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Social & Legal Studies 34(3)
article introduces the notion of ‘subsistence exchange contracts’, to develop a broader
interpretation of the concept of ‘deprivation of liberty’ that can bridge the gap between
asylum seekers’ lived experiences and the law. It argues that such a broader interpretation
is necessary in order to provide adequate protection against infringements of liberty that
are just as severe as in cases of standard coercion. Such an interpretation would not mean
that every situation in which an asylum seeker is contained in a semi-open reception
centre entails a deprivation of liberty, but it does mean that the applicability of the
right to liberty should not be automatically and categorically rejected in such situations.
Instead, other possible relevant factors should be taken into account when establishing
whether there is a deprivation of liberty, such as the duration of the confinement, the procedural protection and the nature and degree of the actual restrictions imposed on the
inhabitants. Finally, this article argues that if this interpretation were applied to the reception centres in Greece, the conclusion should be that, based on the accumulation of surveillance and control measures and the specific context, asylum seekers living in these
centres are deprived of their liberty. Consequently, the confinement there should have
a proper legal basis in domestic law and habeas corpus safeguards should be provided.
While others have highlighted the need to act in conformity with general rule of law standards (Ruiz Ramos, 2024b) or to revise the current human rights framework (Cornelisse,
2022) in order to keep up with practices of containment at European borders, this article
does not argue for (extra) procedural protection against restrictions of liberty, but argues,
informed by asylum seekers’ lived experiences and moral philosophy, that these containment practices could, under certain circumstances, be legally qualified as full swing
deprivations of liberty.
After discussing the context and the lived experiences of asylum seekers subjected to
the measures applied in the Greek reception centres, this article examines case law of the
European Court of Human Rights about Article 5 ECHR as regards the qualification of a
situation as deprivation of liberty. It will also pay some attention to the concept of detention as used by the Court of Justice of the European Union and human rights organizations. Finally, it discusses the concept of ‘subsistence exchange contracts’, as
introduced by Elizabeth Ashford, as an alternative way to assess the voluntary nature
of subjecting to conditions that interfere with negative rights, and applies it to the measures imposed on asylum seekers in the Greek reception centres.
The EU Reception and Identification Centres in Greece
This is the shock. You think you will find a very nice situation, but everything is the opposite. It’s prison. They say this is Europe, this is freedom – but it is not like this.
(Tasneem, a woman from Sudan, explaining her Artwork in Amnesty International, 2024)
For many years, asylum seekers on Greek islands have been living in deplorable conditions. Reception centres were severely overcrowded, and many had to live in makeshift
camps without access to adequate sanitary conditions, health care and enough food and
clothing. The Council of Europe Commissioner for Human Rights described the conditions, after a visit to Lesvos, Samos and Corinth in 2019, as ‘desperate’ and ‘abysmal’ and