ANALYSIS - Greece’s vision on migration is not politically sustainable
Although the EU’s top migration official has called on Greece to do 'more' to investigate allegations of illegal pushbacks, recent Greek court judgments and the Greek gov't insistence on stringent asylum policies have yet to be addressed by the Union
The author is an alumnus of Trinity College Dublin, specializing in Master of Laws (LL.M.) in International and Comparative Law. His main focus areas are Turkey-EU relations, Eastern Mediterranean, and contemporary debates in Turkish foreign policy. He has a special interest in public international law, EU law, and late-Ottoman Era legal-political developments.
Despite being a member of the European Union (EU) and having memberships to various organizations, Greece has long refused to implement the rights-based framework of international bodies. A Greek court recently sentenced a Syrian refugee to 52 years in prison for “illegally” crossing into Greece with his family, including three children, in early March 2020, as reported by the Independent on April 28, 2021. It comes as no surprise that this court judgment is a manifestation of Greece’s insistence on interpreting international human rights conventions in a stringent and pragmatic way. Moreover, this decision is reminiscent of Greece’s decision to halt new asylum applications in March 2020. Turkey stated at the time that it could no longer bear the burden of the Syrian Civil War on its own and that fair burden-sharing based on goodwill and multilateralism was essential. In response to its European partners’ reluctance and insincerity, Turkey finally allowed migrants to cross its borders, its highly justified requests having gone unanswered many times. Meanwhile, the UNHCR (United Nations High Commissioner for Refugees), the UN Refugee Agency, has reported numerous “pushbacks” caused directly by Greece, in violation of international law. Despite the UNHCR’s calls for fair implementation of the “fight against irregular migration” framework, Greece continues to deny the existence of illegal pushbacks.
Right to apply for asylum is an inalienable human right
There are three distinct “layers” of human rights law, as far as the delicate balance of human rights law is concerned. On the one hand, the UN Convention on the Status of Refugees (1951) is part of its global layers, while the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights are part of its regional layers. On the other hand, there are domestic layers of human rights law whose scope is exclusively determined by states. Although it can be argued that those legal instruments may occasionally conflict with one another, one undeniable common purpose of the aforementioned instruments is to recognize the “right to apply for asylum” as a fundamental human right. Under international law, every human being, without exception, has the right to apply for refugee status. Likewise, any decision by a contracting state authority to curb the right to apply for asylum has no legal base.
With this understanding, it is clear that the Greek government’s so-called precaution to temporarily block asylum applications in response to Turkey’s decision to “open its doors” violated international and European human rights law. Besides that, the EU’s response is unconvincing. Despite Turkey’s previous support for the European Commission’s proposal to establish a Common European Asylum System (CEAS), member states and the Union have yet to reach an agreement. As a result, Greece’s and the EU’s “Fortress of Europe” policy continues to be applied in a discriminatory manner.
Judgment of the Greek Court: What does case-law involve?
Although the ECHR does not lay down any specific provisions pertaining to migration law, the expulsion of an asylum-seeker from a contracting state may be a valid legal ground for the asylum-seeker to invoke Article 3 of the Convention (which prohibits torture and inhuman or degrading treatment or punishment). Furthermore, when an asylum seeker is subjected to deplorable conditions, Article 3 may be invoked.
MSS v. Belgium and Greece is a seminal case in which the European Court of Human Rights (ECtHR) ruled that Article 3 can be invoked by an asylum-seeker on the basis of “prison-like” living conditions and detention. In this case, an Afghan asylum-seeker crossed the EU border and arrived in Belgium in 2008. Yet, he was returned to Greece, his first country of entry into the EU, under the Dublin Convention. In Greece, he lived on the streets without receiving any material support from the Greek government, and he was thereafter detained in severely inhumane conditions.
The Court, on the one hand, unanimously decided that Greece had violated Article 3 due to the applicant’s detention conditions in Greece. On the other hand, it was held that the applicant’s living conditions in Greece do not comply with the obligations laid down in Article 3. In this context, the Court has embraced such a broad approach as to recognize the appalling living and detention conditions faced by asylum-seekers in Greece as a clear violation of Article 3.
As far as recent developments in the region are concerned, we can anticipate that Greece’s international human rights record will continue to be far from impressive unless a common denominator is found. In fact, as demonstrated in the MSS v. Belgium and Greece judgment, ECtHR case-law clearly declares that sentencing a Syrian refugee who has been denied the right to apply for asylum to 52 years in prison for “illegally” crossing into Greece is a violation of international and European human rights law.
Despite being informed of the Greek government’s violations and illegal pushbacks, the EU remains a passive observer. Although the Union’s top migration official has called on Greece to do “more” to investigate allegations of illegal pushbacks, recent Greek court judgments and the Greek government’s insistence on stringent asylum policies have yet to be addressed by the EU. A concrete step can be taken if Turkey-EU engagement is accelerated within the framework of the March 2018 Turkey-EU Statement. Re-energizing this agenda would demonstrate Turkey’s and the Union’s shared sense of responsibility.
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