syriza’s response as ‘chaotic’ (which it often was) and ‘naïve’, placing Greece ‘in danger’ (which it was not).
Under these circumstances – posing as a ‘pro-Greece’ party ‘defending’ the country, and characterising the legislation in terms which blamed Syriza – it was always likely that party politics, rather than any informed consideration of the needs and rights of men, women and children literally fleeing death, would ensure the Bill passed into law, as indeed was the case.
Those, anyway, are the political realities of the Greek parliamentary system at present.
The Bill’s sponsors, notably Michailis Chrysochoidis, Greece’s Minister of Civilian Protection, repeatedly claimed that the legislation was a necessary response to the horrific situation on the Aegean islands, where detention centres are up to ten times above their safe capacities, electricity and hot water are unavailable for most people, most of the time, and men, women and children are living in summer tents on concrete as winter rapidly draws in.
The problems with this claim are that there are several far simpler (and as we shall see, more legal) ways to deal with these problems, such as providing acceptable housing on the islands and mainland Greece, that in actual fact the legislation is extremely unlikely to speed up the asylum process in Greece, and that others, including Greek Prime Minister Kiriakos Mitsotakis, made it clear that in fact the law was designed with other aims in mind.
Mitsotakis has been consistently wrong about the situation in Greece regarding people entering from the East.
As we reported in our fact-check on the same day, he incorrectly asserted – in the Greek parliament – on 4 October, that ‘on the basis of real data, the problem that we are now dealing with is one of migration not so much of refugees… The vast majority of people currently coming to Greece are economic migrants, not refugees,’ before claiming that people arriving from Afghanistan, a state of which a third is rated as ‘in conflict’ by the UN, and where the Taliban controls more land than at any point since 2001, and Pakistan, where the largest number of terror attacks took place in 2017 and 2018 (it is currently third, behind Afghanistan and Iraq, for 2019) were ‘economic migrants’, who made up ‘half’ of the arrivals to Greece.
In fact, as we noted at the time, 97.1 per cent of people who have arrived in Greece since 1 January this year are from states in which armed conflict is taking place. Equally, 38.8 per cent of people are from Afghanistan (see note above) and 0.2 per cent from Pakistan: very far from the ‘half’ of arrivals Mitsotakis claimed.
Shockingly, he continued this line – a position he either knew to be incorrect on 4 October, or at least must by now be aware is false – telling parliament before the vote: ‘Enough is enough, enough with those people who know that they are not entitled to asylum and yet they attempt to cross into and stay in our country.’
Not only is this a quite shocking distortion of the facts, it is also a damning indication of Mitsotakis and his government’s actual position on the issue, and of the law’s intent: ‘Greece does not want people to arrive, and will do whatever it takes to prevent them arriving, or remove them if they manage to get to Greece.’
His government has already stated on several occasions that it intends to ‘increase patrols’ in the Aegean, to ‘prevent people from entering Greece’ (which is illegal: it is not permissible under international law to force people seeking asylum into international or another state’s sea-space, and Turkey certainly does not welcome Greek vessels into its own territorial waters) and station more Frontex guards on Greece’s borders, even though it is illegal to prevent refugees entering, or to perform ‘pushbacks’ into another state (on 23 September, two Pakistani men were found injured near the Turkish border with Greece. The men claimed Greek police had beaten them and forced them back into Turkey).
And on Tuesday, Mitsotakis reiterated his and his government’s anti-refugee message, stating that Greece ‘cannot carry the problems of three continents on its shoulders’ (an interesting statement, which seems to indicate that despite his other statements, Mitsotakis does believe that the men, women and children coming to Greece are refugees, and also because it is demonstrably untrue: Italy has received a roughly similar number of refugees in the last three years, Germany, Sweden and France have all accepted more, while Turkey, Sudan, Pakistan, Lebanon and Uganda, as well as Germany, have each accepted 10-30 times more than Greece. In fact, Greece is nowhere near the top 20 states in terms of either number of refugees, or number of refugees as a proportion of population. Once again, it is almost impossible that Mitsotakis is unaware of this fact).
He added that the number of refugees (though he incorrectly called them ‘migrants’) arriving in Greece is ‘disproportionate to our size’. Again, this is an interesting statement, as it appears to be based on a belief that the intention of refugees arriving in Greece is to claim asylum in Greece. Most would far rather move elsewhere in the EU.
In any case, these statements make it clear that far from hoping to ‘solve’ the refugee problem by providing innocent men, women and children fleeing death with decent places to stay, and/or by speeding up the asylum application processing system, Mitsotakis in fact wishes to simply remove people from Greece.
The way in which his government is choosing to do this is illegal, inhumane, and will likely in fact cause great suffering and at the same time, fail to speed up the removals process or the processing system.
Humanitarian organisations – the bodies which are, through experience, inclination and qualification, the experts on international refugee law and the day-to-day experience of men, women and children forced to flee death in their homelands – have uniformly expressed alarm and in many cases anger at the proposal.
UNHCR stated on 24 October that it would ‘endanger people who need international protection… including by forcing people into countries where their life or freedom would be threatened.’
As noted above, the law’s major problem is that it is not designed at all with the welfare of men, women and children entering Greece in mind. Nor is it an attempt to ensure that people’s claims for and/or rights to asylum will be considered more efficiently (they will not even be considered more swiftly, which is not at all the same thing), still less with due care and consideration as demanded by international law.
Instead, it is focussed on only one thing: if people manage to get past the (proposed and illegal) measures the Greek state intends to impose to prevent them entering Greece, the law is designed to remove as many of those people as possible from Greece by any and all possible means.
1. UNHCR and other organisations
Before we look at some of the direct demands made by the Greek government on men, women and children applying for asylum, we should note that the Act may have direct impact on aid organisations.
In the case of UNHCR, the Act suggests that the international body with responsibility for refugees should ‘be allowed’ to ‘make suggestions’ about asylum applications and applicants, though this appears only to be possible if UNHCR requests access to interview applicants. This would, of course, require UNHCR to be aware of the person in question to begin with.
Equally, the Act states that: ‘Decisions taken on applications for international protection at first and second instance, as well as decisions revoking refugee status or beneficiary of subsidiary protection, shall be notified to the Office of the United Nations High Commissioner for Refugees in Greece, provided that the applicant for international protection or the beneficiary expressly so requests.’ (our italics).
That is, the Greek government is effectively saying that it will only inform UNHCR of its decisions and reasons for them if an applicant for asylum expressly requests it.
Even if this were not concerning because of the simple fact that most applicants simply will not know that this is the case (especially in a context in which UNHCR has field presence on the islands and mainland, so there will be an expectation from most people that it will be ‘involved’ in applications for refugee status), the potential for people ‘slipping through the gaps’ – decisions on their cases not being reported, despite their wishes – is alarming.
We should also ask why: why does the Greek government wish not to let UNHCR know the outcomes of asylum applications and the reasons for those outcomes?
Throughout the short section on UNHCR (the document promises ‘memoranda’ to be presented later regarding the precise relationship between UNHCR and Greece, though no date is suggested when this might occur) it is clear that the Greek government intends to largely remove UNHCR from the asylum process, setting it ‘advisory’ and ‘examinatory’ roles regarding the overall operations of the Greek system, rather than any part in the system itself.
The desire to set a clear role for UNHCR is not in itself a bad thing: Syriza wanted something similar, and arguably the earlier stages of the response we are still working on would have been far smoother had it got it.
But what is concerning is that Nea Dimokratia appears, in its desperation that Greece be treated as a ‘normal’ state, to have forgotten that Greece is not a ‘normal state’ in two important ways.
First, Greece is in fact a destination point – or more accurately a ‘way-station’ for men, women and children fleeing chaos, war and death. The fact that Nea Dimokratia appears to be incapable of recognising this, and the fact that that is what the vast majority of people arriving here are doing, makes the situation rather worse and more serious than it might otherwise be.
This is simply not the situation in almost any other state – including the vast majority of EU member states. In the UK, for example, it is reasonable that UNHCR’s major role should be ensuring the national asylum system works properly, without deliberate or accidental mistreatment of people who arrive there.
The UK certainly needs this. Though Greece does as well, the situation in Greece simply isn’t the same. Tens of thousands of people are arriving, and need the protection and guidance of the world’s body which is responsible for safeguarding the rights and welfare of refugees.
The second way in which Greece is not ‘normal’ is that it is a part of the EU, a bloc which simultaneously regards itself as a border-free political body, and a collection of 28 independent member states.
This is vital because what it effectively means is that under EU regulations (most clearly and openly expressed in Dublin III, but by no means exclusive to that document), any asylum seeker entering the EU can be moved anywhere within the bloc while their application is considered (illegal if the bloc is 28 separate independent states) and that the first EU member state which a person enters should take responsibility for that person’s application, and of course their welfare while the application is considered.
In effect, Greece is not now making decisions for Greece, (in most cases) but for the entire EU. There seems to be no justification for removing UNHCR from this process.
For other organisations, there are also ominous indications of future Greek government activity. The Act demands, for example, that protection against persecution or ‘serious harm’ (it does not indicate what it would regard to constitute ‘serious harm’) should be provided only by the state, or ‘groups or organisations, including international organisations, that control the State or a substantial part of its territory’. The state would decide whether an international organisation controls the state or any significant part of its territory.
It also states, in a section devoted to ‘access to’ detention centres and border crossing points, that: ‘Certified organizations and persons informing and advising aliens or stateless persons shall have access to border crossing points, including crossing zones, at external borders, unless there are grounds for national security or public order or reasons dictated by the administrative management of the specific border crossing point and imposing a restriction on that right.
‘The criteria and certification procedure of the organizations referred to in this Article and any other specific or technical matter relating to certification, as well as any other details shall be laid down by decision of the Minister of Citizen Protection.’
Effectively, therefore, no organisation can guarantee that it will be included as ‘certified’ – and the certification process will be decided by the Greek government.
Once again, as we have pointed out on a number of occasions, this response is and always has been unusual because it is taking place in a state with strong infrastructure and a recognised government.
It is not unreasonable for that government to expect it will have overall control of the response – or at least, it is understandable that it would want it – but we must recognise that in reserving these powers, the government is effectively granting itself the ability to prevent humanitarian workers reaching the people we work with and for.
This is an especially concerning development not only because governments do not carry out humanitarian work well (they are not designed for it) but also in this instance because the government in question is simultaneously denying that new arrivals are refugees and attempting to force them out of the country as soon as possible.
2. PTSD and other medical issues
'In short, roughly 100 per cent of people arriving in Greece will be or have been exposed to experiences which risk PTSD within a month of their arrival. People who suffer PTSD require extra help to make applications or else risk far greater refusal rates than those without. The Greek government has just moved to block recognition of PTSD as a factor increasing ‘vulnerability’.
‘If this is not a measure to deliberately and artificially decrease the number of successful asylum applications made in Greece, it is very hard to see a more effective means of achieving this.’
One clear example of the Act’s target of removing people from the country is its insistence that post-traumatic stress disorder (PTSD) must no longer be recognised as a valid reason for people to be regarded as ‘vulnerable’ asylum seekers.
Some sources have interpreted this as a ruling that PTSD itself must no longer be grounds for granting asylum, but this is not accurate: PTSD in and of itself is absolutely not used as the reason asylum should be granted – unless the state to which someone would be returned is regarded as being incapable of treating the disorder.
This makes sense when one considers that, for example, PTSD may be (and very often is) brought on by something which happens when someone is fleeing their homelands – rape, the loss of loved ones, or a shipwreck, for example (in fact, the law as it stands includes ‘people who have experienced shipwreck’ as a ‘vulnerable group’: this Act removes them) – rather than the reason why they fled their homeland to begin with. PTSD can, of course, be caused by something which causes a person to flee – for example, the bombing of their home, being tortured or other factors. But PTSD by itself is not and never has been the factor on which asylum is granted.
Instead, what this does is to attempt to remove PTSD as a reason why men, women and children who arrive in Greece should be regarded as ‘vulnerable’, and therefore receive protection (such as from the ‘accelerated border process’ under which the government will expel people after one interview) and assistance in the asylum application process.
It would of course be unreasonable for us to conclude that this is being done solely to prevent people making successful asylum applications, but we must note that extensive studies, including Mueller, Schmidt, Staeheli and Maier (European Journal of Public Health, July 2010) have shown that because PTSD causes memory disfunction, and asylum applications rely on personal accounts, people with PTSD are far more likely to have their claims rejected than people without.
This is not a small issue, either. Rates of PTSD among people fleeing war are usually higher than 70 per cent, while matters such as ship-wrecks, rape and other factors – widely reported by men, women and children entering Greece, also push up those levels.
We must add that the cited study is also just one among many which reports that the very process of making an asylum claim – uncertainty about one’s future, unsettled living conditions, removal of control over one’s own day-to-day life – adds enormously to the likelihood people will suffer PTSD. It is worth noting here that the Greek government’s new Act increases the length of time a person seeking asylum may be detained six-fold, and imposes harsh new punishments on those who object to, for example, being moved against their wishes.
To this we must add that specialist medical aid organisations MdM and MSF, as well as the Greek government’s own external health advisory body KEELPNO, reported that warehouse camps of the exact type Nea Dimokratia has announced it will reopen on the Greek mainland, and the detention centre system on the islands are also ‘damaging to people’s physical and mental health’.
In short, roughly 100 per cent of people arriving in Greece will be or have been exposed to experiences which risk PTSD within a month of their arrival. People who suffer PTSD require extra help to make applications or else risk far greater refusal rates than those without. The Greek government has just moved to block recognition of PTSD as a factor increasing ‘vulnerability’.
If this is not a measure to deliberately and artificially decrease the number of successful asylum applications made in Greece, it is very hard to see a more effective means of achieving this.
Connected to, but separate from, the issue of PTSD being removed as a factor in whether a person can be regarded as ‘vulnerable’, is the Act’s demand that people who have suffered rape, torture or other serious acts of violence be ‘certified by medical expertise from a public hospital, military hospital or appropriately trained public health service providers.’ (we assume this is where the confusion has come from in those analyses which claim PTSD ‘is scrapped as a valid basis for an asylum claim unless it is backed by ample medical evidence’: we stress once again, PTSD alone has never been a ‘valid basis’ for an asylum claim: it is quite important to the wider debate over asylum in Greece that we all make this clear as often as possible)
This is a significant change from the standard EU guidelines that those people should have access to specialist psychological and physical health care, regardless of whether this is public or private. It also places the burden of proof – an enormous level of responsibility – on people whose experiences may literally have made them incapable of dealing with such pressure, while it is also quite important to note that rape, in particular, but also many other forms of severe violence, are often not possible to medically certify.
It also carries the extremely obvious risk that in many cases, the demand that people who have suffered sexual violence must seek medical certification may simply deter them from applying for asylum.
In short, thanks to Nea Dimokratia’s Act, Greek law now demands that people who have suffered rape or torture prove it – even though this is often unprovable and the demand will place extraordinary stress on people who have already suffered extreme situations.
3. Access to healthcare – AMKA
‘This Act is a development, as it makes clear that Nea Dimokratia’s plan is to provide people access to healthcare, but no longer through AMKA. Instead, the Act indicates that healthcare, including prescribed medicines, will be provided to men, women and children seeking asylum only if they possess an ‘Aliens Health Care Card’ (CFSP).’
As things stand, the Greek government has still not yet changed the law on access to the AMKA number – which provides access to education, healthcare and other parts of the social security system in Greece.
Our advice remains that anyone who wishes to receive an AMKA number should apply as soon as possible, and that any effort by a municipality to block this process is unlawful.
However, this Act is a development, as it makes clear that Nea Dimokratia’s plan is to provide people access to healthcare, but no longer through AMKA. Instead, the Act makes clear that healthcare, including prescribed medicines, will be provided to men, women and children seeking asylum only if they possess an ‘Aliens Health Care Card’ (CFSP).
It is not particularly clear what advantage the government believes this will offer it. The only conceivable possible ‘positive’ of this change is that it will not leave ‘empty’ AMKA numbers if people are removed from Greece, but this is so clearly not a ‘problem’ in any way that it is impossible to accept this has driven this unnervingly odd decision.
The disadvantages and potential problems, however, are immediately obvious.
The first is that the CFSP system does not actually exist.
It is of course possible that it will do by 1 January 2020, but as the Helios programme, designed to help people who have refugee status find housing once they have been ejected from the UNHCR refugee accommodation programme (at the insistence of the Greek government) is still not yet in place (for example, just three offices to help people find houses have opened: a third of the number needed, even if only one were required per region in which the scheme is running) some five months since people were removed from their homes, there is little reason to feel optimistic.
There is a very real possibility that the Act will leave thousands of people without recognised access to healthcare.
This would be absolutely illegal, as would the second likely problem: delay.
The government intends the Greek Asylum Service to issue CFSPs, adding yet more to its already exceptionally high workload (the current waiting period for first interviews under the asylum system is now up to five years). The issuance of cards will either mean the Service must drop another part of its responsibilities – highly unlikely to be allowed by a government desperate to remove people from Greece – or fail to issue the cards when they are needed (bear in mind, once again, this is if the system is even in place when it is supposed to begin).
In effect, the overwhelming likelihood is that people arriving in Greece after 1 January 2020 are likely to be unable to access healthcare in at least the short-term. Challenges to the law will be urgently necessary.
A further problem is that the CFSP is available only to people who have actually made an application for asylum in Greece: that is, should a woman arrive and within a day need to give birth, the law, as proposed by the government, might mean that she would be denied healthcare. Alternatively, if there were an outbreak of measles on Lesvos, and some children who had arrived on the island two days before were unvaccinated, the law makes no provision for their inoculation.
There are of course examples of medical professionals stepping in in circumstances exactly like this, but laws on healthcare are supposed to ensure we do not rely on the quick thinking or generosity of front-line medical employees.
Once again, this proposal, as it stands, serves to endanger the health of men, women and children arriving in Greece, as well as conceivably the health of Greek citizens. It is also illegal under EU and international law.
A further problem (as we shall see) is that it will of course not enable men, women and children entering Greece to enter any other part of the public service system. While in the immediate- to short-term this is of far lower urgency (and less illegal) than their (effective) exclusion from receiving healthcare, we must raise the fact that as greater numbers of people arrive in Greece, so the ‘services’ available to them through aid organisations and even government-led programmes will become increasingly scarce and stretched.
Offering people a social security number would enable the government to far more efficiently respond to need, with a far reduced risk of widespread hunger, disease and homelessness.
And in the end, this is the major characteristic of refusing people an AMKA number: the lack of any obvious positive, and its obvious inherent negatives.
Even if we set aside the suffering this will cause innocent men, women and children, this measure is likely to increase pressure on emergency health services, increase the workload on the already massively overstretched Greek Asylum System, increase bureaucracy because all those people granted asylum will have to be provided with a second number – the AMKA or perhaps (under new government plans) a ‘state services’ number given to all people to interact with the state – reduce the quality of lives of all Greek citizens by overloading hospitals and filling the streets with desperate homeless men, women and children, and in doing so stoking suspicion, resentment and mutual unhappiness, which is likely to lead to violence.
None of this, it goes without saying, will save Greece any money. In fact, it will cost it more than simply issuing the AMKA as at present.
With all this in mind, it is hard to conclude that this measure is being introduced with any aim other than to make life harder for men, women and children who enter Greece, in the hope of forcing them to leave.
In effect, Nea Dimokratia is gambling human lives and national safety on the idea that people not from Greece and seeking a safe place to live and work be forced to leave.
We feel we should stress once again: this is the clearest indication we have had that AMKA numbers will not be available to men, women and children arriving in Greece.
But. We would remind you that emergency healthcare is by law available to all people in Greece, regardless of nationality. This will not be changed by the Act, which in any cases comes into operation only on 1 January 2020.
We strongly advise that people who want an AMKA really must apply before then, and we will update you if and when the law on AMKA issuance changes: it has not yet, and this Act is only very likely, rather than absolutely certain, to count as a change of law relating to the AMKA system.
‘In essence, this part of the Act appears to exist to propagate a falsehood. In practice, it directly contravenes EU and international law, as well as a UN Convention to which Greece is a proud signatory.’
The Act states that school-aged children must be in full-time education ‘within three months’ of entering Greece. If not, the families of those children (including the children themselves) will be punished by the removal of ‘material reception conditions’, which include the provision of shelter and access to the monthly cash allowance under the ESTIA programme.
We should note here that it is vital that people send their children to school, and that in almost all cases involving people who have entered Greece, there is no excuse for anyone refusing to send their children to school if they have a place.
But – and this is no small fact to consider – Greece has failed, abjectly, to provide school places for children. In September, because Nea Dimokratia removed the responsibility for transporting young people at mainland refugee camps to school, from IOM and handed it instead to a ‘preferred contractor’ just 28 out of 4,979 children of school age were able to attend school.
Extending the matter to include the islands as well as the mainland, of 34,800 refugee children in Greece, just 12.800 have school places.
This is not to say that there have been no examples of refugee parents failing to send their children to school in Greece, though in some cases this has been a response to racist protests against refugee children.
But to imply – as this Act does – that the ‘fault’ for children not attending school lies with parents or children is simply to stretch the truth beyond all recognition: almost two in every three refugee children in Greece does not have a school place some three years and eight months into the second stage of the refugee response. The only body to blame for this is the Greek government and it is unbecoming of it to imply that ‘refugee unwillingness to attend’ is the major problem.
Having set out where the blame lies for children not attending school, we should note also that removing families – including children – from accommodation, or refusing to include them on emergency income assistance schemes because their children do not attend school is illegal under both EU and international law.
As Amnesty notes, it ‘fundamentally violates the spirit and purpose of children’s right to education’ (Article 28 of the UN Convention on the Rights of the Child) by creating a dependence upon that right of the Convention’s Article 27: ‘the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.’
In essence, this part of the Act appears to exist to propagate a falsehood. In practice, it directly contravenes EU and international law, as well as a UN Convention to which Greece is a proud signatory.
5. ‘Safe’ countries and ‘safe’ third states
‘It is absolutely illegal to force people into another state if they arrive in yours and request asylum. It is equally illegal to base a decision about whether or not to accept an asylum application on the country of origin of the applicant, or the fact they have been in another country before reaching yours. This Act seeks to enable the Greek government to carry out precisely these illegal activities.’
In one of the most openly ‘anti-refugee’ sections of an extraordinarily anti-refugee Act, the government declares it will create a list of ‘safe countries of origin’ – to which it will deport citizens of those countries – and ‘safe third states’, to which it will deport people, particularly if they have passed through one of them on the way to Greece, regardless of whether they are citizens of those countries.
The ‘safe third state’ concept is very clearly designed to enable Greece to force men, women and children back to Turkey – a country almost every single one of them has passed through to reach Greece – or in some cases to the country from which they first fled.
The problem is that despite the EU/Turkey Deal, this is absolutely illegal under international law (and in fact under EU law, as we shall see) because the 1951 Geneva Convention on Refugees makes clear that any man, woman or child who wishes to claim asylum is entitled to do so in any state of their choosing, regardless of how many countries they must pass through to reach that destination state.
This has arguably been complicated by the Dublin Regulation, which stipulates that the government of the first EU state a person enters should handle their asylum application (the Regulation places no burden on the individual to make their application there, however: Dublin is a document describing the responsibilities of states, not people) but in fact, Dublin is only in keeping with international law if the EU is itself a single political unit, without internal borders.
In fairness, the Dublin Convention was written in 1992, when the Maastricht Treaty outlined a plan for a borderless EU. But the refugee response has shown clearly that this has never been delivered. Dublin breaks international law, and it is clear that despite all of its three iterations claiming to have been written ‘respecting the Geneva Refugee Convention’ its insistence that refugees can be moved across borders to the first EU state they entered directly contravenes the Convention.
To put the matter as simply as possible, under international law any man, woman or child is entitled to claim asylum in any country on Earth, regardless of how many states they travel through to reach that state.
A nation’s border may be legally uncrossable by an invading force, but it is not a barrier to people needing shelter and support. Nor can it be a line back across which people can be forced solely because they have crossed it. Neither a list of ‘safe states of origin’ nor ‘safe third states’ supercedes this fundamental international law.
The law’s focus on the concept of ‘safe states’ is interesting for other reasons as well.
First of all, it is very clear – and Nea Dimokratia has, since September stated three times – that this concept will be part of its policy to ‘swiftly remove’ refugees from Greece.
It cannot possibly be legally used to do so.
It is illegal under international law to refuse to properly and fully consider an asylum application solely on the grounds of the state from which an applicant originates. Asylum claims can be made on a number of different grounds, meaning that simply saying ‘this person is from a country we regard as safe’ is not an acceptable reason to refuse an asylum claim.
Given that, a list of safe states would be absolutely useless in terms of ‘speeding up’ Nea Dimokratia’s aim of removing refugees from Greece – because it will still have to properly examine every individual’s application – or it would be illegal, because Greece plans to use the list to break international law by not examining applications fully, instead simply checking the country they are from, or through which they travelled to arrive in Greece.
Which brings us to a short note on the EU/Turkey Deal. Because the EU/Turkey Deal appears to be widely accepted to be on safe legal foundations, when in fact it, too, directly contravenes international law and, perhaps even more surprisingly, its status under EU law is far from clear.
The EU/Turkey Deal demands that Syrian people who arrive in the EU from Turkey without permission must be sent immediately back to Turkey. In the earliest stages of its conception, in 2015, it was hoped that the EU would vote to declare Turkey a ‘safe state’ in order to justify the Deal in the eyes of the EU, if not of international law.
Several states supported the idea at first, but the status was never actually granted because of the ongoing civil war between the Turkish government and Turkey’s Kurds, an attempted coup in July 2016 and the waves of political and social oppression which followed it, and the fact that many of the 65 criteria Turkey has not met for EU entry are in fact serious enough to prevent the EU declaring Turkey a state ‘safe’ for the majority of men, women and children.
Turkey is not a ‘safe state’ recognised by the EU, despite the EU/Turkey Deal. Nor would it be legal under international law to deport people there without allowing them to make and considering in detail, an asylum claim made by them.
But in January 2018, the European Court of Human Rights, as part of a judgement on a legal challenge against a person being deported from Greece to Turkey, declared that the EU/Turkey Deal was in fact not an agreement between the EU and Turkey, but between ‘individual EU member states’ and Turkey.
This is demonstrably not the case. The Deal was absolutely not signed by representatives of the Greek or any other EU member state’s government, but by Jean Claude Juncker, the European Commission President, who was also the man who publicly announced its introduction.
But if it were true, as it seems the EU’s Court of Human Rights hopes we will accept, the Deal is still illegal under international and EU law and – now relevant because of that ruling – under the laws of all but one EU member state.
Because only 14 EU member states even have a list of ‘safe states’. Greece, which is not one, will presumably become the fifteenth on 1 January 2020. Of the 14, only Bulgaria lists Turkey as a ‘safe state’ to which to send refugees. This means that if the Deal is not between the EU – which itself does not designate Turkey as a ‘safe state’ – and Turkey, then the only country in the EU allowed to deport refugees to Turkey would be Bulgaria.
That is, as things stand, the EU/Turkey Deal is not legal in any state in the EU except Bulgaria, and even then, Bulgaria would be breaking international law if it used its designation of Turkey as ‘safe’ to immediately refuse asylum applications without giving them full consideration.
Nea Dimokratia cannot – according to the EU’s own Court of Human Rights – cite the EU/Turkey Deal as reason to list Turkey as a safe state, because the EU does not designate Turkey as ‘safe’ and even if it did, the Court has ruled that the Deal is not an EU-level agreement. Any effort to deport men, women and children to Turkey by Greece will be in contravention of international law, without even the ‘umbrella’ of EU law, which in any case is not accepted as of greater import than the former.
The reasons why ‘safe states’ do not rid governments of their responsibilities towards asylum seekers (and we stress once again that if they do not, there is absolutely no advantage to Nea Dimokratia creating a list) are relatively simple.
Uganda, for example, fits most states’ definition of ‘safe’. There is no civil war or war with another country raging within its borders. Its government does not routinely oppress, arrest or kill people for their religious stance, or for their political affiliations. For every straight person who has not taken an active role in promoting the rights of homosexual people, Uganda is absolutely safe.
But people can be and are arrested and killed in Uganda for being homosexual. Others are arrested and tortured for campaigning for gay rights, or attempting to prevent the arrest of gay people. No ‘safe state’ – or almost none – is completely safe for everyone.
Equally, in 2010 – even right up to 11 March 2011 – Greece would have regarded Syria as ‘safe’ (ironically, it would not now regard Turkey as safe if Nea Dimokratia did not regard it as easier to forcibly deport refugees if it pretends it does). Had a person fled after being tortured by Bashar al Assad’s police, and Nea Dimokratia had applied its ‘safe states’ list in the way it intends to, that applicant could have been forced back into Syria on any day up to and including 11 March.
It is absolutely illegal to force people into another state if they arrive in yours and request asylum. It is equally illegal to base a decision on whether or not to accept an asylum application on the country of origin of the applicant, or the fact they have been in another country before reaching yours. This Act seeks to enable the Greek government to carry out precisely these illegal activities.
‘To ‘deal with’ the failures of a system under which people are being detained for far longer than the law deems acceptable by altering the law so they can be detained for six times longer is not a solution. It is a perversion of the concept of ‘solution’.’
In another measure which at best ‘infringes’ international law, the Act sets out to increase the length of time people who arrive in Greece can be detained six-fold, from three to 18 months.
Once again, the dubious legality of this measure is slightly obscured by existing practice in the EU, but it is absolutely illegal to hold people in detention solely because they are seeking detention.
The Act also now enables the government to detain people who were not detained when they first applied for asylum – effectively threatening people that they may be jailed if they follow the asylum process demanded by Greek, EU and international law, and ends the current system under which any decision to detain people in relation to asylum requests must be automatically reviewed by a judge. The latter is another breach of international and EU law, and of course reduces the possibility that men, women and children arbitrarily detained can gain practical legal redress for any injustice
To be absolutely clear, the Greek government is allowed under EU law to detain people seeking asylum under EU law, for up to 18 months. But the EU’s own guidance on this says this must absolutely not be done only because those people are seeking asylum, and that any country detaining people for this period must provide judicial review to prove the detention’s lawfulness.
The entire detention centre system as operated on the Aegean islands is in direct contravention of international law, and even of EU law, even as it is based on US practice at (the non extraordinary rendition section of) Guantanamo Bay and the equally illegal centres at Manus and Nauru, operated by Australia, all of which exist to prevent men, women and children officially entering either state.
One argument which is often used is that the island detention centre system is not ‘real’ detention, because people are allowed to enter and leave the detention centres at will. But this is only partly true: as with an ‘open jail’, anyone who leaves, for example to visit a friend or go shopping, must return and spend the night at the detention centre. This is not the same as ‘not being detained’.
We should note that the three month maximum limit set by the Syriza government has in fact, in absolutely every case, been overrun by extraordinary amounts. There is an argument that extending this period is simply a recognition of the system’s failures – a piece of ‘realism’ which is, if not admirable, at least honest.
But this would require us to ignore the fact that the entire detention centre system as it now stands is absolutely impermissible under international law, that men, women and children are literally being detained solely because they are applying for asylum, that the Act simultaneously strips people of their legal right to have their detention reviewed by a judge, and that the Act as a whole sets out to prevent and discourage people from entering the system, removing them from it as quickly as possible under any available pretext, and removing people from Greece as fast as is possible.
It would also require us to accept that when a system is failing, we must simply change its parameters, rather than working to improve it so as not to fail any longer.
One cannot (though many governments have tried and/or are trying to), for example, solve the problems of unemployment by simply changing the definition of the word. To ‘deal with’ the failures of a system under which people are being detained for far longer than the law deems acceptable by altering the law so they can be detained for six times longer is not a solution. It is a perversion of the concept of ‘solution’.
The Act has taken an already illegal system – in which people are detained for no legal reason – which has so far failed to achieve even its own modest aims (not detaining innocent people for more than three months) and is setting out to make it far, far worse, with literally no legal justification.
Nor will this in any way help to ‘speed up’ the system, and not only because the only sensible way to do so would be for Nea Dimokratia to employ many more asylum officers, and the rest of the EU to recognise that this is an EU-wide issue, rather than solely a ‘challenge’ (it need not be a challenge at all) for Greece to ‘overcome’, and act accordingly.
It sets out a system under which the Greek government can allow people to languish in detention for a year and a half, while it takes no action whatsoever, secure in the knowledge that under Greek – if not EU or international – law, it will not even have to justify the act.
Bearing this in mind, it is hard to imagine there is any reason for this measure other than to ‘discourage’ innocent men, women and children from seeking safety from war, terror, chaos and death by threatening them with 18 months in detention camps. That this is illegal appears not to concern the Act’s authors.
7. Police interviews
‘…it is hard – even if everything else was equal and the police were truly neutral actors in matters relating to refugees – to accept that they would even have the time to give due consideration to every component of every request on which they are now expected to adjudicate. Failing to examine cases in detail is counter to international law, and is also likely to see people unjustly denied the right to continue their application process.
‘…the police, unlike UNHCR agents and Greek and EU asylum officers, are simply not qualified to carry these interviews out: it is ironically far more likely that involving the police at this level will result in a hugely increased number of unjust, illegal and wrong decisions.’
One of many major criticisms of Nea Dimokratia’s response to men, women and children seeking safety in Greece since it won power in early July is its repeated treatment of them as a ‘problem’, ‘threat’ and a challenge to Greek law.
This was illustrated by its decision – almost its first move in power – to subsume the Ministry of Migration Policy into the Ministry for Citizens’ Protection, the ministry which also runs the police, and despite the fact that people seeking asylum are by definition not citizens of Greece.
It has repeated its campaign claims that refugees are a threat to Greece, Greek people and the Greek economy, claimed proposed (but not yet enacted) changes to access to the health service were being made because ‘Greece is not an unfenced yard’.
It has sent armed police to force vulnerable men, women and children from their homes – albeit that those homes were squats – in Exarcheia, despite the head of the Greek union of police officers Stavros Balaskas stating on 8 July, the day after Nea Dimokratia took power that ‘[If the government gives] us a mandate, not even a mosquito will stay in Exarchia.’ and the fact that the men, women and children expelled have had to be moved to refugee camps – ghettoes in most cases far from cities and amenities, in which people have to live in tents or container boxes – instead.
And it has, while moving people to camps all over mainland Greece, started deploying armed police in full riot gear, with shields and batons, as if the exhausted men, women and children were about to launch an attack against the army at the camps.
With this Act, too, Nea Dimokratia has expressed its deeply and increasingly concerning equation of refugees with crime, disorder and danger, by handing responsibility for conducting first admissibility interviews – the interview which decides whether an application will be accepted for consideration – to the police and in some cases the army.
Even if there were no reason to be concerned about the attitude of the police towards refugees (and unfortunately, as in many other states all over the world, there are very good reasons, including violence by police against refugees on the Aegean islands and at refugee camps, and forced illegal pushbacks at Greece’s border with Turkey) or about its striking and in some senses alarming close relationship with Nea Dimokratia, it is impossible to believe that there are more police officers with no other priorities than there are asylum officers or UNHCR agents for whom this is a major part of their day-to-day roles.
This is important because in the first instance, it is incredible to conceive that it would ‘speed up’ the asylum process and secondly because it is hard – even if everything else was equal and the police were truly neutral actors in matters relating to refugees – to accept that they would even have the time to give due consideration to every component of every request on which they are now expected to adjudicate. Failing to examine cases in detail is counter to international law, and is also likely to see people unjustly denied the right to continue their application process.
We must also note that the police, unlike UNHCR agents and Greek and EU asylum officers, are simply not qualified to carry these interviews out: it is ironically far more likely that involving the police at this level will result in a hugely increased number of unjust, illegal and wrong decisions.
As an indication of this, the last time the police were entirely in control of the asylum process, the approval rate was just 0.04 percent: for every 10,000 people who applied for asylum, just four were accepted. By comparison, across the EU as a whole, for every 100 applicants, 54 were accepted. In 2018, across the EU, this had risen slightly to 57 in every 100 people.
Commenting in 2007, Human Rights Watch attributed the shockingly low Greek approval rate to: ‘an institutional culture that takes a presumptively negative view of asylum seekers,’ adding that ‘police interviewers do not have sufficient specialised training or independence to conduct proper interviews.’
It is extremely difficult to argue either factor has changed – certainly not enough to base an entire shift in the nature of the asylum application approach upon it – and as a result, it is hard not to conclude that the aim here, in common with so much of the Act, is most likely simply to remove people from Greece, regardless of the merits of their case.
‘these matters are absolutely irrelevant to the asylum claim itself, and refusing to consider a claim on these bases is not only counter to international law, but also simply odd, unless there is some specific motive driving them.’
We have already noted that the Act sets into law that the Greek government will remove people from shelter and the receipt of monthly payments for food and other essentials if they do not send their children to school (which, once more, is far from the major problem when it comes to children attending school in Greece).
But it also sets out that people ‘will’ (rather than, as the law previously stated ‘can’) also be removed from shelter and have their payments stopped if the government considers that they did not apply for asylum at the earliest available opportunity.
This is a misreading of the Dublin Regulation – which places the burden of responsibility for registration of asylum seekers on the state, rather than the individual – so extraordinary as to be almost impossible to accept as an error.
The same punishment will be imposed if any refugee ‘is found to have’ ‘hidden resources’.
In effect – when considering the ‘detention’ criteria, discussed above – this means the government ‘will’ remove people from the places in which they live, send them to detention centres or refugee camps anywhere in Greece, perhaps hundreds of kilometres from where – for example – their children go to school and then remove them from those centres, leaving them literally homeless.
The Act also sets out to remove men, women and children from the asylum process – rejecting their application from any point at which they are first registered – if they fail to ‘follow procedures required’ by the government.
It is, sadly, easier to list the things which would not result in people’s applications being dismissed, rather than those which will, but the latter include: not accepting being moved from one detention centre or refugee camp to another at the government’s whim; leaving a reception area without permission; failing to apply for an appeal against a negative decision within seven days; and failing to attend an appeal hearing.
As Amnesty International and a number of other organisations have pointed out, these matters are absolutely irrelevant to the asylum claim itself, and refusing to consider a claim on these bases is not only counter to international law, but also simply odd, unless there is some specific motive driving them.
‘Neither international nor EU law accepts as reason to dismiss a claim ‘failure to comply with [undescribed] duties of cooperation’ or failure to appear at an appeal hearing.’
In terms of the rules on appeals, the time limit for an appeal to be requested – just seven days after a negative decision – is made even harder to meet by the shortfall in legal aid professionals in Greece at present.
It is further complicated by the fact that the Act also ends the automatic provision of details of the decision to the person claiming asylum. Though this information will be available, the Act demands that it will be provided only if the claimant specifically requests it.
Not only will this increase the time necessary to discover whether an appeal can be made, it also contradicts international law, and the EU Asylum Procedures Directive (APD) which requires member states to: ‘ensure that applicants have the right to an effective recourse before court’.
The APD also requires all EU member states to: ‘ensure that, in the event of a refusal of a request for refugee status and/or subsidiary protection status, the decision shall state the actual and legal reasons for the refusal, as well as the information on the exercise procedure.’
Withholding information about the case unless and until the claimant specifically requests it is directly counter to this legal requirement: the Act’s changes to the appeals procedure contravene EU and international law.
The Act will also enable Greece to expel people who have had their asylum claim rejected, regardless of whether they appeal or not. It offers no information on exceptions to this, meaning that as it stands, no exceptions need to be applied.
Once again, this is not only in contravention of the spirit of international and EU law, it also directly contradicts EU case law, which binds Greece and all other EU member states. In this instance, the case Tall vs Belgium, December 2015. Abdoulaye Tall won this case, after the Belgian government refused to accept a second asylum claim from him having rejected his first.
The ICC stated that: ‘The appeal must necessarily have a suspensive effect (on deportation) when it is brought against a return decision, the execution of which may expose the third-country national concerned to a serious risk of the death penalty, torture or other inhuman or degrading treatment or degrading treatment.’
The Act, in ignoring this, and in insisting that people whose first claims can be deported regardless of whether they submit an appeal against a negative decision, undermines the right to appeal against a negative decision as an effective remedy against injustice, as both EU and international law require.
The new law also requires ‘(an) applicant/s to cooperate in other aspects of the processing of the asylum application’, even though EU law requires that ‘procedures should facilitate or support the applicant/s to fulfil their obligations’ – a demand notably missing from this Act.
The Act states that: ‘Violation of the duty of co-operation with the competent authorities… which impedes the smooth completion of the procedures for examining the application for international protection’ will result in the dismissal the application.
Linked to this, the Act also states that if an applicant manages to secure an appeal, they must appear in person before the appeals committee, and that failure to do so will see the application rejected and ended on the basis that: ‘(the appeal) was submitted only to delay or prevent the execution of an earlier or imminent expulsion order or otherwise to expel it and to be dismissed as manifestly unfounded.’
That is, the Act requires that violation of a duty the EU does not agree is that of the applicant alone, (and is not detailed in the Act itself) will result in the dismissal of the application, and non-attendance at the appeal hearing must be regarded as evidence that the person who requested the appeal is guilty of fraud, deliberately and maliciously committed, which will also result in the application being dismissed.
In the latter case it is interesting that the government has made even attaining an appeal (an absolute and immediate right under EU and international law) considerably more difficult, yet then effectively admits that it will be convinced that its own law service has acted in error to offer an appeal if a person does not attend a hearing.
Not only is this a curious indication of the Greek government’s lack of faith in its own state’s judicial system, it is also directly counter to not only EU but also international law. UNHCR notes that ‘whether a case is considered ‘manifestly unfounded’ or not depends on the degree of connection between the reason for departure and the definition of refugee’, rather than ‘whether someone attends an appeal hearing’.
Even if a request is believed to be ‘unfounded’, international law demands that it receives a detailed evaluation before it is supported or rejected. Neither international nor EU law accepts as reason to dismiss a claim ‘failure to comply with [undescribed] duties of cooperation’ or failure to appear at an appeal hearing.
Along with removing the automatic right of residence while an appeal is being prepared and heard, the Act also removes the right to work from anyone who had previously been granted a work permit, meaning that an appeal must be is quite literally ‘paid for’ in loss of earnings.
Once again, it is hard to see a single reason why this would be desirable for Greece, except perhaps to make it impossible for some people to make an appeal, thus illegally restricting access to justice in order to reduce the number of refugees in Greece.
Finally, the Act will remove UNHCR representatives from the committees which hear appeals. Instead, those committees will be made up of three Greek Administrative court judges.
Although, as with its other moves such as the already noted ‘certification clause’ it is understandable and predictable that any Greek government might wish to be in ‘control’ of what happens within its own borders, we should note again that governments are not designed to operate refugee responses, and removing experts in doing so risks chaos and in some cases even death.
More directly relevant to appeals on asylum applications, however, it is hard to see how justice can be better served by three people none of whom are experts in international law than it would be to stick with the present system, under which two Greek judges are joined on the panel by a UNHCR representative appointed to bring expertise on international refugee law.
This measure, which actively reduces the expertise of refugee appeal panels, is joined in the Act by a proposal for ‘panels’ on which just one person would sit. The reason given for this is ‘increased efficiency’ (once again, the government appears to be confusing ‘efficiency’, which is an unarguably good thing, with ‘speed’, which is far more debatable) but asylum law should be based not on ‘efficiency’ but ‘justice’. The Act too often appears to have been designed without this in mind.
‘the most likely motive here is to make it harder for people desperate for shelter and security to remain in Greece, in the hope that instead they will leave.’
Not only will the Act remove the right to work for anyone who submits an appeal against a negative response to an asylum request, it will also mean that anyone who registers a request for asylum after 1 January 2020 will be forced to wait six months before receiving a work permit.
It is almost impossible to imagine what advantage this could offer to Greece, as it forces qualified men and women to become progressively poorer and reliant on support from the state and international aid organisations, when they could instead be working, spending money in local businesses and paying taxes into the system.
There is absolutely no denying that unemployment is still a huge problem in Greece, but once again, it is impossible to see how denying people who have not yet even arrived in Greece the right to try to find work is likely to reduce unemployment in the country.
It is also very difficult to understand how this is supposed to benefit refugees, or has any real relevance to the Greek asylum system.
Once again, the most likely motive here is to make it harder for people desperate for shelter and security to remain in Greece, in the hope that instead they will leave.
But doing so is not only a cynical and malicious act against innocent people, it also actively risks losing Greece skilled, motivated men and women, who could be a huge positive and help the Greek economy to recover.
It also risks creating further resentment between Greek people angered at working hard for low wages, or being unable to find work and a perceived ‘lazy’ group of men and women who receive ‘hand-outs’ from the ‘state’ (in fact, from aid organisations, the EU and the UN). The government is deliberately creating a dependent underclass, even as it claims that ‘class’ endangers Greece and Greek people. It is an exceptionally dangerous and irresponsible path to follow.
We should note that people fleeing the real risk of death are unlikely to return to a state devastated by civil war simply because they can’t work for six months: even on its own terms, this is a policy doomed to fail.
11. Unaccompanied children
‘the Act… demands that children, almost none of whom are likely to speak any Greek at all, many of whom will have limited English language skills, and all of whom will at some point have lost their parents and other adult guardians, will be forced to show that they have the legal right to asylum within days – perhaps hours – of crossing the Greek border, or face immediate expulsion.’
A number of other changes in the Act impact directly upon vulnerable people – or at least, those considered vulnerable before the Act stripped them of that status and the protection which goes with it.
We will here directly note those changes in relation to unaccompanied minors because a) they are particularly and indeed specifically affected by some of them and b) to do so is to illustrate that the Act does not seem to be designed to ‘prevent fraudulent claims’ by people ‘pretending’ to be vulnerable, but in fact simply to vastly increase the number of people including children excluded or removed from Greece.
One such alteration to the law is that as of 1 January 2020, anyone wishing to register their intention to apply for asylum in Greece must make a ‘full statement of the reasons for which the applicant seeks international protection,’ in order that the government can decide whether the registration to apply should be approved. If it is denied, the person in question would be denied entry to the asylum system and therefore to Greece.
This is in clear and obvious contradiction of international law and UN guidelines which state that submissions must not be ‘subject to restrictions based on whether the conditions are met on refugee status.'
Not only does the Act make clearly unreasonable demands – that a person arriving in Greece, regardless of their status, should, on the first occasion they express their desire to apply for asylum be able to fully articulate the details of that application in full or face immediate deportation, (in which case, why would we have an asylum process at all?) – it also breaks the law in making them.
And this becomes even more serious when we consider that the Act also contains plans for what it refers to as ‘accelerated border procedures’ or ‘expedited screening procedures’.
The reason we have left this to last is because of how it relates to and indeed draws upon every so many other parts of the Act – to the extent that it may well be that the Act itself has been designed simply to prepare for and justify a system of ‘accelerated border procedures’.
First, in common with many parts of the Act, it suggests that the proposal is being made to ‘increase efficiency’ in the asylum system. In fact, it might increase speed, but to claim that one increases efficiency in an asylum system by breaking international law to prevent people entering it is a little like saying one has improved efficiency at a bank by removing all its cash at gunpoint, meaning a single announcement ‘there’s no money left’ can be made to all other customers, saving both manpower and time.
Second, the ‘accelerated procedure’ will also draw upon concepts of ‘safe states’ and ‘safe third countries’ to justify ‘accelerated deportation’ at border crossing points, rather than after detailed consideration of asylum applications. Which is, of course, against EU and international law.
Simultaneously, people previously regarded as ‘vulnerable’ and so protected from this procedure even in the limited contexts it is allowed, under EU and previous Greek law, to be invoked, are no longer listed as such in the Act, including people who have experienced shipwrecks and unaccompanied children, including those who have been separated from their parents while attempting to reach a country of safety.
Combined with the new demand that anyone wishing to register to be able to apply for asylum must present a ‘full statement of the reasons for which [they seek] international protection’, the Act now demands that children, almost none of whom are likely to speak any Greek at all, many of whom will have limited English language skills, and all of whom will at some point have lost their parents and other adult guardians, will be forced to show that they have the legal right to asylum within days – perhaps hours – of crossing the Greek border, or face immediate expulsion.
Not only does this process break both EU and international law for adults as well as children, it manages to break several laws at once when applied to unaccompanied children, which EU law demands must be granted ‘vulnerable’ status and thus protected from and not subjected to ‘accelerated border procedures’ and must be given protected status on the grounds that they are children, and unaccompanied.
Aside from being a breath-taking proposal, the idea that the Greek government is willing to simply deport lone children is a multiple breach of the law.
The Act also continues to allow the detention of unaccompanied children under so-called ‘protective custody’.
This system is already in operation, with children regularly forced to sleep in police stations, in some cases in cells alongside adults, or in hospitals when police stations are – as is increasingly often the case – full. Of 4,962 documented unaccompanied children in Greece on 31 October, only 1,760 were in accommodation regarded by Unicef and Greece’s National Centre for Social Solidarity (EKKA) as ‘appropriate’.
The vast majority – 3,202 – are in police custody, having committed no crime, island and border detention centres, open temporary accommodation or insecure housing including street sleeping and homelessness.
Unaccompanied children are forced to live in unsanitary conditions, in direct daily contact with adults they do not know, and sometimes in detention, a situation proven to cause serious, long term harm to their development, including depression, PTSD, memory loss and anxiety.
The Act was an opportunity for Nea Dimokratia to show that whatever its general attitude towards adults seeking safety from war, terror, chaos and death, it was committed to protecting and safeguarding children.
Instead, it has chosen to pass a law which perpetuates the worst elements of the previous government’s flawed response to the need of parent and guardian-less youngsters, and in fact worsen the prospects for children requiring safety from bullets, bombs and persecution.
The fact that this Bill would pass into law was never in any real doubt, as Nea Dimokratia has an absolute majority in parliament and several smaller right-wing groups also backed it.
The shockingly short consultation period combined with – and resulting from – a general disinclination on behalf of the government to take expert advice on the new law meant that while several organisations and experts did try hard to comment on and suggest urgent changes to it, their efforts had at best low impact, and were largely ignored.
We can of course note that had we all acted sooner and in a more coordinated fashion in terms of communications and advocacy, we could perhaps have prevented some of the worst elements of this Act ever been drafted, but the circumstances under which it has been passed given the fact we had not done that in advance were designed to ensure the Act passed almost unchanged.
There have been street protests by unions, lawyers and concerned citizens across Greece, but Nea Dimokratia is secure in its position at present, and even Syriza, which was less so, seldom bowed to public protest to an extent that would significantly alter this law in the ways we want and need it to be changed.
One way or another, the Act is now a scheduled piece of law, designed to come into operation on 1 January 2020: beginning a new decade with a piece of regressive, in many ways spiteful, and certainly unlawful under international and EU laws, legislation.
So, as the title of this final section asks: what next?
From a very sector-centric perspective, the first thing we will need to do as organisations is to ensure we know how far we are prepared to use advocacy, to criticise the government but also to be outspoken in a positive way.
There is no organisation which can survive without communicating the reality of the situation in which it works, whether publicly or to a select audience, but beyond that many of us may need to discuss the extent to which we believe we help more by retaining direct access to the men, women and children we work with and for, and how far that can be effective unless we also speak about the situation in which they are expected to live.
For example, we would strongly advise at this point that this law needs to be publicised and discussed at every possible level, and that failure to do so will leave us in a situation where we had the capacity to do something, and decided not to.
But the extent to which you do this and go beyond that must be balanced against the fact that Nea Dimokratia has, with this law, made a claim for control. This was to be expected and is not entirely unreasonable, but it does mean we have to be clear about what we are doing, why, and what the consequences may be – if we don’t speak, at least as much as if we do.
This is, for example, an extremely good time to begin to speak about the positives of Greece having a refugee community: in order to change laws changing opinions is important, and with a law like this one, which seeks to prevent people entering and remove many of those who do so, a break from the relentlessly negative – and false – narrative that refugees are a ‘danger’ and a ‘burden’ for Greece will help to break some of the obsession large parts of the public have with this ‘threat’.
A law which keeps good people out of your country is far less likely to be popular than one which is there to ‘defend the homeland’ from ‘invasion’.
Simultaneously, we need to work with policy- and lawmakers. Here in Greece and in the wider world, certainly up to and including EU-level. Again, this need not be solely about encouraging the EU to take action against Greece for breaking EU law – though there is a clear argument that it must at the very least move to persuade Nea Dimokratia to think again – but also to work with Greece, to help by providing cash for work-based programmes, for example, or to provide extra asylum staff to cope with enormous demand.
We must also remind the EU that every time it refuses to assist Greece, as this week, when Michailis Chrysochoidis revealed that just one of Greece’s 27 fellow EU member states had responded to its call for assistance in resettling unaccompanied children across the bloc, this not only confirms to Nea Dimokratia, but to the Greek public as well that it is correct: refugees are a burden, as proven by the EU’s own refusal to offer safe spaces for people to live, learn and thrive.
In terms of wider international law, the sad truth is that no-one enforces international law: Nea Dimokratia knows this, and this makes this law not just a gamble but a racing certainty that it will get away with breaking it in multiple ways.
This is not the place to talk about developing a UN which has proper powers, and which is not dominated by its nation states, especially the five wealthiest and most powerful – though that should be an international priority, especially in the face of a series of challenges we cannot hope to meet alone.
But what we can do is ensure the international community, from leaders of governments to members of the wider public, are aware of exactly what Nea Dimokratia is setting out to do, and why it is wrong.
We can also use – especially at EU level – the multiple available courts of justice, human rights and adjudication, to challenge every part of the Act, as soon as it enters into law. In this, we can engage our own legal experts, and health professionals, as well as many working outside of the humanitarian sector.
We were too late – in part because we could not be anything else – to stop this law.
But we are in time to help ensure its worst elements are either never enacted, or are ceased almost as soon as they are.
Because while we should not pretend that refugee law, policy and practice were excellent while Syriza was in government –they were far from it – we should also recall that the last time Nea Dimokratia was in power, in 2008, eight of Greece’s 14 fellow EU member states were so horrified by the treatment of innocent men, women and children seeking security and safety in the state that they refused to return anyone there.
There have not really been any ‘good old days’ in Greece or the EU when it comes to providing people seeking a safe place with the bare minimum of what they need. But this law would certainly be a return to its worst days.
Fortunately for us, for Greece and for the people we work with and for, we can do something to prevent that. But we must start now.
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