Date of submission: 19 July 2019
A legal analysis of European States’ systematic de facto
detention practices of asylum seekers and refugees
Laura Iruarrizaga Ballesteros
L.L.M. Candidate in International and European Law: Public International Law University of Amsterdam
Student number: 12314927 Iru.laura@hotmail.com
Abstract
This thesis examines the compliance with international law of the current practices of de facto detentions of asylum seekers and refugees upon entry in European States. In doing so, it maps out the systematic de facto detention practices in European States and assesses their lawfulness by categorising them into three types, transit zones, hotspots and national reception centres. This work first demonstrates that these practices amount to detention, and then focuses on the lawfulness of these practices as well as the de facto detentions of unaccompanied children with the intent to provide answers on potential violations of the 1951 Refugee Convention, the European Union Common Asylum System, the International Covenant on Civil and Political Rights, the European Convention of Human rights and the Convention on the rights of the Child.
Based on the findings of this thesis, it is concluded that as soon as the systematic de facto detention practices occurring in the European States are brought under the legal framework of detention these practices are unlawful, whether the detention occur in transit zones or on the States’ territory. Additionally, it stands out that the 1951 Refugee Convention provides the highest standards of protection against the detention of asylum seekers and refugees upon entry. It is recommended that regional courts apply these standards, especially at a time when de facto detentions upon entry are used as a new method of border management that the European Union is willing to endorse.
List of abbreviations
1951 Convention - 1951 Convention Relating to the Status of Refugees CJEU- Court of Justice of the European Union
CRC - Convention on the Rights of the Child ECHR – European Convention on Human Rights ECtHR - European Court of Human Rights EU - European Union
EU MS - European Union Member State EXCOM - UNHCR Executive Committee HRC - Human Rights Committee
IAO - Hungarian Immigration and Asylum Office
ICCPR - International Covenant on Civil and Political Rights RIC - Reception and Identification Centre
Table of Contents
1. INTRODUCTION ... 5
1.1THE CURRENT SITUATION IN EUROPE ... 5
1.2DESCRIPTION OF THE RESEARCH ... 6
1.3.CONSIDERATION FOR THE SIGNIFICANCE OF DE FACTO DETENTION PRACTICES ... 8
1.4METHODOLOGY ... 12
2. THE DE FACTO DETENTION OF REFUGEES AND ASYLUM SEEKERS IN TRANSIT ZONES ... 13
2.1THE HUNGARIAN TRANSIT ZONES ... 13
2.1.1 Context ... 13
2.1.2 Lawfulness of de facto detentions in Röszke and Tompa under international and EU law ... 15
2.1.3 Lawfulness of de facto detentions in Röszke and Tompa under International and Regional Human Rights Conventions ... 19
2.2ASSESSMENT OF DE FACTO DETENTIONS IN EUROPEAN TRANSIT ZONES IN AIRPORTS ... 22
2.3CONCLUDING REMARKS ... 22
3. DE FACTO DETENTIONS OCCURRING IN THE STATES’ TERRITORIES ... 24
3.1DETENTIONS RESULTING FROM EU LAW:HOTSPOTS ... 24
3.1.1 Context ... 24
3.1.2 Assessment of the de facto detentions on Greek islands under international refugee law and EU law ... 25
3.1.3 Assessment of the de facto detentions on Greek islands under International and regional human rights ... 28
3.2DETENTIONS AS A RESULT OF NATIONAL LAW –RICFYLAKIO ... 29
3.2.1 International refugee law and EU law ... 29
3.2.2 International and regional human rights ... 30
3.3GENERAL OBSERVATIONS ON DE FACTO DETENTIONS IN EUROPEAN RECEPTION CENTRES AND CONCLUDING REMARKS ... 31
4. UNACCOMPANIED MINORS IN DE FACTO DETENTION ... 32
4.1THE TREATMENT OF UNACCOMPANIED MINORS IN THE HUNGARIAN TRANSIT ZONES ... 32
4.1.1 Determination of unaccompanied minors ... 33
4.1.2 Lawfulness of detention of unaccompanied minors ... 34
4.2THE TREATMENT OF UNACCOMPANIED MINORS IN GREECE ... 36
4.2.1 Determination of unaccompanied minors ... 37
4.2.2 Lawfulness of detention of unaccompanied minors ... 38
4.3SIGNIFICANCE OF SUCH SITUATIONS ... 39
5. CONCLUSION ... 40
APPENDIX ... 42
ANNEX 1:MAPPING DE FACTO DETENTION PRACTICES IN THE EUROPEAN UNION MEMBER STATES* ... 42
ANNEX 2–FRAMEWORK TO ESTABLISH THE LAWFULNESS OF DE FACTO DETENTIONS AND OVERVIEW OF ITS APPLICATION TO THE TRANSIT ZONES IN EUROPEAN STATES. .. 48
ANNEX 3–FRAMEWORK TO ESTABLISH THE LAWFULNESS OF DE FACTO DETENTIONS AND OVERVIEW OF ITS APPLICATION TO THE HOTSPOTS AND RECEPTION CENTRES IN EUROPEAN STATES. ... 50
ANNEX 4–FRAMEWORK TO ESTABLISH THE LAWFULNESS OF DE FACTO DETENTIONS OF UNACCOMPANIED MINORS AND OVERVIEW OF ITS APPLICATIONS IN EUROPEAN STATES. ... 53
1. Introduction
1.1 The current situation in Europe
As a response to migration flows to Europe, there is a general rise in the detention of persons applying for international protection upon entry.1 This is partly the result of the entry into force of the European Union (Hereinafter ‘EU’) recast Reception Conditions Directive and of the European Union-Turkey agreement2 as both have been designed in response to the increase of asylum seekers and refugees in 20153 as well as the pressure for increased security measures.4 Indeed, beyond the restrictions condoned by the 1951 Convention Relating to the Status of Refugees (hereinafter ‘1951 Convention’),5 the Directive has systematised the detention practices by detailing permissible grounds, procedural safeguards and conditions of detention, including of vulnerable applicants.6 However, in practice European Union Member State (Hereinafter ‘EU MS’) have been able to use reception and identification purposes as an excuse to deprive of liberty the newly arrived asylum seekers.7 Some of these EU MS do not acknowledge that their practices amount to deprivation of liberty, in which cases it is known as de facto detention practices (list of EU MS using de facto detention practices: Annex 1).
This is not merely a practice resulting from a short-term response of European States to the 2015 increase of migration flows,8 it also seems to be a potential long term structural phenomenon. Indeed, the European Union is considering building migrant processing
1 AIDA, ‘The detention of asylum seekers in Europe : Constructed on shaky grounds ?’ (2017), 2. (‘AIDA 2017 - Detention of asylum seekers in Europe’).
2 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, 2013 OJ L 180/96, Articles 8 to 11. (‘Reception Conditions Directive’) ; European Council, EU-Turkey statement, 18 March 2016, http://www.refworld.org/docid/-5857b3444.html, (Statement).
3 Hungarian Helsinki Committee (HHC), ‘How EU Countries Undermine the Right to Liberty by Expanding the Use of Detention of Asylum Seekers upon Entry: Case Studies on Bulgaria, Greece, Hungary, and Italy’ (2019), 4. (‘HHC 2019’).
4 Ibid.
5 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention).
6 Reception Conditions Directive (n 2). 7 HHC 2019 (n 3), 4.
8 BBC News, ‘Migrant crisis: Migration to Europe explained in seven charts’ (4 March 2016) https://www.bbc.com/news/world-europe-34131911 accessed 10 April 2019.
centres in north Africa to provide for rapid administering to distinguish between economic migrants and those in need of international protection.9 However, it is not clear yet whether these platforms will be effectively established in the future as the African Union has already stated in a “common African position paper”10 their determination to oppose what they call “de facto detention centres” on their coastal states.11
1.2 Description of the research
The research question of this thesis is : Are the de facto detention practices of asylum seekers and refugees upon entry currently exercised by European States in compliance with international law? As such, the thesis will focus on the European States’ use of detention practices which may not be detention in the classical sense of the term12 but boil down to detention nonetheless, and whether they are breaching their international obligations by detaining them. Indeed, de facto detention practices refer to situations in which asylum seekers and refugees are deprived of their liberty, without being issued a detention order and without their placement being classified as detention by national law.13 Concerning refugees, it must be stated that the refugee status is of a declaratory nature.14 This signifies that it is a status that depends on the fulfilment of the criteria set in article 1(a) of the Refugee Convention15 and not on the granting of the status by a State.
To provide an answer, the analysis will look at systematic cases of de facto detention of asylum seekers and refugees upon entry, thus excluding an empirical analysis of sporadic
9 Jennifer Rankin, ‘EU to consider plans for migrant processing centres in north Africa’ The Guardian (Brussels, 19 June 2018) https://www.theguardian.com/world/2018/jun/19/eu-migrant-processing-centres-north-africa-refugees accessed 15 march 2018.
10 Daniel Boffey, ‘African Union seeks to kill EU plan to process migrants in Africa’ The Guardian (Sharm el-Sheikh, 24 February 2019) https://www.theguardian.com/world/2019/feb/24/african-union-seeks-
to-kill-eu-plan-to-process-migrants-in-africa?utm_source=Refugees+Deeply&utm_campaign=9d39a38605- accessed 15 march 2018. 11 Ibid.
12 According to the UNHCR, detention of asylum seekers and refugees refers to “the deprivation of liberty or confinement in a closed place which an asylum-seeker is not permitted to leave at will” (UNHCR, ‘Guidelines on the applicable criteria and standards relating to the detention of asylum-seekers and alternatives to detention’ (2012), para 5. (‘UNHCR 2012 – Detention Guidelines’)).
13 The Asylum Information Database (AIDA), ‘Boundaries of liberty: Asylum and de facto detention in Europe boundaries liberty’ (2018), 9.
14 UNHCR, ‘Handbook on procedures and criteria for determining refugee status and guidelines on international protection’, (2019), para 28. (‘UNHCR 2019 – Handbook on Procedures’).
situations that may occur in each European State. Based on the information available, I mapped the current situation of de facto detentions in the European Union Member States (Annex 1). This allows to limit the scope of this research by establishing the most systemic cases of de facto detention practices. It excludes cases such as the occasional de
facto detentions on boats happening in Italy16 due to a refusal to let them disembark at their ports without any formal decision of port closure.17 It also excludes occasional cases happening in police stations, such as the ones in France.18
As such, two systematic de facto detention practices can be distinguished: in transit zones and within states’ territories. To assess the lawfulness of these practices this work first focuses on the transit zones using de facto detention as a systematic practice, namely the Hungarian no man’s land19 and two airport transit zones.20 Secondly, the assessment of
de facto detentions on the States’ territories is divided into two. It assesses detentions
resulting from national law in Reception centres (Annex 1: Malta,21 Greece,22 Ireland,23 Slovenia24 and Spain25). Secondly, it includes the situations in the hotspots’ facilities created by the EU26 on the Greek27 islands28 which gained importance after the EU-Turkey agreement.29
Moreover, once the analysis of de facto detention zones’ is completed, this thesis will consider the detention of unaccompanied children claiming asylum and who are subjected
16 Khlaifia and Others v. Italy, no. 16483/12, ECHR 2015. 17 HCC 2019 (n 3), 24.
18 The Asylum Information Database (AIDA), ‘Access to asylum and detention at France’s borders’ (30 April 2018), 6. (‘AIDA 2018 – France’s borders’).
19 The Asylum Information Database (AIDA), ‘Country report: Hungary’ (31 December 2018), 80. (‘AIDA 2018 – Hungary’).
20 The Asylum Information Database (AIDA), ‘Country report: Greece’ (31 December 2018),155 (AIDA 2018 – Greece) ; The Asylum Information Database (AIDA), ‘Country report: Germany’ (31 December 2017), 79 -82. (‘AIDA 2017 – Germany’).
21 The Asylum Information Database (AIDA), ‘Country report: Malta’ (31 December 2018), 17. (‘AIDA 2018 – Malta’), 17.
22 AIDA 2018 – Greece (n 20), 36.
23 The Asylum Information Database (AIDA), ‘Country report: Ireland’ (31 December 2018), 58, 59. (‘AIDA 2018 – Ireland’).
24 The Asylum Information Database (AIDA), ‘Country report: Slovenia’ (31 December 2018), 20. (‘AIDA 2018 – Slovenia’).
25 The Asylum Information Database (AIDA), ‘Country report: Spain’ (31 December 2018), 69. (‘AIDA 2018 – Spain’).
26 StateWatch, ‘Explanatory note on the “Hotspot” approach’ (2015), 1. 27 AIDA 2018 – Greece (n 20), 147.
28 Ibid.
to de facto detentions in the two previously identified types of detention places, namely the transit zones and within the States’ territory in Hungary,30 Greece,31 the Italian hotspots32 and Slovenia.33 Whilst this analysis will be done referring to the formerly established de facto detention practices, it must be done separately due to the particular circumstances34 of unaccompanied children and the specific rules that apply to them. The aim of this analysis is to establish to what extent these de facto detention practices of asylum seekers and refugees, including minors, upon entry are in compliance with international law. As such, this assessment is relevant at an international level, in a wider perspective than just the European States and European law as other states are also increasingly35 using de facto practices to detain asylum seekers and refugees.
To do so, this work acknowledges the numerous layers of law that apply to these practices. It will thus analyse separately the compliance of the de facto detention practices with international refugee law, EU regulations, international human rights law and regional human rights law. For the analysis of the detention of unaccompanied children, it will also include an evaluation based on the previously enumerated instruments with reference to the specific articles regulating unaccompanied children’s rights as well as the Convention on the Rights of the Child (hereinafter ‘CRC’). In order to analyse European States that are bound by all the previously stated layers of law, this research will focus on EU MS. It acknowledges the fact that the Council of Europe comprises a larger group than the EU MS, but not all of these are bound by all the layers of law that this work wishes to examine.
1.3. Consideration for the significance of de facto detention practices
30 AIDA 2018 – Hungary (n 19), 14. 31 AIDA 2018 – Greece (n 20), 33.
32 The Asylum Information Database (AIDA), ‘Country report Italy’ (March 2018). (‘AIDA 2018 – Italy’). 33 AIDA 2018 – Slovenia (n 24), 36 -38 and 50 – 55.
34 Human Rights Watch, ‘Why Are You Keeping Me Here? - Unaccompanied Children Detained in Greece’ (8 September 2016); AIDA 2018 – Italy (n 32), 47 – 58 and 85 – 105.
The EU, through its Common Asylum System,36 as well as international organs such as the United Nations High Commissioner for Agency (hereinafter ‘UNHCR’)37 and the Human Rights Committee (hereinafter ‘HRC’),38 regulate the detention of the asylum seekers and refugees. Now, the key question is whether the de facto detention practices that this research analyses, irrespectively of their formal designation, boil down to detention nonetheless. It is a necessary step for the application of all the international and regional instruments regulating the detention of asylum seekers and refugees.
The delicate part of the analysis is the distinction between restriction of freedom of movement and deprivation of liberty. The UNHCR states that distinctions between deprivation of liberty and restrictions on movement is one of “degree or intensity and not one of nature or substance”39 clearly referring to the differences indicated by the HRC40 and the European Court of Human Rights (hereinafter ‘ECtHR’).41 On a more local scale, the EU follows the same logic.42
This research follows the guidelines set by the ECtHR for this distinction as they are the most detailed. Indeed, to assess detention, the ECtHR has established that the official
36 Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals, 2008 OJ L 348/98. (‘Procedures Directive’) ; Reception Conditions Directive (n 6) ;Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, 2011 OJ L 337/9 (‘Qualification Directive’) ; Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, 2013 OJ L180/31 (‘Dublin III’).
37 UNHCR 2012 – Detention Guidelines (n 12).
38 HRC, General Comment No. 35, Article 9 : Liberty and Security of person, 16 December 2014, CCPR/C/GC/35. (HRC 2014 – General Comment 35’).
39 Ibid, para 5. 40 Ibid.
41 ECHR, ‘Guide to article 5 ECHR’ (31 December 2018), para. 2. (‘ECHR 2018 – Guide to article 5 ECHR’).
qualification is irrelevant whether it concerns reception centres,43 transit zones44 including airports,45 or islands.46
To start with, the concepts of restriction of freedom of movement and deprivation of liberty are clearly distinguished by the European Convention of Human Rights (hereinafter ECHR). On one hand, article 2(1) of the Protocol No. 4 to European Convention of Human Rights establishes that “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”. 47 On the other hand, deprivation of liberty is established in article 5 and contemplates the physical liberty of the person.48
Secondly, to determine whether a concrete situation amounts to deprivation of liberty, the starting point set by the ECtHR is the person’s concrete situation and account must be taken of a range of criteria such as the type, duration, effects and manner of implementation of the measure in question.49 The notion of deprivation of liberty contains both an objective element of a person’s confinement in a particular restricted space for a not negligible length of time50, and a subjective element in that the person has not validly consented to the confinement in question.51 The latter requires that the individual fully understands the measures imposed upon him or her to be taken into account.52
Regarding the objective element, in the de facto detention practices happening in Europe, it is safe to say that the situations in transit zones, hotspots or centres pending transfer to Reception and Identification Centres (hereinafter ‘RIC’) are of a sufficient degree to amount to deprivation of liberty given their limited geographical space.53 Concerning the subjective element, in the context of immigration the ECtHR’s jurisprudence has established that asylum seekers’ perceptions of the places where they are held, often seen
43 Khlaifia and Others v. Italy (n 16).
44 Ilias and Ahmed v. Hungary, No. 47287/15, ECHR 2017.
45 Amuur v. France, No. 19776/92, §52, ECHR 1996; Z.A. and others v. Russia, Nos. 61411/15, 61420/15, 61427/15, 3028/16, ECHR 2017.
46 Guzzardi v. Italy, No. 7367/76, ECHR 1980.
47 Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto (Protocol No. 4 to the ECHR), Art. 2(1).
48 ECHR 2018 - Guide to article 5 ECHR (n 41), para. 1. 49 Ibid, para. 5.
50 A few days is sufficient according to the ECtHR (J.R. and others v. Greece, No. 22696/16, ECHR 2018). 51 ECHR 2018 - Guide to article 5 ECHR (n 41), para. 9.
52 AIDA 2018 - Boundaries of liberty (n 13), 10.
53 Majcher, ‘The EU Hotspot Approach: Blurred Lines between Restriction on and Deprivation of Liberty (PART II)’ (2018), ‘Global Detention Project’, 4. (‘Majcher Part II’)
as prison type facilities, should be given weight when assessing the lawfulness of states’ practices.54 In the de facto detention situations occurring in EU MS, asylum seekers have repeatedly reported that the facilities they are held in feel like prisons and often include barriers with barbed wire.55 In addition, the fact that de facto detention facilities are often characterised by insufficient information provision and a lack of access to legal assistance56 clearly is a barrier to a valid consent to their confinement.
However, whilst the fulfilment of both the objective and subjective elements prove that the confinement of asylum seekers and refugees in de facto detention situations in EU MS amount to deprivation of liberty, the confinement occurring in the Greek islands requires additional analysis in order to be proven. In the case of the Greek islands, several elements must be analysed cumulatively. Regarding the objective element, asylum seekers cannot leave the island and they are normally allowed to leave the premises of the RICs during the day and required to return at night.57 The ones that are accommodated outside the RICs must report to the authorities systematically.58 In addition, the length of the stay on the island can amount to several months and the material conditions of the RICs are substandard.59 Regarding the subjective element, the same logic applied to the other de facto detention situations can be applied. As a result, it can be concluded that all these elements considered all together reach the threshold of deprivation of liberty. These practices therefore amount to detention and must apply all the previously mentioned international and regional instruments relating to the detention of asylum seekers and refugees.
Finally, Governments have tried to argue that these situations do no amount to deprivation of liberty given the fact that asylum seekers and refugees are free to voluntarily leave the detention places at any time by returning to the Country they arrived from.60 According to the ECtHR, this is not a valid argument.61 Indeed, an infringement of the right to liberty
54 AIDA 2018 - Boundaries of liberty (n 13), 10.
55 AIDA 2018 – Hungary (n 19), 86; AIDA 2018 – Greece (n 20), 18; AIDA 2017 – Germany (n 20), 85; AIDA 2018 – Italy (n 32), 114; AIDA 2018 – Malta (n 21), 17; AIDA 2018 – Spain (n 25), 71.
56AIDA 2018 - Boundaries of liberty (n 13), 10. 57 Majcher Part II (n 52), 5.
58 Ibid. 59 Ibid, 6.
60 AIDA 2018 – Hungary (n 19), 60.
61 Ilias and Ahmed (n 44), para 55 and 56; Riad and Ibiad v Belgium, Nos. 29787/03 and 29810/03, ECHR 2008, para 68.
cannot be ruled out based on the concept of voluntary return as leaving those centres signifies that their applications for refugee status will be terminated without any chance of being examined. For the ECtHR such a consequence entails a violation of article 5 ECHR.62 Indeed, “to hold otherwise would void the protection afforded by Article 5 of the Convention by compelling the applicants to choose between liberty and the pursuit of a procedure ultimately aimed to shelter them from the risk of exposure to treatment in breach of Article 3 of the Convention”.63 As such, this argument cannot be used to counterargue the fact that these de facto detentions amount to effective deprivation of liberty.
1.4 Methodology
This thesis is based on an evaluative legal research question64 that will allow to assess to what extent de facto detention practices’ of asylum seekers and refugees in European States comply with international refugee law, human rights law and EU law.
The research uses a practical-legal method65 to assess the compatibility with international law of these de facto detention practices, which includes an analysis of the current situation in selected European States. This selection is done based on the identification of the systematic de facto detention practices in EU MS (Annex 1). The practical-legal method is the most suited for this research as it allows for an analysis of the law applicable to specific situations and its applications to provide an answer to the concrete question arising from a practical situation. The rules that will be used to do so are the Refugee Convention, the EU Common Asylum System regulations, the Charter of Fundamental Rights of the European Union, the ECHR, the International Covenant on Civil and Political Rights (hereinafter ‘ICCPR’), the Convention against Torture and the CRC. It will allow to provide an answer to the question of compliance with international law with detention practices of asylum and refugees in Europe.
62 Ilias and Ahmed (n 44), para 56. 63 Ibid.
64 Ian Curry-Sumner, François Kristen, Tina van der Linden-Smith, Jet Tigchelaar, Research skills Instruction for Lawyers (Nijmegen 2010), 18.
2. The de facto detention of refugees and asylum seekers in transit
zones
This chapter focuses on transit zones that States have claimed to be outside their territory. It first assesses the most systematic situation of de facto detentions in such zones currently occurring in Europe which is the Hungarian transit zones. This chapter then appraises the lawfulness of de facto detentions in European transit zones in general and its consequences.
A transit zone is an international zone under the effective control of particular State and therefore under the jurisdiction of that same State.66 Now, even though States such as Hungary’s official position on its transit zones believe that the transit zones are outside their territory,67 such extraterritoriality has been rejected by the ECtHR.68 This entails that the international, regional and national obligations of a State still apply within these zones.
2.1 The Hungarian transit zones
This first section contextualises the Hungarian transit zones before stepping into the assessment of their lawfulness.
2.1.1 Context
Hungary has ratified the Refugee Convention, is a EU MS, has ratified the ICCPR, the CRC as well as the ECHR.69
66 Amuur v. France (n 45), §49 ; Ilias and Ahmed v. Hungary (n 44); Z.A. and others v. Russia (n 45). 67 Similarly, Germany considers it detains asylum seekers and refugees in its airport transit zone prior to the decision on entry” to the territory (AIDA 2017 – Germany (n 20), 38); Greece also establishes that the asylum seekers and refugees arriving though the airport are banned from entering Greek territory before being arrested and held (HHC 2019 (n 3), 17).
68 Amuur v. France (n 45), §52.
69 UN Treaty Body base, ‘Hungary’,
https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=77&Lang=E N, accessed 1 June 2019.
In 2015 as a reaction to the increase in refugees and asylum seekers in Hungary, the Government introduced a restrictive asylum policy.70 In March 2016, following amendments in the Asylum Act, the Hungarian authorities created transit zones and a temporary fence along the southern border of Hungary, named Röszke and Tompa respectively.71 Furthermore, in March 2017 a set of amendments to the Asylum Act72 introduced the mandatory requirement that all asylum seekers and refugees stay in the transit zones for the entire duration of the asylum procedure,73 with the exception of unaccompanied children below the age of 14.74 However, this is not considered to be detention by the Hungarian government.75 According to Hungary, the purpose of these amendments is the creation of a more efficient asylum procedure system.76
In 2017, in the Ilias and Ahmed v. Hungary case the ECtHR stated in a judgment that confinement in the Röszke zone resulted in unlawful detention.77 However, the Hungarian Government appealed and the judgment is still awaited.78
In 2018, the European Commission referred Hungary to the Court of Justice of the European Union (hereinafter ‘CJEU’) for non-compliance of its asylum and return legislation with EU law, including on confinement of asylum seekers and refugees.79 The decision is still awaited.
70 Hungarian association for migrants (Menedék), ‘Asylum seekers and beneficiaries of international protection in V4 countries. Hungary’, (2017), 6. (‘Menedék 2017’).
71 Ibid, 6.
72 Border Criminologies of the University of Oxford, ‘Monitoring Immigration Detention at the Borders of Europe - Report on a pilot project in Greece, Hungary, Turkey and Italy’ (2018), 21. (‘Border Criminologies of the University of Oxford 2018’).
73 Section 80/J (5) and Section 5 (2) c) of Act LXXX of the Hungarian Asylum Act. 74 This exception will be analysed in Chapter 4.
75 Border Criminologies of the University of Oxford 2018 (n 72), 21. 76 HHC 2019 (n 3), 20.
77 Amuur v. France (n 45). 78 HHC 2019 (n 3), 50.
79 European Commission Press release, ‘Migration and Asylum: Commission takes further steps in infringement procedures against Hungary’, (19 July 2018) https://bit.ly/2uMEJ2c , accessed 18 April 2019.
2.1.2 Lawfulness of de facto detentions in Röszke and Tompa under
international and EU law
In order to understand whether the detentions occurring in the transit zones of Hungary are lawful, one must refer to the Refugee Convention. Article 31(2) establishes the possible restrictions to apply to asylum seekers and refugees who entered illegally in the country of refuge. Indeed, aliens who’s entry is illegal need their status to be regularised to become lawful.80 However, before this happens, article 31(1) also provides that asylum seekers and refugees will not be penalised for their illegal entry into the territory as long as they present themselves to the authorities. This creates a category of “lawfully present” as opposed to “lawfully staying”. By doing so, the drafters acknowledged the fact that asylum seekers and refugees might not be in a position to comply with legal formalities for entry.81 As Hathaway established, the threshold for exclusion of article 31 is the “bad faith” on the part of the refugee.82 This means that as long as the person approaches the authorities or is detained before they could reasonably make a claim, they still fall under article 3183 and are therefore protected against penalisation. Only the non-punitive detention contemplated in article 31(2) will be possible84 for the lawfully present.
The Hungarian authorities cannot therefore rely on the illegal entry of asylum seekers to avoid applying article 31. Their mandatory automatic detention at the border since march 201785 means that the asylum seekers were not even given a chance to prove their good faith and reasonably have time to make a claim for asylum. Therefore they all fall under the scope of article 31 of the Refugee Convention.
Secondly, article 31(2) states that there is a necessity test to restrict the freedom of movement of asylum seekers and refugees. Such a test requires the authorities to make
80 Marjoleine Zieck ‘Refugees and the Right to Freedom of Movement: From Flight to Return’ (2018), Vol. 39, ‘Michigan Journal of International Law’, 82.
81 UNHCR 2019 – Handbook on Procedures (n 14), para 11.
82 UNHCR, ‘Article 31 of the 1951 Refugee Relating to the Status of Refugee – Cathryn Costello’ 2017, PPLA/2017/01, 27. (‘UNHCR 2017 – Cathryn Costello’). .
83 Ibid, 27. 84 Ibid, 44.
85 ECRE, News Item, ‘Hungary Approves Controversial Law Allowing Automatic Detention of Asylum Seekers’ (17 March 2017), http://www.ecre.org/hungary-approves-controversial-law-allowing-automatic-detention-of- asylum-seekers/, accessed 25 April 2019.
an individual assessment of the legitimacy of the purpose behind such a restriction as well as weighting whether less restrictive means are available as detention is a measure of last resort.86 In addition, restrictions need to be in each case proportional to that purpose.87 The drafters suggested that these restrictions could cover “special circumstances”.88 Whilst this formulation is too vague to set clear guidance on when the restrictions can be applied, with regards solely to detention the UNHCR has - although its guidelines are not binding for the States Parties to the Convention89- developed three main reasons. Accordingly, refugees and asylum seekers should not be subjected to restrictions on their movements other than those necessary in the interest of public health, public order90 or even national security91. Public health and national security are not covered in this analysis as Hungary has not justified its detention policy for either reasons.92 With regards to public order, the UNHCR developed three reasons underlining that legitimate purpose of detention. Firstly, in case the asylum seeker or refugee is likely to abscond or refuse to cooperate with the authorities.93 Secondly, to carry out initial identity an security checks in cases where identity is undetermined or in dispute.94 Thirdly, for the purpose of recording, for a preliminary interview, the elements of their claim to international protection.95
In the Hungarian case, since the 2017 amendments to the Asylum Act, the detention is mandatory for everyone except unaccompanied children under 14 years old for the duration of the whole procedure.96 Such an automatization has undeniably a punitive aspect that goes against article 31 of the Refugee Convention. As such, a law that
86 UNHCR 2012 – Detention Guidelines (n 12), para 4.1.4.
87 Paul Weis, ‘The Refugee Convention, 1951: The Travaux préparatoires analysed with a Commentary, (1990), ‘UNHCR’, 357.
88 Marjoleine Zieck (n 80), 75.
89 Pieter Boeles, Maarten den Heijer, Gerrie Lodder, Kees Wouters, European Migration Law (Intersentia Cambridge 2014), 294.
90 UNHCR EXCOM Conclusion No 22 (XXII) ‘Protection of Asylum-seekers in Situations of Large-scale Influx’ (1981), para II(B)(1).
91 UNHCR 2012 – Detention Guidelines (n 12), para 30.
92 Border Criminologies of the University of Oxford 2018 (n 72), 21. 93 UNHCR 2012 – Detention Guidelines (n 12), para 22.
94 UNHCR EXCOM, Conclusion No 44 (XXXVII), ‘Detention of Refugees and Asylum-Seekers’ (1986), para. (b).
95 UNHCR 2012 – Detention Guidelines (n 12), para 26.
automatically orders their detention is in violation of the spirit of the Convention as it penalises the asylum seekers for the mere necessity to make an asylum claim.
Finally, such an automatization demonstrates the lack of attempt on behalf of the Hungarian authorities to even consider less restrictive means to meet the aim that they seem to pursue, namely an effective asylum procedure. The individual assessment is clearly avoided.
Thirdly, restrictive measures under article 31(2) Refugee Convention cannot be discriminatory.97 With the same objective of restraining an exaggerated use of detention, article 31(2) specifies that detention measures must be temporary, even if no further guidance on the time limit is provided, unless it is justified by other valid reasons.98 The UNHCR has also established that detention should be “in accordance with and authorised by law”.99 Insufficient guarantees in the law to protect against arbitrary detention, “such as no limits no access to an effective remedy to contest it, could also call into question the legality of any detention”.100
In the Hungarian case, the automatic detention policy entails that no discrimination between the different asylum seekers and refugees is made. However, the detention applies to “the whole procedure” and is unlikely to fulfil the time limit criterion as no reason seems to justify such extended lengths. Indeed, as of 2017, asylum seekers remained in the transit zones until the end of the procedure.101 However, the Hungarian Immigration and Asylum Office (hereinafter ‘IAO’) refuses since 2017 to provide data free of charge on the length of the whole procedure.102
With regards to the possibility to contest detention, as the Hungarian Government refuses to acknowledge that the transit zones are places of detention, no access to effective remedy has been put into place. As a result, the detention going on in Hungary does not fulfil the legality criterion either.
97 UNHCR 2012 – Detention Guidelines (n 12), para 43. 98 Marjoleine Zieck (n 80), 77.
99 UNHCR 2012 – Detention Guidelines (n 12), para 15. 100 Ibid, para 17.
101 AIDA 2018 – Hungary (n 19), 88. 102 Ibid.
The EU Common asylum system must be in accordance with the Refugee Convention.103 As such, a major part of the EU law on Asylum seekers and refugees has been based on the Convention. This explains the fact that with regards to detention, the Reception Conditions Directive also provides for a necessity and a proportionality criterion which entails ensuring that less coercive means could not be applied.104 Similarly, it requires the grounds for detention to be laid down in national law105 and that any individual in detention has a right to an effective remedy.106
However, there are specificities to EU law regarding detention of asylum seekers and refugees that must be detailed. The EU system has established an exhaustive list of six grounds based on which the detention of an individual is allowed,107 provided that each individual situation has been assessed to ensure it is a measure of last resort.108 Three of them exceed the permissible grounds set by the UNHCR Executive Committee (hereinafter ‘EXCOM’) and could lead to systematic detentions. The first one allows states to detain an asylum seeker to determine or verify his identity or nationality109 without precising that it is just for “initial checks”110 which could lead to indefinite or excessively long periods of detention. The second ground which is also less protective provides for detention “to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention”.111 Again, the difference with the UNHCR guidelines which specify that it is allowed only for “preliminary interviews” involves the length of detention that could result from such wording. Finally, the directive provides a ground for detention to “decide, in the context of a procedure, on the applicant’s right to enter the territory”.112 An equivalent provision does not exist in international refugee law.113 The reason for this is that such a permissible ground resembles a blanket provision potentially covering any
103 Consolidated Version of the Treaty on the Functioning of the European Union art. 78(1), 2008 O.J. C 115/47. (‘TFEU’).
104 Reception Conditions Directive (n 6), Article 8(2). 105 Ibid, Article 8(3).
106 Charter of Fundamental Rights of the European Union, article 47, 2010 O.J. C 83/02 ; Ibid, Article 9(5). 107 Ibid, Article 8(3).
108Ibid, Article 8(2).
109 Reception Conditions Directive (n 2), Article 8(3)(a). 110 UNHCR 1986 – EXCOM (n 94), para. (b).
111 Reception Conditions Directive (n 2), Article 8(3)(b). 112 Ibid, Article 8(3)(c).
113 Global Detention Project (GDP), ‘ “Crimmigration” in the European Union through the Lens of Immigration Detention’ (September 2013), 17.
reason arbitrarily found at a border. The only provision in EU law that gives any guidelines on the length of detention stipulates that detention must be for the shortest period possible.114 However, the “shortest” based on the grounds that were previously listed can still potentially include the whole duration of the procedure.
Interestingly enough, the Procedures directive does refer to length of detention specifically happening at a border or transit zone by establishing that EU MS shall ensure that a decision on admissibility or substance of an application is taken within a reasonable time. When a decision has not been taken within four weeks, the applicant shall be granted entry to the territory of the Member State in order for his or her application to be processed.115
It has previously been established in this section that the detentions occurring as a result of the Hungarian Asylum act do not ensure any individual assessment. The Hungarian policy thus violates the permissible grounds specified in the Reception Conditions directive as they also require an individual assessment. However, if Hungary changed this point and started doing individual assessments at its borders, it is more probable that the detentions would meet the EU permissible grounds as opposed to the more restrictive ones set in international refugee law. Indeed, the listed grounds broadly allow for more lengthy periods of detention and based on article 8(3)(c) many detentions could end up being “justified”.
Based on the provision of four weeks under the Asylum Procedures directive, Hungarian Courts have on several occasions ordered the release of some applicants in the transit zones.116 However, on repeated occasions, the IAO did not respect the Court’s decisions.117 This is against any principle of legal certainty. If the IAO does not comply with its own Courts, it signals a broken legal system and the awareness of the unlawfulness of the current practices.
2.1.3 Lawfulness of de facto detentions in Röszke and Tompa under
International and Regional Human Rights Conventions
114 Reception Conditions Directive (n 2), Article 9(1) ; Dublin III (n 36), Article 28 (3). 115 Procedures Directive (n36), Article 43(2).
116 HHC 2019 (n 3), 50. 117 Ibid, 50.
Additionally to meeting the standards set out in the Refugee Convention,118 and EU law,119 detention of asylum seekers and refugees must meet the standards set out in international human rights law. As the ICCPR does not have any additional requirements than the legal systems previously analysed, it will not be detailed.120 The ECHR system, in contrast, takes a radically different approach.
Under article 5 ECHR, merely one ground for permissible detention refers to the detention of asylum seekers and refugees. It establishes that their detention can be lawful if it is in accordance with a procedure prescribed by law.121 This provision allows the detention of asylum seekers and refugees prior to the State’s authorisation to enter.122 It was confirmed further by the Court in its Saadi v the United Kingdom case123 in which it held that asylum-seekers were unauthorized in their presence until the State deemed otherwise, and also accepted “administrative convenience” as a legitimate purpose for detention.124 This goes against the reality of asylum seekers and refugees, which the Refugee Convention acknowledges, based on the fact that they might need to enter illegally into the territory of a State and should not be penalised for it as long as they show good faith.
However, various requirements do resemble that of the other 1951 Refugee Convention and EU legal systems. Namely, the length of the detentions should not exceed that reasonably required for the purposes pursued125 and the detentions must be in compliance with clear legal provisions in national law.126 Additionally, guarantees to the person being deprived of their liberty must be provided such as the right to an effective remedy.127
118 UNHCR 2012 – Detention Guidelines (n 12), paras 13, 14.
119 Achughbabian v. Prefet du Val-de-Marne, Case C-329/11, [2011] E.C.R I-12695, para. 49.
120 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Article 9; Marjoleine Zieck (n 80), 67 ; Cathryn Costello, The Human Rights of Migrants and Refugees in European Law (Oxford University Press 2016), chapter 7, 3; HRC 2014 – General Comment 35 (n 38), para 12,14,18 ; European Union Agency for Fundamental Rights (FRA), ‘Handbook on European Law relating to asylum, borders and immigration’ (2014), 157. (‘FRA 2014’). 121 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended), Article 5(1)(f).
122 ECHR 2018 – Guide to article 5 ECHR (n 41), para 124. 123 Saadi v The United Kingdom, [GC] No 37201/06, ECHR 2008. 124 UNHCR 2017 – Cathryn Costello (n 82), 48.
125 Saadi v The United Kingdom (n 123), §74.
126 ECHR 2018 – Guide to article 5 ECHR (n 41), para 28 and 32. 127 Ibid, para 153.
Now, the ECHR diverges from all other legal instruments previously analysed with regards to individual assessment. There is no requirement for a necessity or proportionality test to detain a person who tries to enter the country unauthorised. This is less protective than the other legal instruments analysed.128 Additionally, the ECtHR has merely expressed reservations on the practice of authorities to automatically detain asylum seekers in detention.129
Applying this approach to the Hungarian transit zones, the detentions seem less distant to lawfulness than before the other legal systems. Indeed, following the Saadi doctrine, as Hungary has not yet allowed them into their territory, their presence is unauthorised. In addition, the fact that the Hungarian authorities do not submit the detention of asylum seekers and refugees to an individual assessment of necessity and proportionality is no longer a problem.
However, some protection is still provided as the lack of access to legal remedy to complain about the detentions is in clear violation of article 13 ECHR.
It must be noted that the Court has allowed itself some flexibility under the requirement of legality. It considers that legality includes EU law and international law as well. As such, in the Ilias and Ahmed v. Hungary case, the ECtHR used EU law to do an individual assessment of the detention of the applicants based on the provisions of the Reception Conditions Directive as well as the Procedures Directive130 that do require such a test. This shows that all the layers of law that this section analysed are cumulative and not alternative.
To summarise, the source of the problem with the detentions occurring in the Hungarian Transit zones emerges from the Asylum Act and in particular its March 2017
128 It can also be interesting to note that the inter-American human rights system has adopted the opposite approach deciding to be even more protective than International Conventions in the ACHR, Rafael Ferrer-Mazorra et al. (United States), Report No 51/01 (Merits), Case No 9903 (4 April 2001), §219 case by condemning the US detention practices of new arrivals. It acknowledged that standards on immigration detention must be more protective than the ones for other forms detention for criminal offences. The presumption of liberty is clear for asylum seekers and refugees as their preventive detention must not be punitive and is only precautionary. As such there is a strong need to proportionality and a strict necessity test in a democratic society.
129 ECHR 2018 – Guide to article 5 ECHR (n 41), para 128. 130 Ilias and Ahmed v. Hungary (n 44), §47, §59, §64.
amendments. It appears clearly that the international layers are sufficient to prevent such automatic abuses. As such, better adaptation of all the analysed layers into the Asylum Act is necessary to ensure that asylum seekers and refugees are not penalised solely for their status. However, the problem that stands out from this analysis is the unwillingness of the authorities to comply with such standards for practical reasons. The only supranational organisation with sufficient authority over Hungary to impose a shift in lawfulness is the EU.
2.2 Assessment of de facto detentions in European transit zones in airports
The same patterns as observed for the Hungarian zones stand out in the de facto detentions occurring at the German and Greek airports’ transit zones (see Annex 2). As it involves
de facto detentions the legality criterion is never fulfilled. As such, the German and Greek
authorities also consider that the asylum seekers and refugees being detained entered their States unlawfully and avoid any individual assessment prior to detention in the transit zones.131
However, it is interesting to note that in these cases detention is used for purposes of identification and preliminary interviews, thus falls under one of the admissible grounds for detention under international refugee law, and as a corollary is temporary.132 These situations still get around lawfulness for practical reasons as these automatic detentions allow the authorities to first detain and then assess instead of the opposite. However, these two last situations maintain the unlawful situation for a significantly shorter length than the detentions in the Hungarian transit zones.133
2.3 Concluding remarks
Additionally to outlining that the detentions in transit zones are unlawful and are purely moved by the will to render the asylum procedures more efficient for the authorities by first detaining and then assessing instead of the opposite, two main observations arise from this chapter.
131 AIDA 2017 – Germany (n 20), 38 – 40; HHC 2019 (n 3), 17. ; AIDA 2018 – Greece (n 20 ), 71-73. 132 Ibid.
Firstly, article 31 of the Refugee Convention is more protective than the EU Common Asylum system and that the ECHR. Indeed, the former acknowledges the fact that borders are processes and not just a line on the map as Costello explains.134 At the regional level however, both Courts135 have persistently maintained a static conception of borders.
Secondly, this chapter shows that extraterritoriality cannot be used by States as a loophole to avoid applying their international obligations. The demonstration that international zones will not justify a derogation from States’ obligations regarding detention of asylum seekers and refugees is particularly important in the present context in which the EU is passing four agreements with non-EU Western Balkan Countries in order externalize its borders regarding asylum seekers and refugees.136 It shows that these agreements cannot be used as a way to go around the States’ obligations regarding detention of asylum seekers and refugees by creating zones outside the EU MS territories. International, regional and national obligations of a State will still apply within these zones.137
134 Cathryn Costello, ‘Immigration Detention: The Grounds Beneath Our Feet’ (2015), Vol. 68, ‘Current Legal Problems’, 172.
135 The CJEU Failed to consider article 31 of the 1951 refugee convention in Mohammad Ferooz Qurbani, Case C‑481/13 [2014], E.C.R. I- 2101 and the ECHR in Saadi v The United Kingdom (n 123).
136 European Council for Refugees and Exiles (ECRE), ‘Pushing EU borders : First joint operation of Frontex in Third Country’ (2019), 1.
3. De facto detentions occurring in the States’ territories
This chapter first assesses the lawfulness of de facto detentions on the Greek Hotspots. It then analyses the detentions occurring in Reception centres in Europe by focusing on the RIC Fylakio and commenting generally on the ones in Malta, Ireland, Slovenia and Spain (Annex 3).
3.1 Detentions resulting from EU law: Hotspots
This section first establishes the context of the Greek hotspots before proceeding to the assessment of the lawfulness of the detentions occurring on the Greek islands first under international refugee law and EU law, then under Human rights conventions.
Hotspots are “a pilot model of a more permanent registration and identification mechanism at the points of arrival that selects between those seeking asylum and those to be returned”.138
3.1.1 Context
Greece has ratified the Refugee Convention, is a EU MS, the ICCPR, the CRC and the ECHR.139
The practice of RICs was established in Greece in 2010 by national law to ensure that third-country nationals should be subjected to first reception procedures upon entry.140 In 2015, the European Commission launched the “hotspot” to cooperate on the ground with Italy and Greece to identify, register and fingerprint all incoming asylum seekers and migrants.141 Five were created in Greece which are located on the islands where each has
138 European Council for Refugees and Exiles (ECRE), ‘The implementation of the hotspots in Italy and Greece’ (2016), 7.
139 UN Treaty Body base, ‘Greece’,
https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=77&Lang=E N, accessed 1 June 2019.
140 Article 7 L 3907/2011 Greek Action Plan on Asylum.
141 Majcher, ‘The EU Hotspot Approach: Blurred Lines between Restriction on and Deprivation of Liberty (PART I)’ (2018), ‘Global Detention Project’, 1. (‘Majcher Part I’).
a RIC: on Lesvos (Moria), Chios (Vial), Samos (Vathy), Leros (Lepida), and Kos.142 This leaves one RIC subject only to the Greek law and not to the hotspot approach: Fylakio (see 3.2.1).
These five hotspots are particularly important since the entry into force of the EU-Turkey deal as those are the centres used to assess whether refugees are sent back to Turkey or not.143 The system put in place for applicants arriving to the Greek islands and falling under the EU-Turkey – that is the applicants who have arrived on the Greek islands after 20 March 2016 and have lodged applications before the RICs144 - are channelled into a fast track procedure. Additionally, the Head of the RIC issues a decision of “restriction of freedom of movement” which in practice amounts to detention and is only revoked once the registration by the RIC is completed, which takes a couple of days.145 Once the registration is completed and the decision of “restriction of freedom of movement” is revoked, the General Regional Police Director issues a decision which imposes a geographical restriction ordering the individual not to leave the island and to remain near the RIC facilities.146 These types of geographical restrictions deprive of liberty the persons and amount to de facto detentions, as previously demonstrated (see 1.3).
3.1.2 Assessment of the de facto detentions on Greek islands under
international refugee law and EU law
All the islands are analysed together as they answer to the same system . The content of the legal instruments that were referred to in chapter 2 are not repeated in this section, unless new elements need to be discussed.
All asylum seekers and refugees arriving to the Greek Islands and being systematically detained fall under the scope of article 31 of the Refugee Convention. Indeed, they cannot
142 Majcher Part II (n 52), 6. 143 AIDA 2018 – Greece (n 20), 15. 144 Ibid, 74. 145 HHC 2019 (n 3), 16. 146 Ibid.
be accused of “bad faith” if we apply Hathaway’s threshold as they are detained as soon as they arrive.147
As such, the situation on the Greek islands stands out for being in contradiction with several principles established in the Refugee Convention and the UNHCR guidelines. The necessity and proportionality tests which both require an individual assessment seem to be lacking in this system. The restriction of movement that is imposed for the first couple of days and then the geographical restrictions are both enforced on any new arrival,148 thus violating the basics of article 31 of the Refugee Convention. Moreover, whilst at least the first decision issuing a restriction of movement is merely to register in the RIC, the decision issued by the General Regional Police Director does not have an established time limit149 or an apparent reason to justify it as it applies to any individual even if they expressed their intention to seek asylum.150
Greek national courts found in most cases that the offences invoked by the Greek authorities were not sufficient to justify detention on public order justifications.151 Indeed, whilst the first days of restriction in order to register the asylum seekers can be justified under a public order ground, the rest of the time spent subjected to a geographical restriction cannot. Indeed, it can no longer be considered that it is for initial checks, preliminary interviews, or that there is a risk that all of them will abscond. Public health or national security have not been used by Greece but would probably still not justify detention, especially after the EU-Turkey Deal was partly agreed upon for security reasons.152
Both the reasons Greece invoked and the fact that the geographical restrictions amounting to de facto detentions happen on islands and not on the mainland show a voluntary attempt to automatize detentions until the end of the procedure purely to facilitate the administrative system and avoid freedom of movement on the Greek territory.
Now, in practice the fast track procedure put into place by the EU-Turkey deal in the hotspots has led to the automatic official detention of the non-Syrian asylum seekers from
147 See UNHCR 2017 – Cathryn Costello (n 82), 27. 148 AIDA 2018 – Greece (n 20), 34.
149 Ibid. 150 Ibid.
151 AIDA 2017 - Detention of asylum seekers in Europe (n 1), 8. 152 HHC 2019 (n 3), 4.
countries with a recognition rate below 25%.153 This can be seen as contrary to article 3 of the Refugee Convention and signifies that the referred nationalities are in an even more reduced geographical space.
Under EU law, the very large ground established in article 8(3)(c) of the Reception Conditions directive154 covers the de facto detentions occurring on the Greek islands. However, this could only be applied provided that an individual assessment is done and that the detentions are established in the law which is not the case.
The four weeks’ time limit established in the Procedures directive above which the applicant is granted entry to the territory of the EU MS155 is largely violated on the Greek islands. The average processing time at first instance is 8.5 months156 during which the geographical restriction remains.
With regards to the obligation to consider whether less coercive alternative measures can be applied effectively,157 Greek authorities violate this obligation as they do not consider confinement to the islands to be detention. Greece believes it is currently subjecting the asylum seekers and refugees to a form of alternative to detention.158 Indeed, in 2017 following international critics for the way the RICs were being run as closed detention centres, the hotspots modified their practice for a geographical restrictions policy on the islands.159 The past systematic practice specified that any new arrival would be subjected to a maximum of 25 days restriction of liberty after an individual assessment. In contrast, the new practice which consists of confinement to the islands applies to the whole duration of the asylum procedure and without any individual assessment.160 The situation has therefore gotten worst for asylum seekers and refugees following the 2017 changes.
153 AIDA 2018 – Greece (n 20), 77.
154 See Reception Conditions Directive (n 2), Article 8(3) (c). 155 See Procedures Directive (n 36), Article 43 (2).
156 AIDA 2018 – Greece (n 15), 15.
157 UNHCR 2012 – Detention Guidelines (n 36), para 35; See Reception Conditions Directive (n 2), Article 8(2).
158 AIDA 2018 – Greece (n 20), 35. 159 HHC 2019 (n 3), 15.
The UNHCR Guidelines specify that alternatives to detention cannot result in alternative forms of detention,161 which is exactly what has happened on the Greek islands. However, the Reception Conditions Directive does not specify this and merely refers to “other less coercive alternative measures”.162 It then codifies several alternatives such as residence in an assigned place, reporting the obligations or the deposit of a financial guarantee.163 As a result, one may wonder whether this obligation to consider alternatives to detention under EU law has not, in this case, triggered the change towards an automatically longer
de facto detention as a form of migration control measure. Under international pressure,
Greece has developed a system which plays between the margin of deprivation of liberty and mere restriction of movement. Indeed, Greece pretends it is fulfilling its obligations to provide for less coercive restrictions than detention through this analysed system.
3.1.3 Assessment of the de facto detentions on Greek islands under
International and regional human rights
Under the ECHR, administrative convenience has been acknowledged to be a legitimate purpose for detention,164 which is the reason for the implementation of such a system on the islands after the hotspots and EU-Turkey deal were established. The ECHR also establishes that the length required cannot exceed the reasonable one for the purpose pursued. In this case it can theoretically be argued that if the aim of detention is administrative convenience, then this purpose is only fulfilled once the procedure is over, thus it could be reasonable to maintain detention during the whole procedure for the purpose pursued under the ECHR. Additionally, the lack of individual assessment is not a problem under this Convention. This shows that as soon as Greece fulfils the legality criterion, the ECtHR is not likely to find a violation because most of its thresholds are lower than in the other legal systems assessed.
However, for now two violations may still be found. Indeed, the ECHR requires clear legal provisions in national law165 and a right to an effective remedy.166 No legal
161 UNHCR 2012 – Detention Guidelines (n 12), para 38. 162 Reception Conditions Directive (n 2), Article 8(2). 163 Ibid, Article 8(4).
164 UNHCR 2017 – Cathryn Costello (n 82), 48.
165 ECHR 2018 – Guide to article 5 ECHR (n 41), para 28 and 32. 166 Ibid, para 153.
provisions in national law provide for the detentions or their right to appeal them as the deprivations of liberty occur as a result of decisions taken either by the head of the RIC or the competent Police directorate.167
In light of these considerations one has to conclude that the unlawfulness of the de facto detention practices on the Greek islands has been demonstrated. Whilst this system of automatic detentions does not seem to be directly provided for in EU law, it stands out that neither the CJEU nor the ECHR have had an opportunity to decide on the matter yet and that the political mechanisms of the EU system such as article 7 TEU have not been triggered to palliate such violations.
3.2 Detentions as a result of national law – RIC Fylakio
Asylum seekers and refugees arriving through the Evros border are transferred to the RIC of Fylakio for reception and identification procedures. According to Greek law, the Fylakio RIC subjects all the newly arrived to “restriction of freedom within the premises of the centre” for three days which can be extended to 25 days if the reception and identification has not been completed.168 This entails a prohibition to leave the grounds of the RIC, which translates into detention even if it is not recognised as such by the relevant provision in the Greek law.169
3.2.1 International refugee law and EU law
Article 31 of the Refugee Convention applies to this situation as the “good faith” threshold is met by the asylum seekers and refugees whose liberty is deprived because they are detained as soon as they attain the Greek border.
When assessing the situation under such article, it is clear that the law in itself does not provide for an individual analysis during the first three days. However, there is an improvement compared to the transit zones or the hotspots as after three days an
167 HHC 2019 (n 3), 16. 168 Ibid, 15.
