Greece - Council of State, 15 September 2000, 495/2000
Keywords:
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Revocation of protection status
Description
In the EU context, the decision by a competent authority to revoke, end or refuse to renew the protection status of a person including inter alia: in relation to refugee status cessation in accordance with the Geneva Convention; misrepresentation or omission of facts, including the use of false documents, which were decisive for the granting of refugee status; or if they have been convicted by a final judgement of a particularly serious crime, which constitutes a danger to the community of a Member State; in relation to subsidiary protection status cessation in accordance with QD Art. 16, exclusion per Art.17 or on any of the grounds set out in Art. 19 |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Access to the labour market
Description
Per Art 26 QD: Member States must authorise beneficiaries of international protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the status has been granted. In the case of refugee status, Member States must ensure activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered under equivalent conditions as nationals. In the case of subsidiary protection the same may be offered under conditions to be decided by the Member States. Per Art. 11 RCD: "Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant." |
Headnote:
Application to give suspensive effect to a decision by the Minister for Public Order
This case concerned deportation of a recognized refugee (Articles 32 and 33 of the 1951 Convention relating to the Status of Refugees) after a conviction for a criminal offence under common law.
Immediate deportation would expose the applicant to the risk of suffering irreparable harm in the event that his application for annulment is successful. Because of the severity of that harm, moves to deport him must be given suspensive effect until there has been a final decision on his application for annulment, even though the decision to deport him was motivated by the protection of public order.
The case also considered ending the applicant's detention andreturning the refugee residence permit, which had been withdrawn, to the applicant.
Facts:
By decision of the Minister for Public Order the applicant, a Turkish national, was recognized as having refugee status and was granted asylum in Greece in accordance with the relevant legislation. Subsequently, the General Secretary of the Ministry of Public Order issued a ruling which ordered his deportation from the country on the grounds that “During his stay here, with refugee status, he was engaged in unlawful activities and participated in acts which could be detrimental to public security in the country”.
The applicant appealed to the Minister for Public Order against the said ruling, and it was in that appeal that the contested decision (the annulment of which is now being sought) was issued. Whilst the decision upheld the appeal as regards the applicant's refugee status – which was maintained – it dismissed the appeal as regards the order to deport him.
In particular, the contested decision held that deporting the applicant was supported by Articles 32 and 33 of the 1951 Convention, and used the justification that “during his stay here with refugee status, he was arrested and received a final conviction for particularly serious crimes and, therefore, is considered to be a danger to the country”. Moreover, as is clear from the evidence in the dossier, the applicant, during his stay in Greece, had been sentenced to a total prison sentence of eighteen months (converted to a financial penalty) and a fine for the crimes of illegally employing foreigners without a permit, facilitating the illegal stay of foreigners in Greek territory (Article 33 paragraphs 7 and 9 of Act 1975/1991) and misappropriation of documents (Article 222 of the Penal Code).
Decision & reasoning:
The Court (Suspension Committee) held that the immediate implementation of the contested act, as regards the ordered deportation, would expose the applicant to the risk of suffering irreparable harm in the event that his application for annulment was successful. It reached this conclusion taking into consideration that:
- deporting the applicant would entail refoulement to Turkey.
- the applicant, according to the contested act itself, retains his refugee status which implies that the Administration believes that, should he be returned to his country, there is a well-founded fear of him being persecuted within the meaning of the 1951 Convention.
The Court also held that, because of the severity of the potential harm, implementation of the contested act must be given suspensive effect until a final decision was issued on the application for annulment, even though the act was truly motivated by the protection of public order. Because of that suspension of effect, the detention of the applicant must end and his permit to reside in the country, which had been withdrawn, must be returned to him.
Outcome:
The application was granted. Execution of the contested decision was given suspensive effect in part, ordering the repayment of the fee. The State shall bear the applicant's Court Costs.
Subsequent proceedings:
Council of State 441/2008 (Annulment proceedings) which annulled the contested decision. /node/4644
Observations/comments:
Suspension Committee of the Council of State
I. Mari, State Councillor and President of the 3rd Summer Chamber; A. Rantos, Councillor; I. Gravaris, Associate Councillor. Court Registrar A. Koliopoulou
A significant decision as to the breadth of the protection the Court can provide to applicants, ordering, inter alia, that the Administration must end the applicant's detention and renew the residence permit which had been taken from him.
Relevant International and European Legislation:
Cited National Legislation:
Follower Cases:
| Follower Cases |
| Greece - Council of State, 17 July 2006, Application No. 700/2006 |