Guest post by Stavros E. Papageorgopoulos. Stavros is an Athens-based lawyer. He is currently working for the Greek Council for Refugees, offering legal aid to asylum seekers on the Greek island of Samos. This is the sixth post of Border Criminologies' themed series 'Hotspots and Plethora of Freedom-Restricting Measures', organised by Izabella Majcher.

The restriction of movement of displaced people lies at the heart of the intersection between criminalisation and immigration/asylum. Penal-like measures applied on Greek islands perpetuate the idea of ‘dangerous foreigners’, leading to the de facto criminalisation of asylum seekers. In this post, drawing on my experience as a lawyer offering legal aid to new arrivals, I provide insight into the practice of detaining asylum seekers in Greece in view of the EU-Turkey Statement and the European ‘hotspot approach’. I focus on how this practice has been implemented on the island of Samos, while also reflecting on the similarities with the other five Aegean island points of entry, Lesvos, Chios, Kos, Rhodes and Leros.

According to provisions under Greece’s new law on the asylum procedure (L. 4375/2016), people arriving at one of the Aegean islands which border Turkey are referred to the local Reception and Identification Centre (RIC), where identification procedures take place under detention (formally ‘restriction of movement’). Upon completion of the identification procedure, asylum seekers are provided with accommodation in open hosting facilities, where they await their requests to be processed. In reality, however, the distinction between reception centres and hosting facilities has never materialised, leading to fusion of the two areas into one open facility, namely the hotspots.

Upon arrival refugees are transferred to the Vathy hotspot. They are led to a delimited area at the entrance of the camp, where they remain for a few hours (as of January 2018), until the completion of their registration. The area is fenced and the door is closed, but unlocked. At this stage, people answer a few basic questions, as authorities (Frontex and the Greek Coast Guard) seek to gather information on smuggling routes and their behaviour. The Greek authorities then enter their fingerprints into EuroDac, where irregular border-crossings and links with criminal investigations (terrorism or other serious criminal acts) are potentially identified. Male refugees have also reported that their phones were searched or confiscated, and others were - usually briefly- detained because of ‘terrorism-related’ evidence on their devices.

Following their registration, asylum applicants are free to settle and move freely in and out of the hotspot premises. As such, the most common cases of immediate administrative detention are based either on the suspicion of terrorism or for registered offenses. For applicants who have not been immediately detained under one of the aforementioned grounds, later cases of administrative detention will almost certainly relate to ongoing criminal proceedings or second-instance rejections.

Worst-case scenario: an unsound legal framework and a controversial alternative to detention

To counterbalance the current open-gate policy regarding the hotspots, a new administrative concept of containment has been created, the island-wide restriction of movement imposed on all persons entering Greece through its islands bordering Turkey after March 20, 2016. Directly prompted by the EU-Turkey deal, the geographical restriction takes the form of a red stamp on the asylum seeker's card and has emerged as one of the principal characteristics of the new asylum border procedures in Greece.

This measure, uniquely defined by the geophysical limits of the islands, cannot be strictly considered as detention. However, the mandatory and systematic confinement of applicants to the territory of the island they first set foot on does have similarities with the concept and practice of detention. Its potentially indefinite duration and long-term effects on the applicants' mental state manifestly suggest an experience highly comparable to that of a detainee. The experience is further exacerbated by substandard hosting facilities. Vathy hotspot accommodates around 2,000 asylum seekers (as of January 2018), despite having an official capacity of 700 people. Practically unable to escape the appalling conditions of the camp, with limited opportunities for work and an unavoidable small-town hostility, those affected by the geographical restriction do feel like prisoners. For some applicants, life on the island has become increasingly unbearable, forcing them to withdraw their asylum requests and apply for voluntary returns.

In addition to the harsh reality, the tenuous legal basis of the geographical restriction raises significant concerns. The administrative decision introducing this measure was issued by the Director of the Asylum Service in May 2016 – its broad design includes a number of legal flaws.

First, it lacks justified reasoning, given the systematic use of the measure and the significance of the object of restriction, namely the freedom of movement. The Council Directive on the minimum standards for the reception of asylum seekers (2003/9/EC), which was transposed into Greek legislation in 2007, does include the possibility to limit asylum seekers' movement to an assigned area. Such a restriction, however, needs to be enforced on specific grounds. Public order, public interest or the need for swift and effective processing of their applications, may all justify such measures according to Article 7 of this Directive. Although the decision in question seems to be based on the emergency situation created by the influx of protection seekers in 2015, it fails to include any of these grounds in its rationale.

Second, the urgency of the situation, that the administrative decision in question seems to be based on, requires a carefully specified period, in order to avoid an indefinitely exceptional reality. Taking into consideration the volatile nature of emergencies, the need for clear time limits is indeed self-evident. However, the decision contains no provisions regarding the time span of restriction to islands, leading to practically indefinite validity. As the migrant flows have since dramatically dropped, the situation in Samos, while critical, does not qualify for an emergency; therefore, use of the measure on these grounds is dubious.

In light of the above, it is clear that this administrative measure remains poorly formulated, while the complete absence of a competent review mechanism results in a practical difficulty to legally challenge it. The alarming lack of judicial guarantees leads to a dangerous normalisation of the measure, with little conformity to core democratic principles. In fact, such hasty and flawed policy-making cast significant doubts on modern states' efforts to uphold the traditional values of refugee and asylum law. Forgetting the historical significance of the notion of asylum – of seeking and granting–, European states are opting for a deterrence approach which is centred around exclusion, avoidance and restriction, which in turn facilitate control and containment. The current situation at Europe's southern borders then, underscores the inefficiency of this approach and the need for a wholly different basis for policy-making.

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How to cite this blog post (Harvard style) 

Papageorgopoulos, S. (2018) Asylum Seekers in Samos: An Unreasonable Reality. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/04/asylum-seekers (Accessed [date]).