An asylum seeker supported by Fenix Humanitarian Legal Aid (Fenix) who has previously been granted international protection by another EU Member State is currently stuck in a legal limbo in Greece, on one hand rejected from the asylum procedure in Greece, and on the other hand unable to return to the territory where he has previously been granted international protection. Fenix calls for his case to be resolved on an expedited basis, such that he is not left any longer in a situation of legal limbo. Fenix also calls on the European Union and its Member States to address this gap and the resultant hardship experienced by individuals in this situation by implementing an official transfer mechanism for individuals who have previously received international protection by an EU Member State, and for a variety of reasons find themselves unable to return to that Member State.
N.S. is from Afghanistan and was previously granted international protection in Belgium, including a residence permit of unlimited duration, and he resided there for seven years. While travelling outside of the EU, N.S. lost his Belgian documents and has faced difficulties returning to Belgium ever since. In an attempt to return to Belgium N.S. made his way to Greece in 2019, however without travel documents he is unable to leave. Although he attempted to seek assistance with his case from a Belgian embassy, the process initially proved to be unsuccessful. N.S. also decided to apply for asylum in Greece in 2019.
N.S. has faced difficulties with his asylum claim in Greece due to his status in Belgium. Under EU Directive 2013/32, Greece is entitled to reject asylum claims on admissibility if the applicant has been granted international protection by another Member State. On receiving N.S.’s asylum application, the Greek authorities requested information from the Belgian authorities regarding his case. The Belgian authorities confirmed N.S. had previously been granted international protection in Belgium. As a result, the claim was rejected on admissibility by the Greek authorities in October 2019. However, no procedure for transfer was initiated to return N.S. to Belgium.
The first issue is the lack of a transfer mechanism. From a practical perspective, the next logical step should be for N.S. to be transferred to Belgium in order to complete any necessary application requirements and/or renew his documents. It is not in dispute that N.S. was previously granted international protection from Belgium prior to applying in Greece. The issue is that neither Greece nor Belgium is assuming responsibility for the transfer process, and there is otherwise no specific transfer mechanism between Member States applicable to these circumstances. As a result, N.S. has found himself stuck in Greece in a limbo situation for the past three years.
After the Greek and Belgian authorities left N.S. in limbo, N.S. tried to contact the Belgian embassy once again, this time to request a return visa, his last available legal option. However, onerous embassy procedures make it difficult for applicants in this situation to apply for return visas. This contrasts with the position for EU nationals, who typically can apply for a temporary travel document through a straightforward process after losing a document. The administrative and practical hurdles to the embassy procedures, including difficulty communicating with the embassy and high application fees, make it extremely difficult (if not impossible) for applicants to adhere to all application requirements, and thus unlikely that their application will be successful. As some further examples, the Belgian embassy required that (i) the applicant has a contact in Belgium who can host and support them, and (ii) certain documents be translated by an accredited translator and certified with an apostille stamp, a process that is impossible without the original document.
The indication from other organisations and from the authorities throws light on a growing list of individuals finding themselves in this situation. Despite having been recognised as persons who have fled harm and who are in need of international protection within the EU, and despite having been integrated into their local communities for several years, individuals caught in this situation are now stuck in limbo in Greece with no clear path forward. What is needed is a clear transfer process with cooperation between both the sending and the receiving Member State, provided for by EU asylum law, once responsibility for the claim and the previous status of international protection have been established.
Although there is still the possibility that he will be able to access the Greek asylum process in the future, N.S. should have had access to the Belgian process from the beginning, and he should never have been left indefinitely in a situation of legal uncertainty. An efficient transfer system would have ensured a re-examination by the same authorities as previously granted his international protection status and in the country where he had previously been highly integrated. Instead he has now been stuck in limbo for three years, causing unnecessary stress and hardship.
Solidarity is championed as a core value of the proposed New Pact on Migration and Asylum. Receiving international protection in the EU should not result in punitive consequences due to travelling and losing a document, as can happen to any individual. Safe and legal pathways and an effective and human rights-based Common European Asylum System for all should be the clear goal for the EU moving forward, including for those already granted international protection and caught in this limbo situation.
NOTE: This case is currently being litigated in Belgian courts.