DH-DD(2020)929: Rules 9.2 and 9.6 Communication from an NGO in S.D. v. Greece and reply from the authorities. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers. removal, despite their asylum seeker status and corollary right to remain on Greek territory, as discussed above.40 Administrative Courts have upheld pre-removal detention orders imposed on asylum seekers for reasons such as the violation of a geographical restriction or the use of false documents, despite there being no such grounds for depriving asylum seekers of their liberty in domestic legislation. 41 21. In a similar vein, in the context of review of detention during the period of effect of the March 2020 suspension of access to the asylum procedure, domestic case law has made a highly objectionable interpretation of the legal status of the decree and its effect on Greece’s obligations to guarantee access to asylum under EU and international law.42 In cases represented by RSA, the Administrative Court of Athens did not examine whether the deprivation of liberty of the applicants satisfied the criteria and conditions set by the IPA. It erroneously failed to engage with the applicants’ status as “asylum seekers” and thereby examined the lawfulness of the detention orders solely through the prism of return legislation, despite acknowledging that they had expressed the intention to seek international protection; an act triggering the applicability of their right to remain and related entitlements.43 22. Moreover, in the aforementioned cases, the Administrative Court of Athens entirely disregarded certain applicants’ acute vulnerability due to conditions such as 8.5 months’ pregnancy, in dereliction of express prohibitions on expelling pregnant women under domestic law.44 Crucially, in doing so the Court ran counter to the reasoning of the Council of State, which granted an interim order (προσωρινή διαταγή) to suspend deportation in the case of two mothers facing removal pursuant to the Decree, on the basis of their vulnerability.45 23. With regard to cases of asylum detention pursuant to the IPA, Administrative Courts fail to conduct an appropriate assessment of grounds for maintaining individuals in detention, and the necesssity and proportionality thereof. In the majority of cases, courts solely refer to the “risk of absconding”, which they deem to be established where applicants fail to provide evidence of a stable residence address,46 despite the fact it is incumbent on the state to provide them with material reception conditions and accommodation.47 Even for applicants whose transfer to another EU Member State is pending pursuant to the family unity provisions of the Dublin III Regulation,48 courts have upheld the prolongation of detention due to a risk of absconding, including for an 8-month pregnant woman in one case.49 In addition, Administrative Courts have disregarded Asylum Service information – pursuant to Article 46(4) IPA, as discussed above – advising against the use of detention for the purposes of examination of the asylum claim.50 40 41 42 43 44 45 46 47 48 49 50 Contrast Administrative Court of Mytilene, Decision AP25/2020, 31 January 2020; Decision AP44/2020, 20 February 2020; Decision AP116/2010, 5 June 2020, where objections against detention were accepted due to the individuals’ asylum seeker status. Administrative Court of Athens, Decision AP867/2020, 16 July 2020; Administrative Court of Piraeus, Decision AP414/2019. RSA, Rights denied during Greek asylum procedure suspension, April 2020, 6. See Administrative Court of Athens, Decisions 358/2020, 359/2020 and 360/2020, 7 April 2020. Administrative Court of Athens, Decisions 356/2020 and 357/2020, 3 April 2020. Article 79(1)(e) L 3386/2005; Article 41 L 3907/2011s. RSA, Rights denied during Greek asylum procedure suspension, April 2020, 7. See e.g. Administrative Court of Rhodes, Decision AP464/2020, 17 July 2020, para 4(b). Article 56(1) IPA. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or stateless person (recast) [2013] OJ L180/31. Administrative Court of Rhodes, Decision AP464/2020, 17 July 2020. Administrative Court of Athens, Decision AP867/2020, 16 July 2020, despite Autonomous Asylum Unit of Amygdaleza, Information 19852, 4 June 2020. RSA COMMENTS │ 2020 6