Immigration detention becomes the rule in new Greek law

This blog post was written by Maria Paraskeva, Legal Expert and Project Coordinator at HumanRights360, NGO that works to advance access to rights and justice for all in Greece.

During the outbreak of the Covid-19 pandemic and the related lockdown, the Greek government completely reformed the international protection system in Greece.

The reform was introduced in Law 4686/12.05.2020, which was adopted only a few months after the full implementation of Law 4636/01.11.2019 (repealed). This recent recast of the asylum legal framework has deteriorated the already poor situation of the immigration detention system, which is characterized by overcrowded detention centers, lack of individualized assessment for the persons in detention and limited or no consideration of alternatives before the imposition of detention.

The spirit of the new legal framework is punitive. It introduces procedural barriers and complex procedures while, at the same time, reducing the substantive and procedural safeguards both in the fields of asylum and detention in view of return. In particular, it makes administrative detention in view of return the rule and limits the application of alternatives to detention only on an exceptional basis and under restrictive conditions.

This violates the very exceptional nature of administrative detention, which, under EU and international law, should only be applied as a measure of last resort and only in cases where alternatives cannot be implemented. In particular, this provision is in clear contradiction with the spirit and the letter of Directive 2008/115/EC, which explicitly requires the authorities to examine less restrictive measures (alternatives) before the imposition of administrative detention.

In practice, detention facilities remain overcrowded, and the detention conditions are most of the times poor (including inadequate access to basic services, and poor provision of medical and psychosocial services) and even completely unsuitable, with many persons detained in police stations for long periods (even for months) under very challenging conditions.

According to the explanatory memorandum of this law, administrative detention in view of return is set as the rule to help authorities ensure an effective return process. This argument disregards broad evidence that longer periods of detention do not lead to higher rates of return, as well as the fact that returns often cannot be carried out for external reasons, including administrative obstacles, human rights considerations (including the principle of non refoulement) and, during the pandemic, public health limitations.

Furthermore, the new law introduces provisions that concern people in vulnerable situations: in particular, it abolishes, retroactively from 1 January 2020, the provision that allowed for residence permits based on humanitarian grounds. This disposition jeopardizes the rights of persons in particularly vulnerable situations such as children, persons with serious health problems, and others. The law also abolishes the provision for priority examination of requests for international protection of persons with vulnerabilities.

In addition, the new law removes the presumption of minority for those claiming to be minors, which was valid both during the age assessment procedure as well as in case of doubts after its completion, thus allowing their detention together with adults during the age assessment procedure.

Unaccompanied and separated minors in the Reception and Identification Center (RIC) of Fylakio-Orestiada remain under “protective custody” following the public prosecutor’s order, who acts as temporary guardian, for more than 6-8 months, awaiting to get accommodation in suitable sheltering structures. “Protective custody” is established as a precautionary administrative measure and not a criminal repressive measure. However, its conditions amount to a restriction of personal liberty equal to detention. The constitutionality of this provision is being challenged due to its opposition to Article 5 para. 4 of the Greek Constitution, but also its incompatibility with Article 5 of the ECHR. Persons who are detained under “protective custody”, on the one hand, cannot exercise the right to be heard before the measure is imposed on them, and on the other hand are deprived of legal remedies for challenging the administrative measure, which has no maximum time limit.

In that context and taking into consideration the strict measures adopted from the Greek state in order to prevent the spread of coronavirus, HumanRights360 and other NGOs have called the competent authorities to adopt vital measures to protect the migrant population. In particular, we recommend the authorities not to detain migrants under a return procedure during the COVID-19 outbreak, in line with UN recommendations. Instead, we recommend providing them with certificates of a temporary suspension of the removal valid for 30 or 60 days with possibility of renewal, in accordance with the provisions of article 24 of Law 3907/2011. We also recommend making use of alternatives to detention such as regular appearance before the police authorities or other appropriate measures, according to the provisions of articles 22 and 30 of Law 3907/2011. Community-based alternatives to detention, in particular case-management as implemented through our pilot, has shown positive im­pact on individuals’ ability and capacity to work towards case resolution and high engagement rates with the migration pro­cedures.

Considering the above, the new law risks to only increase the number of people in an irregular situation, as many will likely not be returned, and will be released from detention because maximum time limits have passed. The authorities should carry out individualized assessments that take into consideration the vulnerabilities and specific needs of each individual, as well as reinstate alternatives to detention as the first measure of resort, taking into account European and international law.