The practical application of border procedures under the Asylum Procedures Directive (recast): An assessment of its compatibility in Greece and Spain with European and international human rights standards

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Master’s thesis

University of Amsterdam

Amsterdam Graduate Law School

The practical application of border

procedures under the Asylum Procedures

Directive (recast):

An assessment of its compatibility in Greece and Spain with

European and international human rights standards

Author: Maarten ten Have

E-mail: maartenrth@hotmail.com

Student number: 10727760

Mastertrack: International and European Law (European Union law) Supervisor: Prof. dhr. R.H. van Ooik

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Abstract

Under article 43 of the Asylum Procedures Directive (recast), Member States are allowed to provide for border procedures in order to examine the admissibility and/or the substance of an application for international protection. The practical application thereof has been controversial, however, as legal concerns relating to the practical application of border procedures questioned its compatibility with European and international human rights standards. Accordingly, the research question of this thesis is as follows: “to what extent is the practical application of border procedures under Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast) in Greece and Spain compatible with European and international human rights standards?”. The first legal concern on the practical application of border procedures is that it may be at odds with elements of (de jure or de facto) detention, or at least with the presumption against detention of asylum seekers. The findings of this research show that the situation in the Greek Eastern Aegean islands seems to amount to the de facto detention of asylum seekers. The line between lawfully restricting the freedom of movement of asylum seekers and (un)lawfully detaining asylum seekers is a thin one, however. It is a gray area, which also is the reason why it is difficult to give a conclusive answer to the first subquestion for the situation of applicants to international protection in the Spanish enclaves of Ceuta and Melilla. Whether the de facto detention of asylum seekers in both border procedures is lawful or not, it is at the very least possible to conclusively hold that the presumption against detention of asylum seekers is not satisfied in the practical application of border procedures in these two Member States. The other major legal concern that is analyzed sees on the question of whether procedural safeguards can be adequately secured for applicants to international protection in a border procedure. Whereas those procedural safeguards have been correctly implemented in national law, the practical application of border procedures in both Greece and Spain shows that procedural safeguards are not effectively observed in practice. It was a recurring theme within the analysis of all procedural safeguards in the border procedure that they cannot be effectively observed due to a serious lack of staff, financing or a combination of both. Considering these findings, the current practical application of border procedures under the APD in Greece and Spain can therefore hardly be viewed as being compatible with European and international human rights standards.

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Acknowledgements

I would like to express my sincere gratitude to my thesis supervisor, Prof. R.H. van Ooik. The feedback Prof. Van Ooik provided me with steered me in the right direction, while he simultaneously allowed for this thesis to be my own work. Thank you for your guidance.

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Introduction

Within the field of migration law, there seems to be an inherent tension between problems for persons wishing to migrate (e.g. how to get access to the territory of a state) and problems for states vis-a-vis migrating persons (e.g. how to control the borders). The area of asylum law specifically is exemplary for this tension since states are keen on controlling their borders, yet are obliged, under norms of both international law and European Union (hereinafter: EU) law, to grant access to asylum for persons seeking international protection. One policy consideration that might result 1 from this tension is that states provide for border procedures in order to process applications for international protection, especially given the fact that many applications for international protection are made at the border or in a transit zone of Member States. 2

Article 43 of Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast) (hereinafter: APD) allows Member States to provide for border 3 procedures in order to examine the admissibility and/or the substance of an application for international protection. While these border procedures are permitted under EU law provided that certain conditions are met, the practical application of border procedures does not go without controversy. Legal concerns may arise in the application of border procedures, especially in 4 practice, since more Member States formally started applying border procedures in recent years and the application thereof is barely monitored - for example, the European Commission thus far only launched infringement procedures against Hungary’s application of border procedures. 5

Most of the legal concerns relate to the adequate protection of fundamental rights of asylum seekers and derived from both European and international human rights standards. There are two major legal concerns. The first concern is that the application of border procedures may be at odds with elements of (de jure or de facto) detention, or, at least, with the presumption against detention of asylum seekers. The other major concern is that border procedures, in practice, lack adequate 6

See, to this end, for example Article 33 of the 1951 Convention Relating to the Status of Refugees; Article 18 of the

1

Charter of Fundamental Rights of the European Union; and Articles 3 and 6 of Directive 2013/32EU on Common procedures for granting and withdrawing international protection (recast).

EASO 2019(1), p. 1.

2

European Union, Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common

3

procedures for granting and withdrawing international protection (recast), 29 June 2013, OJ L 180, 29.6.2013. ECRE 2019(1), p. 1.

4

Case C-808/18 European Commission v Hungary (pending).

5

ECRE 2019(1), p. 1.

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procedural safeguards, given for example the strict and short deadlines that are usually enforced in border procedures, or because access to legal assistance may be more difficult at border facilities. 7 This could be problematic in relation to the principle that the asylum procedure is to be fair and efficient, and, additionally, may also be the cause of tension with the accessibility to international protection in a broader sense: there is evidence of significant differences in recognition rates between asylum applications made in border procedures and those made in regular procedures. The European Asylum Support Office (hereinafter: EASO) calculated that in 2018, the overall recognition rates of asylum applications in regular procedures stood at 34% as compared to only 12% for applications made in border procedures. The EASO states that this significant difference 8 may be caused by the lack of adequate procedural safeguards in the practical application of border procedures. 9

These concerns lead me to believe that the practical application of border procedures is problematic in the sense that it may be incompatible with European and international human rights standards (in at least some Member States). Because of this, the research question of this thesis is as follows:

“To what extent is the practical application of border procedures under Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast) in Greece and

Spain compatible with European and international human rights standards?”

The topic of this research question is very much relevant. Besides clarifying important aspects of the current practical application of border procedures, it also is plausible that the application of border procedures (either voluntary or mandatory) will again be included in the new asylum and migration pact, which is expected to be proposed sometime this year. There are even plans about 10 additional intended pre-procedures being included in the new border procedure. This could bring 11 about additional legal challenges, such as with regard to the prohibition of discrimination on the basis of nationality as laid down in Article 21 of the Charter of Fundamental Rights of the European

ibid. 7 EASO 2019(1), p. 3. 8 ibid. 9 ECRE 2020. 10

Jacopo Barigazzi 2019; Nikolaj Nielsen 2020 .

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Union (hereinafter: CFR) if, for instance, asylum applications from applicants of certain nationalities are rejected or declared inadmissible immediately on the sole basis of their country of origin, so without a proper examination of the substance of the claim having been carried out in the pre-procedure. Whether or not this would be problematic would, of course, depend on the form of the intended pre-procedure, which is not yet clear. However, because take-aways from this analysis could be relevant for both the current and the (near-certain) future application of border procedures, the importance of analyzing the extent to which the current practical application of border procedures is compatible with European and international human rights standards is clear already.

The extent to which the current practical application of border procedures is compatible with European and international human rights standards will be determined on the basis of the answers to three subquestions. The first subquestion will deal with the first major legal concern that was raised on the practical application of border procedures, by examining the extent to which the practical application of border procedures under the APD is compatible with European and international human rights standards relating to (the presumption against) the detention of refugees. The second subquestion, then, will deal with the other major legal concern that was raised, by examining the extent to which the practical application of border procedures under the APD is compatible with European and international human rights standards relating to procedural safeguards in the asylum procedure. The third and final subquestion will deal with other relevant European and international human rights standards that might raise additional concerns with regard to the practical application of border procedures under the APD.

In this study, these subquestions will be answered in light of an analysis of the practical application of border procedures in Greece and Spain. The practical application of border procedures in these two countries is chosen to conduct the research on for numerous reasons. Both countries apply border procedures as a logical consequence of their geographic location in the EU. 12 Furthermore, as a result of the many applications made in these border procedures, there is much information available online on the practical application of border procedures in these two countries as compared to that in other countries. Besides, it is expected that these two countries will play a prominent role in the intended border procedures of the upcoming asylum and migration pact, which would make the findings of this research more interesting than the findings of an analysis of other countries’ practical application of border procedures would be. The Netherlands, for example, formally also applies a border procedure at its ports and airports. Analyzing the practical application

EASO 2019(1), p. 4.

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thereof will not help in answering the research question, however, as the border procedure is so scarcely used that it is, in fact, the same procedure as the normal asylum procedure and thus goes beyond the scope of this thesis. The most important reason for choosing the application of the 13 border procedure in Greece and Spain, however, is that the practical application in both countries differs in numerous substantial points, both highlighting different aspects relevant for answering the research question of this thesis. This ultimately leads to a more conclusive answer to the research question. The Greek border procedure has been applied consistently since 2016 and has been under enormous migratory pressure in the past four years. Because of this, the Greek border procedure is 14 exemplary for both the major legal concerns that were discussed earlier. The Spanish border procedure, then, is exemplary for strict time limits in border procedure, as the Spanish border procedure cannot exceed four days for a first instance decision on the admissibility of asylum applications and another four days for appeals decisions. Another characteristic for the Spanish 15 border procedure is that it is more difficult to gain access to, since asylum seekers will have to jump over a fence and are confronted with persistent practices of push-backs. Because of this, only 12% 16 of the total number of asylum applications in Spain were processed under a border procedure in 2018. The Spanish border procedure as applied in these enclaves is therefore mostly exemplary 17 for legal concerns regarding the inaccessibility to international protection - not only in the broader sense of the term, but also in a quite literal manner.

Before turning to the analysis, it is first necessary to provide for an overview of the relevant provisions of, case-law on, and commentary to the European and international legal instruments that are to be used in the analysis. There are four main legal instruments applicable to border procedures when applied under article 43 APD. The APD is, of course, the most important legal instrument to elaborate on; however, the CFR, the 1951 Convention Relating to the Status of Refugees (hereinafter: Refugee Convention) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR) must also be elaborated on.

IND 2018.

13

AIDA & ECRE 2019(1).

14

15

ibid.

16

ibid.

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1. Legal framework

1.1. General remarks

This chapter will discuss the relevant provisions of, case-law on, and commentary to the legal instruments that are to be used in the analysis. As was mentioned in the introduction, the APD is not the only legal instrument that is included in this discussion. The CFR, the Refugee Convention and the ECHR will also be discussed, given that together with the APD these are the main legal instruments applicable to EU Member States when border procedures are applied under article 43 APD. Not only is it important to extensively discuss these legal standards because these are the European and international human rights standards upon which the assessment of the compatibility of the practical application of border procedures is based; an extensive discussion of these legal standards also is necessary because it cannot be excluded beforehand that the legal concerns may be partially caused by ambiguities in the legal standards of these instruments themselves.

1.2. Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast)

Before turning to the articles of the APD, a few recitals are worth mentioning first. Reiterating the Stockholm Programme as adopted by the European Council, recital 8 states that people in need of international protection must be ensured access to legally safe and efficient asylum procedures. While efficiency and swiftness in the asylum procedures is in the interests of both the Member States and the applicants for international protection, recital 18 recalls that the goal of making a decision as soon as possible on applications for international protection is without prejudice to an adequate and complete examination being carried out. Furthermore, recital 60 states that the APD respects the fundamental rights and principles recognised by the CFR and stresses the importance in this regard of, amongst others, articles 18, 19 and 47 of the CFR about, respectively, the right to asylum, the right to protection in the event of removal, expulsion or extradition and the right to an effective remedy and to a fair trial.

Article 43 APD is the key article of the Directive for the purpose of this thesis, as this article provides Member States with the option to apply border procedures in accordance with the basic principles and guarantees of Chapter II of the APD. Both the admissibility (pursuant to article 33 APD) and the substance (pursuant to article 31(8) APD) of an application for international protection may be decided at in border procedures following article 43(1)(a) and (b) APD.

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The second paragraph of article 43 APD obliges Member States to ensure that decisions on the admissibility and/or substance of the application for international protection are taken within a reasonable time. With regard to the time frame of admissibility decisions under article 31(8) APD, the Court of Justice of the European Union (hereinafter: CJEU) held that applicants subject to such a procedure must “enjoy a sufficient period of time within which to gather and present the necessary

material in support of their application, thus allowing the determining authority to carry out a fair and comprehensive examination of those applications and to ensure that the applicants are not exposed to any dangers in their country of origin”. The same holds true for accelerated border 18 procedures in which an admissibility decision is taken. If, however, a decision has not been taken within four weeks, the applicant shall then be granted entry to the territory of the Member State in order for the application to be processed according to the regular asylum procedure. The provision itself does not specify as of when the four weeks period starts. Arguably the most convincing interpretation holds that this period starts to run as of the day the asylum application was first made to the authorities at the border, which would be in line with article 6 APD, which states that applications for international protection should be made to an authority competent under national law for registering such applications. The third paragraph of article 43 APD, finally, sets the 19 standard for events in which large numbers of third country nationals (hereinafter: TCN’s) lodge applications for international protection at the border or in a transit zone: in these cases, border procedures may also be applied at locations in proximity to the border or the transit zone. The European Council on Refugees and Exiles (hereinafter: ECRE) considers this to be a worrisome standard, as the provision leaves a wide margin of appreciation to Member States to determine what exactly constitutes a “large number of TCN’s” and does not specify how the application of article 43(3) APD relates to the right to be granted entry into the territory of article 43(2) APD. 20

Article 43 APD allows Member States to provide for border procedures as long as these are in accordance with the basic principles and guarantees of Chapter II APD. This chapter contains multiple principles and guarantees relevant for the analysis in the next chapter. With regard to procedural guarantees in the asylum procedure, article 12(c) APD first provides that applicants enjoy the guarantee of being able to communicate with the UN High Commissioner for Refugees (hereinafter: UNHCR) or with any other organisation providing legal advice or other counseling to

Case C-175/11 H.I.D., B.A. v Ireland (31 January 2013), para. 75.

18

ECRE 2014, p. 48.

19

ECRE 2014, p. 49.

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applicants. Article 19 APD, then, obliges Member States to ensure that applicants are provided with legal and procedural information free of charge in procedures at first instance. Following article 20(1) APD, Member States must furthermore grant applicants legal assistance and representation free of charge in the appeals procedures if so requested. In procedures at first instance this remains optional according to article 20(2) APD, which also stipulates that if Member States do decide to make use of this possibility, article 19 APD will not apply. Under article 21 APD, Member States may decide to only grant applicants legal assistance and representation free of charge when applicants themselves lack sufficient resources. This rule is without prejudice to the obligation for Member States that follows from article 22 APD, which entails that Member States must allow applicants to consult a legal adviser at their own cost at all stages of the procedure. The scope of the legal assistance and representation, finally, is regulated by article 23 APD. Paragraph 2 of said article, for instance, expressly states that representatives of applicants must have access to closed areas such as detention facilities and transit zones for the purpose of consulting that applicant.

Another important guarantee for applicants laid down in Chapter II APD is article 24, which lays down norms for applicants in need of special procedural guarantees. Article 24(3) APD obliges Member States to ensure that applicants in need of special procedural guarantees, such as special physical or mental care, are provided with adequate support in order to allow them to benefit from the rights of the APD. Article 24(3) APD furthermore obliges Member States to comply with the obligations of the APD throughout the complete duration of the asylum procedure, and expressly states that border procedures under article 43 APD may not be applied where such adequate support cannot be provided. Article 24(4) APD, finally, allows for special procedural guarantees to be provided also if their need appears at a later stage in the procedure.

Article 26 APD is important because it prohibits Member States to hold a person in detention for the sole reason that he or she is an applicant for international protection. Applicants may only be detained in accordance with the grounds for, and conditions of, detention in accordance with Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (hereinafter: RCD) . Article 8 RCD lays down the grounds for detention, but first reiterates the presumption 21 against detention of asylum seekers in paragraph 1 and provides in paragraph 2 that detention should only be a measure of last resort. Just as is recalled in recital 20 of the RCD, any alternative measure to detention must be duly examined first and must always respect the fundamental human

European Union, Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down

21

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rights of applicants. The CJEU, in the JN judgment, reaffirmed this by holding that “detention is to

be used only as a last resort, when it is determined to be necessary, reasonable and proportionate to a legitimate purpose”. EU law therefore requires the demonstration that detention is necessary for 22 and proportionate to any of the six grounds for detention, namely, put briefly, for administrative purposes as listed in paragraph 3 of article 8 RCD. In this, article 8(3) RCD differs from the conditions that the ECHR requires for the detention of applicants under article 5(1)(f) ECHR, as will be discussed further in section 1.5 on the ECHR. 23

As was previously mentioned, the grounds for detention listed in article 8(3) RCD are exhaustive. Because article 3 RCD states that the Directive applies to all TCN’s who make an application for international protection on the territory of a Member State, including at the border of a Member State, these grounds for detention are also applicable to border procedures as applied under article 43 APD. This interpretation of the Directive is in line with recital 8 RCD, which states that the Directive applies during all stages and all types of procedures concerning applications for international protection. Out of the six grounds for detention, one ground is particularly relevant in the context of border procedures as applied under article 43 APD: the ground for detention under sub c of article 8(3) RCD. This provision reads as follows: “An applicant may be detained only (…) in order to decide, in the context of a procedure, on the applicant’s right to enter the territory”. In practice, this ground for detention appears to be used only in the context of border procedures. While this is not the only relevant ground for detention in the context of border procedures, it is arguably the most commonly used ground. 24

If detention is allowed, article 9 RCD then lists the guarantees for detained applicants. One of these guarantees is that applicants shall be detained for as short a period as possible and only as long as one of the grounds as set out in article 8(3) RCD remains applicable. The CJEU has not defined the meaning of ‘a period as short as possible’ as this depends on the circumstances of each specific case. When article 8(3)(c) RCD is analyzed in light of the circumstances of cases falling 25 under article 43(2) APD, which states that an applicant to international protection shall be granted entry to the territory when a decision has not been taken within four weeks, the circumstances of

Case C-601/15 PPU J.N. v Staatssecretaris van Veiligheid en Justitie (15 February 2016), para. 63.

22 EASO 2019(2), p. 24. 23 EASO 2019(2), p. 26. 24 EASO 2019(2), p. 37. 25

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that case are arguably clear: in such cases, applicants may be detained for a maximum period of four weeks if, at least, the other grounds for detention have been met as well.

Turning back to the APD, finally, article 46(1) APD provides applicants with a right to an effective remedy against numerous decisions taken on applications for international protection. Following article 46(1)(a)(iii) APD, one of the decisions against which applicants have the right to an effective remedy is a decision taken in border procedures under article 43(1) APD. Paragraph 3 of article 46 APD stipulates that an effective remedy must provide for a full and ex nunc examination of both the facts and the law. The CJEU has held that the right to an effective remedy in article 46 APD means that the remedy must be before a judicial body at first instance, and that EU law does not establish a further requirement for an appeals procedure under this right - without precluding the Member States to introduce this right of appeal in national legislation. 26

1.3. Charter of Fundamental Rights of the European Union

Since the entry into force of the Lisbon Treaty, the fundamental rights and principles as recognised by the CFR constitute primary EU law. It is for this reason that recital 60 APD holds that the APD 27 respects the fundamental rights and principles of the CFR, and, amongst others, in particular articles 18, 19 and 47 thereof. The same holds true for the RCD following recital 35 RCD, which states the rights of the CFR most relevant to respect when implementing the RCD. The most important article of the CFR in this regard is article 6. Since Member States are indeed implementing the APD and the RCD when they apply border procedures under article 43 APD, Member States are also bound by the rights and principles as laid down in the CFR. Five articles of the CFR will be briefly 28 discussed in this section: article 6 on the right to liberty and security; article 18 on the right to asylum; article 19 on the right to be protected from both collective expulsions and refoulement; article 41 on the right to good administration; and, finally, article 47 on the right to an effective remedy and to a fair trial.

With regard to article 6, the EASO notes how jurisprudence of the CJEU on this article is scarce. Because article 6 CFR is linked with article 5 ECHR by virtue of article 52(2) CFR, 29 however, further discussion on the right to liberty can still be provided for in section 1.5 on the

Case C-180/17 X. Y. v Staatssecretaris van Veiligheid en Justitie (26 September 2018), para. 25.

26

Art. 6(1) Treaty on European Union.

27

Art. 51(1) Charter of Fundamental Rights of the European Union.

28

EASO 2019(2), p. 12.

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ECHR. One of the few judgments of the CJEU on article 6 is the judgment of K. In this judgment, the Court was asked whether the detention of applicants for international protection in order to verify their nationality or identity was valid in light of article 6 CFR. The CJEU found that such detention is necessary in order to ensure the proper functioning of the Common European Asylum System (hereinafter: CEAS) because it contributes to preventing secondary movements, and concluded that this detention ground is in line with the CFR because there is a limited framework under which detention is allowed under article 8(3) RCD. 30

Article 18 CFR entails that the right to asylum shall be guaranteed with due respect for the UN Refugee Convention, therefore making another constitutional reference to the importance of the Refugee Convention besides the general legal basis for asylum legislation in article 78(1) Treaty 31 on the Function of the European Union (hereinafter: TFEU), which also stipulates that EU asylum policy must be in accordance with the Refugee Convention. The text of article 18 CFR in itself does not entail a specific right, but when the article is read in light of the principle of effectiveness of EU law, it might entail that international protection must be granted to those who are entitled to it. 32 This interpretation is further supported by Gil-Bazo’s analysis of the scope of the right to asylum, which concludes that the right to asylum of article 18 CFR entails not only an individual right to seek asylum, as is normally the case in public international law norms on the right to asylum, but also a right to be granted asylum. 33

Closely related to article 18 CFR is article 19 CFR, which entails the right to be protected from both collective expulsions and refoulement. Paragraph 1 of article 19 CFR prohibits collective expulsions, thus requiring Member States to guarantee that every decision on an application to international protection is based on an individual examination. If such an individual examination is not carried out, the expulsion of applicants would then be collective and therefore prohibited. By virtue of article 52(3) CFR, which links the meaning and scope of CFR rights with the corresponding ECHR rights, the protection afforded by article 4 of Protocol 4 ECHR (on the prohibition of collective expulsions) sets a minimum standard for the corresponding article 19 CFR. Under article 19 CFR, applicants to international protection are also protected from refoulement following paragraph 2 of article 19 CFR: no one may be removed or expelled to a state where there

Case C-18/16 K. v Staatssecretaris van Veiligheid en Justitie (14 September 2017), para. 39.

30

EASO 2019(2), p. 12.

31

Case C-62/00 Marks & Spencer pics v Commissioners of Customs & Excise (11 July 2002), para. 35.

32

Gil-Bazo 2008, p. 47.

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is a serious risk that someone would be subjected to a country in which that person would not be safe.

The right to good administration, then, is laid down in article 41 CFR and comprises of the right to be heard; the right to have access to his or her file; and the obligation of the administration to give reasons for its decisions. Especially for applicants for international protection, Member State compliance with the right to be heard when border procedures are implemented is an essential procedural safeguard in their asylum procedure if their claim is to be examined impartially and fairly. Accordingly, the CJEU held that “observance of the right to be heard is required even where

the applicable legislation does not expressly provide for such a procedural requirement” and that 34 the right to be heard must apply fully to procedures in which applications for international protections are examined. 35

Article 47, finally, entails the right to an effective remedy and to a fair trial. Despite the overlap with article 46 APD, the legal importance of the fact that the right to an effective remedy is also laid down in the CFR is that the right can now be classified as being constitutionally safeguarded, ultimately to protect applicants for international protection from refoulement. Because of this, this right constitutes an inherent part of the standard of a fair and efficient asylum procedure. Furthermore, the right to an effective remedy under article 47 CFR also includes that 36 legal aid shall be made available to those who lack sufficient resources in order to ensure effective access to justice, thereby also constitutionally safeguarding the rights of applicants under articles 20 - 23 APD. The CJEU has developed two steps in order to assess the compatibility of a procedure with article 47 CFR. These steps follow logically from the general limitation clause of article 52(1) CFR. The CJEU first looks at the overall fairness of the procedure at issue, given that some 37 procedural flaws immediately give rise to a violation of article 47 CFR, such as appeal decisions that have no suspensive effect in case of the expulsion of an applicant to international protection. Secondly, the CJEU balances the conflicting interests at stake, as is often the case when assessing alleged human rights violations. In balancing these interests, the CJEU takes into account the nature of the rights at stake and the characteristics of the persons concerned - the principle of

non-Case C-277/11 M.M. v Ireland (22 November 2012), para. 86.

34

Case C-277/11 M.M. v Ireland (22 November 2012), para. 89.

35

ECRE 2014, p. 50; Crescenzi, Forastiero and Palmisano (eds.) 2018, p. 83.

36

Crescenzi, Forastiero and Palmisano (eds.) 2018, p. 61.

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refoulement, for one, requires a high level of procedural protection. In the context of article 46 38 APD, for instance, the CJEU held that article 47 CFR is violated when an applicant for international protection is not given the opportunity to be heard in the appeals procedure. The right to be heard is not an absolute right, however, and can therefore be restricted if the restrictions correspond to objectives of general interest pursued by the measure; are proportionate; and do not infringe upon the very substance of the rights guaranteed. 39

1.4. 1951 Convention Relating to the Status of Refugees

The TFEU, CFR, APD and RCD all reference to the Refugee Convention as amended by the New York Protocol of 31 January 1967 and stipulate that EU asylum law and policy must be in accordance with the Refugee Convention. Therefore, it is important to briefly touch upon article 31(2) thereof, which reads as follows:

“The Contracting States shall not apply to the movement of such refugees restrictions other

than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country (…).”

According to this provision, detention must be deemed necessary and may not go beyond that what is necessary. Detention of applicants for international protection will therefore be easier to justify in case of a mass influx of applicants as opposed to when only a few illegal entries are made, as it is in case of a mass influx of persons that the authorities may necessitate a special procedure in order to properly carry out their tasks. With regard to the necessity of the restriction, it is argued that 40 detention may not be resorted to just for the convenience of the (immigration) authorities as long as detention does not prevent them from carrying out their task. As of yet, the CJEU has not given 41 interpretative guidance on the meaning of article 31(2) Refugee Convention within the context of EU legislation. In the one case in which the Court had the chance to do so, the Qurbani judgment, the Court held that it lacked jurisdiction to interpret article 31(2) Refugee Convention in a

Crescenzi, Forastiero and Palmisano (eds.) 2018, p. 63.

38

Case C-348/16 Moussa Sacko v Commissione Territoriale per il riconoscimento della protezione internationale di

39

Milano (26 July 2017), paras. 37 - 38.

UNHCR 1997, p. 106.

40

ibid.

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preliminary reference procedure because the link with EU law was missing in that particular case. 42 It is possible, however, that future cases may arise in which an issue raises questions under both EU law and article 31(2) Refugee Convention. The CJEU would, then, have jurisdiction to expressly interpret EU law in light of article 31(2) Refugee Convention. This could be the case in the context of recital 15 RCD, for instance, as this recital entails the presumption against the detention of asylum seekers and thus expressly refers to article 31(2) Refugee Convention. 43

1.5. European Convention for the Protection of Human Rights and Fundamental Freedoms

While the EU itself is not yet a party to the ECHR, each of the EU Member States is. Therefore, following article 1 ECHR, the ECHR is applicable when EU Member States apply border procedures under article 43 APD. Furthermore, article 6(3) TEU holds that the fundamental rights as guaranteed by the ECHR constitute general principles of EU law and article 52(3) CFR stipulates that the protection afforded by the ECHR sets a minimum standards for corresponding CFR rights.

There are numerous CFR rights that correspond to the ECHR. The first paragraph of article 47, for instance, corresponds to article 13 ECHR on the right to an effective remedy. The second paragraph of article 47 CFR, then, corresponds to article 6 ECHR on the right to a fair trial; in asylum cases, however, article 6 ECHR is not applicable since no determination of civil rights (or obligations) or criminal charges is made in the examination of a claim to international protection, and article 6 ECHR requires either one of those to be made in order for the article to be applicable. 44 Article 13 ECHR can be violated when a domestic remedy cannot effectively deal with the substance of an ‘arguable complaint’ under another Convention right or grant appropriate relief on the complaint. Violations of article 13 ECHR are therefore always taken in conjunction with other 45 articles from the Convention. In the context of cases on asylum law, the European Court of Human Rights (hereinafter: ECtHR) oftentimes finds a violation of article 13 ECHR in conjunction with article 3 ECHR and/or article 5(1)(f) ECHR. In the M.S.S. v Belgium and Greece judgment, for example, the ECtHR held that an effective remedy must be available in practice. The lack of legal aid, for instance, can render an effective remedy inaccessible under article 13 ECHR (and, in this

Case C-481/13 Qurbani (17 July 2014), para. 29.

42

Costello 2017, p. 61.

43

FRA & CoE 2015, p. 100.

44

Conka v Belgium App no 51564/99 (ECtHR, 5 February 2002), para. 75.

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case, in conjunction with article 3 ECHR). Also, when asylum applications are processed in an 46 accelerated procedure, the accessibility of legal remedies in practice can be unjustifiably limited by a number of factors. These factors may include, for instance, short deadlines for submitting applications and practical or procedural difficulty of producing evidence while in detention. When combined, these factors can lead to a violation of article 13 ECHR in conjunction with Convention rights such as article 3 ECHR or article 5(1)(f) ECHR. In the Conka v Belgium judgment, for 47 instance, the Court held that there was a violation of article 5(1) ECHR in conjunction with article 13 ECHR because there was no realistic possibility of accessing a remedy because applicants were not given information on available remedies in their own language; because there was just one interpreter available in all of the detention centres; and because there was no further form of legal assistance available in the detention centre. 48

The conditions that the ECHR requires for the detention of applicants to international protection are laid down in article 5(1)(f) ECHR. In the context of border procedures, detention of applicants to international protection is only allowed in order to prevent the effecting of an unauthorised entry into the country. The ECtHR makes no difference between de jure and de facto detention. The ECRE noted how the ECtHR has consistently held that it does not matter how States qualify places of detention (such as ‘reception centres’ or ‘transit zones’) in an attempt to avoid the obligations under article 5(1) ECHR. An example of this is the judgment of Khlaifia v Italy, in 49 which the Court held that it did not matter that the place in which applicants were held was designated as a centre for ‘first aid and assistance’ because it was, in fact, used for detaining applicants. Furthermore, in order to comply with the standards set by the case-law of the ECtHR, 50 detention must also “be carried out in good faith; it must be closely connected to the purpose of

preventing unauthorized entry of the person to the country; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued”. In making the assessment of whether the conditions of detention are 51 appropriate, the Court stressed that the measure is applicable to people who (claim to) have fled their home from armed conflict or persecution and not to people who have been convicted of a

M.S.S. v Belgium and Greece App no 30696/09 (ECHR, 21 January 2011), para. 321.

46

See, to this effect, for instance, I.M. v France App no 9152/09 (ECtHR, 2 May 2012).

47

Conka v Belgium App no 51564/99 (ECtHR, 5 February 2002), paragraphs 44 - 46.

48

ECRE 2017(1), p. 8.

49

Khlaifia v Italy App no 16483/12 (ECtHR, 15 December 2016), para. 68.

50

Lokpo and Touré v Hungary App no 10816/10 (ECtHR, 20 September 2011), para. 22.

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criminal offence. With regard to the length of detention that is allowed under article 5(1)(f) 52 ECHR, the ECtHR held that this depends on the circumstances of each specific case. In the Rahimi v Greece judgment, for instance, the Court held that two days detention was too long considering the mental and physical circumstance of the applicant. In the JR and others v Greece judgment, on 53 the other hand, a detention period of one month was considered to be reasonable for the administrative purpose pursued. If individuals are detained lawfully for a longer period of time, 54 authorities should, additionally, decide on the claim to international protection with more due diligence and more speedily - especially if the applicant qualifies as a vulnerable applicant. 55

To conclude this chapter with, it is interesting to highlight a recent development in the jurisprudence on the detention of applicants to international protection. In the ECtHR case of Ilias and Ahmed v Hungary, the Court held that the applicants, who were held in a certain transit zone in Hungary, were not deprived of their liberty contrary to article 5(1)(f) ECHR. With regard to a case 56 brought before the CJEU by other applicants who are held in the same transit zone, however, Advocate General Pikamäe recently held the detention of those applicants in that transit zone to be unlawful under the conditions of the RCD. Amongst others, the Advocate General noted how the CJEU may interpret issues independently of the ECtHR when EU law provides for a higher level of protection than the ECHR. According to the AG, one factor that may give rise to such an interpretation is isolation together with the severely restricted possibility to voluntarily leave such a transit zone. 57

Amuur v France App no 19776/92 (ECtHR, 25 June 1996), para. 43.

52

Rahimi v Greece App no 8687/08 (ECtHR, 5 April 2011), para. 86.

53

J.R. and others v Greece App no 22696/16 (ECtHR, 25 January 2018), para. 116.

54

S.M.M. v UK App no 77450/12 (ECtHR, 22 June 2017), para. 83.

55

Ilias and Ahmed v Hungary App no 47287/15 (ECtHR, 21 November 2019), para. 249.

56

Joined Cases C-924/19 and C-925/19 of FNZ and SA junior v Immigration and Asylum Office (23 April 2020),

57

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2. Analysis of the practical application of border procedures in Greece and Spain

2.1. General remarks

In this chapter, the three subquestions will be answered in light of an analysis of the practical application of border procedures in Greece and Spain. Before turning to these subquestions, however, a few introductory remarks on the border procedures in both countries will be made first.

The border procedure in Greece, as referred to in this thesis, is the border procedure that is applied in the Eastern Aegean islands of Lesvos, Chios, Samos, Leros, Rhodes and Kos. In implementing article 43 APD, Greek article 60(4) of Law 4375/2016 establishes two types of border procedures. The regular border procedure, which on the face of it fully complies with the conditions for border procedures as set out in article 43 APD, is in practice only applied in airport transit zones (the airport of Athens in particular), thus not relevant for the research question of this thesis. The 58 second type of border procedure, however, is known as the “fast-track border procedure” and is the border procedure that is applied in the aforementioned Eastern Aegean islands. The fast-track border procedure was introduced in 2016 for applicants subject to the EU-Turkey statement, since the objectives of the EU-Turkey statement were, amongst others, to prevent irregular migration to the EU and open up organized, safe and legal channels to the EU. It was meant to be a temporary 59 and extraordinary measure, but the application thereof has been extended repeatedly because of which it is still in force today. Data of 2018 shows that 42.9% of all applications to international 60 protection were registered at one of the Eastern Aegean islands. These claims to international 61 protection are examined under an admissibility procedure. Despite the name of the border procedure, the average length of first instance procedures was over seven months in 2018. 62 Because of its continuous application since 2016 and the enormous migratory pressure on the Greek islands for the past four years, the practical application of the Greek fast-track border procedure is relevant for all concerns studied in the analysis.

The border procedure in Spain, then, as referred to in this thesis, is the border procedure that is applied in the Spanish enclaves of Ceuta and Melilla. Whereas the Greek border procedure has been in place for all applicants to intentional protection since 2016, the border procedure in Ceuta

58

European Commission 2018, p. 1.

59

60

ibid.

61

ibid.

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and Melilla has only been applied consistently since 30 August 2019. Articles 21 and 25 of the 63 Spanish Asylum Act allow for the application of border procedures in these two enclaves. Prior to 30 August 2019, however, applications to international protection from asylum seekers who entered the enclaves irregularly were dealt with by the regular asylum procedure. It is only since 30 64 August 2019, according to non-governmental organizations (hereinafter: NGO’s) in the field, that the practice of a border procedure has been implemented consistently in both Spanish enclaves for applicants to international protection. Even though it is less certain that the border procedure will 65 continue to be applied in the Spanish enclaves as thoroughly and consistently as in the Greek Eastern Aegean islands, the information available on the application thereof up until today indicates that the case is interesting enough to analyze as well because it is, amongst others, exemplary for legal concerns regarding the inaccessibility to international protection, as was previously discussed in the introduction.

2.2. To what extent is the practical application of border procedures under Directive 2013/32/ EU compatible with European and international human rights standards relating to (the presumption against) the detention of refugees?

General

The first major concern regarding the practical application of border procedures is that it often seems to be at odds with elements of (de jure or de facto) detention, or, at least, with the presumption against detention of asylum seekers. Cornelisse argues how applicants to international protection are generally deprived of their liberty during border procedures, either in a conventional detention centre or because their factual situation amounts to a deprivation of liberty. The ECRE 66 as well found that border procedures usually imply the automatic detention of applicants to international protection. These findings are remarkable when seen in light of the APD, RCD and 67 applicable case-law of the CJEU: EU law clearly prescribes that detention may not be the result of an automatic decision, and may only follow after an individual assessment of each case has been

ECRE 2019(2).

63

64 ECRE 2019(2). 65 Cornelisse 2016, p. 75. 66 ECRE 2014, p. 48. 67

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made. The presumption against the detention of asylum seekers is laid down in article 8 RCD, and 68 both recital 20 RCD and the CJEU in the JN judgment affirmed that detention is to be used only as a last resort, when it is determined to be necessary, reasonable and proportionate to a legitimate purpose. It is for this reason that Cornelisse argues that an enormous gap between the laws and practice exists, as the legal framework regulating the use of detention in border procedures in EU law is clear in itself. Cornelisse gives the example of the Greek island of Lesvos, where it only 69 took Doctors without Borders one week after the hotspot mechanism was launched to raise questions on the legality of the deprivation of liberty of asylum seekers under EU law. 70

As well-defined and logical the legal framework on the use of detention in border procedures is - which implies that it is indeed the practical application of border procedures that causes legal concerns to arise -, the ECRE has noted one paradoxical legal fiction in the legal framework. As stated before, the ground most commonly used for detention in the context of border procedures is the ground for detention under sub c of article 8(3) RCD. Under this ground, applicants to international protection may be detained in order to decide on the applicant’s right to enter the territory. The scope of application of the RCD, however, is extended to the border and transit zones of Member States. This results in the legal paradox that the Directive cannot be applicable unless the person has already entered the territory, including the border; yet the detention ground under article 8(3)(c) RCD suggests that this ground for detention can only be used before an asylum seeker has entered the territory of a Member State. This paradox is problematic because 71 detention under EU law cannot be contrary to the conditions for detention as set by article 5(1)(f) ECHR. To recall, article 5(1)(f) ECHR only allows for the detention of applicants to international 72 protection in order to prevent the effecting of an unauthorised entry into the country. The legality of detention based on article 8(3)(c) RCD is therefore questionable, given that applicants to international protection can hardly be considered to be effecting an unauthorised entry if they already are on the territory of a Member State. While this inconsistency in the legal framework 73 has not been addressed thus far, it is to be hoped that it will be addressed in the upcoming asylum and migration pact later this year.

Previous chapter 1.2, p. 11- 12. See also Cornelisse 2016, p. 85.

68 Cornelisse 2016, p. 85, 89, 90. 69 Cornelisse 2016, p. 90. 70 ECRE 2017(1), p. 17. 71

Art. 6(3) TEU; recital 20 RCD.

72

ECRE 2017(1), p. 17.

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Greece

Turning to an analysis of the use of detention in the Greek fast-track border procedure, article 46 of Greek Law 4375/2016 provides that detention should be carried out exceptionally, following an individual assessment and as a measure of last resort where no alternative measures can be applied. Although this law is completely in line with the conditions for detention under EU law, discussed earlier, in practice its effect is limited due to article 14(2) of Law 4375/2016. This article allows between three and 25 days of restricted freedom of movement for new arrivals. The Danish Refugee Council (hereinafter: DRC) mentions that, in practice, all asylum seekers arriving at one of the Eastern Aegean Islands are systematically prevented from leaving the hotspot for 25 days, until they receive their asylum seeker cards. This amounts to automatic detention for at least the first 25 74 days upon arrival. In a communication to the Council of Europe, the Greek Council for Refugees (hereinafter: GCR) as well states that no individual assessment procedure is in place to assess whether detention can be imposed and detention applies indiscriminately upon arrival, even against vulnerable applicants. After these 25 days, asylum seekers get their asylum seeker card with either 75 a geographical restriction (meaning that they cannot leave the hotspot on the island) or without one (meaning that they can leave for the mainland). Applicants to international protection who are vulnerable or are under a Dublin family reunification procedure generally receive an asylum seeker card without a geographical restriction. Although this only is a small group of applicants, the 76 exclusion of vulnerable applicants of the border procedure on one of the islands seems to be, on the face of it, in line with article 24(3) APD. However, a more detailed analysis on this will follow in section 2.3. In practice, the majority of the applicants to international protection must stay on one of the islands. Because of this, the Greek hotspots have become de facto detention sites, even after the period of indiscriminately detaining new arrivals the first 25 days. 77

The conditions under which applicants to international protection are being de facto detained in the Greek islands are known to be dire. The M.S.S. v Belgium and Greece judgment of the ECtHR and the N.S. and M.E. judgment of the CJEU are well-known and perfectly illustrate this statement, as the conditions on the hotspots have not really improved since these judgments were delivered. Monitoring reports by the GCR show that the detention facilities are still overcrowded,

DRC 2017, p. 19. 74 Committee of Ministers 2019, p. 8. 75 ibid. 76 DRC 2017, p. 19. 77

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with a lack of natural light, substandard hygiene conditions and limitations on the time detained applicants can spend outdoors. The facts aside that the migratory pressure on the Greek Eastern 78 Aegean islands continues to be enormous and that migration continues to be a difficult topic on the agenda of the EU, it is hardly likely that these detention conditions can be considered to be appropriate following the case-law of the ECtHR and respect of human dignity as laid down in 79 article 1 of the CFR. The same can be argued for the fact that the average period of first instance procedures was over seven months in 2018 in relation to article 9(1) RCD, which prescribes that applicants shall be detained for as short a period as possible.

In October 2019, a new asylum law was introduced in Greece (the International Protection Act, hereinafter: IPA). Along with this new law, the conservative Greek government also released plans to gradually close multiple reception and identification centres on the Eastern Aegean islands and replace them with so-called ‘controlled accommodation centres’. These centres would amount 80 to de facto detention sites. With regard to provisions on the detention of asylum seekers as discussed above, article 39 IPA states that the maximum period to restrict the freedom of movement within the premises of reception centres has been extended by five days to a maximum of 30 days. 81 During this period, individuals are not allowed to enter or exit the facilities. Furthermore, the initial decision of detaining applicants within the premises of the centre is not based on an assessment of the grounds to detain, its necessity or its proportionality; nor is the decision open to judicial review. Even though article 39 IPA is classified as a measure on the restriction of liberty, it still 82 amounts to de facto detention of applicants to international protection, given that the ECtHR has held that it does not matter how States qualify places or measures of detention. Whereas the plans to construct the new detention centres faced fierce opposition from communities on the islands and human rights groups, because of which the plans are currently on hold, the IPA is currently in force. The existence of article 39 IPA alone already causes tension with EU law on the 83 presumption against the detention of refugees; yet when it is indeed applied in practice, it automatically and indiscriminately de facto detains applicants to international protection, just as its predecessor under the previous asylum law as discussed earlier.

Crescenzi, Forastiero and Palmisano (eds.) 2018, p. 146-147; Committee of Ministers 2019, p. 8.

78

e.g. Lokpo and Touré v Hungary App no 10816/10 (ECtHR, 20 September 2011), para. 22.

79 ECRE 2019(3). 80 ibid. 81 Minos Mouzourakis 2019. 82 Helena Smith 2020. 83

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While Greece still does not receive the support it needs from the EU to properly handle the asylum applications of all applicants to international protection on the Eastern Aegean islands, this current asylum policy of automatic detention in order to deter people from arriving to the islands is in my 84 view not legal under the APD and alternatives to detention should at the very least be examined first.

Spain

In the Spanish enclaves of Ceuta and Melilla, a similar asylum policy seems to be in place. In order to deter applicants from applying for asylum, asylum seekers are denied the freedom of movement to travel to the mainland of Spain and have to await a slow process for an official transfer to the peninsula instead. Applicants in these Spanish enclaves are housed in so-called Temporary Stay 85 Centres for Immigrants (hereinafter: CETI). These centres themselves are open, which means that migrants may come and go. However, applicants are not allowed to leave the enclave itself. 86 Human Rights Watch (hereinafter: HRW) reports that migrants who apply for asylum in Ceuta and Melilla are generally not permitted to transfer to mainland Spain, resulting in these applicants staying in the centres for a long period of time - sometimes for the entire duration of the first instance procedure, which could last for over a year. Migrants who do not apply for asylum, on the 87 other hand, are given expulsion orders and are transferred to the peninsula where they are most likely placed in detention centres pending deportation. Of concern in this thesis is the group that 88 does apply for international protection in these Spanish enclaves, as the border procedure under the APD is likely to be applicable to them since August 2019.

Their freedom of movement is severely restricted because asylum seekers who try to leave the enclave are blocked by police forces. The policy seems to be that only Syrian asylum seekers are allowed to be transferred to mainland Spain in order for their applications to be processed there. Other vulnerable applicants, such as LGBT asylum seekers, are excluded from this policy. 89 Yet, the policy on transfers to the mainland of Spain is not considered to be discriminatory by the European Commission, which is remarkable, given that the criteria applied by the authorities for

Apostolis Fotiadis 2020. 84 HRW 2017(1). 85 HRW 2017(2). 86 ibid. 87 ibid. 88 ibid. 89

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effectuating these transfers are neither transparent nor clear. In any case, the situation of 90 vulnerable applicants such as the LGBT asylum seekers in Ceuta and Melilla will be discussed further in section 2.3. In this section, it is more interesting to highlight that there have been numerous judgments of Spanish courts, ruling that the restriction of the freedom of movement for applicants to international protection in the Spanish enclaves is unlawful. According to these court 91 rulings, the freedom of movement of asylum seekers cannot be restricted any longer once they have passed the admissibility phase of the procedure. Despite these court rulings, the most recent of 92 which dates from January 2020, no compliance measures have been reported thus far. The Spanish 93 Supreme Court will soon establish a list of criteria in order to determine whether and when asylum seekers can move freely from the enclaves to the peninsula, since a case is pending before it since October last year. 94

The restriction to the freedom of movement for applicants to international protection is applied on the basis of article 7 RCD. Given that not many applications to international protection are made in the enclaves due to their inaccessibility, it would also be harder to justify measures of detention under article 31(2) Refugee Convention than it is to justify measures that only restrict the freedom of movement. The distinction between detention of asylum seekers and a restriction of their liberty is an uneasy one. Whereas the situation in the Greek Eastern Aegean islands amounts to de facto detention, a rapporteur of the Council of Europe recently concluded that the measure in the Spanish enclaves is only questionable in view of the right to freedom of movement under article 2 of Protocol 4 ECHR and not necessarily with regard to (de facto) detention under article 5(1)(f) ECHR, perhaps because the rapporteur noted that he was not able to receive information about the regulatory framework governing the restriction of the freedom of movement of asylum seekers. 95 The restriction in the Spanish enclaves seems to be the same as in the Greek hotspots, however, because of which it will be interesting to see whether the opinion of AG Pikamäe will be followed by the CJEU if a future case on the subject arises. If so, the CJEU could then indeed afford a higher level of protection than the ECHR in cases on detention within border or transit zones such as in

European Parliament, Parliamentary questions: answer given by Mr Avramopoulos on behalf of the Commission,

90

Question Reference E-006945/2017; AIDA & ECRE 2019(4).

See, for example, the ruling of the Superior Court of Justice of Madrid under ‘CEAR 2018’ in the bibliography.

91

92

ibid.

93

Europa Press Spain 2019 (judgment of the Spanish Supreme Court has not yet been published online).

94

CoE 2018, chapter 6.

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Ceuta and Melilla. The fact remains, after all, that these applicants are severely restricted in their ability to leave the small Spanish enclaves and numerous Spanish courts have already ruled the measure to be illegal. Whereas the practical application of the border procedure in the Greek hotspots seems to amount to de facto detention of refugees, an assessment thereof for the legality in the Spanish enclaves is more difficult to make at this moment.

2.3. To what extent is the practical application of border procedures under Directive 2013/32/ EU compatible with European and international human rights standards relating to procedural safeguards in the asylum procedure?

General

The other major legal concern regarding the practical application of border procedures is that it fails to adequately secure the procedural safeguards for applicants to international protection. These procedural safeguards are enshrined in Chapter II APD, the CFR and the ECHR.

In the previous section, one category of procedural safeguards was already briefly touched upon: the procedural safeguard that establishes a norm for vulnerable applicants who, because of their vulnerability, have special needs during the asylum procedure. The right to special support for these applicants is laid down in article 24 APD. Vulnerability of applicants to international protection comes in many forms and could lead, for instance, to applicants being reluctant to immediately reveal certain experiences which are necessary to properly decide on their applications to international protection. It is for this reason that recital 29 APD stipulates that sufficient time 96 should be taken to adjudicate claims of vulnerable applicants. Article 24(3) APD, which effectively excludes vulnerable applicants from both accelerated and border procedures for this reason, should therefore be welcomed - however, the ECRE notes that in practice not all applicants who are in need of special procedural guarantees are indeed excluded from border procedures. In the Spanish 97 enclaves of Ceuta and Melilla, the European Union Agency for Fundamental Rights (hereinafter: FRA) established that there is no standardized procedure for a vulnerability assessment of applicants, because of which many vulnerable applicants are not identified as such. There are 98 reports of LGBT asylum seekers there frequently encountering harassment and abuse because of their sexual orientation. Yet, these applicants are still housed and processed in the CETI instead of

ECRE 2014, p. 29. 96 ECRE 2014, p. 29-30. 97 FRA 2019, p. 16. 98

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sent to the mainland of Spain where they can get adequate procedural support during the asylum procedure. Although the RCD indeed does not automatically list LGBT asylum seekers as 99 vulnerable applicants, article 24(1) APD clearly imposes on Spain an obligation to assess whether applicants in these enclaves should be classified as being vulnerable. As long as there is no standardized procedure for such a vulnerability assessment, it will therefore be hard for Spain to comply with its obligation under article 24 APD.

There does seem to be a standardized procedure for a vulnerability assessment in the Greek Eastern Aegean islands. However, the service responsible for the vulnerability screening is reported to be severely understaffed. Some vulnerability assessments therefore take place after the asylum 100 interviews have been conducted or do not take place at all, which is both problematic under article 24 APD. If applicants to international protection are considered to be vulnerable, however, they 101 are then indeed exempted from the border procedure and channelled into the regular procedure on the mainland. Therefore, would the responsible service for the vulnerability assessments not be 102 so severely understaffed, Greece would then comply with its obligations under article 24 APD when applying the border procedure on the Eastern Aegean islands. This does not, however, hold true at this moment in time.

Another important category of procedural safeguards actually comprises of multiple safeguards that are very much related to each other, since the overarching goal of each of these safeguards is to ensure that an adequate and complete examination of the application to international protection is carried out. This, amongst others, ensures the effectiveness of the right to asylum under article 18 CFR while at the same time minimizing the risk of refoulement contrary to article 19 CFR. This category of procedural safeguards firstly sees on the time limits in which first instance decisions are taken in border procedures, as well as on the time limits for subsequently lodging an appeal in case an application is rejected. As will be illustrated in the next paragraphs, closely related to this set of procedural safeguards are the rights under the APD, the CFR and the ECHR that guarantee applicants to international protection an effective remedy. The right to an effective remedy, then, cannot be analyzed without also analyzing the right to access to legal aid. The right to be heard, finally, is derived from the right to a good administration and is the last

HRW 2017(2).

99

Leivaditi, Papatzani, Ilias and Petracou 2019, p. 36.

100

ibid.

101

Committee of Ministers 2019, p. 97.

The practical application of border procedures under the Asylum Procedures Directive (recast): An assessment of its compatibility in Greece and Spain with European and international human rights standards

Master’s thesis

University of Amsterdam

Amsterdam Graduate Law School

The practical application of border

procedures under the Asylum Procedures

Directive (recast):

An assessment of its compatibility in Greece and Spain with

European and international human rights standards

Abstract

Acknowledgements

Table of contents

Introduction

1. Legal framework

2. Analysis of the practical application of border procedures in Greece and Spain