Athens, 27 April 2020—The Greek Council for Refugees (GCR) expresses its deep concern over the new draft law that inter alia amends asylum legislation, which was submitted for public consultation amidst a public health crisis, at a time when the main concern is the protection of asylum seekers and the entire population from the risks and effects of the pandemic, and while concerns for asylum seekers who remain in overcrowded sites and/or in administrative detention in the midst of the pandemic are increasing.
The Ministry’s of Migration and Asylum new draft law comes within less than 4 months since the entry into force (January 1, 2020) of L. 4636/2019 "On International Protection”, i.e. the law that entailed extensive changes of the Greek asylum law, which in itself is not an example of good law-making, and which in practice invalidates the invoked purpose of systematizing and codifying the relevant legislation (see explanatory memorandum law 4636/2019).
In addition, despite the fact that L. 4636/2019 has been consistently and substantively criticized by all national and international bodies and civil society organisations, due its numerous problematic regulations having led to deregulating the Greek asylum system, weakening the safeguards of refugee protection in Greece and “placing people in need of international protection in danger”, the proposed amendments do not, in any part, restore the extremely problematic provisions of L. 4636/2019.
On the contrary, the introduced amendments are once more and in many respects contrary to the EU acquis in the field of asylum, and in this sense constitute a direct violation of EU law and of the Asylum and Return Directives, weakening basic guarantees for persons in need of protection, introducing additional procedural obstacles and reflecting, at the legislative level, the repeatedly stated intention to generalize detention and to increase returns, by preventing actual access to international protection. Accordingly, the draft law’s title “Improving Legislation on Migration, etc.” can only be considered as a euphemism.
Amongst a set of extremely problematic provisions, the following are indicatively highlighted:
The possibility for a non-competent Service (Regional Reception and Identification Services), which unlike the Asylum Service does not have the status of an independent Agency, to register requests for international protection, without even ensuring that this procedure can be completed by properly trained staff or compliance with the necessary guarantees for properly completing the procedure (Article 5 of the draft law)
The deviation from the obligation to provide interpretation in a language that the applicant understands and the limitation of the obligation to conduct a personal interview with the applicant prior to a decision on a request for international protection (articles 7 & 11 of the draft law), in direct violation of the Procedures’ Directive (Directive 2013/32/ EU).
The proposed amendments derogate from the minimum guarantees provided by the Procedures’ Directive, allowing for a personal interview to be conducted in the official language of the applicant’s country of origin “if it proves impossible to provide interpretation in the language of his/her choice" and for a decision to be issued without having previously conducted a personal interview, “if the applicant does not wish to conduct the interview in the official language of his/her country of origin", irrespective of whether the applicant is in fact able to understand this language. It is recalled that the competent Commissioner of the European Commission recently reiterated that “as far as interpretation is concerned, the Asylum Procedure Directive provides that communication takes place in the language preferred by the applicant, unless there is another language which the applicant understands and in which he/she can communicate in a clear and concise manner”, while the Directive does not, under any circumstances, infer that the language understood by the applicant is the official language of their country of origin. Syrian Kurds, who constitute the largest minority in Syria and who largely do not speak/understand the official language of their state (Arabic), but only the Kurdish dialect kurmanji, are a typical such case. It is further noted that the cases under which a first instance asylum decision can be issued without conducting a personal interview are restrictively regulated under Article 14 of Directive 2013/32/EU. The proposed omission of the personal interview, under Article 11 of the draft law, does not constitute one of the cases provided in the Directive, nor is it left at the Member States’ discretion to foresee additional exceptions to the obligation to conduct a personal interview. In any case, the possibility of issuing a decision without conducting a personal interview with the applicant places asylum seekers at increased risk of return, in violation of the principle of non-refoulement.
The obstruction of the right to legal aid and the right to effective remedies (article 9 of the draft law). As has been repeatedly documented, to date, the Greek authorities have yet to ensure real access to free legal aid at second instance, as is enshrined in EU law. On the contrary, in 2019 only 33% of asylum seekers who appealed a negative decision were able to benefit from free legal aid at second instance, and only 21% in 2018.  A fact that demonstrates “an administrative practice that is incompatible with EU law, and which to an extent is of a permanent and genera nature”. 
However and instead of taking all necessary measures to ensure the right to free legal aid, the proposed amendment introduces an additional restriction on this right, requiring for applicants to submit, within a very short and exclusive period of two days, after the notification of their negative decision, an application for legal aid, which is granted by the President of the Appeals Committee “only if it is considered probable for the appeal to succeed.” In this case, and in order to provide legal assistance to the applicant, the appointed lawyer has the opportunity to submit a memorandum, which can exclusively include “belated (οψιφανείς and και οψιγενείς)” claims.
Specifically, it is noted that a) The amendment reverses the rule and standard of proof set out in Article 20 (3) of Directive 2013/32/EU, which states that “Member States may provide that free legal assistance and representation not be granted where the applicant’s appeal is considered by a court or tribunal or other competent authority to have no tangible prospect of success", instead providing that legal assistance is restricted not in case where the appeal “has no tangible prospects of success”, but in case it is merely “presumed that the appeal has no prospects of success”.
b) The amendment of article 9 of the draft law introduces an additional procedural obstacle to accessing legal aid and the right to an effective remedy, in what concerns the applicants, as well as added workload in what concerns the Appeals Committees. Applicants are required to submit a request in Greek (and for that matter, within a deadline of only two days from the moment the decision has been notified), following which the existence of the substantial preconditions for the provision of free legal aid shall be examined. Without the assistance of a lawyer, without specialized legal knowledge and without knowledge of the language, it is obvious that this request, in the oumost favorable event, will necessarily be limited to a standardised form, essentially depriving the applicant of the opportunity to develop the reasons his/her meeting, in the specific case, the substantial reasons for being granted legal aid.
(c) In the proposed amendment it is stated that the request for legal aid is “examined by the President of the Committee, before which the appeal is pending” and “is granted only if the appeal is presumed likely to be successful”, whereas if the request is granted, the lawyer that represents the applicant, in the context of legal aid, can only "submit a memorandum on the appeal, with which they can make “belated and posterior (οψιφανείς and και οψιγενείς) claims”. Based on this, it appears as if the provision indicates that the request for legal aid is submitted after the appeal has already been lodged (as, otherwise, neither a determination of the appeal can take place, nor can the probability of success of an appeal that has yet to be lodged be examined). However, it is recalled that in accordance with Article 93 (c) L. 4636/2019, the appeal must inter alia cite the “specific reasons on which the appeal is based”, which in itself requires the drafting of a legal document in Greek,  unless the appeal is to be rejected as inadmissible; i.e. rejected without previously having examined the substance of the appeal. Consequently, even in the event that the request for free legal aid is ultimately granted, the content of the legal aid ends up being devoid of meaning, in violation of Article 20 (1) of Directive 2013/32/ EU, which provides that free legal assistance “shall include, at least, the preparation of the required procedural documents […]“. By contrast, in accordance with the introduced amendment, the lack of “specific reasons” in the initial appeal cannot be remedied by the appointed lawyer, nor is a possibility to develop any potential claims in the memorandum even provided, as currently provided by article 99 L. 4636/2019; instead, the lawyer can only make “belated (οψιφανείς και οψιγενείς) claims” that is new or subsequent arguments, under an obvious and actual fear that, even after granting free legal aid, the appeal can be rejected as inadmissible; i.e. without examining the merits of the applicant’s claims at second instance, practically depriving the applicant of actual access to an effective remedy, in violation of Directive 2013/33/EU and article 47 of the EU Charter of Fundamental Rights.
The retroactive abolition of the possibility for the applicant to be referred for the issuance of a residence permit on humanitarian grounds, in case their application for international protection is rejected (Article 33). The possibility of referral for the issuance of a residence permit on humanitarian grounds is to this day an important safeguard and complements the Greek state’s obligations in view of its international commitments to protect individuals who, although not recognized as beneficiaries of international protection, fall under the non-refoulement principle (eg. unaccompanied minors, persons with special connection with the country - right to private or family life under Article 8 of the ECHR, serious health reasons) that prevent their removal. The abolition of the relevant provision contributes to creating a significant group of persons who cannot be removed from the country, yet whom being deprived fundamental rights, remain in a prolonged state of insecurity and peril.
The generalization of the possibility to impose detention measures and the reduction of basic guarantees when imposing such a measure (articles 2, 21 and 52 of the draft law). The proposed amendments attempt a further strictening of legislation with respect to the imposition of detention measures, in violation of fundamental guarantees enshrined in EU law and international human rights law. Indicatively, article 2 proposes the abolition of the obligation to provide “full and thorough reasoning” when ordering the detention of asylum seekers. The provision of article 52 attempts to reverse the rule that administrative detention in view of return is applied, exclusively, as an exceptional measure, and only if the possibility of implementing alternatives to detention has been exhausted, while at the same time attempts to limit the control of legality. In view of CJEU case law, based on which the Return Directive foresees “a gradation of the measures to be taken in order to enforce the return decision, a gradation which goes from the measure which allows the person concerned the most liberty, namely granting a period for his voluntary departure, to measures which restrict that liberty the most, namely detention in a specialised facility", the proposed provision is in check for compliance with the minimum standards of protection guaranteed by the EU.
 “Improvements on the Legislation on Migration, amendments of provisions of laws 4636/2019 (A ’169), 4375/2016 (A’ 51), 4251/2014 (A ’80) and other provisions”.
 See UNHCR, UNHCR urges Greece to strengthen safeguards in draft asylum law, 24 October 2019, available at: ▻https://www.unhcr.org/gr/en/13170-unhcr-urges-greece-to-strengthen-safeguards-in-draft-asylum-law.html; GNCHR Observations [in Greek] on the Draft Law of the Ministry of Citizen Protection: “On International Protection: provisions on the recognition and status of third-country nationals or stateless persons as beneficiaries of international protection, on a single status for refugees or for persons entitled to subsidiary protection and on the content of the protection provided, unification of provisions on the reception of applicants for international protection, the procedure for granting and revoking the status of international protection, restructuring of judicial protection for asylum seekers and other provisions”, 24 October 2019, available at: ▻http://www.nchr.gr/images/pdf/apofaseis/prosfuges_metanastes/Paratiriseis%20EEDA%20sto%20nomosxedio%20gia%20Asylo%2024.10.2019.pdf; GCR, GCR’s comments on the draft bill “On International Protection, 22 October 2019, available at: ▻https://www.gcr.gr/media/k2/attachments/GCR_on_bill_about_International_Protection_en.pdf.
 P-004017/2019, Commissioner Johansson’s reply on behalf of the European Commission, 5 February 2020, available at: ▻https://www.europarl.europa.eu/doceo/document/P-9-2019-004017-ASW_EL.pdf
 AIDA Report on Greece, Update 2019, forthcoming and AIDA Report on Greece, Update 2018, March 2019, available at: ►https://www.asylumineurope.org/reports/country/greece.
 See case C‑525/14, Commission v Czech Republic, EU C 2016 714, recital 14.
 Indicatively, see GCR, GCR’s comments on the draft bill “On International Protection”, op. cit.
 CJEU, El Dridi, C-61/11, recital 41.