Greek asylum system is broken cog in Turkey plan
Much has been said on the merits of a draft EU-Turkey deal to return unwanted migrants from Greek islands.
The plan hinges on designating Turkey as a “safe” country in order to send all "irregular migrants" packing. But Turkey's patchy application of the Geneva Convention, Europe’s post-WWII human rights bible, and allegations of push-backs have cast a shadow over the draft accord.
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Big questions also remain on how Greece intends to implement EU asylum law under the new plan.
Even if Ankara fulfills its side of the bargain, Greece can still expect a years-long backlog of asylum applications, appeals and meta-appeals that risk undermining the objective of speedy returns.
Greece's asylum system is dysfunctional. Some asylum seekers have waited up to 13 years to have their cases heard.
For rapid returns to work, Greece would need to overhaul its system and hire many more judges. The European Commission wants Greece to make it quick and efficient.
"It's up to the Hellenic authorities to organise this," commission spokesman Margaritis Schinas said on Monday (14 March).
The Greek deputy minister for citizens’ protection, Nikos Toskas, over the weekend said a return under its bilateral agreement with Turkey could take just 48 hours.
But a glance at EU laws and at the Greek asylum process makes that prospect seem unlikely.
Right to be heard
EU law gives anyone, Syrian or otherwise, the right to defend their case before a Greek court after having transited through Turkey.
"Asylum seekers won't be denied the rights to be heard," said Schinas.
It means all will have the right to claim Turkey is not safe enough for them to be returned to. If Greek authorities reject their initial claim, the asylum seeker can appeal. That appeal must heard before a Greek court.
Past cases in Greece show that the system is cumbersome and already overstretched.
The Greek Forum for Refugees, an Athens’ based migrants’ group, said in a blog post earlier this month that people who have had their appeal interviews "are now waiting for months, or even years, to receive a decision from the authorities".
As of September last year, Greece had 23,000 pending appeals for applications filed before June 2013.
Nobody seems to know how many more cases were filed after June 2013 when the vast bulk of asylum seekers arrived in Greece.
The Greek administrative body that oversees them stopped digging into the cases last October after its mandate expired.
"So currently there is a freeze in the examination of appeals. We don't know how many are pending," the Brussels-based European Council on Refugees and Exiles, a non-profit watchdog on EU policy, told EUobserver.
Meanwhile, 35,000 more people became stuck in Greece in recent weeks after the EU slammed shut its Western Balkan borders
About 2,000 more are arriving on Greek shores from Turkey each day.
It is likely that many people who struggle across the Aegean will exploit their legal rights to prevent their immediate return.
Their appeal, given Greece's jammed system, means they will most likely remain on the Greek islands for the foreseeable future where they will have to be housed and fed.
In an added complication, it is also unclear if the legal challenge would be handled in the zones where people are first screened, identified and registered or in separate courts in the Greek islands’ local capitals.
The situation makes the prospect of rapid returns to Turkey look dim.
Meanwhile, if a Greek judge rejects an asylum seeker’s claim, the plaintiff can appeal the verdict at the European Court of Human Rights in Strasbourg.
The European court can suspend a Greek judge's decision within 24 hours if it deems that a return could entail "irreparable harm”, such as torture. If it grants such a request then the plaintiff will stay in Greece.
Given Turkey's ugly human rights record and its escalating conflict with Kurdish groups, the scenario is easy to imagine.
The European Court of Human Rights between 1959 and 2015 handed down over 3,000 judgments on Turkey - more than any other of its member states. Of those, just two percent fully cleared Turkey of violating human rights laws.
The EU commission has insisted that the draft plan is legally sound, citing the EU's asylum procedures directive.
Article 33 in the directive says that "a country can refuse to consider a claim if a non-EU country is considered as a safe third country".
Article 38 lists a set of criteria for Turkey to be deemed safe. This includes a ban on push-backs. People should also be able to receive normal refugee status.
"Article 33 and 38 of the asylum procedure directive clearly open the way for a solution of this kind [returns to Turkey]," said commission president Jean-Claude Juncker last week.
Syrians in Turkey have only a temporary protection status, however.
Everyone else, such as Afghans or Iraqis, don’t have any form of refugee status. This is due to Turkey's derogation, or “geographical limitation”, in the Geneva Convention that says Turkey only grants full protection to European nationals.
It means that if the UNHCR, the UN refugee agency, designates an Afghan person in Turkey as a refugee, Turkey can still force them to go home and risk harm.
The UN says almost 90 percent of those coming from Turkey to Greece since the start of the year come from the world's top 10 refugee-qualifying countries.
They are mostly Syrian (45%), Afghan (25%) and Iraqi (16%) people.
Their fates will be sealed when EU leaders and Turkey sign off on the draft plan in Brussels later this week.