13 for several key reasons. First and foremost, fear of being persecuted.”22 people who were detained under it were not Once a person has made an application for illegally staying in Greece but rather asylum seekers legally on Greek territory. EU asylum law defines an applicant for international protection not only as someone who has formally registered his or her application for international protection but as anyone who has either explicitly or implicitly expressed his or her desire to apply for asylum.19 This broad definition applies to “applications falling under this definition, regardless of whether or not the pending case is formally considered an application for international protection under national law[...].”20 Greek asylum law provides a similar definition.21 The Asylum Code defines an applicant for international protection as “a citizen of a third country or stateless person who declares orally or in writing before any Greek authority at entry points of the Greek state or inland, that he/she requests asylum or subsidiary protection in our country or in any way asks not to be deported to any country for Directive 2013/32/EU defines an applicant for international protection as “a third-country national or stateless person who has made an application for international protection in respect of which a final decision has not yet been taken.” 19 Art. 2(c) of Directive 2013/32 /EU. In addition, the APD specifies that an application for international protection means “an application for protection from a Member State made by a thirdcountry national or a stateless person, who can be understood to be seeking refugee status or subsidiary protection status.” Art. 2(b) of Directive 2013/32 /EU. 20 Kay Hailbronner & Daniel Thyme, EU migration and asylum law: Commentary, 2nd edition, 2016, Sna. 1298.; See also: Markard/Nestler/Vogt/Ziebritzki: No State of Exception at the EU External Borders, March 2020, p. 21 et seq., available at: https://bit.ly/32W3BGg, (“From a European law perspective, it is hard to imagine that persons who reach the Greek coast by boat have not or will not apply for asylum.”). 21 While outside the scope of this report, the new 2022 Asylum Code (Law 4939/2022) states in Art. 69 par. 8, as amended by Art. 6 par. 4 of Law 19 international protection, she is legally staying in Greece.23 In fact, the Return Directive explicitly states that “a third-country national who has applied for asylum in a Member State should not be regarded as staying illegally on the territory of that Member State until a negative decision on the application, or a decision ending his or her right of stay as an asylum seeker has entered into force.”24 In Gnandi, the Court of Justice of the European Union (CJEU) held that “the right to remain prevents an applicant for international protection from being regarded as ‘staying illegally’, within the meaning of that directive, during the period from submission of the application for international protection until adoption of a first instance decision on that application.”25 Finally, the European Court of Human Rights (ECtHR) has also held that protection seekers’ failure to explicitly express 4686/2020 and in force, explicitly states that "The person who expresses a desire to submit an application for international protection is an asylum seeker, in accordance with the provisions 4686/2020 Art. 1 (c).”. 22 Art. 1(c) Law 4939/2022. 23 Art. 9(1) Directive 2013/32/EU states that “Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III”. Art. 9(1) APD was transposed into Greek Law in Art. 73(1) L. 4939/2022, which states that “applicants shall be allowed to remain the country until completion of the procedure of the examination of their applications for international protection at first instance and may not be removed in any way whatsoever.” Emphasis added. 24 Recital 9 Directive 2008/115/EC. See also Art. 21(5) Law 3907/11 and Art. 2(c) Law 3386/2005, although the latter provision is no longer in force. 25 CJEU, Judgment of 19/06/2018 - C-181/16 - Gnandi para. 40. ‘Still detained and forgotten’ – Update on Detention Policies, Practices, and Conditions on Kos 2022/23