Open letter to Y. Mouzalas, Alternate Minister of Immigration Policy

Recommending policies as win-win strategies for both Greece and refugees

Kester Ratcliff

Dear Mr Mouzalas,

I read your comments  reported by Reuters yesterday, “Greece wants to send thousands of migrants back to Turkey in coming weeks”. I sympathise with your despair, I can imagine what it feels like to be forced to implement policies which you don’t really approve of and then blamed for doing it too. However, policies created out of despair do not tend to be realistic or rational in a long-term way, and I imagine you worry about that too. I wish you could take a holiday and then read and reflect on this when you’re more refreshed after a couple of weeks!
This is not just another criticism of Greece. I get it, I really do. The point of this letter is to suggest some policies that would be win-win strategies for both Greece and refugees. This doesn’t have to be a pro-refugees and anti-Greece vs. anti-refugees and pro-Greece debate. The four policies I propose, in brief, are:

1. Publicly and officially demand that the Temporary Protection Directive 2001 be activated. In the last two years, we have seen the clearest mass influx in the history of Europe since the aftermath of WW2, so for the rest of the EU to not acknowledge it as a ‘mass influx’ is just a dishonest way of evading their obligations. You do not have to stand for this any longer. The facts and the law are on your side, and a much larger share of European citizens would support you if you took a coherent principled stand, with positive alternative plans. Amnesty’s global survey of public attitudes to refugees found that in every country citizens are more welcoming of refugees than their governments, and the gap between public attitudes and government policy is widest in my own country, the UK. The EC and EuCo, naturally, only represent that share of public opinion which bays for their draconian approach, but the share of public opinion that would support you if you opposed them is not only comparable in numbers but qualitatively more committed in terms of democratic engagement and voluntary action.

2. Insist that the EU Relocation scheme, which is the only mechanism agreed so far to implement all Member States’ common obligation in Article 78(2) of the Treaty on the Functioning of the EU to practice solidarity and responsibility sharing when there is a mass influx of refugees into the EU, should be made to work properly. Not just token numbers, realistic numbers. We can all see that extreme slowness of the asylum procedures across Europe is not just due to lack of resources, administrative incompetence, or just a consequence of thoroughness, but is part of the overall political strategy of deterrence. However, as the Asylum Service said, inefficient asylum procedures are effectively a pull-factor for unfounded asylum claims, or I would suggest more specifically it makes it more likely that mass influxes will be more mixed and thus harder to fairly and efficiently assess who really needs international protection and who doesn’t. The European Council and Commission’s strategy of making the asylum procedures in Greece even slower by inserting admissibility interviews regarding Turkey, for political reasons having nothing objectively to do with the present or recent applicants’ claims, to increase waiting times and then use their desperation as a deterrent signal to others who might otherwise try to seek protection in Europe, probably is postponing another mass influx, but when it comes it will be more mixed and then even harder for Greece and Italy to deal with.

3. Refuse to carry out or make refugees wait longer for admissibility interviews before they get access to the EU Relocation scheme. This insertion of admissibility interviews into the Greek asylum procedures is for reasons totally different from the “rules of methodology” and “individual, objective and impartial assessments” in EU law. Comparison to the admissibility interview procedure in the context of Dublin III transfers is inapplicable, because the main objective of the Relocation Decision was to relieve the burdens on Greece and there was no such provision in the Relocation Decision for admissibility interviews before access to the EU Relocation scheme. If the Asylum Service and EASO respect the facts of each individual’s case, there will be no significant number of asylum seekers returned to Turkey. The asylum seekers now on the islands are going to be here indefinitely until politicians acknowledge reality and accept that it is necessary to find or make a solution, which should be relocation. If you stand up to the bullying by the European Council and the Commission rather than passing on the same kind of treatment onto refugees, many MEPs would support you in this - just call them, please.

4. Paragraph 25 of the Relocation Decision is discriminatory, because it permanently excludes individuals from eligibility for relocation based on general statistics about other people from their countries of origin. Relocation is not in itself a right, but whenever a State or an agreement of States grants a significant benefit to a certain group and not another based on a status, the difference in treatment must be proportionate to a legitimate objective. The legitimate objectives here are efficiency of the asylum system and not relocating a significant number of people who will later be found to have no needs for international protection and then incur further costs removing them. If the scheme positively presumed in favour of applicants as provided for in paragraph 25, but allowed beneficiaries of international protection from other countries of origin to access relocation after their substantive claims have been found to be well-founded, that would be proportionate to the legitimate objectives as well as non-discriminatory. Furthermore, increasing the scope of the Relocation scheme in this manner would also relieve the administrative and reception burdens on Greece even more.

Greece so far has been more humane and decent while in more economically and politically challenging circumstances than any other EU country. But the European Council and European Commission’s set of policies are so flagrantly unrealistic that they have no chance of succeeding even according to their own aims, which are evil. Greece is suffering from the same crisis of solidarity and forgetfulness of the common values which the European post-war peace was –and still is– founded on as the refugees are now suffering from.

The previous approach of Greece making common cause with the refugees and demanding that Europe live up to its claimed values and really practice solidarity and share responsibility for the common good was the right way. In working with refugees everyday, I have observed that despair is socially infectious, so for those of us working with refugees it is important for our own sanity and theirs to keep reminding ourselves to take courage and be determined about finding genuine solutions, and never giving up.

The refugees are, rightly, required to substantiate their claims, with detailed facts about what happened to them. How about you do the same with your claims? Or the other politicians in the European Council substantiate their claims? Never since the 1930s has the popularity of a political opinion or policy mattered so much more than its objective truthfulness.

This is a global problem of a swing to populism, across the political spectrum, not just on the right-wing, and it is not just a European problem. It has been characterised as a ‘Post-Truth’ political era. I am instinctively and dogmatically an egalitarian, but this consumeristic kind of populism which disregards or despises objectivity and thinks justice is merely a procedural technicality or a matter of opinion made by authorities and not a matter of truth that should concern every human being makes me seriously afraid for humanity in my lifetime. We are currently accelerating backwards in terms of human rights in practice and functional democracy in Europe, and Greece is on the frontline in more ways than one.

Returning “more than half” the asylum seekers on the islands now and “in full accordance with international law” is so unrealistic it is nonsense. It would be possible to return more than half the asylum seekers on the islands now, but, if objective facts matter at all in this process, it is certainly not possible to do so in full accordance with international law, or Greek law, or just common human natural sense of justice.

I am here every day for the last six weeks listening to the refugees’ stories. Listening and asking open questions to just draw out the facts. Speaking objectively and impartially, as asylum decisions are required to be by law, almost everyone has strong factual and legally pertinent reasons why Turkey is not safe for them and they cannot genuinely get asylum there.

I’ve listened to about 80 individuals now, for about an hour each. Honestly, if you were to listen to the detailed facts of what happened to them, you could not say that “more than half” should be found to have inadmissible claims in Greece. Some politicians refuse to acknowledge realities which they think their voters don’t like, but this does not actually change objective reality. This sort of political avoidance tactic actually leads to policies which make reality even worse and then the reality still has to be dealt with later. It would of course be a very good thing if Turkey genuinely became a safe third country, but it is clearly not now, and it is hard to imagine how it could really become a safe third country for decades starting from where they’re at in terms of functional democracy and human rights applied in practice now.

Almost everyone has been shot at by Turkish border guards or soldiers to force them back across the Syrian border, and many people were thus forced or terrorised back into Syria and made several attempts at crossing before they eventually got through Turkey. Several people told me they saw other refugees, including children, shot and killed while trying to cross the border. Many people said they were severely beaten by Turkish police or soldiers in prison, and in some cases it clearly crossed the line into torture. Many people either experienced being forced back to Syria on a previous attempt before they succeeded in getting across Turkey or were threatened with forcible return or expulsion to Syria when they were captured by Turkish police. This is not the behaviour of a State that “respects the principle of non-refoulement”. Refoulement is not exceptional in Turkey, it is routine and increasing since the EU’s interventions, and that is only one of five criteria in the safe third country concept.

Whereas Greece cannot offer jobs to most of the refugees here now, Turkey chooses not to register most of the 3 million refugees it ‘hosts’ for any sort of international or temporary protection status and give them work permits because keeping 85% of them unregistered means allowing them to work illegally so that they be illegally exploited and mistreated in work with no recourse to police protection because they are ‘illegal’. This is how Turkey has the highest number of refugees of any country worldwide now but also extraordinarily high economic growth, because it has gained a slave / trafficked persons labour force.

There is no significant proportion of inadmissible claims to be found here. Unless your administration is willing to completely ignore the facts of people’s cases or ignore the law, there is no way, no chance, to forcibly return any significant number of asylum seekers to Turkey legally. Even by gerrymandering the Appeals Authority committees, the appeals will still go onwards to the European courts, and the European Council and European Commission do not have as much undue influence there. If anything it could speed up the demise of the deal by hastening a European court judgement against the whole system.

Let’s be realistic - the EU-Turkey deal is not going to hold, and I’m sure you know the reasons better than me, and that’s why you’re so desperate to make it hold.
For the benefit of our mutual readers, let’s recap a few points it may fall at:

Firstly, it was founded on fantastical assumptions in the first place, because there never really was a significant proportion of inadmissible or unfounded claims here. Almost everyone here has strong reasons to need asylum, so claiming to return asylum seekers and other migrants to Turkey “in full accordance with international law” is literally preposterous.

Secondly, Erdogan is not going to keep on stopping the refugee boats leaving Turkey or pushing them back by any means necessary before they reach the EU frontier at the Greek territorial waters line when he realises he is not going to get visa-free Schengen travel for Turks, because there is no way Turkey can or is willing to go through the 73 legislative amendments required to make its legal system sufficiently compatible with European law. The EU’s payments for extraterritorial refoulement services are not enough to maintain the deal on their own, because the bribes collected by the smugglers’ networks, of course largely overlapping with the Turkish state authorities, are probably between half and about equal to the EU’s counter-bribes, which are as yet only pledged, and we both know what EU pledges of money are like at actually turning up on time.

Thirdly, there are at least 4 legal challenges going to the European courts so far just that I know of, and it only takes one of them to succeed to blow a big legal hole in the implementation of the deal. The European Parliament is also catching up and may even break out of its apparently merely advisory role at some point in the not-too-distant future.

You do not have to make policies out of despair. Greece does not have to continue to take the blame for being forced to implement at arm’s length Europe’s systematic human rights abuses.
Greece still could and should insist that the Temporary Protection Directive 2001 be activated. It is the only implementation system available and agreed so far for a constitutional commitment of all Member States, not essentially something optional. If Greece must pay its a pound of flesh, blood and all, because of mere contract law, the rest of Europe must observe fundamental human rights in practice which are more essential to justice. There has been no clearer instance of a ‘mass influx’ since the refugee mass movements after WW2, so the fact that the European Commission still refuses to acknowledge what this is and trigger the legal mechanism designed for this kind of situation, is nothing short of disingenuous.

At least it would be a wise contingency strategy to begin campaigning now to get the Temporary Protection Directive activated if or when the mass influx of Syrian refugees resumes again. Again, to do so would be a win-win strategy for Greece and the refugees.

Kester Ratcliff is a refugee solidarity volunteer and human rights activist. He is one of the coordinators for Calais Refugee Solidarity Bristol, Calais People to People Solidarity - Action from UK, and People to People Solidarity Southern/ South-Eastern Europe,


The governement manipulates the Asylum Appeals Committees

On the 16-6-2016, with a last minute amendment,  the Greek Government changes the composition of the Asylum Appeals Committees, because the existing ones were not sending refugees back to Turkey, were not considering turkey a safe third country for each applican as the implementation of  the EU-Turkey refugee deal imposes. This is a disgraceful intervention and some members the existing Asylum Appeals Committees explain about it.
Statement of members of the Asylum Appeals Committees of Greece
By the present, the undersigned wish to make a statement, as members of the Asylum Appeals Committees of Greece (Presidential Decree 114/2010), regarding the latest developments in the asylum claims review process.

An  Asylum Appeals Committee is a three-member quasi-judicial body, consisting of a Civil Servant as Chairman, a member indicated by the United Nations High Commission for Refugees and a member selected by the Ministry of Interior from a list drawn up by the National Commission on Human Rights (E.E.D.A.), an independent advisory body to the state. Their mandate is to examine on second administrative (and final) instance appeals on asylum applications submitted by June 6, 2013 and rejected at the first instance by the hitherto indicated Ministry of Public Order (Greek Police officials). Since January 2011, when the Committees started to function, to this date, only a minimal number of their decisions have been challenged before the Administrative Appeals Court (as provided by national legislation). Shortly after the joint EU-Turkey statement, the Committees were temporarily entrusted to examine appeals of asylum seekers who had entered the country from March 20, 2016 onwards - the date of application of the, legally non-binding, Joint Turkey - EU Statement. These asylum requests were deemed inadmissible at first instance examination, based on recommendations of the European Support Office (EASO) representatives who conducted interviews in English.  Law 4375/2016 appointed the Committees as the competent body to examine appeals on the inadmissibility decisions until the establishment of a Standing Appeals Authority.

After assuming their additional responsibilities the Committees responded with speed and professionalism to the requirements of this new procedure, in compliance with the extremely abridged deadlines stipulated by new law. During two meetings of the Committees held by consultants of the Migration Policy Minister (the first) and with the participation of Mr. Mouzalas (the Migration Policy Minister) himself (the second), a number of legal issues were raised, concerning unlawful, in the opinion of some members, aspects of the process in the first instance, but also a series of questions about the proceedings before the Committees. Besides procedural issues, which are anything but secondary to legal issues on substance, the most critical issue was the individual judgment for each applicant as to whether Turkey may be considered a safe third country. In this matter also lies the crucial contradiction between the wording of the Joint Declaration that "all will be returned to Turkey" and the asylum system and the safeguards provided for each applicant himself. In this respect, it was pointed out emphatically by both the consultants and by Mr. Mouzalas himself that being an independent second instance decision making body, the Committees’ independence would be undisputable and their decisions would in no way be influenced directly or indirectly, adding however the  political intentions of the government to rigorously comply with the Joint Statement. In spite of those assurance, the Ministry communicated to the Committees a letter by the European Commission which acknowledged briefly and without legal reasoning, Turkey as being a safe third country, in contrast to most international organizations reports (which were never communicated to the Committees), placing in question the political leadership’s  declarations to not interfere with the independence of the Committees.

Roughly two months following the publication of Law 4375/2016 and by virtue of an amendment voted by the Parliamentary majority of the government on 16.06.2016, the Committees ceased to be responsible for these actions, the examination of which was assigned to new "Independent Appeals Committees", each of which will consist of two magistrates (members of the Greek judiciary) and one member indicated by the UNHCR, or in case of the latter’s  inability to indicate a member on time, by the  E.E.D.A. In fact, as explicitly stated in the amendment “the upcoming modification will enhance the judicial character of the Committees and maximize the proper legal protection of the applicants, as their requests will be judged by the new committees with increased impartiality and independence."

What elapsed, then, and suddenly it was considered that the examination of asylum appeals should be passed to “other hands”, suggesting that PD 114/2010 Committees had reduced impartiality and independence? What intervened was a fully substantiated legal reasoning had been cited in dozens of judgments by the PD 114/2010 Committees, after careful consideration of individual appeals, something that was not in line with the objective of mass returns of asylum applicants to Turkey, as expressed in the non-legally binding Turkey - EU Statement. These decisions of the Committees had not been reached because their members acted according to a certain "ideology" as written in the press, or because members of the Committees were not sufficiently "neutral", since they emanated from a "civil society" (let us recall here that the final selection of members from the E.E.D.A. list is made by the responsible Minister and the UNHCR is an international organization which recommends members specialized examinations). The Committees and their members, having examined thousands of cases since 2011, based their judgment on this occasion, as always before, on published reports of international bodies and organizations such as the Parliamentary Assembly of the Council of Europe, UNHCR, ECRE, Human Rights Watch, Amnesty International and others, which are taken into account also in the ratio of judgments of European courts such as the European Court of Human Rights and the European Court of Justice.

It becomes then apparent from the urgency and the invoked (defamatory) grounds of the amendment that the Ministry preferred to wrest the responsibility which two months ago had chosen to confer on the Committees, because the Committees’ decisions were not harmonized with the framework of the Joint EU-Turkey Statement. This constitutes an affront and insult to our professional status as legal and social scientists, specialized academically and professionally in the field of asylum and human rights. Indeed, since the publication of the very first decisions by the Committees, indicative is the statement of the Migration Policy Minister in the international press, that these decisions contravene all UNHCR guidelines for refugees (The Guardian, 20/05/2016). If this is the view of the Ministry, it is really surprising that it has not brought a request to quash the Committees’ decisions before the Administrative Appeals Court, as expressly provided by the law. Changing the composition of the Committees through expedited legislation, rather than judicial examination and resolution of serious legal issues of international law (something which would be binding upon any future committees, regardless of their composition) confirms that this move was not made because the grounds of the Committees’ decisions were incomplete or unjustified, but because these decisions placed in question the political plans of the Ministry-government.

Managing legal issues by use of political priorities raises many questions about the future of the asylum system in Greece, the protection of human rights and the rule of law. For us, it is apparent that the implementation of the EU-Turkey Statement is incompatible with the guarantees of the existing asylum system and the level of protection of human rights which has been achieved within the international and European legal framework. Unfortunately, the Ministry’s orchestrations indicate that whenever any decision making body, old or new, is not in line with the objective of mass returns to Turkey, such law amendments and wresting of authorities and responsibility will not be in the future the exception but rather the rule.
This document reflects the views of the following members of the PD 114/2010 Committees:
Adamou Efthymia, member selected from the list of E.E.D.A.
Deli Irene, member selected from the list of E.E.D.A.
Giannopoulou Chrisa, member indicated by the UNHCR
Gousis Constantine, member selected from the list of E.E.D.A.
Krinidi Constantina, member indicated by the UNHCR
Komplas Nikolaos, member indicated by the UNHCR
Papageorgiou Anastasia -Asimina, member indicated by the UNHCR
Papadaki Maria, member selected from the list of E.E.D.A.
Patri Maria, member indicated by the UNHCR
Pragkasti Zoe-Eleni, member selected from the list of E.E.D.A.
Proestaki Zafirenia, member indicated by the UNHCR
Ressopoulou Erato, member selected from the list of E.E.D.A.
Svana Christina, member indicated by the UNHCR
Skandalis Orestes, member selected from the list of E.E.D.A.
Stentoumi Joanna member selected from the list of E.E.D.A.
Tsakiropoulou Evangelia, member selected from the list of E.E.D.A.
Tsouka Erato, member selected from the list of E.E.D.A.
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