European Commission. 3. Stop dismissing asylum applications as inadmissible based on the “safe third
country” concept. ‘578
It should also be noted that as of 2021 ‘the Commission has requested the Greek authorities to apply
Article 38(4) of the Asylum Procedures Directive (2013/32/EU), to the extent the conditions are met, to
applicants whose applications have been deemed inadmissible on the basis of the Safe Third Country
Concept under the Joint Ministerial Decision of 7 June 2021, in order to avoid the legal limbo you refer to.
The Commission will continue to monitor the situation on the ground’.579
Moreover, the Greek Ombudsman highlighted that:580
‘if readmission to that country is not possible, the application must be examined by the Greek
authorities on the merits. Otherwise, this creates a perpetual cycle of admissibility assessments
of applications for international protection, without ever examining their merits and without
readmission to seek protection in the safe third country being possible. As a result, the fulfilment
of the objective of the Geneva Convention and of relevant European and national legislation on
refugee protection is essentially rendered null and void.’
According to internal SOP of the Asylum Service in October 2021, still in force, asylum seekers of these
nationalities that had crossed from Türkiye a year ago or more must be considered as not having a special
link with the country or that in any case the special link with Türkiye had been breached. Subsequently,
this was the rationale, applied to the majority of cases examined before the RAOs on the islands, leading
to admissibility decisions and an examination of the asylum applications on their merits. Several first
instance decisions with the same reasoning have been issued since October 2021, namely since the
aforementioned SOP started to be implemented. This has been of great importance for all Syrian cases,
and even Afghanis and Somalis stuck in “limbo” in Greece for more than a year, many of whom were
waiting for the examination of their subsequent applications. However, this practice was not consistent.
For instance, there were cases, where the Asylum Service had applied the new JMD even to the cases
of old arrivals that had been already referred to the regular procedure.
On 7 October 2021, GCR and Refugee Support Aegean (RSA) filed a judicial review before the Greek
Council of State for the annulment of the JMD 42799/03.06.2021 designating Türkiye as a safe third
country for nationals of Syria, Afghanistan, Somalia, Pakistan and Bangladesh. 581 On 4 March 2022,
requests for the continuation of the hearing were filed before the Council of State for the annulment of the
subsequent JMD, 458568/15.12.2021, of the Minister of Migration and Asylum and the Deputy Minister
of Foreign Affairs. The application for annulment was examined before the Plenary of the Council of State
on 11 March 2022.
On 3 February 2023, the Plenary of the Council of State issued the decision No 177/2023,582 which
postpones the final judgment and refers the following questions to the Court of Justice of the European
Union (CJEU) for a preliminary ruling, given that there are reasonable doubts as to the meaning of Article
38 of the Directive:
a) Must Article 38 of the Asylum Procedures Directive, read in conjunction with Article 18 of the
Charter of Fundamental Rights of the European Union, be interpreted as precluding national
legislation, designating a third country as generally safe for certain categories of applicants for
578
579
580
581
582
Letter to the Director of the Asylum Service by co-signing civil society organisations, European Commission
dispels Greece’s designation of Türkiye as a ‘safe third country’ for refugees – Repeal the national list of safe
third countries, Ref. no: β/72/27.10.2022, 27 October 2022, available in Greek at: https://bit.ly/40Lhq5J.
European Commission, Directorate General for Migration and Home Affairs, Ref.Ares(2021)7836311, 17
December 2021.
(RSA, Greece arbitrarily deems Türkiye a ‘safe third country’ in flagrant violation of rights, February 2022,
available at: https://bit.ly/3iIFsen, 5; Ombudsman, Letters 301551/41050/2021 and 301755/41017/2021, 22
July 2021.
GCR, ‘Decision declaring Türkiye a ‘safe third country’ brought before Greek Council of State’, 7 October
2021, available at: https://bit.ly/3iLkeMJ.
Plenary of the Council of State, 177/2023, available in Greek at: https://bit.ly/426WSpv. See also RSA, Key
points of the Greek Council of State ruling on the ‘safe third country’ concept’, 17 February 2023, available at:
https://bit.ly/3FB91KC.
132
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