PRESS RELEASE- Online Seminar “Asylum and Refugee Law: Recent European Developments”
1st Meeting: “International Protection of Refugees”
On Thursday 27 April 2023, the Jean Monnet European Center of Excellence of the National and Kapodistrian University of Athens held via the Webex platform the first meeting of the online seminar “Asylum and Refugee Law: Recent European Developments”. The specific theme treated in this meeting was the “International Protection of Refugees”.
The meeting was coordinated by Mr. Ioannis Stribis, Assistant Professor at the University of the Aegean, and Scientific Director at the Jean Monnet European Center of Excellence of the University of Athens. Prof.. Stribis first welcomed the speakers and attendees to the meeting, and then gave an overview of the Jean Monnet Center’s more-than-twenty-year history.
The first speaker, Mr. Vassilis Avdis, Legal Adviser to the UNHCR Office in Greece, delved into the subject of refugee status determination, with reference to the legal framework as well as to the clauses pertaining to granting, cessation and exclusion from the refugee status by virtue of the 1951 Geneva Convention. He first made a presentation of the UNHCR and its Mandate, i.e., its competency as a subsidiary UN Organ, which includes the protection of asylum seekers, refugees, stateless and internally displaced persons, and returnees. In outlining the 1951 Convention, the speaker made special mention of the therein optional geographic “within Europe” and time-based “before 1 January 1951” limitations, which were removed by the 1967 New York Protocol. The Convention defines the term “refugee”, their rights, applicable law and state obligations, and in particular the fundamental obligation of non-refoulement. However, the Convention does not set concrete rules on the procedure of examination of asylum demands and recognition of refugees, whose determination lies with the state. Mr. Avdis explained the criteria for a person to be recognized as a refugee, as well as the circumstances that, if present, exclude a person from international protection, either because the person is not in need of it, or because is not worthy of it. He furthermore analyzed the conditions to be met in order for a person to qualify for subsidiary protection, in case that requirements for refugee status are not satisfied. In the EU, in particular, such cases are covered by Directive 2011/1995 art. 2(f). Last, Mr. Avdis succinctly presented the Greek legislative framework as regards international protection, and the main stages of the asylum procedure in the Greek legal order.
The second speaker, Ms. Lydia-Maria Bolani, Senior Protection Associate at the UNHCR Office in Greece, examined the subject of rights of recognized refugees. She began with an overall presentation of the international, EU and Greek legislation that set out the rights of beneficiaries of international protection -namely, refugees and beneficiaries of subsidiary protection. More particularly, she presented the procedure of issuing a residence permit, and the frequently arising practical problems. She also elaborated on the right to family unity, from which emanates the derivative status of the family members of the recognized refugee, who are not eligible for the refugee status themselves. In order to preserve family unity, family members are provided with permits valid for the same period of time as the asylum card. The speaker also touched on the rights to work, access to accommodation, social welfare, health, education, administrative assistance and family reunification -with the latter applying in Greece only to refugees and not to beneficiaries of subsidiary protection. Ms. Bolani presented the relevant legal texts, and gave concrete examples of the practical difficulties beneficiaries of international protection are faced with when trying to exercise the above rights. Furthermore, the speaker explained how these rights, seen from both a legal and practical perspective, are directly related with the heated debate over secondary movements from Greece towards other EU Member States. To close with, the speaker briefly presented the status of temporary protection granted to refugees from Ukraine by virtue of Directive 2001/55, that was first implemented in 2022.
The discussion that followed was coordinated by Professor Stribis.
2nd Meeting: “The Common European Asylum System (CEAS): Establishment, Development, Law in effect”
On Thursday 4 May 2023 the Jean Monnet European Center of Excellence of the National and Kapodistrian University of Athens held the second meeting of the online seminar “Asylum and Refugee Law: Recent European Developments”. The specific subject treated in this session was “The Common European Asylum System (CEAS): Establishment, Development, Law in effect”.
The discussion was coordinated by Mr Ioannis Stribis, Assistant Professor at the University of the Aegean, and Scientific Director at the Jean Monnet European Center of Excellence of the University of Athens. Mr. Stribis first welcomed the speakers and attendees to the meeting, and then made a short introduction to the theme.
The first speaker, Mr Manolis Perakis, Associate Professor at the Law School of the University of Athens, and member of the Board of the Jean Monnet Center, treated the specific topic of the EU – Turkey Joint Statement of 18 March 2016. He began by expressing doubt as to whether the Statement is a legally binding instrument, while stressing the fact that it still applies to EU – Turkey relations
insofar migration is concerned. He continued with an overview of the events that led to the Statement, thus shedding light on its rationale and underlying logic (civil war in Syria that only in 2015-2016 generated 5 million refugees, of which 1 million arrived in Greece via Turkey). Prof. Perakis explained the Statement’s content and analyzed its legal issues, with an emphasis on its legal nature. The
Statement is not a legally binding international agreement binding the EU, a conclusion also reached by the European Parliament’s Legal Service, the General Court and the Court of Justice of the EU (ECJ). The speaker also elaborated on the issue of Turkey as a “safe third country” and in relation with Directive 2013/32/EU, by virtue of which the Geneva Convention was incorporated into EU law. More
particularly, Prof. Perakis examined whether Turkey can qualify as a “safe third country” according to the minimum standards set by the above Directive. There are reasonable doubts as to Turkey’s characterization as a “safe third country”, despite the European Council and European Commission’s strong stance that Turkey is a “safe third country”. Next, the speaker highlighted the problems of
practical nature in implementing the Statement, such as the technical deficiencies, the distribution of refugees among Member States under the “one for one” arrangement, and Turkey’s manipulations in order to extort benefits from the EU. Furthermore, Prof. Perakis gave examples of how the Statement is treated in Greek case-law, and in judgments of the Greek Council of State in particular. Lastly, after exemplifying the implementation of the EU – Turkey Joint Statement in numbers of (two-way) returned
asylum seekers, the speaker asked the critical question if the Statement has been effective in deed, and if it brought about the intended change, notwithstanding its legal and real defects.
The second speaker, Dr Anastasios Brakatsoulas, Ph.D. in European Law and postdoctoral researcher at the Law School of the University of Athens, presented the timeline of the development of the CEAS, and analyzed its legal principles. The first phase of the development of a common asylum system, that preceded the CEAS, covered the efforts to jointly regulate the asylum matters from 1990 with the Convention determining the State responsible for examining applications for asylum lodged in one of
the Member States of the -then- European Communities (“Dublin I”), and the Treaty of Maastricht in 1992, until the Amsterdam Treaty in 1997(1999). The second phase of the CEAS begins in 1999 with the Conclusions of the Tampere European Council, is continued with the EU Charter of Fundamental Rights in 2000, Dublin II and six Directives in 2003, and ends in 2005 with the Hague Programme for 2004-2009. The landmarks of the CEAS third phase, that extends up to the present, are the Lisbon Treaty in 2007, the Stockholm Programme in 2009, the Commission’s Proposals on the New Pact on Migration and Asylum in 2020, and the 2019-2024 EU Strategic Agenda. Dr Brakatsoulas presented the fundamental legal principles of the CEAS, as per Articles 77-85 of the TFEU: shared competence
between the EU and the Member States; ordinary legislative procedure for adopting relevant legislation; full competence of the ECJ to render rulings on matters pertaining to the Area of Freedom, Security and Justice; and the principles of subsidiarity and proportionality. The speaker then gave an overview of the legal framework of the asylum system [Articles 3, 67(2), 78, 79(1) TEU, 80 TFEU,
Protocol No 24 to the TEU], and an outline of Articles 18 and 19 of the EU Charter of Fundamental Rights. He closed his speech with a succinct presentation of some ‘meta-legal’ concepts, such as those of ‘population’ and ‘territory’, of the ‘rights-holder’ and of ‘freedom vs security’.
The third speaker, Ms Koralia Kontou, Project Manager in the European Commission DG of Migration
and Home Affairs, Lawyer, discussed the state of affairs of the CEAS, and in particular three Directives and two Regulations. She first presented a flow chart of the stages of the asylum procedure, which begins with the collection of fingerprints for Eurodac, and ends with the interview in order for refugee or subsidiary protection status to be granted. Ms Kontou then presented Directive 2013/32/EU (recast)
on common procedures for granting and withdrawing international protection, which clarifies and facilitates asylum application procedures compared to the previous Directive, and which foresees more favourable conditions for asylum seekers that belong to vulnerable groups, and especially for unaccompanied minors and victims of torture. Furthermore, Ms Kontou analyzed Directive 2013/33/EU (recast) laying down standards for the reception of applicants for international protection, according to
which, while the asylum decision is pending, applicants should be offered accommodation, health and psychological care and employment. Ms Kontou also highlighted the important provision that applicants may be detained only under very clearly defined exceptional circumstances subject to the principles of necessity and proportionality. Additionally, the speaker analyzed the Directive
2011/95/EU (recast) on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection. This is considered as the most important revised Directive, because its main objective is to ensure that beneficiaries of subsidiary protection are granted the same rights and benefits as those enjoyed by refugees, and that the best interests of the child are taken into consideration during the asylum procedure. Ms Kontou also examined the Dublin III Regulation
(2013/604) (recast) which establishes the criteria for the determination of the member state responsible for examining an asylum application. More specifically, Dublin III defines, among others,that the responsible member state shall be determined on the basis of any available evidence regarding the presence of family members of the applicant, on the territory of that member state. In
concluding her speech, she presented the Eurodac Regulation (2014/603) which established a central database in which the fingerprint data of all asylum seekers in the EU are stored, and regulated the conditions under which the member states’ competent authorities and the Europol may request the comparison of fingerprint data with those stored in Eurodac for law enforcement purposes.
The discussion that followed was coordinated by Professor Stribis.
3rd Meeting: “The New Pact on Migration and Asylum – Armed conflict in Ukraine and developments in Asylum Law”
On Thursday 11 May 2023 the Jean Monnet European Center of Excellence of the National and Kapodistrian University of Athens held via the Webex platform the third meeting of the online seminar “Asylum and Refugee Law: Recent European Developments”. The specific theme treated in this session was “The New Pact on Migration and Asylum – Armed conflict in Ukraine and developments in Asylum Law”.
The discussion was coordinated by Ms Revekka – Emmanouela Papadopoulou, Associate Professor at the Law School of the University of Athens, and member of the Board of the Jean Monnet European Center of Excellence of the University of Athens. Ms Papadopoulou first welcomed the speakers and attendees to the meeting, and then made a short introduction to the theme.
The first speaker, Ms Metaxia Kouskouna, Associate Professor at the Law School of the University of Athens, and Executive Vice-President of the Jean Monnet Center, presented the developments in the Common European Asylum System (CEAS) from 2015 until the New Pact on Migration and Asylum (NPMA) in 2020. She remarked that the EU has been severely criticized over its handling of the 2015 crisis. What is more, the underlying disagreement among member states on matters of asylum, migration and control of the external border has come to the surface, notwithstanding the fact that it is precisely in these fields where solidarity -which holds a prominent place in the Area of Freedom Security and Justice (AFSJ)- is exemplified. Thus, the deficiencies of the legal framework became evident, hence the need to reform it.
The European Commission, as early as in September 2015, had already presented its -eventually unsuccessful- Proposal for the reform of the Dublin III Regulation. The issue was revisited in 2016 with a comprehensive proposal, comprising this time the reform of not only the Dublin system, but of the whole package of the CEAS legislative measures. Same as the previous one, the Proposal was not adopted. The 2016 revision comprised another two Proposals: one for the amendment of the Eurodac Regulation, and one for the replacement of the EASO by the upgraded EUAA, also invested with a broader mandate. The latter Proposal was adopted by means of the 2021/2303 Regulation. The speaker, after examining the particular measures of each one of the above Proposals, highlighted their overarching aim that has so far remained unattainable: reforming the CEAS in its entirety.
Next, Ms Kouskouna focused on the three main legal instruments of the NPMA. All three are Proposals for Regulations. The Proposal for a Regulation on asylum and migration management is the core of the Pact. The speaker presented the criteria for determining the member state responsible for examining an application for international protection, as well as the solidarity measures in times of migratory pressures and disembarkations following search and rescue (SAR) operations. The second Proposal introduces a mandatory screening of third-country nationals at the external borders. The third text is the Proposal for a Regulation addressing situations of crisis and force majeure.
The speaker made special mention of the Russian invasion of Ukraine on 24 February 2022 and the activation of the until then dormant 2001 Directive, by virtue of which Ukrainians were granted the temporary (initially one-year) protection status, already extended by one more year.
Ms Kouskouna also presented an interesting Proposal which is not included in the NPMA: a Proposal for a Regulation addressing situations of instrumentalisation in the field of migration and asylum. It is a tool and a response to the instrumentalization of humans by the Belarusian regime. Despite the fact that it mainly concerns and makes part of the amendment of the Schengen Borders Code (SBC), the speaker maintained that it should be considered in tandem with the Proposals for the NPMA.
In assessing the NPMA, Prof. Kouskouna said that the Proposals are similar to the 2016 ones, but the fact that they were presented as a whole makes the negotiation all the more difficult. She furthermore stressed that the Pact has failed to strike a balance in respect of solidarity, as the countries at the external EU border are rendered responsible for carrying out additional procedures, such as the screening one with all its subsequent problems, while the solidarity provisions include too many exceptions of which the other member states can make use, and are often optional. Prof. Kouskouna concluded that one can but await as to what will become of the Proposals.
The second speaker, Dr Markos Papakonstantis, Ph.D. in Law, Université Nancy II, Attorney-at-Law, delved into the solidarity principle in the AFSJ. He first gave a brief overview of the Dublin Regulation: in 1990 the inter-state Dublin Convention was signed outside the -then- European Community framework. Later, it was given the name Dublin I, and was revised in 2003 during the Greek Presidency.
In respect of solidarity, the way in which the principle materialized in 2015-16, was inferior to what Greece would have expected from its EU partners. The reasons are the absence of a strong European identity, the crisis that shakes the European integration endeavour, the increase of intergovernmentalism at the expense of supranationalism, and the securitization of asylum policy by certain member states.
Dr Papakonstantis raised the question whether the notion of EU solidarity is concretized in the Treaties. In the Treaty on European Union (TEU), it is regarded as an obligation (e.g., art. 1 and 2, EU Charter of Fundamental Rights). Conversely, in the Treaty on the Functioning of the European Union (TFEU) it is an externalized behaviour, that is to say, member states should act accordingly. If one tried to -arbitrarily to a certain extent- identify the characteristics of solidarity as they appear in the corpus of EU texts, one would say that it is general, open, evolving and dynamic. This is because the legislator did not want to specify its modes and content, but favoured its ad hoc definition as an outcome of negotiations each time taking place among member states. In sum, solidarity is open and everchanging.
The Common Foreign and Security Policy (CFSP) and the policy on civil protection and counter-terrorism are two instances in which the notion of solidarity is exemplified. The CFSP explicitly introduces a mutual defence clause whereby if a member state is the victim of armed aggression on its territory, the other member states have an obligation to aid and assist it by all the means in their power -of course, it is a general and rather vague solidarity that the clause sets forth. By contrast, art. 222 TFEU determines more specific forms of solidarity, if a member state is the object of a terrorist attack or the victim of a natural or man-made disaster. These forms can be defined in secondary law, but it will be member states that will specify their details.
Furthermore, Dr Papakonstantis holds the view that, given the difficulties (unanimity in the European Council, ratification, potential referenda) for the revision of the Treaties, there will be no change as regards migration and asylum. However, and due to the fact that the issue of the evolution of the EU is pressing and requires the revision of the Treaties, the discussion is also about how migration and asylum issues can be resolved on a permanent basis, independently from member states’ will. Dr Papakonstantis appeared pessimistic as to whether the general discussion will pave the way for negotiation, let alone the discussion about migration and asylum.
The speaker also touched on Greece’s demographic decline, as opposed to third countries’ demographic growth, as well as on climate refugees. Of course, international law does not give a definition of climate refugees, because recognition of the status means conferring rights upon the persons. Dr Papakonstantis predicted that Greece will be faced with this issue in the future.
The speaker commented that the Screening Regulation is a display of EU hypocricy: it provides for the relocation in EU mainland of those who can be recognized as refugees, while those who do not qualify for the status, will remain in Greece awaiting return. This pretentious solidarity towards Greece will be serving as a window dressing of the hypocricy underneath, concluded Dr Papakonstantis.
The third speaker, Ms Chryssi Tsirogianni, Lawyer, EUAA, Researcher at the Jean Monnet European Center of Excellence of the University of Athens, made a presentation of the role of the European Union Agency for Asylum (EUAA) in the NPMA in her capacity as legal officer of the Agency. The latter is under the European Commission, and does not take part in the negotiations for the NPMA. Regulation 2021/2303, by force of which the EUAA was founded, is the only of the Commission’s Proposals that has been adopted so far. The Agency is now vested with a broader mandate, in relation to its predecessor, the European Asylum Support Office (EASO):
– The new mandate facilitates the quick deployment of operational aid towards member states.
– Apart from the asylum support teams, the Agency now also has an asylum reserve pool amounting to a minimum of 500 experts/national officials from member states.
– The position of fundamental rights officer, enjoying independence, was created.
– The Agency engages in close dialogue with civil society through an independent consultative forum. In this body participate relevant civil society organizations operating in the field of asylum.
– The EUAA is linked to the European External Action Service (EEAS): the new Regulation provides on the appointment of liaison officers in member states but also in third countries for the furtherance of cooperation and the promotion of EU norms and standards on asylum in these countries.
– A complaints mechanism has been established to examine grievances by those who consider that their fundamental rights have been violated due to the Agency’s actions.
– A monitoring mechanism is being set up (expected to be operable in late 2023, provided a certain level of political consensus on the NPMA Proposals is reached). The operational and technical application of the CEAS will thus be monitored, in order for possible shortcomings in the asylum and reception systems of the member states to be prevented or identified, with a view to a more harmonized common system.
If the Asylum Procedures Regulation is finally adopted, the Agency will provide training to member states’ experts. As far as the border procedure is concerned, the Agency will provide them with guidance notes and information on countries of origin. In relation to the Regulation on asylum and migration management, in the framework of which the proposed solidarity mechanism will mainly be effectuated, the EUAA will be actively contributing by means of regularly updated reports and information analysis. These documents will be used for designing a European Asylum and Migration Management Strategy.
Overall, in the NPMA the EUAA functions on three levels: operational, data and legal. At the operational level, the Agency will provide member states with operational and technical assistance and staff. At the data level, by virtue of its founding Regulation and according to the proposed NPMA, the EUAA provides information and data on migratory flows. At the legal level, and as an educational hub, it offers specialized and reliable knowledge on the European asylum system to member states’ officials.
Last, Ms Tsiorgianni emphasized that cooperation among organs and institutions is one of the NPMA’s main principles. For instance, the NPMA specifically provides on the close cooperation between the EUAA and Frontex.
The discussion that followed was coordinated by Professor Papadopoulou.
4th Meeting: “International Protection Law – Asylum and Subsidiary Protection: application to special groups”
On Thursday 18 May 2023 the Jean Monnet European Center of Excellence of the National and Kapodistrian University of Athens held via the Webex platform the third meeting of the online seminar “Asylum and Refugee Law: Recent European Developments”. The specific theme treated in this meeting was “International Protection Law – asylum and subsidiary protection with regard to special groups”.
The meeting was coordinated by Dr Ioannis Kourtis, Ph.D. in European Law and postdoctoral researcher at the Law School of the University of Athens. Dr Kourtis first welcomed the speakers and attendees to the meeting, and then made a short introduction to the meeting’s subject.
The first speaker, Ms Chrysafo Tsouka, Associate Professor at the Law School of the University of Athens, examined the subject of the protection of the stateless persons -a vulnerable group that, due to the fact that they are not protected by any state, are in need of special protection. The 1954 UN Convention relating to the Status of Stateless Persons is the principal legal instrument whereby the definition of a “stateless person” is given: the term means a person who is not considered as a national by any state under the operation of its law. Ms Tsouka emphasized that the protection of these persons is an important international obligation. The 1954 Convention establishes a framework for the international protection of stateless persons, while other legal instruments -such as the 1961 UN Convention on the Reduction of Statelessness, the 1997 Council of Europe Convention on Nationality and the 1989 UN Convention on the Rights of the Child- set forth rules for the national lawmaker as to how nationality should be acquired and lost with a view to prevent statelessness.
Apart from the aforedescribed de jure stateless persons, whose status is regulated by the 1954 Convention, there exist the de facto ones, namely, persons who are formally considered to be nationals of a state, but in essence do not enjoy the protection and assistance of its authorities. In the relevant discussion about this type of statelessness it has been maintained that the de facto stateless persons should also fall under the 1954 Convention.
The Convention enshrines a wide array of rights that stateless persons shall enjoy, covering their personal situation and social protection, and ensuring their employability. It furthermore introduces administrative measures, such as the issuance of identity and travel documents by the contracting states, and the prohibition of expulsion, which are prerequisites for the actual enjoyment of the rights. The right of stateless persons to lawful residence is not explicitly enshrined in the Convention. Prof. Tsouka expressed the view that, notwithstanding the silence of the text, this right should be recognized for two reasons: a real and a legal one. Firstly, without the right to lawful residence, stateless persons are in danger of becoming a roving population, thus rendering the protection from the Convention a dead letter. Secondly, from a legal point of view, the recognition and implementation of the rights provided by the Convention will be impossible to materialize. However, as the speaker suggested, the right to lawful residence is tacitly implied in the prohibition of expulsion, which is expressly recognized in the Convention.
The rights from the 1954 Convention are complemented by more recent legal provisions, the most prominent of which are those of the Council of Europe Convention on Human Rights. The main obstacle to the effective implementation of the 1954 Convention is that neither the latter nor the 1951 Geneva Convention on refugees provide for a statelessness determination procedure. And, while the refugee Convention is complemented by a plethora of national and EU laws on the criteria for international protection, the majority of states do not have legislation for stateless persons in place. The fact that there is no such procedure means that the 1954 Convention cannot be implemented. Consequently, the status of the stateless persons should be determined by either migration or international protection law. This does not mean that all stateless persons could be recognized as beneficiaries of international protection, because statelessness does not always result from fear of persecution, while the criteria for migrants are much stricter than those for beneficiaries of international protection or stateless persons. Therefore, the absence of a statelessness determination procedure runs counter to the implementation of the 1954 Convention.
Despite the fact that Greece has not ratified the 1961 UN Convention on the Reduction of Statelessness, Greek law prevents statelessness from occurring. The most important legal provision is that jus sanguinis is complemented by jus soli, meaning that, children who are born on Greek soil and do not acquire citizenship of any other state at birth, they acquire the Greek one. However, the fact that there is no statelessness determination procedure under Greek law, results in the non implementation of the 1954 Convention, in spite of the fact that Greece has ratified it. A positive step has been taken with art. 26a of the Code of Greek Citizenship which foresees the determination of statelessness of those who apply for citizenship by naturalisation. In the same vein, art. 5d requires a 3-year lawful residence in Greece, instead of a 7-year one required for non-stateless persons who wish to be naturalised. The speaker remarked that the mere announcement of the determination procedure in art. 26a is not supplemented by any other legal provision, and does not cover all stateless persons, but only those who apply for Greek citizenship by naturalisation.
Professor Tsouka made a negative assessment of the Greek legislative framework in respect of the above issues because, as a result of the standing provisions, the 1954 Convention is not implemented, while the provisions per se contravene the spirit of international law that stateless persons should be protected in their own right and not as refugees or migrants, notwithstanding the fact that the status of international protection takes precedence over statelessness. However, in cases where the international protection criteria are not met, problems arise due to the lack of effective procedure for the determination of statelessness. In this manner, the international legal instrument on the protection of stateless persons is rendered void. In closing her presentation, Prof. Tsouka suggested ways to overcome the problem: the Greek lawmaker could draw inspiration from EU legislation and the UNHCR Handbook for the interpretation and implementation of the 1954 Convention.
The second speaker, Dr Fedon Varesis, Ph.D. in Law and postdoctoral researcher at the Law School of the University of Athens, delved into how children are protected within the legal framework of international protection. He first presented the general principles of child protection at the international level. The most important legal instrument is the 1989 UN Convention on the Rights of the Child (CRC), ratified by Greece by Law 2101/1992. It regulates state obligations in relation to the protection and promotion of the rights of the child, such as the right to a name, a nationality, identity, family relations, family reunification and the right to know and be cared for by his or her parents. In addition to the above, the CRC imposes on states the obligation to protect children from abduction, deprivation of liberty (arrest, detention or imprisonment), maltreatement, child labour, trafficking and other forms of exploitation and violence. It furthermore establishes the right to education, social welfare and private life. The key notion of the CRC is the best interests of the child (art. 3), which includes the enjoyment of rights provided not only by the Convention, but also by other legal texts on human rights, e.g., the Convention on the Rights of Persons with Disabilities, which foresees (art. 7) state obligation to take all necessary measures for the full enjoyment of rights by children with disabilities, the 1951 UN Convention on Refugees and the Council of Europe Convention on Human Rights.
As far as primary EU law is concerned, the protection of the rights of the child is among the aims of the EU (art. 3 TEU), while the Charter of Fundamental Rights (CFR) contains detailed provisions on children’s rights (e.g., right to receive free compulsory education, prohibition of age discrimination and child labour). The Charter reiterates the fundamental principles on the rights of the child, such as the freedom of expression, the best interest of the child and the right to maintain a personal relationship and direct contact with both his or her parents. Secondary EU law comprises legislation on children’s data, asylum and migration and judicial cooperation in civil and criminal matters.
The inherent vulnerability of the child is aggravated in situations of armed conflict, migration or lack of a guardian, which are likely to lead children to marginalization and exclusion from the enjoyment of their rights. When the child is an asylum seeker, international protection is granted whether unaccompanied or accompanied, because a child is vulnerable by definition. Regarding the substantive aspects of child protection in international protection law, art. 22 of the Geneva Convention recognizes the right to education. It does not make mention of the principles of family unity and reunification with respect to children that are family members of a refugee, but the Final Act of the Conference urges governments to take all necessary measures towards the protection of the refugees’ families.
EU law, and especially secondary and the CEAS, abounds with provisions on international protection. Greek Codified Law 4939/2022 incorporates many of these provisions, including those on vulnerable groups in general and children in particular. The protection of children in precarious conditions is concretized in the guarantee that, notwithstanding the precarity, children will fully enjoy their rights. Instances of substantive protection are the principles of non discrimination, enshrined in the CRC and the Council of Europe Convention on Human Rights, and family protection and child reunification with his/her parents, laid down in the Dublin III Regulation. The best interests of the child, enshrined in the CRC, is expessis verbis proclaimed in the Greek Codified Law 4939/2022 as well, and is exemplified in the provisions on reception (access to education by admission to primary and secondary school units, access to healthcare and social services). Another substantive aspect is protection from violence, abuse, ill-treatement and exploitation, proclaimed in both the CRC and the Council of Europe Convention on Human Rights.
The procedural aspects of protection are the specific procedural guarantees that are necessary because of the inherent vulnerability of the child. They refer to the procedure to be followed in the framework of international protection. Firstly, the procedure must be adapted to the child’s special needs, and all relevant information must be child-friendly (Directive on international protection procedures and Greek Code on reception – Law 4939/2022). The latter also refers to unaccompanied and separated minors, who must be placed under the supervision of an adult member of the child’s extended family, if the child’s best interest is thus served, or under legal guardianship (art. 66), while they must be legally represented by specially appointed guardians. Furthermore, the reception conditions Directive explicitly defines that the age assessment process must be accurate, reliable and be conducted in full respect of the child’s dignity and private life. Also, the provisions of the Asylum Regulation and Dublin III Regulation on safe third countries and safe countries of origin must be implemented and interpreted with a view to ensuring children’s rights as well as their best interests.
Dr Varesis then presented the procedural aspect of protection that he considers the most important one, but whose ramifications are of substance as well: the obligation of states that arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time (art. 66 of the Greek Code on reception). Alternative measures must be sought (supervised release, open reception centers, placement with host families). In case of detention, conditions must comply with international standards and ensure the enjoyment of the widely accepted and recognized rights of the child.
In concluding his speech, Dr Varesis once more emphasized the utmost importance of the strict observance of the provisions on the rights of the child in the field of international protection because of his/her vulnerability and especially in precarious conditions. The legal texts (international, EU, national) establish a comprehensive framework for children’s rights in general and in international protection in particular. It is of vital importance that states fully abide by these texts.
The third speaker, Ms Sophia Zisakou, Attorney-at-Law, Ph.D. candidate in Sociology of Law, Lund University, examined the asylum procedure from the angle of sexual orientation and gender identity. In her introductory remark, she explained that the assessment of credibility in asylum applications is two-fold: it for one concerns sexual orientation and gender identity, and -for another- the asylum seeker’s account of events relating to (potential of past) persecution. Needless to say, the second part is common to all asylum applications, but the first one, the assessment of credibility of sexual orientation and gender identity, is a particularly complicated issue. This is because there are no documents nor evidence, but also because it pertains to private life, is a question of self-determination and it can change. As a result, it is highly dubious whether it can be assessed by a third person. As for whether the person’s statement of self-determination suffices to establish its credibility, the CJEU has ruled that it does not, and that it only marks the procedure’s starting point, while according to the UNHCR it is an indication.
The CJEU’s judgment on the practices followed by national authorities, is that questions about the person’s sexual activities violate the right to private life, while the position of the UNHCR is that such practices contravene the rights to dignity, private life, integrity of the person and the prohibition of inhuman or degrading treatment. Furhtermore, the CJEU pronounced that an assessment that is based on stereotypes (previous different-sex marriage, knowledge about and participation in LGBTQ organizations, knowledge of legislation that penalizes homosexuality in the country of origin) should not be the only reason for rejecting an asylum application because rejection solely based on stereotypes would not be in compliance with the obligation of individual assessment of applications under the CEAS (art. 4.3 Directive 2011/95) -notwithstanding the fact that the Court recognized that stereotypes can be useful in the assessment process. The UNHCR holds the view that, depending on how it is implemented, the above practice could be violating human rights. The speaker stressed that, in the absence of well-established case-law by the CJEU, the practice is still in use.
On the same matter of state practices for credibility assessment of LGBTQ asylum applications, Ms Zisakou referred to evidence such as photographs, sexual content videos and medical and psychological tests. The CJEU has ruled that such practices violate the right to dignity, while the evidence per se has no probative value. The UNHCR’s stance is that such practices violate other rights as well (dignity, but also integrity of person, prohibition of inhuman or degrading treatment). As a result of the CJEU decision, the practice has been to a large extent abandoned.
The last practice that Ms Zisakou analyzed, was the belated disclosure of sexual orientation or gender identity (e.g., in a later application or at the stage of appeal). The CJEU and the UNHCR concur with each other in that the sole delay is not a valid reason for rejecting asylum applications.
In their efforts to comply with the CJEU judgements, the states abstained from using the above practices, and developed others instead, which are based on stereotypical representations of gender and sexuality -what is termed as ‘second-generation stereotypes’: e.g., questions about the moment when the person realized their sexual orientation and about their emotions. Although these practices have not been judged as illegal by judicial organs, they have been strongly criticized by theory because they are exemplifications of stereotypical, reductionist approaches, while the process of becoming aware of one’s own identity is not linear and common for all. What is more, second-generation stereotypers seem to ignore the connectivity among sexuality – gender – educational level – social class. For instance, the ability to describe feelings and abstract notions such as the process of realization and acceptance, is directly linked to educational level, while women, due to their assigned roles in patriarchal societies, experience greater difficulties in expressing themselves.
At the stage when the applicant’s well-founded fear must be established, two main issues arise. The first one is if the mere penalization of homosexuality can establish such a fear. The CJEU has ruled that it can not, but the relevant legal provision must additionally be implemented. The UNHCR on its part holds the view that each case should be examined ad hoc, and in relation with the severity of penalty and the real conditions in the country of origin. This CJEU judgment has also been criticized because there is no safe criterion for a legal provision to be characterized as one being implemented or not, given the lack of written information, the possibility of de facto implementation or revival, and the homophobic climate in general that negatively affects the person’s mental health.
The second issue that arises at the stage of establishing fear, is if it can be expected from a person to conceal their sexual orientation -after being returned to their country of origin or third country- in order to avoid persecution. Both the CJEU and the ECHR have unequivocally ruled that such an expectation would be unlawful, while the UNHCR’s standpoint is in line with the above rulings.
The fourth speaker, Ms Theodora Gazi, Ph.D. in Law and post-doctoral researcher at the Law School of the University of Athens, Attorney-at-Law, elaborated on the protection of vulnerable groups in the field of international protection. Ms Gazi remarked that all individuals can at some point in their life be characterized as vulnerable. Personal indicators of vulnerability are, for example, age, health, psychosomatic issues, loss of autonomy or control of one’s own life as a result of forced displacement from the country of origin. On the other hand, the vulnerability of a group (collective) is a result of systemic factors, like restricted access to basic necessities such as accommodation, employment, education and justice, material deprivation, prejudice, stigmatization and negative attitude of society against a particular group. Both asylum and migration law include provisions on vulnerability, but their importance is greater in the former, because migrants move under more favourable conditions compared to the forced displacement of refugees. The vulnerability of asylum seekers is also linked to feelings of uncertainty because of the long and complex asylum procedure, of potential refoulement to the country of origin, and of the possibility of arrest or detention for illegal entry in the country in which they request asylum. In the field of human rights protection, potential vulnerability on the one hand, and violations of fundamental human rights enshrined in international Conventions on the other, are examined in parallel.
The Council of Europe Convention on Human Rights does not make mention of neither vulnerable individuals nor vulnerable groups, and does not provide a definition of the term”vulnerability”. Its conceptualization derives from the case law by the European Court of Human Rights (ECHR), and more specifically from the ad hoc recognition of vulnerability of each applicant (combination of facts, personal circumstances and social conditions). According to the ECHR, vulnerable groups include, e.g., children, people with disabilities, the Roma community, asylum seekers, aliens in need of international protection, HIV-positive people, detainees, the LGBTQ community, victims of domestic violence or human trafficking. With regard to the Roma community and the HIV-positive people, the Court has ruled that prejudice and stigmatization are indicators that these groups are in danger of becoming “invisible” and of being excluded from participation in social life, which result in their vulnerability. Detainees are considered vulnerable because of their absolute dependency from the state, while asylum seekers because of their forced displacement and their traumatic experiences from flight until arrival at the asylum country. Following the above, an important factor for the recognition of a group as vulnerable is the risk of the group being subjected to harm or discrimination.
The vulnerability of asylum seekers was recognised by the ECHR for the first time in 2011 in the M.S.S. v. Belgium and Greece case (2011) (M.S.S. was transferred from Belgium to Greece as the country of first entry, despite his claims that the Greek asylum system suffered systemic deficiencies). The ECHR stressed the absolute character of art. 3 (prohibition of torture or inhuman or degrading treatment or punishment), ruled that the applicant, as an asylum-seeker, belongs to an especially disadvantaged and vulnerable group, which is in need of international protection, and that it is incumbent upon states to protect asylum seekers in their territory from extreme material poverty.
In inquiring into potential violations of the Convention, the Court at the same time tiers vulnerability. In the Ilias and Ahmed v. Hungary case, it was examined whether the detention conditions in the transit zone amounted to inhuman or degrading treatment. The ECHR referred to the applicants’ vulnerability, having taken into consideration medical certificates that they suffered from post-traumatic stress, but found no evidence that the applicants were more vulnerable than any other adult detained in the transit zone. Consequently, Hungary had not violated art. 3. What can be drawn from the above judgment is that vulnerability does not equal violation of the Convention.
In B.G. and others v. France the Court ruled that art. 3 of the Convention imposes a positive obligation on the state to take preventive measures against the ill-treatment of vulnerable groups. The more than three months sojourn of families with children in tents in reception facilities does not constitute inhuman treatment because the applicants did not experience material deprivation and French Authorities did take measures towards the amelioration of living conditions, and ensured healthcare and access to education. The applicants were recognised as vulnerable in deed, but not as subjected to inhuman treatment, and their private and family life were respected and protected. Therefore, articles 3 and 8 of the Convention were not violated.
Protocol 4 to the Convention made the subject of the Hirsi Jamaa and others v. Italy case (interception by Italian Authorities of vessel with migrants on the high seas, and return to Libya). The Court decided that the applicants’ vulnerability resulted from the fact that Libya denied them access to asylum and that there was a real risk of discriminatory treatment.
In the case of M.A. v. Belgium the ECHR ruled that the signing of a statement authorizing his departure by an alien in custody and about to be expelled, is unlawful. The Belgian Authorities took advantage of the applicant’s vulnerability (he was in custody at the airport when he gave his consent in writing), thus violating articles 3 and 13 of the Convention.
In Rahimi v. Greece the Court decided that art. 3 was violated because the minor in question was subjected to humiliating treatment during detention (bad reception and hygiene conditions in combination with his vulnerability as underaged and his general personal predicament). In addition, the best interest of the child was not taken into consideration (alternative measures to detention were not examined), resulting in violation of art. 5 of the Convention (unlawful detention of a minor).
The vulnerability of irregular migrants who work in the host country was recognized by the Court in the case of Chowdury and others v. Greece (Manolada case). Firstly, the ECHR gave a lato sensu interpretation of ‘forced labour’, prohibited by art. 4. The 42 Bangladeshi nationals, who worked exhausting hours supervised by armed guards, were vulnerable because they did not possess alternative resources nor a residence permit in Greece. The latter violated its obligations to deter human trafficking and punish perpetrators, because the Mixed Jury Court of Patras acquitted the accused employers of human smuggling.
Following the above case law by the ECHR, the common characteristic of vulnerable persons is their inability to react when their fundamental rights are breached. This may be due to age, health or social standing. Vulnerability activates the state’s positive obligation to take measures for the person or group to enjoy the rights by the Council of Europe Convention on Human Rights.
Whereas in international law all asylum seekers are regarded as vulnerable, in EU law and the CEAS in particular, only certain categories of asylum seekers or recognized refugees are regarded as such. The Directives on recognition, reception and procedures refer either to vulnerable groups or asylum applicants in need of special procedural guarantees. According to Directives 2011/95 on recognition and 2013/33 on reception, minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence are vulnerable. In addition to the above, Greek Law 4939/2022 defines that the immediate relatives of shipwreck victims as well as people suffering from serious health conditions are also vulnerable. The 2013/32 Directive on procedures refers to vulnerable groups and to persons in need of special procedural guarantees because of their personal circumstances (health, age, sex, sexual orientation, mental disorders). Therefore, the two groups (vulnerable persons and persons in need of special procedural guarantees) are not identical: the latter is wider than the former, since it comprises, e.g., women and LGBTQ persons. Dr Gazi brought attention to the fact that in both the CEAS and Greek Law 4939/2022, vulnerability does not by definition lead to international protection.
With regard to applicants in need of special procedural guarantees, in the Addis case the CJEU ruled that, by means of the interview, the deciding Authority is given the possibility to assess the applicant’s condition and vulnerability. According to art. 72.2 of the Greek Law 4939/2022, an exemplification, among others, of efficient support of the persons concerned, is leniency in instances of minor inconsistencies and contradictions during the interview, provided they can be attributed to the applicants’ health condition. Next, the speaker gave examples of decisions issued by Greek Authorities (unpublished) to elucidate how the latter first assess the vulnerability, mental condition, communicative skills, age and educational level of the applicant, in order to next decide on the reliability of his/her claims.
Directive on procedures and Greek Law 4939/2022 allow the examination of asylum demands by vulnerable persons and by those in need of special procedural guarantees according to the accelerated border procedure. From this procedure are exempted (and their requests are examined according to the standard one) only the unaccompanied minors under the age of 15, the underaged victims of human trafficking, rape or other serious forms of violence, and the persons in need of special procedural guarantees, especially victims of torture, rape or serious forms of violence, when adequate support cannot be provided.
In her concluding remark, Dr Gazi made mention of the fact that the 1951 Geneva Convention does not contain provisions on vulnerable persons, although the cessation of genuine link between the asylum applicant and his/her country of origin makes it imperative that he/she is adequately protected. For this reason, the ECHR considers asylum seekers as vulnerable. Ιn the CEAS, vulnerability is a factor that amplifies support on the part of the host country. However, concrete protection can be achieved only if the legislative framework, combined with the remedial role of human rights, is properly implemented -wish lists that states disregard have proven to be of no use.
The discussion that followed was coordinated by Dr Kourtis.
5th Meeting: “Monitoring of Implementation of International Protection Law by Judicial Organs”
On Thursday 25 May 2023 the Jean Monnet European Center of Excellence of the National and Kapodistrian University of Athens held via the Webex platform the fifth and last meeting of the online seminar “Asylum and Refugee Law: Recent European Developments”. The specific theme treated in this meeting was the “Monitoring of Application of International Protection Law by Judicial Organs”.
The meeting was coordinated by Ms Chrysafo Tsouka, Associate Professor at the Law School of the University of Athens, who first welcomed the speakers and attendees to the session, and then made a short introduction to the above subject.
The first speaker, Ms Maria Kontou – Durande, former Legal Adviser to the European Commission, Brussels, overviewed the CJEU case law in respect of the protection of the external EU borders and access to asylum. Ms Kontou commented that there exists a by default contradiction between the two: the sovereign right of states to control entry and stay of third-country nationals in their territory on the one hand, and access to asylum, which is protected by international conventions and the acquis communautaire, on the other. In order for relevant proposals on the control and management of migratory flows to be properly assessed, one must first fully comprehend the rationale behind the common policies on border checks and asylum and immigration, both emanating from the creation of the AFSJ by the Lisbon Treaty.
The common policy on the control of the external EU borders is laid down in art. 77 TFEU and in Regulation 2016/399/EU, as amended by Regulation 2017/458/EU. Its overarching aim is the protection of all member states -as a consequence of the abolition of checks at the internal borders- by means of fighting irregular migration and human smuggling, and of preventing threats against member states’ internal security and public order.
The common policy on asylum and subsidiary protection is laid down in art. 78 TFEU, and is in accordance with the 1951 Geneva Convention and the Council of Europe Convention on Human Rights. Art. 78 TFEU is the basis of secondary EU legislation (Regulations 2013/604/ΕU Dublin ΙΙΙ, 2013/603/ΕU Eurodac, Directives 2011/95/ΕU, 2013/32/ΕU, 2013/33/ΕU, 2001/55/ΕC), whose goal is the quick examination of asylum demands by only one member state according to the Dublin III criteria and the principle of legitimate expectations, with a view to minimize secondary flows.
The above policies’ common denominator is the observance of the 1951 Geneva Convention and international treaties on human rights. The EU Charter of Fundamental Rights, which makes an integral part of the Treaties, also holds an important role in relation to these policies, with its art. 52.3 providing that, to the extent that the rights recognized in the Charter correspond to rights guaranteed by the Council of Europe Convention on Human Rights, the meaning and scope of those rights shall be the same as those laid down by the said Convention. And this is why the two respective Courts are noticeably harmomised with each other in their interpretation of international protection law.
Next, Ms Kontou analyzed the right to access the international protection procedure. It is regulated in detail in articles 6 and 7 of the Directive on procedures (2013/32/ΕU), and in relation with art. 31 of the 1951 Geneva Convention which prohibits states from imposing penalties on refugees who, coming directly from a territory where their life or freedom was threatened, enter or are present in the states’ territory without authorization, provided they present themselves without delay to the Authorities. The term asylum seeker comprises all third-country nationals who express before any Authority at the land or sea border or in the interior of a country their intention to submit an asylum application. From the moment when this willingness is externalized, even if the formal procedure has not been completed, the person is considered an asylum seeker and enjoys all relevant rights, and in specific those provided in the Directive on reception. The speaker then briefly outlined the notion of beneficiary of international protection (asylum and subsidiary).
The CJEU case law on the above matters was also presented. Due to migratory pressure, some member states took measures in order to protect -as they argued- their internal security and public order. In 2015 Hungary amended its law on access to asylum, which resulted in significantly restricting it (only two transit zones, administrative practice of daily entry of 1 – 2 persons, only one center for the submission and examination of applications, restriction of stay at the border without right to leave the zone, systematic practice of detention, rejection of the majority of applications as inadmissible on the grounds that the asylum seekers had entered the Hungarian territory from Serbia -a recognized safe third country, penalization of NGO assistance to newcomers). These measures have made the subject of four references for preliminary rulings, and of two proceedings against Hungary before the CJEU. The Court reminded that access to asylum is a fundamental right enshrined in the Directive on procedures in accordance with the Geneva Convention, that the obligation to ensure access to the asylum process is incumbent upon member states, and that expulsion from the border without prior examination of the asylum demand or following rejection on the grounds that the third country from which the asylum seeker entered the country is safe, is refoulement and is strictly prohibited.
The CJEU reiterated its above position in its response to the preliminary reference about Lithuania. In 2021 and due to the mass influx of third-country nationals from Belarus, Lithuania declared a national emergency. The country adopted a law which departed to a large degree from the Directive on procedures, significantly restricting access to asylum. In a case brought before a national court (appeal against a rejection decision on asylum demand), the Lithuanian judge, in doubt about the legality of the measures introduced by Lithuania, referred to the CJEU for a preliminary ruling. The Court reaffirmed that the Directive on procedures allows no derogation of national legislation from the right of a person to request asylum.
Αll of the above mentioned measures, that have been judged illegal by the CJEU, are premised on the assumption on the part of states that mass arrivals cause disturbance of public order and security. Art. 72 TFEU (Title V) defines that Title V shall not affect the exercise of the responsibilities incumbent upon member states with regard to the maintenance of law and order and the safeguarding of internal security. By invoking art. 72 TFEU, some states, such as Hungary, thought they could avoid the implementation of the Directive on asylum procedures. The Court rejected these arguments and gave a strict and narrow definition of the notion ‘disturbance of public order and security’. In other words, the Court rejected the general and inconclusive invocation of the notion, and demanded well-founded evidence to support the reasons that would justify deviation from EU law. It furthermore ruled that art. 72 TFEU does not allow any infringement of the Directive, or else EU law would have been applied in a non uniform manner, and the Directive’s binding nature would have been compromised.
By virtue of art. 43 of the Directive on procedures, member states are given the option to apply the accelerated border procedure in order to decide on the admissibility of applications for international protection, thus rejecting the manifestly unfounded or abusive ones. The Court has ruled that, by means of the speedy procedure at the external borders, states will be able to safeguard their public order and internal security while fully complying with EU law.
Next, the specific measures for the protection and control of the external border were discussed. Τhese include the identification and assessment of potential threats posed by newcomers, reception and accommodation of the latter, detention of those who have entered illegally and are likely to be returned, fingerprinting and data entering in Eurodac, systematic monitoring of legal crossings of the external borders through the SIS, the VIS and a new system in which all relevant information is registered (dates, duration of stay, ban of entry) and public order and security risk analysis. The countries at the external EU border are responsible for carrying out the above procedures.
In 2015-16 thousands of external border crossings went uncontrolled. These persons continued their journey towards EU mainland. The CJEU ruled that they had illegally entered from the external EU border, that the Dublin Regulation applies and that first-entry states are accountable for not conducting the required controls. However, and with due regard to the fact that the fulfillment of the above obligation is unfeasible in conditions of mass arrivals, the Court emphasized the prospect of solidarity measures by other member states (unilaterally or in coordination as per the Dublin Regulation), and according to art. 80 TFEU which sets forth the solidarity principle. This principle pertains to migration, asylum and border control policies, and imposes on EU organs, i.e., the lawmaker, the obligation to introduce solidarity measures, but does not specify them. As a result, EU decisions 2015/1523 and 2015/1601 on mandatory relocation measures not only did they not come into effect, but also revealed the division among member states that deemed solidarity of this kind to be necessary, and those that rejected it.
In sum, EU law imposes upon member states the obligation to take all necessary measures towards unobstructed access to asylum by determining adequate, legal entry zones, and by appointing sufficient staff. Border control is in essence the examination of reasons and of the legality of border crossing, as well as of the potential risk from each specific person’s entry in the territory of an EU member state. Even if solidarity measures are not effectuated, the affected countries at the external EU border are not entitled to unilaterally take measures that diverge from EU law and the Council of Europe Convention on Human Rights.
The second speaker, Dr. Ekaterini Koutsopoulou, Judge, First Instance Administrative Court, Ph.D. in Law and postdoctoral researcher at the Law School of the University of Athens, presented indicative case law by Greek judicial organs, as well as a selection of decisions by Appeal Committees. In her introductory remark she stressed the fact that there is no well-established case law, nor a fixed position by Authorities on matters of international protection law.
The international protection applicant is first and foremost required to establish his/her fear of persecution. The 1951 Geneva Convention does not provide on how such claims shall be assessed, and in general the degree of certainty according to which the competent Authority will decide upon the endangerment of the applicant in his/her country of origin, is not regulated.
Judge Koutsopoulou presented the case of two Sierra Leone applicants whose asylum demand was rejected by a Committee because they did not provide an answer to the question whether the Party they supported in their country of origin was left or right. The rejection was challenged before the First Instance Administrative Court of Athens, which annulled the decision as not constituting a reasonable judgment. The applicants were not able to comprehend what is ‘left’ and ‘right’ because political life in Sierra Leone is deeply divided, but on the basis of ethnicity and not on the basis of ideology-shaped politics, as is the case in Europe.
A selection of decisions by Appeal Committees was offered next. By these decisions international protection requests have been:
– judged as credible (from data contained in the application dossier, the interview or international sources)
– deemed impossible to cross-check with international sources due to their private nature
– judged as having gaps, but which did not affect credibility
– characterized as vague with gaps (justified by young age, considerable time distance between events and account of events, low level of educational attainment), but credible nonetheless.
The ambiguity of a homosexuality claim has been judged as not as significant as to negatively impact credibility. In another case, the claim has been found credible because of the detailed account of events, while a different Committee has rejected an application also based on homosexuality because of a very unclear and nebulous description.
Matters of religious convictions, such as conversion to Christianity, are equally difficult to substantiate. A certain Committee has rejected a conversion claim as unspecific, while another one has accepted a similar assertion due to its coherence and by giving the benefit of the doubt. An asylum applicant’s contention that he/she was tortured by troops, was accepted after taking into account international information and the benefit of the doubt. Judge Koutsopoulou reminded the audience of the well-established -since 2009- Council of State case law that, in order for the benefit of the doubt to be given, the applicant’s claims need to be substantial (4044/2009).
Regarding exclusion from refugee status (art. 1F of the 1951 Convention and art. 12 of Directive 2011/95), the Council of State has ruled that criminals are excluded (3328/2011), that the examination of the exclusion clauses follows the examination of the clauses on the recognition of refugee status (3328/2011), that a ‘political crime’ is not determined on the basis of domestic legislation of the country where asylum is sought, but on the basis of autonomous (in-context) interpretation (1661/2012), that the legal bases of extradition and asylum law are different (1694/2018, Plenary), that a political crime is directly intended against the State (1661/2012), that a military misconduct for which extradition does not apply, cannot be considered a serious criminal offense (1694/2018, Plenary), that ‘good reasons’ is the benchmark for the level of proof of the exclusion clauses, that they must be evidenced by means of clear and credible proof, and that the absence of ‘good reasons’ results in the non implementation of the exclusion clauses (1694/2018, Plenary). Rape and participation in a terrorist organization have been determined by Committees as serious non-political crimes.
Recent decisions issued by a considerable number of Committees, and by which decisions exclusion clauses were applied to serious crimes committed on Greek soil, appear to be problematic, since the Geneva Convention as well as the Directive on recognition of refugee status and Greek Law 4636/2019, they all provide that such crimes lead to exclusion only if committed outside the country where asylum is sought. The CJEU has repeatedly ruled that the exclusion clauses shall be interpreted narrowly.
The Asylum Service, and not the Committees, is responsible for recognizing vulnerability, according to decisions by Committees. The latter have also decided that unaccompanied minors and pregnant women are exempted from the fast-track border procedure, regardless of the applicable procedural guarantees.
Brief mention was made of two decisions on returns by First Instance Administrative Courts (revokement of return decision due to the fact that a voluntary departure deadline had not been set prior to the return, revokement of return decision because an individual assessment had not taken place and the different nationalities of mother and child were not taken into consideration), and of other Committees’ decisions on more specific issues. The indicative case law presentation was followed by the speaker’s concluding remark that there is no well-established case law on matters of international protection.
The third speaker, Ms Eleni Micha, Ph.D. in Law, Laboratory Teaching Staff at the Law School of the University of Athens, overviewed the case law on international protection by the European Court of Human rights (ECHR) as the principal overseeing judicial organ of the Council of Europe Convention on Human Rights. The Court has decided that its territorial jurisdiction is exercised on the territories of all signatory states where it is incumbent upon them to implement the Convention’s provisions. The latter are responsible for the Convention’s implementation not only within their national borders, but on all territories where they exercise effective control, and in some cases on the High Seas as well (protection of life, non refoulement), that is, in areas that are under no country’s jurisdiction. In M.N. and others v. Belgium (2020) the Court clarified that the state has no jurisdiction, hence no obligation, to examine an asylum request that is submitted on soil outside its territory, such as the Belgian Embassy in Lebanon.
The Council of Europe Convention on Human Rights does not establish a distinct individual right to asylum, but this right is based on other individual rights enshrined in the Convention. With these other rights serving as starting point, the Court interpreted the Convention in such a manner so as to include in its protection asylum seekers too. Additional Protocol No. 4, which does not make part of the Convention, and art. 4 in particular, is the only provision that refers to aliens, prohibiting their collective expulsion.
Refugees and persons fearing persecution are entitled to international protection, while all vulnerable individuals are potential asylum seekers, according to the ECHR. In order to verify whether a person is entitled to asylum or subsidiary protection, the Court investigates if there is present, future, predictable and personal endangerment, as general assertions are insufficient. However, the general situation in the country of origin is taken into consideration in deed, as well as statements by witnesses and evidence from other sources that can establish fear and vulnerability, e.g., data by NGOs (Médecins Sans Frontières, Human Rights Watch, Reports by the International Committee of the Red Cross). Strict and complete evidence is not required, and strong indications suffice.
The ECHR has classified state obligations in positive and negative ones. In relation to the right to asylum, a fundamental negative obligation is the prohibition of refoulement and endangerment of the applicants. Dr. Micha outlined the very important judgment delivered by the Court in 2022 in the Safi and others case against Greece (shipwreck off the coast of Farmakonisi island, Greece). The Court explained what prohibition of refoulement and substantive protection of human rights according to the Convention mean. The substantive part of the proceedings referred to Greece’s non-abidance by its obligations under the Convention (protection of life, protection from degrading treatment, non refoulement to Turkey). The Court furthered its explanation by noting that the prohibition of non refoulement is not directly connected with protection per se. It is a self-standing right for which the applicant must provide strong evidence. It decided that such evidence did not exist, therefore Greece was found not to have violated its obligation. However, the Court decided that Greece violated the Convention, and more specifically its obligation to protect life, because of oversights and delays in the rescue operation. In addition to the above, due to loss of life, Greek Authorities should conduct an investigation in order to determine if deficiencies, oversights and inadequate fulfillment of obligations had occurred. The Court found a lack of thorough and effective investigation, that the participation of applicants in it was not adequate, and that the survivors were subjected to degrading treatment (body-searched after being made to disrobe together as a group in front of at least thirteen people).
The positive obligations of state parties with regard to international protection, include the provision of substantive and procedural guarantees, namely, state obligation to provide a procedure for the examination of international protection requests which guarantees protection of life, a set level of living and detention conditions, prohibition of arbitrary detention, family reunification and protection from accelerated and collective expulsion. Other positive obligations are the respect of private and family life (Ghadamian v. Switzerland, 2022, where the Court ruled that the art. 8 criteria were not in-depth inquired into), and the provision of real and effective legal remedies (right to effective recourse, art. 13 of the Convention). Last, the speaker presented the Abu Salem v. Portugal case (2023). Abu Salem, suspected of participation in a terrorist attack in Mumbai, was residing in Portugal, by which he was deported to his country of origin, although an extradition agreement was in force between Abu Salem’s country of origin and India. When Portuguese Authorities deported him, they at the same time asked for diplomatic assurances from India that he will not be subjected to torture or inhuman or degrading treatment (India, unlike Portugal, is a third country to the Convention, therefore under no obligation to abide by it). Abu Salem lodged a complaint with the ECHR claiming his expulsion to be illegal because he was tortured by Indian Authorities and Portugal should grant him asylum (art. 3 and 13 of the Convention). The Court responded that Portugal was not in breach of the Convention because it had obtained diplomatic assurances, it was following up and monitoring the case, and especially Abu Salem’s detention conditions, while there was an understanding at Ministers of Foreign Affairs level.
The discussion that followed was coordinated by Professor Tsouka.