UNHCR Greece Representative intervention in Greek Ombudsman’s Conference

© Alexandra Haini

On 26 November 2018, the Representative of UNHCR, the UN Refugee Agency, in Greece, Philippe Leclerc, participated in a conference organized by the Greek Ombudsman in Athens, on the topic: “External control of returns and protection of fundamental rights”. Below are the main points from his intervention.

– UNHCR is the Agency entrusted by the United Nations General Assembly with the responsibility for providing international protection to refugees and other persons within its mandate, and for assisting governments in seeking permanent solutions to the problem of refugees. The principle of non-refoulement, cornerstone of international refugee law, enshrined in A 33 (1) of the 1951 Convention, prohibits the return in any manner whatsoever of refugees to territories where they face a risk of persecution.

– The vast majority of arrivals in Greece are persons with a refugee profile, meaning that they flee from countries with significant human rights violations, conflicts and/or persecutions. It is also important that more of the half are families and children. The observance of the non-refoulement principle presupposes protection-sensitive entry systems, a system in place for the identification of specific needs, provision of information on obligations and rights, including the right to asylum, as well as fair and efficient asylum procedures. It is also UNHCR’s view that an efficient system for return, respecting fundamental rights and human dignity, is important to maintain trust in the asylum systems. Return of persons who are not in need of international protection is necessary in order to protect the integrity of asylum systems and to tackle irregular migration while reducing incentives for human smuggling and trafficking.

– Following 2016’s milestone New York Declaration for Refugees and Migrants, all 193 Member States of the United Nations agreed that protecting those who are forced to flee and supporting the countries that shelter them are shared international responsibilities which must be borne more equitably and predictably. After 18 months of extensive consultations with UN Member States, experts, civil society and refugees, the UN High Commissioner for Refugees has presented the Global Compact on Refugees as part of his 2018 Annual Report to the General Assembly and the Compact is expected to be endorsed by the General Assembly in December. Along with the aims to ease the pressure on host countries, to enhance refugee self-reliance and to expand access to third-country solutions, there is a specific objective to support conditions in countries of origin for the possibility of conducting returns in safety and dignity.

– “Persons found not to be in need of international protection” refer to individuals who have sought international protection and who, after due consideration of their asylum claims in fair procedures, are found neither to qualify for refugee status on the basis of criteria laid down in the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol, nor to be in need of international protection in accordance with other international obligations.

– In this context, the Greek Ombudsman’s role, as the national mechanism for monitoring the return of third country nationals under L. 3907/2011, which transposed the Return Directive into Greek legislation, is very important. The independence of the Ombudsman institution and the high quality of its work, including this 2017 special report on “Returns of third country nationals”, makes the Ombudsman a key actor for the promotion of “rule of law” within an effective return system which respects the fundamental rights of the individuals. It is also important to note the special role of the Ombudsman as the National Preventive Mechanism under OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE (OPCAT).

– The interventions of the Greek Ombudsman vis-à-vis detention and return procedures under its role as the national monitoring mechanism are key, both for the observance of the safeguards on an individual basis, but also for contributing to the establishment of transparent return policies and practices aligned with the rules and legal principles of European and Greek legal framework. In particular, in the context of the implementation of the EU-Turkey Statement and the new return arrangements applied under a non-fully clear legal framework, the role of the Greek Ombudsman has been very important towards more regulated and transparent practices.

– UNHCR is cooperating closely with the Greek Ombudsman, and the two Organizations have further regularized their institutional cooperation through the arrangement of regular thematic meetings and information sharing for the achievement of joint advocacy goals.

– While the return procedures were mainly referring to persons found not to be in international protection, under the EU-Turkey Statement asylum-seekers may be in practice also returned to a “safe third country” or to a “first country of asylum” as per the provisions of the Asylum Procedures Directive (Recast). In the context of a gradually broader discussion on the mandatory admissibility procedures, proposed also in the EC Proposal for a new Asylum Procedure Regulation, the return arrangements under the EU-Turkey Statement have created, as of April 2016, new challenges regarding return of third country nationals. The imposition of geographical restriction combined with the dire reception conditions on the five islands of the Northern Aegean and Dodecanese and the lack of adequate reception capacity in the mainland have strained all administrative procedures on these islands affecting both the well-being of refugees and migrants and of the local societies; these factors have seriously impacted the overall systems of reception, asylum and return.

– UNHCR expresses its deep concern on the fact that it continues to record a significant number of testimonies on informal forced returns from Greece to Turkey through the land border at the Evros region. On many occasions, UNHCR has addressed its concerns to the Greek authorities requesting the investigation of incidents. The State’s response so far to these practices has not produced the results required for an effective access to asylum and to protection from the informal forced return of all persons in need of international protection at the land borders.

– In line with its supervisory role enshrined in Article 35 of the 1951 Convention relating to the Status of Refugees, UNHCR also continues its regular monitoring activities regarding detention, returns as well as access to asylum and entry systems in view of the further establishment of a protection-sensitive environment for people in need of international protection in Greece.

Recommendations

On the basis of UNHCR’s assessment of the current situation as regards returns in the Greek context, UNHCR would like to present the following recommendations for a more effective return system that would also respect the fundamental rights and dignity of the individuals:

– Fast procedures would provide quick access to international protection for those who need it, and facilitate return for those who do not. Examination of asylum applications of detained asylum-seekers should be urgently expedited so as to avoid long detention of persons in need of international protection and, in parallel, to accelerate implementation of returns of those who are not in need of international protection.

– Forced returns would be an option only after (1) rejection following a fair asylum procedure, (2) consideration of assisted voluntary return, and (3) non-existence of compelling humanitarian or statelessness related considerations.

– Alternatives to detention need to be considered first. Detention of asylum-seekers should be an exceptional measure, applied for a minimum necessary period of time in accordance with law. In addition, children should never be detained for migration related purposes. Alternative care arrangements and community-based programs need to be in place for children and families.

– As regards unaccompanied children the best interest must be the primary consideration throughout all processes, both before and after asylum procedures including after rejection when assessing return taking into consideration also where family members are.

– Non-return advisories of UNHCR should be taken into consideration while deciding on return and/or detention of third country nationals. According to national and European legislation, return should be suspended when this may violate the principle of non-refoulement or is not feasible for other reasons.

– Expedite efforts for the full coverage by the State of needs for the provision of legal aid at 2nd instance of the asylum procedures for all applicants, as per relevant obligation under national and European law.

– Further acceleration of the asylum and other procedures (e.g. vulnerability assessment), as well as the increase of the reception capacity in the mainland.

– Prevention measures against informal forced return procedures, including concrete border standardized procedures, control and monitoring through independent mechanisms, as well as strengthened and timely investigation of such incidents.