Greece creates new Asylum Committees after decisions blocking returns under the EU-Turkey deal
Greek asylum law has been amended to modify the composition of the Asylum Appeals Committees following 70 decisions that overturned the presumption of Turkey as a safe third country.
On 22 June Greece amended its asylum legislation to modify the structure of the Asylum Appeals Committees. Other changes brought about by the law included removing the possibility for asylum seekers to request a personal hearing before the Committees, and the empowerment of EASO to conduct interviews in the context of the exceptional procedure applied at the border.
What seems to be a domestic procedural issue is, in fact, closely related to the implementation of the EU-Turkey deal, the agreement signed in March 2016 between the European Union and Turkey which concerns the readmission of irregular migrants, including failed asylum applicants, from Greece to Turkey.
The deal has been widely criticised by migration experts especially regarding the presumption that Turkey is a safe third country for refugees (see Peers and Roman, Ulusoy, and Rodrigues). Many domestic and international NGOs have highlighted the deficits of the Turkish system with respect to the protection required by the Refugee Convention and violations with respect to non-refoulement, but also the right to life and freedom from torture.
The agreement has been in force since April 2016, with hundreds of irregular migrants having being readmitted to Turkey. The Greek Asylum Service, the authority responsible for dealing with asylum applications, has been implementing the deal, judging that the return of failed asylum seekers to Turkey is not objectionable, as Turkey is a safe third country and can offer adequate protection to refugees. However this presumption has been rebutted by the Appeals Committees in 70 out of 72 instances so far, according to the European Commission, casting serious doubts as to the application of the EU-Turkey agreement.
These decisions have been hailed by several human rights organisations, while the European Commission officially recognised them as proof that there will not be blanket or automatic returns to Turkey following the agreement, and that the ‘safeguards provided by the Asylum Procedures (…) are in place and respected’.
One month after the first decision of the Appeals Committees the Greek Parliament, in a fast-track legislative procedure, adopted an amendment that modifies their composition. Up until now the administrative Committees were composed of one representative of the Ministry of Interior, one human rights expert selected from a list compiled by the National Commission on Human Rights, an official consultative organ to the state, and one UNHCR representative.
Following pressure on the Greek government from the European Council and the Commission to expedite returns to Turkey and to ‘rethink this system with the committees’, the legislative amendment created new Appeal Committees that are composed of two judges of the Administrative Courts and one UNHCR representative.
The Greek government supports this change on the basis of reinforcement of independence and the right to an effective remedy, arguing that this brings Greece closer to European safeguards.
As far as the legislative framework is concerned, EU law and the ECHR leave sufficient discretion to member states to develop their domestic asylum systems, however in a way that is compatible with the right to an effective remedy. For the practical and effective implementation of this right the ECHR, in Article 13, requires a review before a national authority that is not necessarily a tribunal (Klass and Others v. Germany, Silver v. the United Kingdom). Under EU law Article 47 of the EU Charter of Fundamental Rights, however, offers broader protection requiring that the right to an effective remedy is guaranteed by ‘a court or tribunal’.
Many EU member states, such as Germany, Bulgaria, the Netherlands, Ireland, Slovenia, Italy, and Finland, have assigned the review of asylum decisions in the second instance to judicial authorities, while France has a specialised Asylum Court.
The involvement of a judicial authority is, in principle, an important safeguard of objectivity and independence. However it is not an absolute one. The European Court of Human Rights (ECtHR) has established several elements that constitute an ‘independent’ tribunal for the purposes of Article 6 (1), including safeguards against outside pressures. With respect to impartiality of the tribunal, one of the tests applied by the ECtHR is whether there are legitimate reasons to fear that the impartiality of the tribunal is compromised, in particular whether this fear can be objectively justified (Gautrin and Others v. France).
At this point the question of whether the new national authority constitutes a tribunal for the purposes of Article 47 of the Charter needs to be addressed. The issue is not a matter of definition by the constituting national authorities, but is determined in the context of EU law. Article 39 (1)(a) of the Procedures Directive states that Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against a decision taken on their application for asylum. The Court of Justice of the European Union (CJEU) has set out a number of criteria that serve as requirements for an authority to be considered as ‘a court or tribunal’ in H. I. D. and B. A. v Refugee Applications Commissioner and Others. Some of these criteria are whether the body is established by law, whether its jurisdiction is compulsory, whether it applies rules of law and whether it is independent. In the context of this test the CJEU deemed it necessary ‘to assess as a whole the Irish system of granting and withdrawing refugee status in order to determine whether it is capable of guaranteeing the right to an effective remedy’. The issue has been at the centre of a heated debate on the constitutionality of the legislative amendment, with Members of the Greek Parliament and the National Commission of Human Rights having expressed doubts about whether the new body constitutes a judicial authority.
The Appeals Committees have been part of the asylum system in Greece since 2012. Until then the Council of State, the highest administrative court, was responsible for the review of asylum decisions in the second instance. The ECtHR held in M.S.S. v Belgium and Greece that serious deficiencies made the system of appeals ineffective, whilst the protection it provided was theoretical and illusory. One of the factors taken into account by the ECtHR when judging the fairness of the procedure was the recognition rates for refugee status under the Geneva Convention, which were as low as 2.87% in 2008, and for humanitarian reasons or subsidiary protection, which were 1.26%, according to the UNHCR. By comparison, the average success rate in first instances was 36.2% in the five countries which, along with Greece, received the largest number of applications that year (M.S.S. v Belgium and Greece, paras 125-127). In implementing the M.S.S. judgment the Greek Government established the Asylum Service, which dealt with claims in the first and the second instance. In 2015 the recognition rates of the Appeals Committees were around 23%, according to Eurostat.
The question of the impartiality and independence of the new body cannot be answered a priori. However the timing of the decision, which coincides with the decisions of the Appeal Committees blocking returns to Turkey, is alarming and must certainly result in the question being raised.