Neglect needs, manufacture crisis, rinse, repeat: The new Greek asylum ban and a textbook breach of international law

By Minos Mouzourakis

The Greek government flouts basic asylum rules – again – by banning people irregularly arriving by boat from North Africa from claiming asylum. An amendment voted on 11 July has imposed a three-month ban on such people from applying for asylum and orders their immediate deportation to their country of transit or origin without registration.

The asylum ban, a domestic reaction to the diplomatic breakdown that saw Libyan authorities ordering the EU Migration Commissioner and Greek Migration Minister to immediately leave the country on 8 July, is presented as a decisive measure against increasing arrivals on the southern Greek islands of Crete and Gavdos, a situation as serious as it is foreseeable.

Rising arrivals from Libya have been a reality for at least two years, as starkly highlighted by the recent launch of criminal proceedings against high-ranking Greek coastguard officials for the Pylos shipwreck that led to the deaths of more than 600 people on 14 June 2023. Neither Crete nor Gavdos has reception or registration sites, and plans for creating such capacity were being dismissed by Migration Ministry leadership as recently as three months ago.

Suspending access to asylum is illegal. The prohibition on refoulement is absolute: states may never deport a person to a place where they risk torture or ill-treatment. No restrictions are permitted on a person’s right to seek asylum and to enjoy safety until their claim is heard.

It is also a policy that has already been tried and found wanting. Greece imposed a similar ban on thousands of people arriving from Türkiye in March 2020, only to end up unlawfully and unnecessarily delaying their access to protection and being condemned by the European Court of Human Rights for detaining them in inadequate conditions. None were – or could have been – deported.

Yet, the asylum ban on people arriving from Libya reiterates the textbook approach employed in 2020: increased arrivals are equated to an “asymmetrical threat that supersedes the basis of international and EU law on the asylum procedure” and create “absolute objective incapacity to process asylum applications in due time”. It boldly adds that such “incapacity” is exacerbated by “the absence of relevant facilities in the regions of Crete”.

The Greek government thus misrepresents its chronic disregard for EU obligations to run a well-functioning asylum system and to maintain capacity to respond to arrivals of people seeking refuge. It also misinterprets EU standards, which, per the Court of Justice of the EU, already foresee sufficient flexibility to cater for situations in which countries are confronted with increased arrivals and under no circumstances permit a suspension of access to asylum.

The ban is also a textbook case of bad law-making. It was put to Parliament through a last-minute amendment to an unrelated bill, as per constant government practice in dereliction of constitutional standards and rule of law principles. Prompt expert warnings by the legal and human rights community (Greek Ombudsman, Greek National Commission for Human Rights, Association of Greek Administrative Judges, Plenary of Greek Bar Associations, Council of Europe and United Nations Refugee Agency (UNHCR)) have been regrettably, if expectedly, disregarded. Only the European Commission opted for elusive and enabling language, in dereliction of its own duties and institutional responsibility.

The effects of the ban and civil society responses to it are already underway. International and EU law have established primacy over domestic Greek rules, including this one. This means that public officials must not implement it and that we will bring it to the courts.

Minos Mouzourakis is a Greek attorney-at-law registered with the Athens Bar Association and works as Legal & Advocacy Officer at ECRE member organisation Refugee Support Aegean.