Appeals Authority accepts the appeal of the B. family and overturns the first instance decision rejecting their asylum application as inadmissible

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On May 16, 2022, the 4th Independent Appeals Committee of the Appeals Authority accepted the appeal of the B. family and overturned the first instance negative decision of the Regional Asylum Office of Western Greece. The first instance decision had rejected their asylum application on admissibility under the Joint Ministerial Decision 42799/2021 of June 7, 2021 (JMD), based on the safe third country (STC) concept.

The B. family arrived on Lesvos in March 2019 and is composed of a couple and five minor children. The family was recognised as vulnerable and their geographical restriction was lifted.  They were transferred to the mainland, and their application was exempted from the fast-track border procedure and referred to the regular procedure in May 2020. The B. family waited over two years for their first interview, which did not take place until July 2021. The JMD designating Türkiye a safe third country for Afghan nationals (and nationals of four other countries) came into force on June 7, 2021. Despite the fact that the JMD was not yet published when the B. family arrived in Greece, the Greek Asylum Service (GAS) applied the JMD retrospectively and examined the family’s application on admissibility only. Their claim was then rejected as inadmissible in September 2021 under the STC concept. The B. family with the support of the lawyers of Fenix Humanitarian Legal Aid (Fenix) appealed the first instance decision the same month. Finally, their appeal against the negative decision was accepted by the Appeals Authority in May 2022.

For the STC concept to be applied cumulative criteria needs to be met, including that the applicant is able to apply for international protection, will not face harm while there, and has a sufficient connection to the country. By the time of their interview, the B. family were highly integrated into Greek society, including the children’s attendance at local schools for several years. While, during their time in Türkiye, amongst other dangers, the family faced serious difficulties in accessing medical care for two of their children, both of whom require ongoing medical treatment.

In its decision, the Appeals Authority acknowledged that several of the cumulative criteria laid down in Article 86(1) of Law 4636/2019 defining a safe third country were not met in their particular case. The Appeals Authority noted that the family has been residing in Greece for three years and that during this period the children “have integrated in a social reality in Greece, attending Greek schools”. The 4 Independent Appeals Committee also acknowledged the inexistence of any family members or social support network in Türkiye, and concluded that “due to the situation of the appellants, it will be particularly difficult for them to contact the Turkish authorities in order to obtain the necessary documentation in order to get access to health facilities and to education.” Finally, the Appeals Authority also highlighted that women and girls are vulnerable to sexual and labour exploitation in Türkiye, putting the mother and several of the children at risk.

While Fenix welcomes the decision of the 4th Independent Appeals Committee of the Appeals Authority and the recognition that Türkiye is not safe for the B. family, Fenix raises serious concerns regarding the legal and procedural violations that took place throughout the asylum procedure, which led to the legal uncertainty imposed on the B. family for more than three years.

Under Greek and European Union legislation on asylum, national authorities must lay down specific methodology that proves that a country is safe for asylum seekers under specific criteria prior to applying the STC concept. Additionally, the Greek authorities must examine asylum applications applying a case-by-case consideration of the safety of the country for a particular applicant. In this respect, the violations in the B. family case are numerous. Firstly, their interview (under the regular procedure) was delayed for over two years following a number of postponements not requested by B. family. This delay resulted in the retrospective application of the JMD in their case, despite the fact that they had been residing in Greece for over two years at the time of the introduction of the JMD, leading to an examination on admissibility under the STC concept. Finally, even if examining their application on admissibility under the STC concept, their application should never have been rejected as inadmissible since it was clear that the criteria for safe third country were not met in their case.

Fenix requests that the Greek authorities comply with their obligations under European and international law, and create and publish their methodology proving Türkiye is safe prior to continuing with the widespread use of the STC concept. Additionally, Fenix urges the Greek authorities to refrain from the blanket application of the STC concept, and ensure that all applicants have adequate and effective opportunity to prove why Türkiye is not safe for them, in order to guarantee effective, fair, and swift access to asylum.

In case of any questions, please contact ines@fenixaid.org.

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DATE
Thursday, June 23, 2022
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Subject

On May 16, 2022, the 4th Independent Appeals Committee of the Appeals Authority accepted the appeal of the B. family and overturned the first instance negative decision of the Regional Asylum Office of Western Greece. The first instance decision had rejected their asylum application on admissibility under the Joint Ministerial Decision 42799/2021 of June 7, 2021 (JMD), based on the safe third country (STC) concept.

The B. family arrived on Lesvos in March 2019 and is composed of a couple and five minor children. The family was recognised as vulnerable and their geographical restriction was lifted.  They were transferred to the mainland, and their application was exempted from the fast-track border procedure and referred to the regular procedure in May 2020. The B. family waited over two years for their first interview, which did not take place until July 2021. The JMD designating Türkiye a safe third country for Afghan nationals (and nationals of four other countries) came into force on June 7, 2021. Despite the fact that the JMD was not yet published when the B. family arrived in Greece, the Greek Asylum Service (GAS) applied the JMD retrospectively and examined the family’s application on admissibility only. Their claim was then rejected as inadmissible in September 2021 under the STC concept. The B. family with the support of the lawyers of Fenix Humanitarian Legal Aid (Fenix) appealed the first instance decision the same month. Finally, their appeal against the negative decision was accepted by the Appeals Authority in May 2022.

For the STC concept to be applied cumulative criteria needs to be met, including that the applicant is able to apply for international protection, will not face harm while there, and has a sufficient connection to the country. By the time of their interview, the B. family were highly integrated into Greek society, including the children’s attendance at local schools for several years. While, during their time in Türkiye, amongst other dangers, the family faced serious difficulties in accessing medical care for two of their children, both of whom require ongoing medical treatment.

In its decision, the Appeals Authority acknowledged that several of the cumulative criteria laid down in Article 86(1) of Law 4636/2019 defining a safe third country were not met in their particular case. The Appeals Authority noted that the family has been residing in Greece for three years and that during this period the children “have integrated in a social reality in Greece, attending Greek schools”. The 4 Independent Appeals Committee also acknowledged the inexistence of any family members or social support network in Türkiye, and concluded that “due to the situation of the appellants, it will be particularly difficult for them to contact the Turkish authorities in order to obtain the necessary documentation in order to get access to health facilities and to education.” Finally, the Appeals Authority also highlighted that women and girls are vulnerable to sexual and labour exploitation in Türkiye, putting the mother and several of the children at risk.

While Fenix welcomes the decision of the 4th Independent Appeals Committee of the Appeals Authority and the recognition that Türkiye is not safe for the B. family, Fenix raises serious concerns regarding the legal and procedural violations that took place throughout the asylum procedure, which led to the legal uncertainty imposed on the B. family for more than three years.

Under Greek and European Union legislation on asylum, national authorities must lay down specific methodology that proves that a country is safe for asylum seekers under specific criteria prior to applying the STC concept. Additionally, the Greek authorities must examine asylum applications applying a case-by-case consideration of the safety of the country for a particular applicant. In this respect, the violations in the B. family case are numerous. Firstly, their interview (under the regular procedure) was delayed for over two years following a number of postponements not requested by B. family. This delay resulted in the retrospective application of the JMD in their case, despite the fact that they had been residing in Greece for over two years at the time of the introduction of the JMD, leading to an examination on admissibility under the STC concept. Finally, even if examining their application on admissibility under the STC concept, their application should never have been rejected as inadmissible since it was clear that the criteria for safe third country were not met in their case.

Fenix requests that the Greek authorities comply with their obligations under European and international law, and create and publish their methodology proving Türkiye is safe prior to continuing with the widespread use of the STC concept. Additionally, Fenix urges the Greek authorities to refrain from the blanket application of the STC concept, and ensure that all applicants have adequate and effective opportunity to prove why Türkiye is not safe for them, in order to guarantee effective, fair, and swift access to asylum.

In case of any questions, please contact ines@fenixaid.org.

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