return-related provisions apply to third-country nationals “who illegally reside on Greek
territory”,7 subject to an express prohibition on issuing return decisions to persons with a
right to remain, including asylum seekers.8 In addition, L 3386/2005 expressly excludes
from its scope “refugees and persons who have submitted an application for
recognition as a refugee”.9 Finally, Article 46 IPA expressly provides that “Third-country
nationals or stateless persons are not detained on the sole ground of making an
application for international protection or for irregularly entering and/or residing in the
country without a lawful residence permit”. These persons may only be detained under
exceptional circumstances “… where necessary, following an individualised
assessment and on condition that alternatives cannot be applied”, solely based on the
exhaustive grounds laid down in that article.
Police authorities disregard not only the prior registration of persons’ intention to seek
asylum and the corollary granting of a pre-registration number,10 but also the prior
lodging of asylum applications by the Reception and Identification Service (RIS) 11 and
the storing of persons’ fingerprints in the Eurodac database as “category 1” (asylum
seekers), per applicable practice on islands such as Kos. 12 They therefore issue return or
deportation decisions in direct contravention of the international, EU and domestic
legal framework and in direct violation of the non-refoulement principle and of the
prohibition on penalisation of refugees for irregular entry, enshrined in Articles 33(1) and
31(1) of the 1951 Refugee Convention.
Case study: Ammar* is a Palestinian refugee from Gaza who arrived in Greece
through Kos at the end of February 2022. In early March, he was transferred to
the Closed Controlled Access Centre (CCAC) of Kos and underwent reception
and identification procedures, during which the RIS completed the lodging of
his asylum claim and stored his fingerprints as “category 1” in Eurodac.
Following that process, however, the B’ Dodecanese Police Directorate issued
a readmission and detention order against Ammar and held him in the Kos preremoval centre. Ammar remained detained there until the issuance of a new
detention order under Article 46 IPA in April 2022 and was only released after
obtaining refugee status.
Greek authorities arbitrarily and systematically impose deprivation of liberty as a result
of an unlawful derogation from the Return Directive and of the use of deportation
proceedings against asylum seekers. According to official data of the Ministry of Citizen
Protection for 2021, almost all deportation decisions issued under L 3386/2005 by way
of derogation from the Return Directive were accompanied by detention. Conversely,
65% of return decisions under L 3907/2011 included detention: 13
7
8
9
10
11
12
13
Article 17 L 3907/2011.
Article 21(5) L 3907/2011.
Article 2(c) L 3386/2005.
Note the specific reference to registration of “intentions” by police authorities in the
Directorate of the Hellenic Police Circular No 1604/16/1195968 of 18 June 2016.
Based on Article 65(1) and (7) IPA, upon registration of all necessary elements.
Articles 9(1) and 24(4) Eurodac Regulation.
Ministry of Citizen Protection, Reply to parliamentary question, 7017/4/25899-γ΄, 16 March
2022, available at: https://bit.ly/3jE0Od9.
2
RSA LEGAL NOTE│ 2022