Risks of refoulement on account of systemic deficiencies relating to access to the asylum procedure Barriers to registering an asylum application – the new framework for access to asylum on the mainland 5. In line with EU law,7 the Greek Asylum Code defines “making” (υποβολή), “registration” (καταγραφή) and “lodging” (κατάθεση) of asylum claims as discrete procedural steps. The authorities are required to carry out “basic registration” (απλή καταγραφή) of a claim within 3 working days from the moment of “making” (υποβολή) of an asylum application, and then to proceed to “full registration” (πλήρης καταγραφή) within 15 workings days from “basic registration”.8 The application is deemed to be lodged from the moment of full registration.9 However, the individual benefits from “asylum seeker” status from the moment of “making”, i.e. when the intention to seek asylum is expressed.10 Constant case law from the Court of Justice of the European Union (CJEU) affirms that the “making” of an asylum application shall not be subject to any “administrative formality”.11 6. Structural deficiencies as identified by the European Court of Human Rights (ECtHR) in the M.S.S. ruling12 persist as regards access to the asylum procedure on the Greek mainland. As of November 2021, Greece has stopped direct access to its Asylum Service for those who have not previously undergone reception and identification (“screening”) procedures, per a circular of the Ministry of Migration and Asylum.13 Under a new circular issued in August 2022, persons who are present on the mainland and have not previously undergone reception and identification procedures shall only be allowed lodge their asylum applications with the Reception and Identification Service (Υπηρεσία Υποδοχής και Ταυτοποίησης, RIS) at the Reception and Identification Centres (Κέντρα Υποδοχής και Ταυτοποίησης, RIC) of Malakasa and Diavata, near Athens and Thessaloniki respectively.14 This mirrors the procedure followed for arrivals in the Closed Controlled Access Centres (Κλειστές Ελεγχόμενες Δομές, CCAC) on the Eastern Aegean islands and the RIC at the Evros land border. 7. Appointments for reception and identification procedures and for the lodging of asylum claims at the RIC of Malakasa and Diavata are booked via a special online platform15 launched by the Ministry in July 2022. However, the authorities expressly refuse to view the request for a registration appointment via the online platform as “making” of an asylum claim, even though this act amounts an expression of intention before the designated authority for receiving asylum claims and is the sole means of access to the asylum procedure, in accordance with the Ministry of Migration and 7 8 9 10 11 12 13 14 15 Article 6 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (“Asylum Procedures Directive”) [2013] OJ L180/60. Article 69(2) Asylum Code, L 4939/2022, Gov. Gazette A’ 111/10.06.2022. Article 69(3) Asylum Code. Article 69(8) Asylum Code. CJEU, C-823/21 Commission v Hungary, 22 June 2023, para 43; C-72/22 PPU MA, 30 June 2022, para 80; C-808/18 Commission v Hungary, 17 December 2020, para 97; C-36/20 VL v Ministerio Fiscal, 25 June 2020, paras 93-94. M.S.S. v. Belgium and Greece, paras 300-301. Ministry of Migration and Asylum, Circular 411695/2021, 24 November 2021. Ministry of Migration and Asylum, Circular 504912/2022, 31 August 2022. Malakasa and Diavata are established as RIC under Article 34 PD 106/2020, Gov. Gazette A’ 255/23.12.2020, as amended by Article 3 PD 20/2023, Gov. Gazette A’ 43/24.02.2023. The circular only exempts unaccompanied children and persons in criminal or administrative detention from the registration procedure at the RIC of Malakasa and Diavata Ministry of Migration and Asylum, Registration appointment application, available at: https://bit.ly/3HY6bzQ. 6 RSA COMMENTS│ 2023