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  • Writer's pictureRory O'Keeffe, Koraki

Illegal discrimination and detention – the EU and the Greek government on new arrivals

Letters from European Commissioner Ylva Johansson demanding the Greek government stops breaking the law in its treatment of people seeking safety are both encouraging and welcome. But the Commission and EU governments’ plans and activities mean we must do far more to promote and protect human rights.

The European Commission – more specifically the body’s Commissioner for Home Affairs Ylva Johansson – has begun ‘infringement proceedings’, the Commission’s strongest action against EU member states, for what it says is the government’s violation of EU law in its treatment of people seeking asylum.

It is absolutely clear that the Greek government has, consistently, broken, and continues to break, the EU laws the Commission cites, which are:

Not discriminating against people applying for, or who have been granted, asylum, and

Not detaining people on the grounds that they are new arrivals seeking safety.

In two letters to the Greek government, the Commission said:

The government must implement the same social policy for refugees in Greece as for Greeks. (it must) abolish the discrimination within Greek law. Concerns that raise possible violations by Greece of Article 29 par. 1 of Directive 2011/95/EU are related to the rights of beneficiaries of international protection and, in particular, to their access to social assistance after being granted international protection.

They arise in the context of the exchange of views that took place between the European Commission and Greece. The Commission is of the opinion that the explanations given by the Greek authorities in the context of these exchanges of views are not satisfactory. It has therefore decided to initiate infringement proceedings with a warning letter.

The major issue here is that under Greek law, no-one is able to apply for or receive housing assistance, including but not limited to financial help, unless they have lived in Greece for at least five years, which Johansson’s department correctly notes is directly discriminatory against people who have received asylum who are, by definition, unable to request such assistance in their home state.

The Commission further notes that people of pension age without insurance must also have lived in Greece for a certain (variable depending on the form of social security assistance they require) period of time before they qualify, and that:

Greek nationals are more likely to have already resided in Greece… at the time they wish to receive the benefit and are therefore more likely to be able to apply for (assistance) as soon as they need it.... Therefore, the residence criterion... may come mainly to the detriment of beneficiaries of international protection, as they are less likely than nationals to fulfil this requirement.

Johansson’s second letter deals directly with the Greek government’s ongoing policy of detaining new arrivals arbitrarily, which is against EU and international law.

This letter said:

Detention should always be used as a measure of last resort, as has also been repeatedly confirmed by the Court of Justice of the EU… (on Thursday 30 June 2022, the court ruled that the Lithuanian government was breaking the law by attempting to pass legislation allowing it to jail new arrivals simply for entering the country)

In this regard, Articles 8 and 9 of the Directive, in conjunction with Recitals 15 and 20 of that Directive, significantly limit the power of Member States to detain a person… The Commission considers that the provisions of Article 40 of (Greek) Law 4939/2022 (the government’s most recent ‘refugee law’, which claims to allow the government to detain people on arrival for at least five days) do not comply with the requirements of Articles 8 and 9 of the Directive.

The detention of (asylum) applicants should be implemented in accordance with the basic principle that a person should not be detained simply because he seeks international protection, in particular in accordance with the international legal obligations of states -members and Article 31 of the Geneva Convention.

Detention of applicants should only be possible in clearly defined, exceptional circumstances provided for in this Directive and governed by the principle of necessity and proportionality as regards both the manner and purpose of said detention.

Further, Law 4939/2022 violates or at best incorrectly interprets the Directive in relation to the detention of unaccompanied minors and vulnerable groups.

In effect, the Commission has told the Greek government that it is – as we have long been arguing – breaking both EU and international law on the matter of its treatment of both applicants for and people granted asylum, and warned it that unless it can either prove it is not doing so, or ceases to do so, it will face punishment.

To an extent, this is genuinely good news. The EU and the International Criminal Court are realistically our only hopes of encouraging or forcing the Greek government to obey the law and treat people with decency and respect (the former is a requirement, the latter should not need to be) and if the Commission is serious about its position here we should welcome that.

But there are some conditions we must note.

The first is that the ‘closed camps’ – so far in operation on Kos, Leros and Samos, and with two more to be opened on Chios and Lesvos – were specifically ruled out by Johansson in September 2020, when in the wake of the Moria fire she said: ‘The EU will never fund closed camps.

In fact, these jails – enclosed in high walls, barbed wire, and with security cameras monitoring their ‘inhabitants’ from every angle – from which residents are allowed to leave only with the permission of armed guards, and even then only if they have biometric ID cards, which take several weeks, in some cases to arrive, and which are stripped from anyone who is refused asylum, have been completely paid for by the EU, which has handed the Greek government €280m to build them.

It is a little hard to understand how a body which ‘opposes detention of people seeking asylum’ can be the same one which funded the building of five jails for people seeking asylum.

The second is that this process is likely to take a long time, and during it there are likely to be attempts to intervene by, for example, the European People’s Party, of which Nea Dimokratia is a member and whose leader Manfred Weber on Monday (6 February 2023) congratulated Greece’s Migration Minister Notis Mitarachis for his ‘good work’ on ‘regularising the migration problem’ he claimed the EU had been facing, and claimed that building a wall to illegally prevent people entering to apply for asylum should be eligible for EU funding.

Another person almost certain to attempt to derail or at the very least slow and mitigate against any punishment for Nea Dimokratia’s violation of international and EU law is the hopelessly compromised EU Commission Vice President Margaritis Schinas, who is both a member of Nea Dimokratia and Johansson’s direct boss.

In other words, even to the extent that Johansson’s words are sincere and potentially effective, they have changed and will change nothing unless we continue to push for them to be acted upon.

And the Greek government and its representatives have made their position very clear, with one ‘source’ at Greece’s Migration Ministry telling Efimerida ton Syntakton (Greece) that: ‘Our opinion is that Greek legislation is harmonised with European Law,’ which is either a transparent lie or a statement that the government does not recognise European law at all.

Indeed, in relation to the camp proposed at Vastria, Lesvos (on which construction has already begun) Mytilene’s mayor Stratis Kytelis stated at a meeting of the Mytilene council on Friday 29 January 2023 (at which the council – Lesvos’ largest elected body – ruled that an environmental report claiming the prison’s location was safe and appropriate was incorrect, and carried out in violation of regulations covering site analysis and evaluation: despite this, the council has no power to stop the prison’s construction, meaning the Greek government is not only building yet another prison to illegally detain innocent men, women and children, but that the prison is likely not even to meet the minimum safety standards required under Greek law) that he deliberately went against public wishes and demands on attaining his post, saying:

They (the people of the island) said we love immigrants, we want them in the city, but we were of the opinion that Greece must guard its borders. We lobbied for the closure of PIKPA.

In the clearest statement of the government’s position, he added:

We won't have (new arrivals) in Sapphos Square, as you wish. We will have them locked up in prison.

And we must note that even those we might hope could help encourage the Greek government to do its absolute minimum legal duty regarding people seeking safe places to live, learn and work – including Ylva Johansson herself – are far from unequivocal about the issue.

In a statement on Thursday 2 February, Johansson told journalists in the ‘European News Room’ that she opposed the building of walls on EU borders, and that the EU ‘will not fund’ the building of walls (which as we noted she said about ‘closed camps’ in September 2020, before the EU handed the Greek government €280m to build five of them), but she added that this was because they ‘are not effective’, rather than that it is illegal to prevent people from applying for asylum.

Even worse, she said that the Commission ‘cannot punish’ EU member states for building walls (it cannot, but as she knows only too well it can punish them for breaking EU and international law by denying people the chance to apply for asylum) and that the way to ‘discourage’ states from doing so would be to deport more people.

She went on to claim that the majority of people arriving in Europe are now from Bangladesh, Georgia and Türkiye and were therefore not ‘fleeing war or persecution’.

One cannot deduce the latter from the former, either by logic or by law: in fact, the law very clearly states that one cannot deny someone asylum without first considering their individual application because one cannot say someone is not fleeing persecution simply on the grounds of the state they were born in.

And in any case not only is it far from clear (even if one discounts the roughly seven million Ukrainian people who have entered the EU since Russia invaded the state for the third time in eight years on Thursday 24 February 2022) that the ‘majority’ of people entering the EU are doing so from those countries – far less that they originated in Türkiye, a state which has a well-publicised record of persecution of its Kurdish population, and denies Afghan and Iraqi people even temporary protection because it is not a signatory to the Refugee Protocols of 1967 which widens the rights of people fleeing persecution to include people not from Europe – it also is absolutely clear that this is not true in Greece, the country whose government is currently demanding EU cash to build a border wall.

And this is Johansson, on whom we are forced to rely as the ‘reasonable face’ of the Commission’s increasingly vicious policy on people arriving in the EU.

The Commission’s President, Ursula von der Leyen, a woman who is happy to have Nea Dimokratia’s Schinas as her Vice President in charge of Migration matters, and who claimed in early March 2021 that on matters of people movement Greece is ‘our shield’, announced on Sunday 1 January 2023 that the Commission’s four-point plan to ‘deal with’ ‘migration’ (a choice of words that itself indicates the attitude of the Commission and its president) is to:

1. Bolster the Bulgarian-Turkish border (and) prevent smugglers

2. Increase repatriations

3. Prevent asylum seekers from moving between EU states

4. Support partner states

In order, the problems with this plan are that:

1 is illegal if it prevents even one person from entering the EU to apply for asylum (it is also worth noting – again – that whatever their moral character, the vast majority of people making it possible for men, women and children to enter the EU very simply are not smugglers)

2 could only be legal if every one of the people ‘repatriated’ has been given the opportunity to apply for asylum, and had their application properly and carefully assessed – a process which seems quite unlikely in an environment in which the Commission president refers to a ‘migration situation’ and proposes ‘strengthening borders’ as its ‘solution’.

3 is utterly illegal under any and all circumstance. International law is absolutely clear that any person has the right to travel to any country to apply for asylum, and denying people who are seeking safe places to live, learn and work the right to travel to do so is the clearest possible violation of this law and this human right. The EU cannot simply pretend to be a united state when it comes to people seeking asylum, but refuse to do so in every other situation.

It will also, of course, place a greater responsibility on precisely the border states – Greece, Poland, Lithuania, Spain and Italy – which have most viciously and seriously broken the law and every code of common decency regarding new arrivals, in the last five years. It is impossible von der Leyen, who wants ‘more repatriations’ does not realise that she is handing those states, which most need to be reined in and instructed to behave legally and with decency, the excuse to behave even worse than they have already done.

And 4 could be reasonable, if it were not in fact a statement that the Commission wishes to hand states including Türkiye more cash, weapons, manpower and hardware to break international law by preventing people from leaving.

It is hard to see how the EU – the wealthiest political entity in the history of the planet – can be so scared of, or so moved to hatred by, a relatively small number (the EU has 448m residents) of tired, cold and hungry people, who simply wish to be allowed to live, study and work in relative peace and security.

But this does seem to be where we are.

As a result, while Johansson’s letters might represent a step towards a better EU, the bloc’s general direction of travel (including that of the Greek government) is increasingly towards greater barbarism.

This is far from a moment to stop highlighting the atrocities and outrages being carried out at the EU’s borders: the Commission plans worse, under the pretence that the EU cannot stand for, or even obey, international law. It is an unacceptable position.


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