C Explanatory memorandum by Ms Tineke
Strik, rapporteur for opinion
1 I welcome Mr Varvitsiotis’
report on this issue, which remains both politically important and
sensitive and a matter of serious, persistent concern from the perspective
of respect for the basic rights of refugees and migrants. I am glad
that the Parliamentary Assembly will have this opportunity to take
stock of developments since last summer and to determine whether
the numerous technical recommendations it then made to ensure protection
of these rights remain relevant and necessary. I have therefore
carefully examined the latest documents from authoritative, independent
actors, with a view to clarifying the situation and proposing any necessary
corrections to omissions or misunderstandings that may appear in
the draft resolution.
1 Clarifications
concerning the situation in Greece
2 In April 2017, the Office of
the United Nations High Commissioner for Refugees (UNHCR) submitted
its “Recommendations for Greece in 2017”, accompanied by an explanatory
memorandum, to the Committee of Ministers in the context of the
latter’s supervision of the execution of the relevant judgments
of the European Court of Human Rights.
Note These documents set
out the UNHCR’s ongoing concerns in relation to the following areas:
- Registration and processing
of asylum claims. “Six months after their arrival on the Greek islands
many asylum seekers are still waiting for the full registration
and processing of their asylum claims. … On the mainland, first
instance decisions for those pre-registered during the summer of
2016 will take approximately two years. The lack of capacity to
fully process asylum claims within a reasonable time-frame needs
to be addressed.” “Access to asylum for vulnerable individuals,
including unaccompanied and separated children (UASC), remains a
challenge. … As things currently stand, the requirements in EU and
national legislation that a claim be ‘lodged’ immediately or as
soon as possible after the ‘making’ of an application, are not met
… The absence of a national guardianship system and the gaps in
the legal representation of UASC when lodging an application for
international protection, especially for UASC younger than 15 years
of age, creates further difficulties. … The Independent Appeals Committees
(IAC) are limited by the fact that the judges have to carry out
their regular judicial tasks in their respective positions within
the courts, in addition to their functions on the Committee, and
by the lack of expert support as regards country-of-origin information.
At the end of 2016, there were a total of 6 193 cases pending before
the IACs, [which] have not achieved a stable pace of examination
yet and have rendered a small number of decisions. Current examination
time far exceeds the three month limit foreseen in the law. The
doubling of the number of IACs since February 2017 is still insufficient compared
to the number of cases.”
- Serious problems on the islands. In particular, “keeping
people on the islands in overcrowded, inadequate and insecure conditions
is inhumane and must no longer be maintained”. “Reception conditions
remain very poor and persons on the islands are actually subject
to the geographical restriction [preventing movement to the mainland]
for almost one year now.”Note
- The reception system on the mainland. “Conditions in accommodation
facilities vary, and some continue to be considerably below the
standards set out by EU and national law. Most of the facilities
established on an emergency mode lacked appropriate conditions …
This is the case for facilities that are not suitable for human
habitation, such as the remaining [four out of eight] warehouses
in central Macedonia and the remaining informal sites in Attica,
which should be immediately closed. One main challenge in the area
of reception is the lack of clear and organised co-ordination structures
… on behalf of the Greek Government. … Although official figures
suggest a capacity of available unoccupied spaces of approximately
30,000 places, UNHCR … assesses that the actual capacity of places
ready to be occupied in mid-March 2017 is lower, given that for
example, some places are not in suitable shelters, lack electricity
or other connections, and others need considerable repairs.” The
UNHCR notes the need for a longer-term plan on the part of the Greek
authorities, with transition to a sustainable reception system.
- Care for children, who “are exposed to on-going protection
risks, including sexual exploitation and abuse, due to insufficient
security, sub-standard and overcrowded reception sites, lack of
specific services and non-sufficient access to formal or non-formal
education, and lengthy asylum procedures for reuniting families,
which also severely impacts their psychosocial well-being. The national
capacity for accommodating UASC is still far from meeting the needs
– roughly half of the approximately 2 400 UASC in Greece currently
do not receive adequate or appropriate care … Accompanied and unaccompanied
children are in some circumstances detained in closed reception
or police facilities, sometimes with adults.” “There is a lack of
adequate presence and coverage by child protection actors across
Greece …, resulting in limited access to child protection services
(health, psychosocial support, legal aid, family tracing, alternative
care, education, durable solutions). … Detention of UASC in police stations
is totally inappropriate. Moreover, there is no maximum duration
or limit set out in the law for such detention. … UNHCR is also
concerned that due to deficiencies in the age assessment processes,Note UASC may be registered
and detained as adults.” On 4 May 2017, there were 168 UASC living
in hotspots, close to the average for the previous two months, and
53 in “protective custody”, significantly above the average for
the previous nine months; there were 1 302 places in UASC shelters
and a waiting list of 996, with neither of these figures having
changed significantly in the previous three months.Note
- Sexual and gender-based violence (SGBV): “Conditions in
a number of sites in Greece, including the lack of adequate security,
expose women, men, boys and girls to sexual violence, abuse, and exploitation
as well as domestic violence. Limited livelihood opportunities further
amplify the risk of sexual exploitation, trafficking, survival sex
and early forced marriages.” “SGBV risk mitigation measures have
not always been taken into consideration in the course of the design
of emergency camp-like accommodation facilities and the implementation
of activities, resulting in an increased risk of and vulnerability
to SGBV. … Isolation of certain facilities and lack of police or
other security mechanisms during the night have contributed to the
sense of insecurity and the risk of SGBV.”
- Inadequate co-ordination and establishment of clear responsibilities:
the UNHCR calls on the Greek Government, “and the Ministry of Migration
Policy in particular, to establish clear co-ordination structures with
all humanitarian stakeholders to ensure a coherent and efficient
response where gaps are addressed, overlap avoided and resources
optimised and ensure the timely development of contingency plan
and Standard Operating Procedures to handle critical events. This
would allow UNHCR and other humanitarian actors to move out of the
current ad hoc response mode, as witnessed in the winterisation response,
and encourage confidence from the donor community in the humanitarian
response in Greece”.
- Self-reliance and integration: “Investment is needed …
to support refugees who will stay in Greece to achieve meaningful
self-reliance and integrate into the host community. This will require
investment in promoting effective access to social welfare services,
existing language and orientation courses, vocational training and
job placement programmes … Further investment is also necessary
to support host communities to enhance positive relations with refugees
… Efforts are needed to continue to build on the positive community
engagement and support from Greek civil society and volunteers.”
- Access to health services: “In practice, asylum seekers
do not have access to health services, as they are required to be
holders of ‘Foreigner’s Insured Healthcare Card, whose issuance
is not yet implemented by the Ministry of Health. Also, due to bureaucratic
hurdles, asylum seekers do not always hold or experience delays
in getting hold of a social security number, which could, alternatively,
secure access to health care.”
- Education: “According to the national legal framework,
migrant/ refugee children are ‘subject to the same requirement of
compulsory education as Greek nationals … However, limited numbers
of children have been enrolled and attended morning classes together
with Greek pupils … School started gradually since October 2016,
but despite Ministry’s efforts not all refugee children attend formal
primary and secondary education.”
- Detention: “maximum detention time limits are considered
in practice from the moment of the lodging of the application, and
the time that the asylum seekers is detained prior to the lodging
is not taken into consideration. Thus asylum seekers may be detained
for a total period exceeding [the limit of three months]. Moreover,
… asylum seekers do not have effective access to [ex officio judicial
review of the detention order] due to a lack of interpretation,
legal assistance and limited capacity of the Administrative Courts.”
3 The Committee of Ministers’ subsequent decisions on the relevant
judgments against Greece make clear that it shares the UNHCR’s most
pertinent concerns.
Note The Committee invited the Greek
authorities “to elaborate … a plan for the registration and processing
of asylum applications, so that they are processed within a reasonable
time”; “to develop a strategy securing the full protection of unaccompanied
minors in the basis of an effective guardianship system”; “to improve
conditions of detention in all detention facilities where irregular migrants
and asylum seekers are detained, including by providing adequate
health-care services”; and “to ensure, as a matter of priority,
that alternatives to the detention of minors are found and that
where, exceptionally, minors are detained, they are held separately
from adults and in conditions adapted to their vulnerable nature”.
4 Also in April 2017, the Greek Ombudsman issued a detailed,
damning report entitled “Migration Flows and Refugee Protection:
Administrative Challenges and Human Rights Issues”. This report,
reflecting the situation up to its date of publication, confirms
all of the UNHCR’s concerns and even expands on them in relation
to, for example, poor conditions in the island hotspots and other
accommodation facilities; deficiencies in the provision of food
and health-care to asylum seekers; ineffective access to education;
and, at great length, inadequate administrative co-ordination and
planning, deficient legislative and regulatory frameworks and the Greek
State’s inability to absorb the available EU financing. The Ombudsman’s
report also notes the existence of an “insouciance about human rights,
which means lack of due respect towards human rights upon implementing
the legislative framework” in relation to, for example, detention,
including of UASC, forced returns, living conditions, age assessment
and access to education.
2 Clarifications
concerning the situation in Turkey
5 The Committee of Ministers
also received a submission from Amnesty International, which additionally described
how “asylum seekers are at risk of return to Turkey despite not
having access to effective protection there”.
Note This
followed Amnesty’s publication of a report specifically on the EU–Turkey
Agreement, containing extensive, detailed information on a range
of issues, including, amongst others, serious deficiencies in the Turkish
asylum system and the risk of onward
refoulement of
asylum seekers returned to Turkey.
Note
3 Clarifications
concerning the situation in Italy
6 Italy too is confronted by
numerous problems, not all of which are apparent in Mr Varvitsiotis’
report, including the following:
Note
- National law does not regulate
the hotspots in detail and the Ministry of Home Affairs’ Standard Operating
Procedures (SOPs) for the hotspots have no clear basis in law, despite
the fact that the authorities’ actions in the hotspots, including
detaining refugees and migrants, may interfere with human rights.
- National legislation does not envisage the use of force,
or at least anything other than minimal force, to ensure that fingerprints
are taken. Nevertheless, Amnesty International has reported on numerous allegations
of use of excessive force, even torture, when taking fingerprints
from new arrivals.
- New arrivals, often exhausted, confused and distressed
and lacking information, are almost immediately questioned by police
officers on their reasons for coming to Italy, although not on whether
they intend to claim asylum. Failure at this stage to state an intention
to claim asylum may lead to their being detained in pre-removal
centres, even if they subsequently make an application. In some
cases, new arrivals are asked if they intend to work in Italy; if
they do, they may be classified as “economic migrants” even if they also
intended to claim asylum, with the result again that they may be
detained in pre-removal centres.
- Age assessment procedures for UASC (other than victims
of trafficking) are not clearly set out in law, although the hotspot
Standard Operating Procedures appear to take a positive approach,
giving the benefit of the doubt to the applicant in case of uncertainty.
- The hotspots are neither intended nor equipped for prolonged
accommodation, yet migrants are reportedly often held there for
weeks; even months for UASC, on account of the shortage of specialised accommodation.
The resulting overcrowding exacerbates problems including lack of
running water, poor sanitary conditions, inadequate separation of
male and female occupants and general lack of space.
- By far the greater part of the reception capacity for
asylum applicants is in exceptional temporary facilities, often
in isolated suburban or rural locations with few if any services.
Since it may take years for applications to be processed, the pressure
on reception capacity grows with every new arrival. Asylum-seekers
should quickly progress from first to second reception centres,
with better conditions, facilities and services (including integration-related
services), but lack of capacity prevents this from happening.
- The guardianship system for UASC is dysfunctional, with
a lack of qualified guardians leading to “institutional guardians”
being greatly overburdened. Institutional guardians can include
directors of reception centres, which may give rise to conflicts
of interest. Without a guardian, UASC cannot apply for family reunification.
- The extreme pressure on the asylum system often causes
delays of several months before an application can be made and official
asylum-seeker status and associated rights obtained.
- Recognition rates vary enormously between different territorial
commissions, from 75-80% of decisions being positive to only 15%.
- Since 2014, over 53 000 negative decisions have been appealed,
of which 81% were still pending (as of January 2017). Rights of
appeal against negative asylum procedures have recently been greatly curtailed,
excluding any genuine possibility of adversarial proceedings and
limiting further appeals to points of law before the Court of Cassation,
which as a result risks being confronted by a backlog of cases and
delays in proceedings.
4 Clarifications
concerning the situation in Libya
7 Mr Varvitsiotis’ report makes
several references to Libya but does not describe the situation
faced by refugees and migrants in that country. Refugees International
has very recently published a substantial report entitled “Hell
on Earth: Abuses against Refugees and Migrants Trying to Reach Europe
from Libya”. This report sets out detailed information, in part
provided and corroborated by international organisations including
the UNHCR and the International Organization for Migration (IOM),
on the horrendous violations suffered by refugees and migrants in
Libya. These include killings, torture and physical and sexual abuse;
unlawful detention by smugglers and militias and indefinite, arbitrary
detention by the authorities, in both cases in inhuman conditions;
and human trafficking, forced labour and being sold into slavery.
Indeed, so serious are these allegations, and so credible and substantiated
the reports, that the Prosecutor of the International Criminal Court
(ICC) is considering initiating an investigation into the situation.
Note
8 A proper appreciation of the appalling situation in Libya
must be the starting point for any proposals to enhance co-operation
with the Libyan authorities. It must be recalled that the UNHCR
has urged States “to refrain from returning to Libya any third-country
nationals intercepted at sea and to ensure that those in need of
international protection are able to access fair and effective asylum
procedures upon disembarkation”.
Note Also
of note is the statement issued by a group of United Nations human
rights experts, who were “highly concerned that by agreeing a deal
with Libya, whereby migrants trying to flee human rights violations
are being pushed back to those same conditions, the principle of
non-refoulement will be violated … Limiting departures from the
Libyan coast simply means accepting and legitimising the human suffering
prevailing in Libya and pushing people back to conditions where
migrants suffer [serious violations]”.
Note One
should also note that international human rights law protects the
right to leave a country, including one’s own, and the right to
seek and to enjoy asylum.
9 These considerations do not seem to have been taken into account
in Mr Varvitsiotis’ report. His conclusions and recommendations
on co-operation with the Libyan authorities must therefore be treated
with the utmost caution.
5 Explanation of
amendments
Amendment A
It is misleading to suggest that the situation in Greece has
improved “as a consequence” of the EU–Turkey Agreement; on the contrary,
along with the closure of the Western Balkans Route and the failure
of the European Union’s relocation programme, the agreement has
contributed greatly to the challenges that Greece continues to face.
This amendment seeks to reflect this situation more accurately.
Amendment B
It cannot be simply stated that registration and processing
of asylum claims have become much more efficient: in fact, they
continue to raise serious concerns, as shown in recent UNHCR documents
and Committee of Ministers’ decisions.
Amendment C
The current wording is misleading. In fact, many of those
returned did not have their applications examined on the merits,
as they either did not apply or subsequently withdrew their applications.
What is true is that none of the asylum seekers whose applications
were considered inadmissible on the basis that Turkey was for them
a safe country of refuge have been returned there.
Amendment D
The current wording is misleading. In fact, most applications
have not yet been examined at all; rejections have mostly been on
the basis of inadmissibility, with no examination of the merits;
and the position of the Greek appeals committee has not been consistent,
having changed dramatically following reform of its composition.
Amendment E
The current wording is misleading: the Assembly’s concerns
about detention in the hotspots were well-founded at the time, but
the Greek authorities appear since then to have minimised deprivation
of liberty, although many asylum seekers have no choice but to live
in the hotspots. This amendment seeks to reflect this situation
more accurately.
Amendment F
In the interests of balance and completeness and in order
to provide a factual basis for the following recommendations, it
is necessary to refer to some of the outstanding concerns, as expressed
by, amongst others, the UNHCR, the Greek Ombudsman and the Committee
of Ministers.
Amendment G
In the interests of balance and completeness and in order
to provide a factual basis for the following recommendations, it
is necessary to refer to some of the other concerns, as expressed
by, amongst others, the Special Representative of the Secretary
General on migration and refugees and Amnesty International.
Amendment H
This amendment is required in the interests of balance and
to provide necessary factual background.
Amendment I
The issue of co-operation with the Libyan authorities must
be treated with the utmost caution, given the political, security
and human rights situation in the country. At the very least, it
must be ensured that it takes place with full respect for essential
provisions of international human rights law.
Amendment J
This is related to the previous amendment, in connection with
an area of particular sensitivity and concern from the perspective
of refugees’ and migrants’ rights.
Amendment K
Also related to Amendment I, this is intended to promote EU
action in relation to the wider situation of extremely serious violations
faced by refugees and migrants in Libya.
Amendment L
Serious concerns have been expressed by a range of bodies,
including the Greek Ombudsman and the UNHCR, about the administrative
capacities of the Greek authorities. It would thus be irresponsible
to encourage the European Union to direct more of its funding to
the Greek authorities, unless they were able to prove their capacity
to spend it more efficiently and effectively than other potential
recipients. Otherwise, the impact of funding on the situation of
the intended beneficiaries would be reduced.
Amendment O
The Assembly should strongly discourage a member State from
penalising individuals’ exercise of their right to an effective
remedy under Article 13 of the European Convention on Human Rights
(ETS No. 5).
Amendment P
Given their nationality, the situation in many of their countries
of origin and the failure of the European Union’s relocation scheme,
it is most likely that a large number of refugees will remain in
Greece for a considerable length of time. The Greek authorities
must come to terms with this and begin integrating these people
into Greek society.
Amendment Q
The draft resolution should contain summary reference to these
problematic issues as a factual basis for the following recommendations.
Amendment R
There have been criticisms of recent reforms to the Italian
asylum appeals system. The Italian authorities must ensure the availability
of an effective remedy, an essential part of the protection against refoulement, as required by the
European Convention on Human Rights.
Amendment S
The Turkish asylum system is still not fully operational,
and there have been widespread reports of pushbacks and other forms
of refoulement of refugees
and asylum seekers from Turkey.
