28 resort because less severe measures are insuffi- For similar reasons that make the quarantine on cient to safeguard the public.67 Chios broadly unlawful, it also amounts to un- The ECtHR has also articulated its power to in- lawful detention—i.e., because the authorities terpret domestic law to determine whether a implement it without issuing an individual or- deprivation of liberty conforms with that law’s der or reference to any clear legal grounds. substantive and procedural rules. 68 Regarding However, even if one would find legal grounds, detention, a detention decision is ex face unlaw- the quarantine would still amount to unlawful ful if it shows “gross and obvious irregularity” detention, since the quarantine as conducted on with domestic legal requirements for deten- Chios cannot be considered necessary and the tion.69 In the present case, it is clear that domes- least coercive measure. tic law requires an individualized quarantine On Chios, authorities have implemented the order, orders which have never been issued to quarantine against all newly arrived asylum those in quarantine. seekers regardless of COVID-19 status. The Even if the quarantine could in theory be found quarantine as implemented on Chios cannot be to be lawful, it is still arbitrary in nature, making considered necessary and least coercive to pre- it illegal under the ECHR.70 As a threshold mat- vent COVID-19. As the authorities established in ter, a detention without an individual detention the case of Greek nationals and tourists, order is inherently arbitrary. 71 However, the measures like a negative COVID-19 test result or Court has looked to other factors as well. For a deprivation not to be arbitrary, the ECtHR has vaccination record are to be considered sufficient. Further, the same date the 1st of May JMD articulated that it must be carried out in good came into force, officially ordering a 5-day quar- faith, closely connected to the ground of deten- antine for all new asylum seeker, Greece lifted tion relied upon by the government, necessary all COVID-19 border measures for tourists. The in length, and the conditions of detention must fact, that Greek authorities quarantine asylum be appropriate as applied to those detained.72 seeker without considering their COVID-19 status solely because of their status as asylum ECtHR, Judgement of 25 January 2005, Enhorn v. Sweden, 56529/00, para 44. ECtHR, Judgement of 21 June 2018, S.Z. v. Greece, 66702/13, para 53; ECtHR, Judgement of 19 June 2918, Kahadawa and others v. Cyprus, 16870/11, 16874/11 and 16879/11, para 59; ECtHR, Judgement of 22 June 2017, S.M.M. v. UK, 77450/12, para 63; ECtHR, Judgement of 6 October 2016, Richmond Yaw and Others v. Italy, 3342/11, 3391/11, 3408/11 and 3447/11, para 69; ECtHR, Judgement of 5 July 2016,O.M. v. Hungary, 9912/15, para 41; ECtHR, Judgment of 19 May 2016, J.N. v. UK, 37289/12, para 75; ECtHR, Judgement 0f 26 November 2015, Mahamed Jama v Malta, 10290/13, para 139;ECtHR, Judgement of 15 December 2016, Khlaifia and Others v. Italy, 16483/12, para 91. 69 ECtHR, Judgement of 13 December 2007, Mooren v. Germany, 11364/03, para 75: A detention order must be considered as ex facie invalid if the flaw in the order amounted to a “gross and obvious irregularity” in the exceptional sense indicated by the Court's case-law (compare Liu, cited above, para 81; ECtHR, Judgement of 7 June 2007, Garabayev v. Russia, 38411/02, para 89; and ECtHR, Judgement of 29 February 2008, Marturana v Italy, 63154/00, para 79); In Garabayev v. Russia the Court found that applicant's detention pending extradition was not in accordance with a “procedure prescribed by law,” the Court considers that the procedural flaw in the order authorizing the applicant's detention was so fundamental as to render it arbitrary and ex facie invalid and this was further strengthened by the absence of judicial review of the lawfulness of the applicant's detention until his extradition had taken place. 70 ECtHR, Judgement of 18 September 2012, James, Well and Lee v UK, 25119/09, 57715/09 and 57877/09, para 187 (“the object and purpose of Art. 5 (1) is to ensure that no-one is dispossessed of his liberty in an arbitrary fashion”). 71 ECtHR, Judgement of 8 November 2005, Khudoyorov v. Russia, 6847/02, para 136-37 where the authority’s failure to replace an expired detention order for more than a year constituted an arbitrary detention. 72 ECtHR, Judgement of 18 September 2012, James, Well and Lee v UK, 25119/09, 57715/09 and 57877/09, para 192-195. 67 68 ‘Quarantine of Asylum Seeker’ – A legal classification of the quarantine practice on Chios