Fenix calls the Greek authorities to examine the merits of asylum applications rejected on admissibility

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FENIX Humanitarian Legal Aid calls the Greek Authorities to enforce article 86(5) of law no. 4636/2019and to examine the merits of applications for international protection that had been rejected as inadmissible based on the fact that Turkey is considered a“safe third country”. Readmissions to Turkey have been suspended for almost two years and the Readmissions Unit of the Hellenic Police has confirmed that the requests for readmissions to Turkey have been suspended.

 

The Readmission Unit of the Hellenic Police Headquarters issued two notes in response to requests made by Fenix - Humanitarian Legal Aid. The notes dated25/10/2021 and 27/10/2021 confirm what is publicly known: Turkey has indefinitely suspended readmissions from Greece since 16/03/2020, and they also acknowledge that, due to the aforementioned suspension, Greek Authorities have stopped sending readmission requests to Turkey based on the “Common EU-TurkeyStatement” for rejected asylum seekers.

Despite this, the Greek Authorities are refusing to enforce article 86(5) of law no. 4636/2019 (Article 38(4) of Directive 2013/32/EU) by not examining the merits of applications for international protection, amongst others, of applicants falling under the scope of the JMD 42799/2021 (FEK B’ 2425/07.06.2021) that declaredTurkey a “safe third country” for nationals of Syria, Afghanistan, Pakistan, Bangladesh and Somalia.

More specifically, the Readmission Unit of the Hellenic Police in its response to the relevant questions submitted by a lawyer of FENIX responded firstly on 25/10/2021 “To answer to your request, we inform you that, the readmission of third country nationals from the islands of East Aegean to Turkey, in the context of the “Common EU-Turkey Statement” (Brussels, 18-3-2016), is taking place based on the relevant provisions of laws no. 3386/2005, 3907/2011 and 4636/2019. More specifically, regarding the applicants of international protection in our country, you are aware that, their return is ordered, due to competency from the Greek Asylum Service and the Appeals Authority according to articles 82par. 8 and 95 par. 10 of law no 4636/2019 as amended and in force. In addition, you are aware that, the readmission operations to Turkey. Based on the “CommonEU-Turkey Statement” are conducted by the Greek authorities (local competentPolice Directorate), with the assistance of the European Border and Coast GuardAgency (΄΄FRONTEX΄΄), while the readmissions requests are being sent, at the context of organizing  the aforementioned readmission operations. However, the readmission operations to Turkey, based on the “Common EU-Turkey Statement”, have been suspended by the TurkishAuthorities since 16-03-2020. As a result, there is no relevant planning for now.» and secondly on 27/10/2021 «the readmission requests, based on the “Common EU-Turkey Statement”, are being sent on the context of the organization of respective readmission operations. As a result, taking into consideration the suspension of the readmission operations, the relevant requests are also not being sent”.

Asa result Greek Authorities must enforce article 86(5) of law no. 4636/2019according to whichWhen the aforementioned third country doesn’t allow the applicant to enter in its territory, the application is examined on the merits by the competent DecisionAuthorities”, and examine the merits of applications for international protection that have been rejected as inadmissible by the Greek Asylum Service and the Appeals Authority on the basis that Turkey has been considered as a“safe third country” for the applicants. In reality their readmission to Turkey has been impossible for almost two years now and as a result they find themselves in Greece in a “limbo” situation, without access to basic human rights (such as accommodation, food and financial assistance).

Noteworthy recently the 21st IndependentAppeals Committee of the Appeals Authority proceeded to an equivalent judgment and interpretation and cancelled the first instance decision of RAO of Kos, which had rejected as inadmissible the application for international protection of a Somali woman on the basis of the “safe third country” concept (Turkey) and examined on the merits the application for international protection due to the inability of carrying out the readmission.[1]

This goes in line with the opinion ofAdvocate General Priit Pikamäe, who stated that once the “safe third country" ground of inadmissibility has been applied and the “safe third country” does not allow the applicant to return and enter to its territory, according to Article 38(4) of Directive 2013/32 the competent authorities of the MemberState where the application was made must ensure that the applicant has access to a new procedure to examine the application for international protection.[2]  In an answer to a question posed by a Member of the European Parliament, the Commissioner Ylva Johansson stated that in those cases that third-countries do not allow returns, the Member State should ensure that the applicant has access to the asylum procedure and, in reexamining the application, consideration shall be given to the prospect of return in line with the EU-Turkey statement. The Commissioner also noted that“in the meantime, applicants shall have access to material reception conditions under the conditions set out under the EU Charter of Fundamental Rights, EU and national law”.[3]  

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[1] Prot. No.364000/4.11.2021 decision of the 21st Independent Appeals Committee of the Appeals Authority «when during the time of the assessment of an international protection application it is certain, due to the practice that a certain country follows either generally, either towards specific categories of persons, either and against the applicant specifically, that will not accept the entry of the applicant in its territory, while it cannot also be reasonably expected that its stance will be altered in the near future, then it should be accepted that the relevant application shall not be rejected as inadmissible with the justification that the aforementioned country constitutes a “safe third country” for the specific applicant, even if this country fulfils the substantive criteria laid down in article 38 of the Directive 2013/32/EE and article 86 of law no. 4636/2019».

[2] Opinion of Advocate General Priit Pikamäe  delivered on 23 April 2020for the Joined Cases FMS, FNZ, SA, SA junior v Hungary, §110, 114.

[3] Written answer given by Yvla Johansson on behalf of the European Commission to the European Parliament on 1 July 2021, https://www.europarl.europa.eu/doceo/document/P-9-2021-000604-ASW_EN.html.

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DATE
Monday, December 6, 2021
To
Subject

FENIX Humanitarian Legal Aid calls the Greek Authorities to enforce article 86(5) of law no. 4636/2019and to examine the merits of applications for international protection that had been rejected as inadmissible based on the fact that Turkey is considered a“safe third country”. Readmissions to Turkey have been suspended for almost two years and the Readmissions Unit of the Hellenic Police has confirmed that the requests for readmissions to Turkey have been suspended.

 

The Readmission Unit of the Hellenic Police Headquarters issued two notes in response to requests made by Fenix - Humanitarian Legal Aid. The notes dated25/10/2021 and 27/10/2021 confirm what is publicly known: Turkey has indefinitely suspended readmissions from Greece since 16/03/2020, and they also acknowledge that, due to the aforementioned suspension, Greek Authorities have stopped sending readmission requests to Turkey based on the “Common EU-TurkeyStatement” for rejected asylum seekers.

Despite this, the Greek Authorities are refusing to enforce article 86(5) of law no. 4636/2019 (Article 38(4) of Directive 2013/32/EU) by not examining the merits of applications for international protection, amongst others, of applicants falling under the scope of the JMD 42799/2021 (FEK B’ 2425/07.06.2021) that declaredTurkey a “safe third country” for nationals of Syria, Afghanistan, Pakistan, Bangladesh and Somalia.

More specifically, the Readmission Unit of the Hellenic Police in its response to the relevant questions submitted by a lawyer of FENIX responded firstly on 25/10/2021 “To answer to your request, we inform you that, the readmission of third country nationals from the islands of East Aegean to Turkey, in the context of the “Common EU-Turkey Statement” (Brussels, 18-3-2016), is taking place based on the relevant provisions of laws no. 3386/2005, 3907/2011 and 4636/2019. More specifically, regarding the applicants of international protection in our country, you are aware that, their return is ordered, due to competency from the Greek Asylum Service and the Appeals Authority according to articles 82par. 8 and 95 par. 10 of law no 4636/2019 as amended and in force. In addition, you are aware that, the readmission operations to Turkey. Based on the “CommonEU-Turkey Statement” are conducted by the Greek authorities (local competentPolice Directorate), with the assistance of the European Border and Coast GuardAgency (΄΄FRONTEX΄΄), while the readmissions requests are being sent, at the context of organizing  the aforementioned readmission operations. However, the readmission operations to Turkey, based on the “Common EU-Turkey Statement”, have been suspended by the TurkishAuthorities since 16-03-2020. As a result, there is no relevant planning for now.» and secondly on 27/10/2021 «the readmission requests, based on the “Common EU-Turkey Statement”, are being sent on the context of the organization of respective readmission operations. As a result, taking into consideration the suspension of the readmission operations, the relevant requests are also not being sent”.

Asa result Greek Authorities must enforce article 86(5) of law no. 4636/2019according to whichWhen the aforementioned third country doesn’t allow the applicant to enter in its territory, the application is examined on the merits by the competent DecisionAuthorities”, and examine the merits of applications for international protection that have been rejected as inadmissible by the Greek Asylum Service and the Appeals Authority on the basis that Turkey has been considered as a“safe third country” for the applicants. In reality their readmission to Turkey has been impossible for almost two years now and as a result they find themselves in Greece in a “limbo” situation, without access to basic human rights (such as accommodation, food and financial assistance).

Noteworthy recently the 21st IndependentAppeals Committee of the Appeals Authority proceeded to an equivalent judgment and interpretation and cancelled the first instance decision of RAO of Kos, which had rejected as inadmissible the application for international protection of a Somali woman on the basis of the “safe third country” concept (Turkey) and examined on the merits the application for international protection due to the inability of carrying out the readmission.[1]

This goes in line with the opinion ofAdvocate General Priit Pikamäe, who stated that once the “safe third country" ground of inadmissibility has been applied and the “safe third country” does not allow the applicant to return and enter to its territory, according to Article 38(4) of Directive 2013/32 the competent authorities of the MemberState where the application was made must ensure that the applicant has access to a new procedure to examine the application for international protection.[2]  In an answer to a question posed by a Member of the European Parliament, the Commissioner Ylva Johansson stated that in those cases that third-countries do not allow returns, the Member State should ensure that the applicant has access to the asylum procedure and, in reexamining the application, consideration shall be given to the prospect of return in line with the EU-Turkey statement. The Commissioner also noted that“in the meantime, applicants shall have access to material reception conditions under the conditions set out under the EU Charter of Fundamental Rights, EU and national law”.[3]  

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