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Social & Legal Studies 34(3)
If, however, we assess the situation of residents of the Greek CCACs from the perspective of subsistence exchange contracts, we could arrive at a different conclusion. Asylum
seekers arriving at one of the Greek islands are usually entirely dependent on the government
for meeting their basic needs. During the first six months of the asylum procedure, asylum
seekers in Greece are not allowed to work. After that period, access to the labour market was
seriously hampered by the economic situation in Greece and administrative obstacles to
obtaining necessary documents and opening bank accounts (Asylum Information
Database, 2024). In addition, there is hardly any alternative housing available on the
islands and they cannot leave the islands. Seen in that perspective, asylum seekers’ decision
to subject to the surveillance and the curfew in the CCACs is just as involuntary as in
extreme cases of standard coercion, as the alternative, that is, refusing to do that, is entirely
unsustainable. That would, after all, imply a situation of severe destitution (if they stay on the
islands), or forgoing their fundamental right to asylum and a fair procedure (if they leave the
islands without permission). Hence, if we focus on the voluntariness of the individual’s
choice, instead of on the wrongfulness of the behaviour of the state, as argued by
Ashford, it turns out that the threat posed to the enjoyment of a negative right (i.e. in this
case, the right to liberty), is just as severe as in the case of standard coercion.
This interpretation better fits asylum seekers’ experiences, as documented in the
numerous research reports discussed above. The general experience of being in a
prison can be explained by the fundamental involuntary character of their stay there,
even if staying there is a way out of their otherwise destitute situation. In addition, this
interpretation would entail that the containment measures in the Greek centres can
amount to deprivation of liberty and, consequently, that they need to comply with the
conditions and habeas corpus safeguard resulting from the fundamental right to
liberty. This significantly constrains the power of the state.
Conclusion
Asylum seekers living in the Greek CCACs are subjected to severe surveillance and
control measures, including CCTV, barbed wire fences, body searches and an extensive
curfew. From empirical research it appears that asylum seekers experience living in these
CCACs as living in a prison. This article employed a case law analysis to show that
because of the semi-open character of these centres, human rights law does, however,
not qualify living in such centres as a deprivation of liberty, as a result of which important
(habeas corpus) safeguards do not apply.
This article presents the notion of ‘subsistence exchange contracts’, as developed by
Elizabeth Ashford, as an alternative way to assess the interferences with asylum seekers’
liberty. If we focus on the involuntariness of asylum seekers’ choices, instead of on the
wrongfulness of the behaviour of the state, it turns out that the threat posed to their right
to liberty by the containment measures in the Greek centres is just as severe as in the
case of standard coercion. That does not mean that staying in a semi-open centre is
exactly the same as staying in a fully closed centre. However, if, based on the unsustainability of the alternative, staying in such a centre is just as involuntary as staying in a closed
centre, then the same kind of legal protection needs to be available against such severe interferences with the right to liberty.
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