Κατά το διάστημα 5-7 Σεπτεμβρίου πραγματοποιήθηκε στην πόλη Taormina της Ιταλίας η συνάντηση των Δικηγορικών Συλλόγων των χωρών της Μεσογείου, με θέμα τη Μετανάστευση. Συμμετείχαν αντιπρόσωποι απ΄ όλες τις ευρωπαϊκές και βορειοαφρικανικές χώρες της Μεσογείου, καθώς και από το Μεξικό και τη Βραζιλία αλλά και εκπρόσωπος της Παλαιστινιακής Αρχής. Την Ελλάδα εκπροσώπησε ο Παναγιώτης Περάκης, μέλος του ΔΣ του ΔΣΑ, ο οποίος ήταν και ένας εκ των βασικών ομιλητών. Στην εισήγησή του, με θέμα «Greece under the Burden of Dublin», ο κ. Περάκης, αφού ανέπτυξε τις προβλέψεις των Συμφωνιών του Δουβλίνου που ρυθμίζουν το ζήτημα σε ευρωπαϊκό επίπεδο, αποθέτοντας το αποκλειστικό σχεδόν βάρος στις χώρες υποδοχής, όπως κατά κύριο λόγο η Ελλάδα (που είναι, σύμφωνα με τα επίσημα στοιχεία του Αυγούστου 2012, η πύλη εισόδου του 67% όσων εισέρχονται παράνομα στην ΕΕ !!), εξέθεσε ειδικότερα τα προβλήματα που δημιουργούνται τόσο για τη χώρα μας όσο και –κυρίως- για τους ίδιους τους εισερχόμενους σ΄ αυτήν «παράνομους» μετανάστες (των οποίων συχνά παραβιάζονται θεμελιώδη ανθρώπινα δικαιώματα, όπως κατ΄ επανάληψη έχει κρίνει το Ευρωπαϊκό Δικαστήριο Ανθρωπίνων Δικαιωμάτων) από την εφαρμογή των Συμφωνιών αυτών και επικέντρωσε στην ανάγκη μιας νέας, αληθινά ευρωπαϊκής, αντιμετώπισης του θέματος, βασισμένης στην αρχή της αλληλεγγύης, θέση η οποία έγινε δεκτή ως κοινή θέση στα συμπεράσματα του συνεδρίου.
Το πλήρες κείμενο της εισήγησης του κ. Περάκη έχει ως εξής:
GREECE UNDER THE BURDEN OF DUBLIN
A. Migrants and asylum seekers in Greece
During the 1990’s Greece was transformed abruptly from a country that used to generate immigrants (particularly in the 1950s and 1960s) and refugees (during the 7-year dictatorship in 1967-1974) to a country that receives ones. The first migratory waves arrived from the so-called Eastern European countries and mainly from Albania and former USSR states (Georgia, Armenia, etc.). The main characteristic of these early waves of immigrants was that for them Greece was their final destination, a place where they planned to live, work, have a family and develop their personality. In the context of economic growth generally, immigrants were tolerated by the Greek society as they provided cheap labour, deprived of any rights and access to social benefits, collective labour agreements, etc. It is notable that this first wave of immigrants contributed significantly in the preparation of the 2004 Olympic Games held in Athens.
Since the early 2000s the profile of third-country nationals entering irregularly the Greek territory has dramatically changed. After September 11, 2001, the evasion in Afghanistan and the second war in Iraq, people from Central and Southern Asia and the Middle East (Afghanistan, Pakistan, Iran, Iraq, Palestine) started appearing at the Greek borderline and entering Greece and, thus, the EU territory. Moreover, the political turn of Turkey towards African and Arab countries together with the abolition of visa for people from these countries played a significant role in the dramatic increase of numbers of undocumented migrants and asylum seekers.
Ever since this influx is significantly different from what it used to be in the previous decades. Greece became the major gateway for undocumented migrants and asylum seekers from Asia and Africa to Europe. According to official European data in August 2012 Greece accounted for 67% of all irregular border crossings into the EU.
Nevertheless, it should be noted that for both migrants and refugees Greece is never their final destination, but a transit country towards Western and Northern Europe, where they believe reception conditions for asylum seekers, refugee recognition rates and integration prospects are far better than in Greece.
Yet, the issue of immigration has to be seen from a European perspective. For decades “illegal” immigrants provided the necessary cheap labour force that Europe needed in order to create a strong economy and remain competitive against the rising economies of the Far East (China, India, etc.). However, nowadays, in a time of economic recession, Europe has a clear message to send to these populations: “no more “illegal” immigrants, no more asylum seekers – we no longer have the means”.
The implications and consequences of the abovementioned statement are of the utmost importance and merit the attention of the European legal community. Far from the economic numbers and policies lies the well-known European acquis in terms of human rights protection that dictates that Europe cannot simply “get rid” of undocumented migrants and asylum seekers residing in its territory. On the contrary, according to the rule of law, the EU treaties, the Charter of Fundamental Rights, the European Convention for the Protection of Human Rights and the well-established jurisprudence of both the European Court of Human Rights and the Court of Justice of the EU, EU member states are obliged to ensure and provide effective protection of the rights of individuals in EU territory, thus, to protect the rights of third-country nationals and treat them primarily with dignity.
Immigration exists and demands proper management and durable solutions. This can be achieved only by means of solidarity and common practices among EU member states. Despite all efforts to build a common European immigration and asylum policy within an area of freedom and justice, an obstacle still remains: the Dublin regulation.
B. The Dublin Regulation
The Dublin Regulation (or Dublin II Regulation) was adopted in 2003 by the EU member states, plus Norway, Iceland and Switzerland, replacing the previous Dublin Convention of the 1990s. The regulation came into effect in 2008 and since then it is the epicentre of lots of criticism.
It determines the EU Member state responsible to examine an application for asylum seekers seeking international protection under the Geneva Convention and the EU Qualification Directive, within the EU. Usually this will be the Member State through which an asylum seeker first entered the EU. The Regulation replaced the 1990 Dublin Convention, and aims to ensure that each claim is fairly examined by one Member State, to deter repeated applications, and to enhance efficiency. It is linked to EURODAC, a database that stores the fingerprints of asylum seekers entering Europe.
Obviously, the most controversial clause of the Dublin Regulation is the one that determines the responsibility to process the asylum claim. That is where the first problem lies, as this responsibility relies solely on geographical criteria: once a person wishing to seek asylum in Europe steps foot in EU territory, grosso modo it is up to that country to process the claim. That is only and always the borderline country. This disposition, though, neglects not only the fact that immigrants that enter one state do not necessarily want to stay there, but rather are trying to reach the richer countries of Europe, but also the fact that by forcing them to remain in the bordering states, it fails to promote and achieve inter-state solidarity, as it shifts responsibility for refugee protection towards Eastern and South-Eastern border regions, that in many cases are also "peripheral" economies, unable to offer asylum seekers support and protection.
No doubt, the vast majority of illegal immigrants or asylum seekers enter Europe from countries like Greece, Malta, Italy and Spain. Some of them are either too small (Malta) or economically too weak at the moment (Greece) to deal with the sheer numbers of immigrants on their own.
As stated above, in 2012 Greece was ranked 1st EU country, hosting some 67% of the total newly arriving migratory population of the whole EU. What is important to bear in mind is that a small, debt ridden country with borders that are difficult to guard due to the fact that most of them are vast sea areas, is forced under the Dublin regulation to provide for all the immigrants entering it. Moreover, in Greece migratory flows are mixed, consisting of economic immigrants, refugees and asylum seekers. This creates a complex situation as it demands primarily effective screening mechanisms in order to detect and define who is –or may be- entitled to international protection and secondly, an effective and coherent asylum system together with proper reception facilities able to host the arriving population.
Unfortunately, it is well known that migrants and asylum seekers in Greece have been facing a rather hostile environment, with a truly dysfunctional asylum system, prolonged detention that constitutes inhuman and degrading treatment and xenophobic violence. In many instances Greece has been condemned by the European Court of Human Rights for violation of art. 3 and 5 of the ECHR, namely for unlawful detention, inhuman detention conditions for migrants/asylum seekers, lack of proper reception centres and facilities, extremely limited access to the asylum system and failure to provide a minimum protection to UASC (Unaccompanied/separated Asylum Seeking Children). In 2010 the office of the United Nations High Commissioner for Refugees (UNHCR) in Athens was summoned to assist national authorities in an effort to put in place a fair and coherent asylum system and reception conditions that would meet EU and international standards. However, after almost 3 years the scenery remains more or less the same: recognition rates remain low (almost 0% at first instance – with the exception of second instance where it is some 12%), significant backlog in the processing of applications, limited access to asylum (especially in the district of Athens where only 20 applications are accepted per week), thus with an imminent risk of refoulement, substandard detention conditions, lack of proper reception facilities, limited or no legal information and assistance.
This is the environment that asylum seekers and refugees are forced to deal with when entering the EU via Greece. And there is no way to escape it: once detected in Western/Northern EU countries, the latter are called to apply the Dublin Regulation and resend them back to Greece, thus obviously turning a blind eye to the abovementioned conditions when shifting the responsibility of processing asylum applications to Greece, as the first receiving country at Europe’s borderline.
In this context the European Court of Human Rights ruled in January 2011, in the case of M.S.S. v. Belgium and Greece, that the return of an Afghan asylum seeker from Belgium to Greece under the Dublin II Regulation exposed him to degrading treatment in Greece. The Court also found a violation of the right to an effective remedy given the deficiencies in the Greek asylum system and the risk of return to Afghanistan without a serious examination of the merits of the asylum application.
This judgment more than ever sparked the public debate over the inefficiencies of Dublin II, as it has long been creating a two-speed Europe in the field of migration and asylum. It is clear that this system is unfair both to the immigrants themselves and to the bordering countries, as they receive increased pressure to treat them properly.
Ever since EU member states stopped Dublin transfers to Greece (with the exception of Italy that continues doing so via the application of a bilateral agreement between Greece and Italy, outside the scope of Dublin).
In December 2011 the European Union Court of Justice made a step forward in this direction, ruling that member states have an obligation to verify conditions in the receiving country before pursuing Dublin transfers. In other words, EU member states have to adopt reforms to the Dublin II regulation that would block such transfers to countries where an asylum seeker risks inhuman or degrading treatment.
This ruling is, in our opinion, a cornerstone in European legal history, as on the one hand it reveals the strong relation between the two European jurisdictions (the ECJ clearly implementing the acquis of ECHR jurisprudence) and on the other hand, it is a “reminder” of what was stated before, that Europe cannot just get away with migration; nevertheless, the rule of law has to prevail, ensuring effective protection of the rights of individuals. Furthermore, it became clear that action has to be taken in order to modify, if not abolish, the Dublin II regulation.
Yes, Greece is of course to blame for not being able to cope with immigration for decades. Furthermore, Greece is to blame for being unable to absorb the thousands of Euros allocated by the European Commission to the Greek government in the period 2011-2013 in order to cope with the problem. But are Europe’s policies on immigration functional? Are there any real and tangible grounds to create a truly common European immigration policy?
As evidenced by international organizations, NGOs’, national, European and international monitoring bodies and institutions, the funds that Greece received were used with an emphasis on enhancing border control measures and increasing detention capacity. In addition, the EU has been maintaining the pricey FRONTEX operation at the Greek-Turkish border (Evros region) in order to safeguard European borders. Moreover, excessive funds were used for building a 12,5 km fence in the same region to prevent undocumented migrants from entering EU territory. At the same time, not only have the migratory flows increased in the north-eastern part of the Aegean, as Greece’s sea border is impossible to be controlled anyway, but FRONTEX has also been publicly accused by international NGO’s of realizing push backs at the Greek-Turkish land border.
While all this takes place at the border, the situation within Greece is harder than ever in a context of unprecedented economic crisis that has inevitably led to a social one, affecting dramatically the migratory and native population alike: high unemployment rates, cutbacks on salaries and pensions, reductions on social welfare. Hence, migrants and asylum seekers are wandering without purpose, totally marginalized, working illegally or staying in prolonged detention in some former military camp used as a detention facility, while awaiting a deportation that is uncertain to ever take place. They are trapped by Dublin in a limbo.
For a small and conservative country like Greece, the immigration problem combined with economic depression has inevitably caused a rise in nationalism, racism and xenophobia. Poverty and despair made many immigrants vulnerable to exploitation by organized crime (mainly led by Greeks) and forced them to crime and prostitution. Despite that, it was only when the social state subsided and the standard of living squeezed, when the values of the bourgeois state were questioned, that immigrants were targeted by the neo-fascists as one of the main reasons of the above and could not be tolerated anymore.
C. Recast of Dublin (DUBLIN III)
No doubt the Dublin Regulation is an anachronism. Plus it has failed to meet the needs of EU member states and respond to the challenges of migration and asylum as a whole.
The recast of Dublin Regulation “Dublin III” entered into force on the 19th July 2013 in an effort to remedy the inefficiencies of the previous system and the divergences in its application by the various member states. Of course we welcome the new dispositions on judicial review, examination of potential risk of violation of fundamental rights of applicants in the transfer member state (a clear implementation of the abovementioned ruling of ECJ), family reunion and children protection.
Yet, we strongly believe that Europe missed the opportunity to devise once and for all an efficient responsibility-sharing regime that would improve solidarity and collectivity among member states, promoting the integration of people who seek and deserve international protection. So instead of a pan-European reaction to the problem, with a formation of a true common European immigration and asylum policy, EU governments chose to maintain hurdles for the undocumented immigrants and asylum seekers, while keeping the pressure on border countries and criticizing them for any failure or mishandling. It simply does not work.
There is no denial that the Greek policies on immigration are almost non-existent and of course they are dysfunctional. But so are Europe's. Our partners avoid assuming responsibility to act on the issue collectively, helping the bordering nations to deal with immigration and asylum seekers. It seems that EU is focused on a “prevention – control” scheme of the external European borders while bordering countries, lost in instability and social incoherence, are acting like filters of the unwanted in order to sustain western and northern European countries’ immigration policies.
Is it possible for any country, not only Greece, situated at the borderline of Europe to solve alone the immigration issue? Would Greece ever be able to cope with thousands of asylum applications timely, accurately and in line with international requirements? The answer is no, especially in an era of economic depression. What constitutes tangible proof of that is that ever since 2011 when the new law 3907/2011 on the total reform of the asylum policy was implemented, the Asylum Service is still not fully operational as EU partners forbid the appointment of qualified personnel to work on the process of asylum applications. Despite this, new Dublin III is already in force, meaning that Greece is to assume the burden. Yet we have seen no EU operation, no EU personnel, no EU delegation on the field working on asylum claims, covering the actual needs.
Taking everything into consideration even if Greece achieved its mission to create a functional asylum system, what steps has EU taken to deal with immigration apart from controlling and preventing immigration? In fact, are there any expectations for providing durable solutions to anticipate it and create a real pan-European area of security and justice?
The fortunes of the people who want a better life in our continent, are colliding with the ability of Europe to offer solutions to them and the native population. Whether it is about refugees or starving immigrants, jobs, security, peace, progress, stability and prosperity, Europe's policies are lacking the collective agreement needed, vision and fairness. So it is no surprise that our continent is in crisis, but not just an economic one.
Finally is this all about the burden of Dublin?
Panagiotis Perakis
Athens Bar Association, Greece
* Η εισήγηση αυτή συντάχθηκε με την πολύτιμη συμβολή της δικηγόρου Αγγελικής Νικολοπούλου, ειδικής στα θέματα μετανάστευσης και συνεργάτιδας της Ύπατης Αρμοστείας του ΟΗΕ για τους Πρόσφυγες.
