A Rare Win: Greek Asylum Practices Before the CJEU

In 2023, the Greek Council of State requested the CJEU whether or not Greece’s designation of Türkiye as a secure third nation (STC) for folks making use of for asylum in Greece is in step with the Asylum Procedures Directive. It was the primary Greek asylum case making its approach to Luxembourg, and because of this the primary time that the Courtroom needed to alternative to offer readability on the connection between the EU and Türkiye on asylum issues. In its ruling on 4 October 2024, the Courtroom left Greece’s designation of Türkiye as an STC intact. Nonetheless, the case will nonetheless have a major influence on asylum candidates. This submit units out the sensible results of the judgment on folks making use of for asylum in Greece and past.

A Blueprint for Dire Realities

EU leaders repeatedly hailed the 2016 ‘EU-Turkey assertion’ as a blueprint for migration agreements with third nations. The ‘deal’ between Heads of EU Member States and Türkiye lacks democratic legitimacy and judicial oversight and has resulted in lots of violations of the rights of asylum seekers. The core of the EU-Türkiye assertion is that Türkiye will take any means essential to cease those that journey ‘irregularly’ from Türkiye to one of many Greek islands. Asylum seekers who attain the islands are to be returned to Türkiye if they didn’t apply for asylum in Türkiye first or if their software in Greece was deemed to be unfounded or inadmissible. Moreover, for each Syrian nationwide to be returned, EU Member States are to relocate a Syrian one who was nonetheless in Türkiye. The scheme’s effectiveness has been topic to debate and the human rights state of affairs has worsened on each side of the Aegean because of this. It marked the start of a collection of strict asylum insurance policies that proceed to form a hostile asylum system in each Greece and the EU.

The truth for some candidates in Greece deteriorated additional when in 2021 the Greek Authorities issued a Joint Ministerial Choice (JMD) designating Türkiye as a secure third nation (STC) for nationals of Syria, Afghanistan, Pakistan, Bangladesh, and Somalia. Since then, the Greek authorities has issued a listing of STCs yearly and has all the time included Türkiye, regardless of ample proof from human rights and civil society organizations exhibiting that it doesn’t meet the necessities to be designated as such. Particularly, most individuals can not entry the asylum process in Türkiye and asylum candidates have been subjected to each torture and refoulement to nations the place they might face a threat of hurt or persecution equivalent to Syria or Afghanistan.

By labeling Türkiye a STC, Greece can declare asylum purposes inadmissible for folks from these 5 nations if they’ve travelled by means of Türkiye. To rebut the presumption of security and inadmissibility, candidates should bear an admissibility evaluation which requires them to show that Türkiye will not be secure for them and that they might not settle there, after which Greece decides if it is going to assume accountability for his or her claims. If candidates obtain a unfavorable resolution, deeming their asylum declare in Greece inadmissible, they need to be readmitted by Türkiye.  Nonetheless, following Türkiye’s unilateral suspension of the so-called readmission of asylum candidates from Greece on public well being grounds since March 2020, this doesn’t occur in actuality. As early as December 2021, the Readmission Unit of the Hellenic Police Headquarters admitted in official communications with Fenix that they’d even stopped sending readmission requests to Türkiye, contemplating the shortage of lively readmission operations.

The Referral to the CJEU

Consequently, asylum candidates have been thrust right into a state of affairs of authorized limbo: as soon as folks’s purposes have been rejected as inadmissible, they lose the standing of asylum applicant and are caught in a state of affairs they can’t depart by going again to Türkiye whereas additionally shedding entry to a number of the most elementary wants, in grave violation of their basic rights. Consequently, the Greek Council for Refugees (GCR) and Refugee Assist Aegean (RSA) filed for judicial evaluation of the annulment of the JMD earlier than the Greek Council of State, which referred preliminary inquiries to the CJEU in March 2022. The opinion of nearly all of the Greek Council of State was that the JMD needs to be annulled as Türkiye doesn’t readmit individuals who search asylum and there’s no indication that this may change within the close to future. The Courtroom requested for clarification on Article 38 of the Asylum Procedures Directive. This Article units out the factors to designate a 3rd nation as secure. These embrace an evaluation of whether or not folks’s life and liberty are threatened, whether or not they can apply for asylum in step with the Refugee Conference and whether or not the precept of non-refoulement is revered. The essence of the preliminary query earlier than the CJEU had been:

whether or not Article 38 precludes a State from designating a 3rd nation as ‘secure’ contemplating this nation has suspended readmissions to its territory in observe.
whether or not the shortage of readmissions should be thought of a situation earlier than the adoption of a person resolution rejecting an software for worldwide safety as inadmissible underneath the idea of “secure third nation” or solely on the time of the execution of that call.

No readmission, no inadmissibility

The CJEU judgment of 4 October in case C-134/23 doesn’t preclude the Greek designation of Türkiye as an STC. The Courtroom’s judgment is simple. Because the Courtroom had beforehand famous in Bevándorlási és Menekültügyi Hivatal, the designation of a Secure Third Nation is topic to compliance with the 4 standards laid down in Article 38 of the Asylum Procedures Directive (para. 36). As a result of the precise chance for readmission will not be one of many cumulative standards listed within the Directive, Türkiye may be designated as a STC, although no (re)admissions happen.

Regardless of this, the second a part of the judgment is groundbreaking and can majorly have an effect on Greek observe. The Courtroom dominated that when a STC, on this case Türkiye, doesn’t admit or readmit individuals who have utilized for asylum in an EU Member State their purposes can’t be rejected as inadmissible (para. 54). The ruling thereby challenges an abusive observe of the Greek Asylum Service and the Committee of Appeals to reject hundreds of asylum purposes yearly as inadmissible underneath the STC idea, and can positively influence rights entry for these candidates whose claims ought to now be examined on the deserves. Whether or not folks may be readmitted to an STC should develop into a part of the issues in deciding on an software reasonably than a consideration through the execution of that call. The identical is true for another applicant within the EU that obtained an inadmissibility resolution primarily based on the appliance of a secure third nation idea when in actuality the third nation doesn’t (re)admit folks to their territory.

The tip of a problematic ‘resolution’

Secondly, the Courtroom guidelines, Member States can not unduly delay the examination of those claims and should look at them individually (para. 54). In paragraph 54, the Courtroom reiterates that Member States can not unjustifiably postpone the examination of the purposes of people that possess a hyperlink with a STC. The Courtroom follows the Asylum Procedures Directive, which in Recital 18 and mirrored in Article 31 states that purposes should be processed “as quickly as doable”.

This holding has explicit significance within the Greek context. Since 2022, a major variety of candidates have had their preliminary asylum purposes rejected as inadmissible on the grounds of secure third nation (STC) standing however later obtained optimistic selections on admissibility. This modification was not as a consequence of a shift in coverage on issues relating to Türkiye; reasonably, it resulted from the introduction of a criterion within the inner pointers of the Greek Asylum Service (GAS) that requires a ample connection to Türkiye. This criterion will not be met if the candidates have been in Greece for multiple yr. Consequently, candidates had their subsequent software accepted as admissible on the preliminary stage on the premise that ‘the absence of the applicant from [Türkiye] for greater than a yr is a brand new component’ and that the hyperlink with Türkiye was ‘weakened as a result of lapse of a interval of greater than a yr’.

This ‘resolution’ within the GAS’ pointers presents an escape from the beforehand current dead-end during which folks with an inadmissibility resolution had no approach to entry their basic rights in Greece, whereas in addition they couldn’t be readmitted or return to Türkiye. Nonetheless, this ‘resolution’ has additionally threatened folks’s basic rights. Throughout this one-year interval people should not have authorized documentation, no entry to healthcare or common work, and are liable to social and financial exclusion and susceptible to exploitation. Many discover themselves homeless and liable to detention for months till they will submit a brand new software. Because the CJEU dominated that if folks can’t be readmitted their software can’t be declared inadmissible, the current judgment give folks a clearer path to entry asylum in Greece. They’d not should undergo a yr of authorized uncertainty, generally paired with destitution, till their software is taken into account on its deserves.

The way forward for the EU’s Secure Third Nation idea

The Greek Council of State will now additional adjudicate this case and determine on the JMD on the nationwide degree, taking the CJEU’s judgment under consideration. As soon as adopted, the ruling will guarantee entry to the precise to hunt asylum in Greece for these fleeing battle, violence and persecution within the 5 nations the STC idea applies to and finish conditions of protracted authorized limbo.

In addition to, with this judgment, the Courtroom clarifies the STC idea and limits the results {that a} STC designation can have on the asylum circumstances of people. The judgment additionally anticipates the modifications that the Pact will convey. Whereas the judgment remains to be primarily based on the Asylum Procedures Directive, it’s aligned with the legislative resolution adopted underneath Articles 38 and 59 of the Asylum Procedures Regulation. This Regulation will enter into software in June 2026.

The judgment and the brand new EU regulation are particularly related because the EU already has readmission agreements with all nations with which it shares land borders, although the human rights state of affairs in lots of of those nations is extraordinarily regarding. The agreements don’t usually result in a excessive variety of returns. Nonetheless, this isn’t over Member State’s human rights issues however reasonably as a result of these third nations are usually not accepting (re-)admissions.

This judgment and the amended laws are excellent news for the authorized certainty and the place of individuals making use of for asylum within the European Union. EU Member States should now take accountability for folks’s circumstances and can’t let conditions of authorized limbo proliferate. At a time when accessing asylum turns into harder all through Europe, this can be a uncommon win for asylum candidates.