3 LEGISLATION ON DETENTION
DETENTION OF ASYLUM SEEKERS
As a rule, international law prohibits the penalizing of a person who has entered a
country to seek asylum. While every asylum application should be examined by
competent authorities, EU law permits the use of detention during this process only in
very specific circumstances. 15 Greek legislation, at first glance, respects this principle
as it states that ’a third country national ... that seeks international protection is not
detained for the reason only that (s)he has applied for international protection and the
fact that (s) he has entered the country illegally and remains with no residence
permit’. 16 Despite this, there has been an increased use of detention in the
implementation of the law and as a consequence, asylum seekers are likely to find
themselves in detention, regardless of their individual circumstances.
In 2019, Greece introduced a new piece of legislation which meant that people applying
for asylum could be detained based on a list of grounds linked to their asylum
application. This includes the determination of their identity, risk to national security
and public order, and risk of absconding. 17 According to Greek and EU law, people who
are in detention and apply for asylum can only remain detained after individual
evaluation and if no alternative measures can be implemented. 18
This legislation also states that the authority responsible for issuing a decision on
detention must provide a written administrative decision including a proper justification
for the decision. This should include the duration of the detention, the detainee’s rights,
and the possibility of legal aid.
The Council of State notes that danger to public order has to be ‘specifically justified’, 19
while the Court of Justice of the EU states that the behaviour of the migrant has to
comprise a ‘real and present’ danger to public order. 20 The Greek Ombudsman has itself
remarked that there is an abuse of administrative detention based on the invocation of
public order and national security concerns. 21 Moreover, the Returns Directive
2008/115/EC does not provide for detention on public order grounds, and thus the
relevant provision of Article 30 (1) c, which gives this power to the Police Directorate, is
clearly a misinterpretation of EU law. Any threat to public order should be based on a
specific accusation addressed to the applicant by the competent judicial authorities.
In summary, the new legislation outlines the reasons why asylum seekers may be
detained. While it does not, on the surface, seem to put those who apply for asylum
while in detention in a worse position than those who apply while not in detention, that
is not the case in practice.
Government figures show that in 2020, 4,062 asylum seekers applied for asylum while in
detention, 22 most of whom remained in detention while their application was assessed.
Of those applications, more than 90% (3,692) were rejected; only 316 (7.8%) were
accepted. Another 79 decisions awarded subsidiary protection to the applicants. 23
8