Greece – First Instance Administrative Court of Thessaloniki, 2014, Case No 467/2014

Facts:

The appellant, a Bangladeshi national, was arrested on the 17/09/2014 near the Greek border with Macedonia, having attempted to exit Greece without following the legal process. On the 18/09/2014 the Head of the Kilkis Police Department ordered his temporary detention, and on the 21/09/2014 he ordered his return to his country of origin – without granting him a period for voluntary departure, banned him from entering Greece until the 21/09/2019, and decided upon the continuation of his detention for the purposes of removal. On the 01/10/2014 the appellant informed the detaining authorities that he wishes to lodge an application for political asylum through a document forwarded to the Independent Asylum Committee of Thessaloniki on the 02/10/2014. Before the Court he claimed that he entered Greece in Autumn 2013 because he was being persecuted in his country of origin on account of his political opinions, but he was unable to lodge a claim for asylum in the Regional Asylum Office in Athens. He also claimed that the Greek authorities did not register his claim until the 30/10/2014 and that he is being detained under conditions constituting inhuman and degrading treatment, under article 3 ECHR. His passport was presented to the competent authorities by his lawyer on the 30/10/2014. A written affirmation, provided by a lawfully resident Bangladeshi national, that he would accommodate the objector at his residence has not been evaluated, as it does not constitute legal evidence in an Administrative Court.

Decision & reasoning:

The objections were dismissed and the Court decided no valid reasons to terminate the detention exist. At the same time, no evidence contesting the detention conditions has been submitted. More specifically, the Court adjudicated that when the asylum claim is submitted to a non-competent authority, the time frames of paragraph 5, article 11 of Law 3907/2011 for the referral of the application to the competent bodies (15, or following a reasoned extension, 25 days) begin from the moment the detained asylum seeker assists, as dictated by his duty to cooperate with the detaining authorities, with the verification of his identity. In the meantime, while his identity remains unverified, he should be considered as illegally staying and falls within the ambit of Directive 2008/115/EC and Law 3907/2011. According to the Court's rationale, this is mandated in order to avoid the undermining of the provisions regulating the conditions for granting access to procedures for asylum and subsidiary protection – the discretion allowed to Member States in secondary EU legislation to request the lodging of the asylum application in person and at a designated place (paragraph 1 of article 6, Directive  2005/85) – and to protect the effet utile of Directive 2008/115, i.e. the removal of illegally staying third-country nationals from the territories of the Member States. Thus, taking into account the fact that the objector entered the country irregularly, he has not acquired a lawful residence permit, and was arrested while trying to leave the territory without following the legal process and without travel documents, and, at the same time, it has not been confirmed that the passport presented indeed belongs to him, it can reasonably be submitted that a risk of absconding, as stipulated in article 18 of  Law 3907/2011, does exist. Hence, no reasons to terminate the detention exist. The deadline to forward the asylum claim to the competent authorities begins on the 30/10/2014, when the objector complied with his duty to cooperate.

Outcome:

The objections were dismissed.

Observations/comments:

The Court based its judgement on the provisions of Directive  2008/115/EC, and treated the objector as an illegally staying third-country national, even after the lodging of his asylum claim. This interpretation is, however, at odds with the Directive's letter, according to which a third-country national who has applied for asylum in a Member State should not be regarded as staying illegally on the territory of that Member State until a negative decision on the application, or a decision ending his or her right of stay as asylum seeker has entered into force (Preamble (9)).

Additionally, according to Directive 2005/85/EC (article 7, paragraph 1), asylum seekers have the right to remain in the territory of the Member State where they lodged their application until a decision on it has been made. Moreover, the CJEU has accepted that Directives 2008/115 and  2005/85 regulate two different regimes, and that the detention of illegally staying third-country nationals on the one hand, and asylum seekers on the other fall under separate legal rules (See Cases C-357/09 PPU, Said Shamilovich Kadzoev (Huchbarov), Judgment of 30 November 2009, C-534/11, Mehmet Arslan v. Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie, Judgment of 30 May 2013).

The duty to cooperate and the process of verifying the applicant's identity were proven to be of crucial significance to the outcome of the case. The Court appears to conclude that for the objector to receive protection as an asylum seeker his application needs to be received by the competent authorities within the time frame provided in Law 3907/2011 and these authorities need to verify his identity. Nevertheless, to link these time frames with the duty to cooperate would essentially mean that if the objector were not in a position to present his passport he could remain in detention as an illegally staying third-country national for as much time as Directive 2008/115 permits, despite the fact that he has lodged an asylum application – even before a non-competent authority, as was his right as a detainee (article 9(1a) Presidential Decree 113/2013). This approach is problematic given the right to claim asylum, as established in articles 18 of the CFREU and 14 of the UDHR, as well as the obligation of Member States to cooperate with the asylum seeker for the assessment of all the elements of the application, including the applicant's identity (article 4, Directive 2004/83/EC).

Finally, no references are being made in the Court's reasoning to the EU Treaties (See article 78 TFEU), the Geneva Convention relating to the status of Refugees, or the declaratory nature of Refugee status, while recommendations made by international actors with regards to the detention of asylum seekers (See UNHCR Guidelines) do not seem to be taken into account.

This case summary was written by Zoi Anna Kasapi, LL.M. in Human Rights Law, Queen Mary, University of London.

The summary was proof read by Stefania Kokkosi.

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