On November 21, 2023, the 21st Chamber of the Administrative Court of First Instance of Athens (in Chamber) accepted the application for suspension and ordered the Greek authorities to do two things. On the one hand, to refrain from any action based on the negative second instance decision of the Appeals Committee, which entails the forced return of a Somali applicant with severe disabilities from Greece and on the other hand, to provide him with an active asylum seeker card.
On July 20, 2023, on behalf of M.A., Fenix Humanitarian Legal Aid (Fenix) submitted under Article 52 of Presidential Decree 18/1989, an application for the suspension of the execution of the negative decisions ordering the return of M.A. to Türkiye, in the context of a pending annulment application on the 21st Chamber of the Administrative Court of First Instance of Athens. This was submitted against the decisions unlawfully rejecting his subsequent asylum application submitted on June 2022, since the serious deterioration of both his physical and mental health conditions, both of which were extensively documented, were not taken into consideration, which is in violation of the relevant national and European Union legislation.
M.A. is an extremely vulnerable applicant who arrived on Lesvos Island in March 2021. M.A. is a survivor of physical and psychological violence and suffers several severe chronic medical and psychological problems, which were overlooked by Greek authorities for more than two years. Since arriving in Greece, M.A. has been forced to live for more than a year under inappropriate and incompatible conditions with his severe vulnerabilities, firstly at Lesvos RIC and then at the camp of Corinth. On 19 December 2022, the European Court of Human Rights (ECtHR) granted the urgent request for interim measures submitted by Fenix to the Court on behalf of M.A. and issued a decision of interim measures under Article 39 of the Rules of the Court ordering the Greek Government to guarantee the applicant’s rights under Article 3 of the ECHR.
Following the aforementioned decision of the ECtHR on 3 January 2023, M.A. was transferred with his brother and caregiver to the camp of Schisto since the Greek government decided to close the ESTIA II program at the end of 2022 and leave thousands of extremely vulnerable asylum seekers without humane and adequate accommodation and proper care. Due to the Greek Government’s decision, which has been highly criticised by Fenix, and despite the aforementioned interim measures decision of the ECtHR and his severe vulnerabilities, M.A. had been residing in Schisto camp under inappropriate and incompatible conditions with his severe medical condition and without access to the necessary and specialised medical care and treatment.
On November 2023, the 21st Chamber of the Administrative Court of First Instance of Athens, taking into consideration the several severe vulnerabilities of M.A. and the supporting medical documents submitted to the Court held that “[…] taking into account the documents submitted above, from which it appears that the applicant is a person with severe disability […] and suffers from severe psychological problems, for the treatment of which he is monitored by a psychiatrist and receives medication, the Court presumes that the immediate removal of him from the country will cause him damage that will be difficult to repair, in case of success of the applied annulment, consisting in the deterioration of his health condition. In order to prevent this damage, […] it must […] to order the Administration a) to refrain from any action based exclusively on the contested act, which would result in the forced departure of the applicant from the Country […] and b) to give the applicant […] an applicant’s card, until the issuance of a final decision on the pending annulment application.”
Fenix welcomes the decision of the 21st Chamber of the Administrative Court of First Instance of Athens with the hope that it will finally lead to M.A. accessing special material reception conditions and accessing the necessary specialised medical care for his severe vulnerabilities. Nevertheless, Fenix expresses deep concern about the several legal and procedural violations of M.A.’s rights by the Greek authorities for more than two years and the omission of the Greek government to create a new ESTIA accommodation scheme for vulnerable asylum seekers, despite their submissions to the Committee of Ministers of the Council of Europe concerning the execution of the famous M.S.S. judgement, that “a new ESTIA 21” accommodation program is operating.
Fenix stresses the huge and continuous gaps between proper and timely vulnerability assessments and assessments of the need for special reception conditions and special procedural guarantees of vulnerable applicants, which result in serious violations of the rights of vulnerable asylum applicants, unfair decisions, and prolonged insecurity and legal limbo. Due to these gaps, as in several other cases, at arrival M.A. did not undergo a psychological assessment or a proper medical examination, his vulnerabilities were not recognised, and, as a result, his asylum application was examined under the fast-track border procedures and repeatedly rejected. Had the national authorities fulfilled their obligations, M.A. would not have been forced to live under inhumane and degrading conditions and legal uncertainty for more than two years.
Fenix calls on the Greek authorities to conduct a proper medical and psychosocial examination and a proper vulnerability assessment in a timely manner and to guarantee the rights of vulnerable asylum seekers. Fenix notes that national authorities have the obligation under national and European Union legislation to guarantee effective, fair and swift access to asylum procedures, fair decisions and dignified reception conditions, including adequate medical care and accommodation outside of remote camps.