III. SECTION 1: THE RIGHT TO BE FREE This section analyses Greece’s right to detain migrants and the procedures the state must follow in order to do so. The first part of Section 1 looks at the grounds for detention in Greece and Europe. Sub-sections A-C look at the different legal statuses of migrants in Europe and analyse the grounds under which states may detain each group. In doing so, sub-sections A-C distinguish between asylum seekers and migrants: asylum seekers are considered lawfully present in Greece, while migrants lack any legal status in Greece or elsewhere in the EU. Sub-section D applies this legal framework to the situation on Kos to show that, in many cases, migrants on Kos are detained unlawfully. Sub-section E then goes more in-depth into the detention grounds and practices on Kos for vulnerable persons. Having analysed whether there are sufficient legal grounds to detain a person in the first place, the second half of Part I looks at the procedures the authorities must follow when detaining someone. Section F looks specifically at the procedural safeguards the law grants to detained migrants – including access to lawyers, information on the reasons for their detention, and an individualised assessment – before discussing the right to an effective remedy. Section 1 concludes that the authorities 1) frequently detain asylum seekers and migrants unlawfully, including vulnerable persons, 2) fail to ensure procedural guarantees such as access to information and lawyers, and 3) fail to protect asylum seekers and migrants’ right to an effective remedy. A. The Right to be Free as a Fundamental Right The right to liberty is among the most fundamental rights in Europe. As laid out in Article 5 ECHR and Article 6 Charter of Fundamental Rights (CFR) of the EU,66 states are generally prohibited from detaining people, except under limited, exceptional circumstances. Thus, certain preconditions must be met in order for detention to be legal. In the case of migrants, those preconditions depend significantly on a person’s legal status. B. Who can be detained and for what reason? The importance of a person’s legal status For detention to be lawful there must be a legal provision that allows the state to deprive a person of his or her liberty. For migrants who arrive on the Eastern Aegean islands in Greece, those provisions exist under domestic and European Law and distinguish between people who are asylum seekers and those who are not. On Kos and elsewhere in Greece, Greek authorities distinguish between asylum seekers and migrants in the following three ways: 1. 2. 3. New Arrivals are not considered asylum seekers; Persons who expressively formulate their wish for asylum are considered asylum seekers; Persons with a final, rejected asylum applications are not considered asylum seekers. This distinction is of utter importance, because different legal regimes are applicable to the two different groups—the EU Reception Conditions Directive governs the treatment of asylum seekers, while the EU Return Directive governs the treatment of migrants. While for categories 2 and 3 the legal qualification as either 66 Hereinafter: CFR. 7 DETENTION OF MIGRANTS ON THE ISLAND OF KOS