Seeking Asylum in Greece: Parallel Legalities
by Joel Hernandez
Over the past month, Greece and Turkey have implemented a controversial deal intended to stop the migratory flows that brought a million asylum seekers to Europe in 2015, mostly through Greece. On March 20, Greek authorities suddenly removed about 5,000 asylum seekers from outlying Aegean islands to the Greek mainland and converted open-access registration and reception sites, commonly known as “hotspots,” into detention facilities for all future arrivals. On April 4, for its part, Turkey received the first 202 migrants removed from European soil for return to their prior country of transit.
While the EU-Turkey deal has generated furious debate over its morality and over Europe’s capacity to implement it, it has borne another, less well-understood problem: the creation of two parallel legal realities for asylum seekers in Greece, each of them fraught with uncertainty, both for the asylum-seekers themselves and for lawyers seeking to inform or represent them. Legal aid providers in Greece now have an opportunity, and a responsibility, to step into the void.
For asylum seekers who arrived in Greece following the deal’s entry into force, prospects are grim. To be certain, the right to asylum is enshrined in multiple international legal instruments, the European Directive on common procedures for granting and withdrawing international protection, and Greek national law—guaranteeing the right of all arriving migrants in Greece to apply for international protection. The EU-Turkey deal itself also guarantees all arrivals the right to claim asylum, and promises individual reviews of all claims thus filed.
Yet the devil, in this instance, is not in the details, but in the implementation. Rights groups have raised allegations of migrants in Greek detention centers not being informed, or sufficiently informed, of their right to apply for asylum—to grievous effect in the case of 13 Afghan and Congolese individuals reportedly deported in early April without having been offered the opportunity to request asylum. The obfuscation may not be entirely deliberate on the part of Greek detention officers. Neither Greek nor UNHCR officials on the islands were given clear instructions on how to proceed after the deal went into effect. The ongoing failure to inform Greek officials of their obligation, under national and international law, to inform migrants of their right to seek asylum may well have been an intended casualty of the failure of European and Greek authorities to properly inform local officials of the details of the deal.
The ongoing failure to inform migrants of their right to seek asylum, meanwhile, remains a problem of implementation: though the European Commission has called for several thousand support personnel to be deployed to Greece, member state pledges have yet to meet demand, while even fewer pledged personnel have actually been deployed. This situation severelycompromises austerity-saddled Greece and its ability to staff expanded obligations. These compounded failures spell a dark future for asylum seekers, who, deal be damned, continue arriving on European shores: in the present circumstances, very few will be able to access their right to claim asylum—inalienable though it may be.
For asylum seekers who arrived in Greece before March 20, most of whom are now on the Greek mainland, the situation is different—but no less complicated. Though they arrived in Greece with the same right to claim asylum as more recent arrivals, their presence in Greece was never under direct threat of removal since Europe had not formalized a removal mechanism before they arrived. Regardless, Greece was never the target of their migration: few of the 50,000 asylum seekers currently in Greece wish to remain there, most preferring the better job prospects and stronger social safety nets of northern Europe.
Until early March, asylum seekers from Syria, Afghanistan, and Iraq were still able to cross the border into Macedonia and transit toward Austria and Germany. The Balkan Route closed, however, in early February of this year, leaving asylum seekers three choices: claiming asylum in Greece, applying for the EU relocation scheme, or applying for family reunification under the Dublin Regulation.
Accessing each program is fraught with the same difficulties faced by more recent arrivals: officials at both local and European level are overwhelmed by a task they have vastly under-resourced. As of mid-April, those attempting to apply for these programs must set an appointment via Skype, although many reception sites lack electricity and internet access. Staff shortages, furthermore, also mean that asylum seekers can only place calls within a two-hour window, several days per week—up from a weekly one-hour window a couple of weeks before. The predictable result is that the vast majority of calls go unanswered, leaving callers waiting to resolve their status.
For asylum attorneys currently operating in Greece, the outlook is equally frustrating. The fate of asylum seekers is clearly not a matter of black-letter law, but of policy implementation—the black-letter law, as it exists, clearly benefitting asylum seekers. Yet on the islands, lawyers have largely been denied access to the detention centers and asylum-seekers therein. On the mainland, the sheer number of cases to be handled poses a gargantuan challenge—as does the fact that asylum seekers are scattered across 40 sites (and still moving to and fro), and that different individuals have vastly different levels of knowledge, and expectation, as to their situation and legal remedies.
These parallel realities, ultimately, are borne of the same contradiction: the discrepancy between the blanket right of arriving migrants to claim asylum, and Europe’s unwillingness to absorb additional arrivals. Yet they require vastly different solutions. On the islands, injunctive legal challenges are urgently needed to protect migrants from being removed without being afforded a fair chance at claiming asylum. On the mainland, legal assistance to asylum seekers who are eligible to claim asylum, but unable to do so, needs to be ramped up dramatically, at a scale comparable to the ongoing distribution of humanitarian aid.
By diffusing information and engaging in individual representation, asylum lawyers in Greece could provide relief to hundreds—eventually thousands—of asylum seekers. They could also draw granular examples from ongoing situations and nourish targeted advocacy campaigns, contributing to and altering ongoing policy debates. If black-letter law is clear on the right to asylum, political and logistical challenges have thus far prevailed over that right. In the face of this challenge, ramping up both representation and advocacy stands as a paramount task.
About the Author
Joel Hernàndez is a Spanish-American advocate for migrant and refugee rights. He studied at the Fletcher School of Law and Diplomacy and is currently working in Greece. You can follow him on twitter at @joelhdz.