In 2023, the Greek Council of State asked the Court of Justice of the European Union (CJEU) whether Greece’s designation of Türkiye as a safe third country (STC) for people applying for asylum in Greece is in line with the Asylum Procedures Directive. It was the first Greek asylum case making its way to Luxembourg, and as a result the first time that the Court had to opportunity to provide clarity on the relationship between the EU and Türkiye on asylum matters. In its ruling on 4 October 2024, the Court left Greece’s designation of Türkiye as an STC intact. Nonetheless, the case will still have a significant impact on asylum applicants. This post sets out the practical effects of the judgment on people applying for asylum in Greece and beyond.

This submission detailing the impact of the ruling of the CJEU is informed by Fenix’s work in providing legal support to people seeking asylum in Greece since 2018.

A blueprint for dire realities

EU leaders repeatedly hailed the 2016 ‘EU-Turkey statement’ as a blueprint for migration agreements with third countries. The ‘deal’ between Heads of EU Member States and Türkiye lacks democratic legitimacy and judicial oversight and has resulted in many violations of the rights of asylum seekers. The core of the EU-Türkiye statement is that Türkiye will take any means necessary to stop those who travel ‘irregularly’ from Türkiye to one of the Greek islands. Asylum seekers who reach the islands are to be returned to Türkiye if they did not apply for asylum in Türkiye first or if their application in Greece was deemed to be unfounded or inadmissible. Additionally, for every Syrian national to be returned, EU Member States are to relocate a Syrian person who was still in Türkiye. The scheme’s effectiveness has been subject to debate and the human rights situation has worsened on both sides of the Aegean as a result. It marked the beginning of a series of strict asylum policies that continue to shape a hostile asylum system in both Greece and the EU.

The reality for some applicants in Greece deteriorated further when in 2021 the Greek Government issued a Joint Ministerial Decision (JMD) designating Türkiye as a safe third country (STC) for nationals of Syria, Afghanistan, Pakistan, Bangladesh, and Somalia. Since then, the Greek government has issued a list of STCs every year and has always included Türkiye, despite ample evidence from human rights and civil society organizations showing that it does not meet the requirements to be designated as such. Specifically, most people cannot access the asylum procedure in Türkiye and asylum applicants have been subjected to both torture and refoulement to countries where they would face a risk of harm or persecution such as Syria or Afghanistan.

By labeling Türkiye a STC, Greece can declare asylum applications inadmissible for people from these five countries if they have travelled through Türkiye. To rebut the presumption of safety and inadmissibility, applicants must undergo an admissibility assessment which requires them to prove that Türkiye is not safe for them and that they could not settle there, after which Greece decides if it will assume responsibility for their claims. If applicants receive a negative decision, deeming their asylum claim in Greece inadmissible, they should be readmitted by Türkiye.  However, following Türkiye’s unilateral suspension of the so-called readmission of asylum applicants from Greece on public health grounds since March 2020, this does not happen in reality. As early as December 2021, the Readmission Unit of the Hellenic Police Headquarters admitted in official communications with Fenix that they had even stopped sending readmission requests to Türkiye, considering the lack of active readmission operations.

The Referral to the CJEU

As a result, asylum applicants have been thrust into a situation of legal limbo: once people’s applications have been rejected as inadmissible, they lose the status of asylum applicant and are stuck in a situation they cannot leave by going back to Türkiye while also losing access to some of the most basic needs, in grave violation of their fundamental rights. Consequently, the Greek Council for Refugees (GCR) and Refugee Support Aegean (RSA) filed for judicial review of the annulment of the JMD before the Greek Council of State, which referred preliminary questions to the CJEU in March 2022. The opinion of the majority of the Greek Council of State was that the JMD should be annulled as Türkiye does not readmit people who seek asylum and there is no indication that this will change in the near future. The Court asked for clarification on Article 38 of the Asylum Procedures Directive. This Article sets out the criteria to designate a third country as safe. These include an assessment of whether people’s life and liberty are threatened, whether they can apply for asylum in line with the Refugee Convention and whether the principle of non-refoulement is respected. The essence of the preliminary question before the CJEU were:

• whether Article 38 precludes a State from designating a third country as ‘safe’ considering this country has suspended readmissions to its territory in practice.
• whether the lack of readmissions must be considered a condition before the adoption of an individual decision rejecting an application for international protection as inadmissible under the concept of “safe third country” or only at the time of the execution of that decision.

No readmission, no inadmissibility

The CJEU judgment of 4 October in case C-134/23 does not preclude the Greek designation of Türkiye as an STC. The Court’s judgment is straightforward. As the Court had previously noted in Bevándorlási és Menekültügyi Hivatal, the designation of a Safe Third Country is subject to compliance with the four criteria laid down in Article 38 of the Asylum Procedures Directive (para. 36). Because the actual possibility for readmission is not one of the cumulative criteria listed in the Directive, Türkiye can be designated as a STC, even though no (re)admissions take place.

Despite this, the second part of the judgment is groundbreaking and will majorly affect Greek practice. The Court ruled that when a STC, in this case Türkiye, does not admit or readmit people who have applied for asylum in an EU Member State their applications cannot be rejected as inadmissible (para. 54). The ruling thereby challenges an abusive practice of the Greek Asylum Service and the Committee of Appeals to reject thousands of asylum applications annually as inadmissible under the STC concept, and will positively impact rights access for those applicants whose claims should now be examined on the merits. Whether people can be readmitted to an STC must become part of the considerations in deciding on an application rather than a consideration during the execution of that decision. The same is true for any other applicant in the EU that received an inadmissibility decision based on the application of a safe third country concept when in reality the third country does not (re)admit people to their territory.

The end of a problematic ‘solution’

Secondly, the Court rules, Member States cannot unduly delay the examination of these claims and must examine them individually (para. 54). In paragraph 54, the Court reiterates that Member States cannot unjustifiably postpone the examination of the applications of people who possess a link with a STC. The Court follows the Asylum Procedures Directive, which in Recital 18 and reflected in Article 31 states that applications must be processed “as soon as possible”.

This holding has particular significance in the Greek context. Since 2022, a significant number of applicants have had their initial asylum applications rejected as inadmissible on the grounds of safe third country (STC) status but later received positive decisions on admissibility. This change was not due to a shift in policy on considerations regarding Türkiye; rather, it resulted from the introduction of a criterion in the internal guidelines of the Greek Asylum Service (GAS) that requires a sufficient connection to Türkiye. This criterion is not met if the applicants have been in Greece for more than one year. In its legal practice, Fenix represented applicants who had their subsequent application accepted as admissible at the preliminary stage on the basis that ‘the absence of the applicant from [Türkiye] for more than a year is a new element’ and that the link with Türkiye was ‘weakened due to the lapse of a period of more than a year’.

This ‘solution’ in the GAS’ guidelines offers an escape from the previously existing dead-end in which people with an inadmissibility decision had no way to access their fundamental rights in Greece, while they also could not be readmitted or go back to Türkiye. However, this ‘solution’ has also threatened people’s fundamental rights. During this one-year period individuals do not have legal documentation, no access to healthcare or regular work, and are at risk of social and economic exclusion and vulnerable to exploitation. Many find themselves homeless and at risk of detention for months until they can submit a new application. As the CJEU ruled that if people cannot be readmitted their application cannot be declared inadmissible, the recent judgment give people a clearer path to access asylum in Greece. They would not have to go through a year of legal uncertainty, sometimes paired with destitution, until their application is considered on its merits.

The future of the EU’s Safe Third Country concept

The Greek Council of State will now further adjudicate this case and decide on the JMD at the national level, taking the CJEU’s judgment into account. Once adopted, the ruling will ensure access to the right to seek asylum in Greece for those fleeing war, violence and persecution in the five countries the STC concept applies to and end situations of protracted legal limbo.

Besides, with this judgment, the Court clarifies the STC concept and limits the effects that a STC designation can have on the asylum cases of individuals. The judgment also anticipates the changes that the Pact will bring. While the judgment is still based on the Asylum Procedures Directive, it is aligned with the legislative solution adopted under Articles 38 and 59 of the Asylum Procedures Regulation. This Regulation will enter into application in June 2026.

The judgment and the new EU regulation are especially relevant as the EU already has readmission agreements with all countries with which it shares land borders, even though the human rights situation in many of these countries is extremely concerning. The agreements do not generally lead to a high number of returns. However, this is not over Member State’s human rights concerns but rather because these third countries are generally not accepting (re-)admissions.

This judgment and the amended legislation are good news for the legal certainty and the position of people applying for asylum in the European Union. EU Member States must now take responsibility for people’s cases and cannot let situations of legal limbo proliferate. At a time when accessing asylum becomes more difficult throughout Europe, this is a rare win for asylum applicants.

This blog was written by Aron Bosman, Legal & Advocacy Officer and Ines Avelas, Member of the Board of Directors. The blog was edited by Maaike Vledder, Country Manager.

A version of this blog has been published on Verfassungsblog. Suggested citation: Avelas, Ines; Bosman, Aron: A Rare Win: Greek Asylum Practices Before the CJEU, VerfBlog, 2024/11/19, https://verfassungsblog.de/a-rare-win/, DOI: 10.59704/2dff649c7ebeedf6.

‍