asylum seekers or not is clear, the Greek authorities do not consider the first group to be asylum seekers. However, this is neither in line with EU nor domestic law. 1. Asylum Seekers Article 2(b) EU Asylum Procedures Directive defines an asylum application as “a request made by a third-country national or a stateless person for protection from a Member State, who can be understood [emphasis added] to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection outside the scope of Directive 2011/95/EU, that can be applied for separately.” Considering the broad language of this law,, it is hard to imagine that people who reach the Greek coast irregularly by boat from Turkey have not or will not express their will to apply for asylum.67 Furthermore, the European Court of Human Rights68 concluded in Hirsi Jamaa that the failure of asylum (or protection) seekers to explicitly request asylum does not exempt states from their human rights obligations – the Court specifically emphasized a state’s requirement to comply with the prohibition against refoulement (“non-refoulement“).69 In addition, Member States are obliged under European70 and international law71 to provide access to the asylum procedure. In other words, European law does not limit the meaning of an asylum application to a formal application filed with the relevant domestic authorities. Rather, people who arrive on the Greek islands—typically on small, rubber dinghies from countries with high numbers of asylum seekers—request asylum by simply turning up on European shores. Accordingly, unless an explicit objection against applying for asylum is raised by a new arrival, those reaching the Greek islands are to be defined as asylum seekers with the legal right to be present on Greek territory.72 2. Persons who reside unlawfully Given that everyone who arrives on the Greek islands is automatically an asylum seeker for the duration of their asylum procedure, only those with a final rejection of their asylum application can be considered unlawfully present.73 An asylum application is only finally rejected when there is no longer any legal possibility to appeal the rejection (see Article 2 (e) EU APD).74 Those with final rejections who are considered to be unlawfully present must therefore undergo the return procedure (cf. below). 67 In detail Markard/Nestler/Vogt/Ziebritzki: No State of Exception at the EU External Borders, March 2020, p. 21 et seq., available at: https://bit.ly/32W3BGg. 68 Hereinafter: ECtHR. 69 ECtHR, Judgment of 23/02/2012 - No. 27765/09 - Hirsi Jamaa et al, para. 133. See also EASO, Judicial Analysis - Detention of applicants for international protection in the context of the Common European Asylum System, 2019, p. 17 et seq. 70 Cf. Art. 6, 7 APD. In this regard, most recently CJEU, Judgment of 17/12/2020 - C-808/18 - European Commission v. Hungary, para. 87 et seq. 71 This results, for example, from the procedural dimension of the prohibition of refoulement derived from Art. 3 ECHR as well as the prohibition of collective expulsion, cf. on this with reference to relevant case law of the ECtHR Markard/Nestler/Vogt/Ziebritzki: No State of Exception at the EU External Borders, March 2020, p. 12 et seq, available at: https://bit.ly/32W3BGg. 72 See also in detail Markard/Nestler/Vogt/Ziebritzki: No State of Exception at the EU External Borders, March 2020, p. 21 et seq., available at: https://bit.ly/32W3BGg. 73 According to Art. 104 (3) L. 4636/2019 “The option of exemption from the right of stay in accordance with paragraph 1 shall apply only in the cases referred to in Article 90 herein provided that the applicant receives the necessary assistance of an interpreter and legal assistance and has at least one week’s time to prepare the application and submit to the Independent Appeals Committee the arguments in favour of the recognition of his or her right of stay in the territory of the country pending the outcome of the appeal.” In other words, asylum seekers on Kos who have received a first rejection are technically unlawfully present in Greece. Accordingly, lawyers submit an application for the right to remain along with the appeal. However, in practice the Appeals Committees examine the appeal and right to remain applications together, and so in practice Art. 104 (3) is fairly inconsequential. 74 In the Greek asylum procedure, two legal remedies are permitted, the (administrative) “Appeal”, Article 92 et seq. Greek Asylum Law 4636/2019 and the judicial remedy “Annulment”, Article. 109 Law 4636/2019. According to Article 63(a) Law 4636/2019, the decision made by the Appeals Committee shall be considered final. Because Article 46(1) APD requires an effective legal remedy “before a court or tribunal,” this classification is in any case doubtful, but not discussed in depth in this study. 8 DETENTION OF MIGRANTS ON THE ISLAND OF KOS