On April 21, 2022, the 34 Chamber of the Administrative Court of First Instance of Athens ordered the Greek authorities to refrain from any action based on the negative second instance decision of the Appeals Authority which entails the forced departure of a Syrian family of 8 members from Greece. The Administrative Court also ordered the issuance of the applicants’ valid international protection applicant cards.
On March 28, 2022, Fenix Humanitarian Legal Aid (Fenix) submitted an application for the suspension of the execution of the negative decision ordering the return of A. family to Türkiye, under Article 52 of Presidential Decree 18/1989, in the context of a pending annulment application.
The A. family is composed of a couple and six minor children who arrived on Lesvos in January 2020. A.A., the father, is a recognised victim of torture under the Istanbul Protocol and suffers from bladder atony. Moreover, two of the six minor children suffer from severe medical problems. Despite their obvious medical problems and apparent vulnerabilities, the A. family was firstly subjected to the statutory medical examination and vulnerability assessment only at the end of December 2020. Therefore, throughout the examination of the initial application for international protection at the first and second instance and the first instance of the subsequent application for international protection, the A. family had not been subjected to the proper medical examination and vulnerability assessment.
Despite the vulnerabilities and the family’s lack of connection with Türkiye, both the initial and subsequent applications for international protection of A. family were examined under the border procedure and were rejected on the basis of the safe third country (STC) concept. In July 2021, following an urgent application for interim measures by three members of A. family in order to stop the inhuman and degrading treatment to which they had been subjected, the European Court of Human Rights indicated to the Greek Government to guarantee the three Applicants living conditions compatible with Article 3 of the European Convention on Human Rights (ECHR) and to provide them with adequate healthcare compatible with their state of health.
On April 21, 2022, the 34 Chamber of the Administrative Court of First Instance of Athens held “[...] having regard to the state of health of the applicant and two of the minor children [...] the children's attendance at school, their possible exclusion from the accommodation program and the fact that it is a large family, [...] in the event of enforcement of the contested decision, they would suffer damage that would be difficult to repair. In order to prevent that harm and taking further account of the fact that the [...] application for annulment does not appear to be manifestly inadmissible or unfounded, the Court considers that, granting the application, the administration should be ordered, pending publication of a final decision on the pending application for annulment, to refrain from any action based solely on the contested decision measure and entailing the forced departure of the applicants from Greece [...] Furthermore, the Administration should be ordered to issue the applicants with a valid international protection card.”
On May 17, 2022, more than two years after the arrival of A. family in Greece and after almost a year since the decision of the ECtHR ordering Greece to guarantee adequate living conditions and sufficient access to medical care for the family, the family received valid international protection applicant cards and their access to health care was restored.
Fenix welcomes the decision of the 34 Chamber of the Administrative Court of First Instance of Athens that leads to access to reception conditions for the A. family. Nevertheless, Fenix expresses deep concern about the legal and procedural violations that took place throughout their case, which led to the legal limbo and uncertainty imposed on the A. family for more than two years.
Under Greek and European Union legislation on asylum, national authorities must assess whether applicants are vulnerable and require special procedural guarantees within a reasonable time after an application for international protection. The obligation continues throughout all stages of the procedure and the Greek authorities are required to provide these assessments if such a need becomes evident at a later stage of the procedure. Once vulnerabilities and the need for special procedural guarantees have been established, the Greek authorities are required to provide sufficient support to the applicants to ensure their rights are met throughout the procedure. Such adequate support cannot be provided under the border procedure due to the short timelines and other restrictions. In these cases, the national authorities must not apply or must cease the application of this type of procedure.
As the A. family arrived in Greece on Lesvos, they were subjected to the border procedures on arrival without their vulnerabilities and special procedural needs being assessed. Given their vulnerabilities, the A. family should have been exempted from the border procedure. Instead, they were repeatedly rejected under the accelerated procedures on the basis of Türkiye being considered a STC for the family. If Greek authorities had complied with their obligations under domestic and international law from the moment the A. family arrived in Greece, the family would not have been forced to live under inhumane and degrading living conditions and remain in legal limbo for two years.
Fenix requests that the Greek authorities conduct proper medical examination and vulnerability assessment in a timely manner, and provide exemptions from the border procedure where appropriate. Additionally, Fenix urges the Greek authorities to refrain from the blanket application of the STC concept, and ensure that all applicants have adequate and effective opportunity to prove why Türkiye is not safe for them, in order to guarantee effective, fair, and swift access to asylum.
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