CEAS: “Breaches of core legal principles are going to become the new normal”

PRO ASYL: Minos, could you descri­be the actu­al situa­ti­on in Greece? We talk about Greece as a kind of blue­print for Euro­pean plans regar­ding bor­der procedures.

Minos Mouz­ou­ra­kis: Greece is bound by the same rules that app­ly to Ger­ma­ny and other count­ries. Rough­ly spea­king, what we’­ve had over the past seve­ral years is a series of seve­re vio­la­ti­ons of the right to asyl­um through suc­ces­si­ve reforms and bad prac­ti­ces, espe­ci­al­ly after the EU-Tur­key deal. Reg­rett­ab­ly, the lega­cy of tho­se bad poli­ci­es is what has led to an attempt at codi­fy­ing them in EU legis­la­ti­on for years to come. So brea­ches of core legal prin­ci­ples are going to beco­me the new nor­mal, not only for Greece but for the enti­re EU.

And when the new plans are estab­lished, for exam­p­le regar­ding the “fic­tion of non-ent­ry”, what will chan­ge in Greece with CEAS?

The result of this reform will be a regres­si­on of stan­dards across bor­ders and a dis­mant­ling of pro­tec­tion for Greece.

This also brings about a num­ber of chan­ges, inclu­ding the so-cal­led “non-ent­ry fic­tion” appli­ca­ble at bor­der are­as and on the islands, which would mean that peo­p­le are legal­ly con­side­red not to be on Greek soil. This is some­thing that Ger­ma­ny is all too fami­li­ar with through its air­port pro­ce­du­re, from which we know that the only way to make this hap­pen as a legal fic­tion is through mass depri­va­ti­on of liberty.

If this were to hap­pen on the Greek islands, that would fun­da­men­tal­ly chan­ge the situa­ti­on of an alre­a­dy dif­fi­cult envi­ron­ment into a com­ple­te­ly explo­si­ve one.

You men­tio­ned that the pos­si­bi­li­ties to app­ly for asyl­um could chan­ge in Greece, espe­ci­al­ly on the islands. How is it at the moment?

The­se are some chan­ges in the CEAS reforms that are more obscu­re and defi­ni­te­ly less deba­ted. One of the key chan­ges that the Coun­cil has pro­po­sed is limi­ta­ti­ons on ways to access the asyl­um sys­tem by “making” a cla­im, by expres­sing the inten­ti­on to obtain pro­tec­tion from the EU. At the moment, it’s quite clear from inter­na­tio­nal law and from the case law of the EU Court that this is sub­ject to no rest­ric­tions or formalities.

A per­son can utter the words “I need pro­tec­tion” or demons­tra­te they need pro­tec­tion and gain asyl­um see­ker sta­tus until their cla­im is actual­ly heard. What Mem­ber Sta­tes want to do is to nar­row down, to rest­rict the pos­si­bi­li­ty of making a cla­im for pro­tec­tion, to be done only in per­son and only befo­re desi­gna­ted aut­ho­ri­ties. This would mean in a future sce­na­rio that if some­bo­dy cros­ses the land bor­der and approa­ches a Greek army offi­ci­al and tells them they need pro­tec­tion, this would not count as a cla­im for pro­tec­tion. It would not pro­tect the peo­p­le from depor­ta­ti­on, from arbi­tra­ry arrest and detenti­on, and all sorts of other very nega­ti­ve con­se­quen­ces for their fun­da­men­tal rights.

Regar­ding the so-cal­led “safe third count­ries”, Greece may be a blue­print as well, as Greece declared Tur­key a “safe third coun­try”. What is your expe­ri­ence with this issue?

The “safe third coun­try” con­cept has been one of the core ele­ments of the Greek asyl­um sys­tem backsli­ding from 2016 to pre­sent. We’­ve had an arbi­tra­ry and sys­te­ma­tic dis­mis­sal of now tens of thou­sands of asyl­um claims wit­hout any assess­ment of whe­ther peo­p­le need pro­tec­tion, based on the sole assump­ti­on that Tur­key would be a coun­try in which they can seek pro­tec­tion. Wit­hout this being sup­port­ed by evi­dence. So what the CEAS reform does is take this extre­me­ly nega­ti­ve, extre­me­ly dama­ging pre­ce­dent and con­vert it into EU legis­la­ti­on through a mul­ti­di­men­sio­nal expan­si­on of the safe third coun­try con­cept. Accor­ding to the view that is put for­ward by Mem­ber Sta­tes, the EU will be able to desi­gna­te safe count­ries at EU level, at natio­nal level, or even to use the con­cept wit­hout a natio­nal or EU list.

In prac­ti­ce, it will be pos­si­ble to desi­gna­te count­ries as “safe third count­ries”, even if they per­se­cu­te their own citi­zens. So they’re them­sel­ves refu­gee-pro­du­cing count­ries. It would be pos­si­ble to desi­gna­te them as “safe third count­ries”, even if they don’t give refu­gees any form of legal sta­tus, so long as they somehow allow them to remain on their territory.

And the EU would be able to pre­su­me safe­ty on the basis of a sole agree­ment with a coun­try that pro­vi­des assu­ran­ces that it will tre­at peo­p­le fair­ly and accor­ding to stan­dards. In prac­ti­cal terms, this would make the safe coun­try con­cept rea­di­ly available not only for Greece but for many other mem­ber sta­tes who wish to deflect their pro­tec­tion responsibilities.

Could you give some prac­ti­cal examp­les of what could hap­pen then?

Loo­king at prac­ti­cal examp­les that are not too remo­te and not too far from our expe­ri­ence, Greece desi­gna­tes Tur­key as a “safe third coun­try”, even though Tur­key has not rati­fied the 1951 Refu­gee Con­ven­ti­on. It does not abide by inter­na­tio­nal refu­gee law stan­dards, and the­re are well-docu­men­ted, repu­ta­ble, aut­ho­ri­ta­ti­ve reports poin­ting to sys­te­mic defi­ci­en­ci­es and flou­ting of inter­na­tio­nal norms, sys­te­ma­ti­cal­ly for­cing Syri­an refu­gees back to Syria or Afghans back to Afghanistan.

The posi­ti­on that is usual­ly put for­ward by the Greek aut­ho­ri­ties is that their Tur­ki­sh coun­ter­part, through let­ters to the EU, assu­red that peo­p­le would be trea­ted in line with stan­dards, and then all the evi­dence on how peo­p­le are actual­ly trea­ted on the ground is com­ple­te­ly disregarded.

That could open the door for count­ries that not only don’t abide by the Refu­gee Con­ven­ti­on but also do not give any form of docu­ments to refu­gees. Iran could be a via­ble exam­p­le for Afghan refu­gees, many of whom live the­re wit­hout, howe­ver, having any legal sta­tus or reco­gni­ti­on by the state.

What could be the con­se­quen­ces of the chan­ges in Dub­lin, with the lon­ger dead­lines for Greece? Becau­se may­be depor­ta­ti­ons from Ger­ma­ny will get more fre­quent then.

I think one of the key are­as that demons­tra­te that this reform is con­stant­ly and sever­ely mis­re­pre­sen­ted is inde­ed the main­ten­an­ce of the Dub­lin rules. We had heard in 2020 that the Dub­lin sys­tem had fai­led, that it was dead and would be repla­ced by a new approach. Only to end up with an extre­me­ly com­plex and con­vo­lu­ted regu­la­ti­on that keeps all the key fea­tures of Dub­lin intact.

Mem­ber Sta­tes of first ent­ry, such as Greece, have hea­vier respon­si­bi­li­ties. For exam­p­le, the ever- pre­sent cri­te­ria for respon­si­bi­li­ty based on irre­gu­lar ent­ries are not only main­tai­ned but streng­the­ned. The time peri­od for which a coun­try would be respon­si­ble under the cur­rent rules is one year. Under the new rules it will be two years. It would be easier for count­ries like Ger­ma­ny and others to send peo­p­le back to count­ries like Greece, even if the recei­ving coun­try has not accept­ed the trans­fer. And trans­fer dead­lines are much lar­ger, much more exten­ded for count­ries like Ger­ma­ny. This would not only lead to more returns to unsafe count­ries, it would also con­tri­bu­te to per­pe­tu­al lim­bo for peo­p­le stuck in a mem­ber sta­te wit­hout actu­al access to an asyl­um pro­ce­du­re. The­re are simi­lar very hea­vy rest­ric­tions and dis­mant­ling of pro­tec­tion for peo­p­le who are reco­gni­zed in a dif­fe­rent mem­ber sta­te, a rea­li­ty that is all too appa­rent in Ger­ma­ny, deal­ing with seve­ral tens of thou­sands of refu­gees who have pre­vious­ly got pro­tec­tion in Greece.

A coun­try like Ger­ma­ny would be able to dis­miss asyl­um claims by the­se peo­p­le wit­hout even inter­vie­w­ing them. This would lead to a direct rejec­tion and then an order to return back to the first coun­try, even though, as the Ger­man courts have sta­ted, Greece does not gua­ran­tee huma­ne tre­at­ment for the­se peo­p­le upon their return.

The EU is dis­cus­sing the so-cal­led “instru­men­ta­liza­ti­on regu­la­ti­on” and wants to include it in CEAS. What could happen?

The “instru­men­ta­liza­ti­on” pie­ce is visi­bly inspi­red by the Greek expe­ri­ence. It is an idea that is con­stant­ly put for­ward in Greek dis­cour­se. It will be used as a basis for dis­mant­ling stan­dards, deny­ing peo­p­le access to protection.

With the cur­rent ten­si­on bet­ween Greece and Tur­key, we could ima­gi­ne a sce­na­rio whe­re every sin­gle arri­val from Tur­key could be con­strued as an attempt to “instru­men­ta­li­ze”, ther­eby trig­ge­ring an enti­re set of dero­ga­ti­on from the rules.

And how would all the new regu­la­ti­ons chan­ge your capa­ci­ty to sup­port refugees?

The effects that we expect from the reform are over­whel­mingly nega­ti­ve. If this reform pas­ses, access to peo­p­le who need legal sup­port will be much more dif­fi­cult, espe­ci­al­ly if they are mas­si­ve­ly pla­ced in clo­sed, inac­ces­si­ble, and obscu­re detenti­on set­tings. And the rules that we have to fight against will beco­me extre­me­ly com­plex and unworkable.

Minos Mouz­ou­ra­kis is Legal & Advo­ca­cy Offi­cer at Refu­gee Sup­port Aege­an (RSA). RSA was foun­ded in 2017 and imple­men­ting part­ner of PRO ASYL in Greece. It staff com­pri­ses of lawy­ers, social workers/scientists, rese­ar­chers, media workers, and inter­pre­ters with exten­si­ve and leng­thy expe­ri­ence on refu­gee pro­tec­tion in Greece.

The inter­view was held in July in Athens by Max Klöck­ner & Jonas Bickmann.