(1)

The transfer of applicants for international protection to Greece under Regulation (EU) No 604/2013 of the European Parliament and of the Council (1) (hereafter ‘the Dublin Regulation’) has been suspended by Member States since 2011, following two judgments of the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU) (2), which identified systemic deficiencies in the Greek asylum system, resulting in a violation of the fundamental rights of applicants for international protection transferred from other Member States to Greece under Council Regulation (EC) No 343/2003 (3).

(2)

The Committee of Ministers of the Council of Europe has been monitoring the situation in Greece since the M.S.S v Belgium and Greece judgment was delivered by the ECHR in 2011 on the basis of progress reports that Greece is required to submit as evidence of the execution of the judgment and on the basis of evidence from NGOs and international organisations, such as the United Nations High Commissioner for Refugees (UNHCR), that operate in Greece.

(3)

As a result of the M.S.S judgment, Greece committed to reform its asylum system on the basis of a national Action Plan on Asylum Reform and Migration Management presented in August 2010 and revised in January 2013 (hereafter ‘the Greek Action Plan’). On 1 October 2015, Greece presented a Roadmap on the implementation of the relocation scheme and hotspots to the Council, which also outlines certain actions to be prioritised to ensure implementation of agreed pending actions in the areas of asylum and reception.

(4)

On 10 February 2016, the Commission addressed a first Recommendation to the Hellenic Republic on the urgent measures to be taken by Greece in view of the resumption of transfers under the Dublin Regulation (hereafter ‘the first Recommendation’) (4). Since then, there have been continuous efforts by the Greek authorities, assisted by the Commission, the European Asylum Support Office (EASO), Member States and international and non-governmental organisations (NGOs) to improve the functioning of the asylum system, in line with the seven points included in the first Recommendation.

(5)

At the same time, the current refugee and migration crisis continued to place enormous pressure on the Greek asylum and migration systems as the main country of first entry from the Eastern Mediterranean route. Between January and April 2016, over 157 000 irregular migrants arrived in Greece. Shortly after the Commission's first Recommendation to Greece, the EU-Turkey Statement was agreed by the members of the European Council and the Turkish Government in March 2016. This statement has led to a significant decrease in the number of daily arrivals to Greece from Turkey, while also placing new responsibilities on the Greek authorities (5). The situation in Greece has also changed significantly following the de facto closure of the Western Balkans route, preventing third-country nationals from onward travel. As a result, approximately 57 000 irregular third-country nationals have become stranded in Greece (6). At the same time, the relocation schemes have not yet been implemented satisfactorily by all Member States and have yet to relieve Greece of the pressure it is facing (7).

(6)

A so-called ‘pre-registration’ exercise began on 8 June 2016 to register all those irregular third-country nationals who want to apply for asylum that arrived in Greece before 20 March 2016 and who did not make any attempt to regularise their stay with the Greek authorities (8). This exercise is being carried out by the Greek Asylum Service in conjunction with EASO, the UNHCR and the International Organisation for Migration (IOM), and supported by the Commission. The pre-registration exercise will last until end of July 2016 and it is anticipated that some 50 000 applicants are likely to claim asylum who will need to be accommodated in Greece to await a decision on their case as regards either eligibility for international protection, relocation or transfer to another Member State under the Dublin Regulation. The exercise is expected to facilitate and accelerate the formal lodging of applications for international protection with the Asylum Service, once they have already been pre-registered. Under the new system, teams will be deployed to the open reception facilities to register people directly in the accommodation sites. At the end of the registration, people will be issued with an official asylum seeker card. The expected increase in asylum applications following this pre-registration exercise is likely to result in at least four times as many asylum applications in 2016 as were received in 2015 (13 197).

(7)

Despite the continuous steps taken by Greece to improve its asylum system, there is still a significant amount of progress that needs to be achieved before a resumption of transfers under the Dublin Regulation can be envisaged. This recommendation sets out the main areas of reform that still need to be addressed by the Greek authorities to remedy the shortfalls in the asylum system as outlined in the judgments referred to above, to ensure the reinstatement of transfers under the Dublin Regulation.

(8)

On 7 March 2016, the Commission received a first progress report from Greece that outlined some of the improvements made on the issues specified in the Commission's first Recommendation. By letters dated 18 May and 8 of June 2016, the Greek authorities provided additional information.

(9)

The Commission has noted that progress has been made to reform the Greek national law and ensure that the new legal provisions of the recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council (9) (‘Asylum Procedures’) and some of the recast Directive 2013/33/EU of the European Parliament and of the Council (10) (‘Reception Conditions’) have been transposed. A new law (Law 4375/2016) was adopted by the Greek Parliament on 3 April 2016, but not all provisions have entered into force (11).

(10)

Following the European Leaders' Summit of 25 October 2015, Greece committed to increase its reception capacity for applicants for international protection and irregular migrants to 30 000 places by the end of 2015 and the UNHCR committed to provide rent subsidies and host family programmes for at least 20 000 more persons through a separate scheme run by them. Greece has made progress to establish a number of emergency reception facilities and according to the daily information released by the Greek authorities on 10 June 2016 there are over 50 000 temporary emergency reception facilities and permanent reception places available for both irregular migrants and applicants for international protection in Greece (12).

(11)

Although Greece has significantly increased its overall reception capacity for both irregular migrants and applicants for international protection, the majority of these facilities are only temporary emergency facilities and some provide only the most basic reception conditions for those who are accommodated there, such as food, water, sanitation and basic medical care whilst others do not even cater for the most basic needs (13). Whilst this may be sufficient for a very short period until individuals can be moved to better facilities, these conditions and facilities still fall far short of the requirements stipulated in Directive 2013/33/EU for applicants for international protection. It is therefore essential that Greece progressively establishes, as a matter of urgency, adequate dedicated permanent open reception capacity for asylum applicants, which are of an appropriate standard, and that it maintains a sufficient capacity in terms of temporary facilities to accommodate any shortfall in capacity resulting from unexpected inflows.

(12)

In January 2016, a Delegation Agreement for a total of EUR 80 million was signed between the Commission and the UNHCR in order to establish the 20 000 places in open accommodation primarily for the benefit of applicants for international protection eligible for relocation (14). Such places will initially be established under a rental apartment scheme to be managed by UNHCR. While these places are currently being established, a revision of the Delegation Agreement is being discussed, in order to allow for the establishment of approximately 6 000 places in relocation centres instead of apartments, and to confirm that the target group to be accommodated can also include asylum seekers who will not be relocated or those who could be transferred to Greece in the future under the Dublin Regulation. According to UNHCR data as of 6 June 2016, 6 385 reception places for applicants for relocation have been established, the majority of which are in hotels and apartments (15).

(13)

Substantial improvements have been noted for the establishment of the Regional Asylum Offices. Greece's law provides for the establishment of Regional Asylum Offices in the regions of Attica, Thessaloniki, Thrace, Epirus, Thessaly, Western Greece, Crete, Lesvos, Chios, Samos, Leros and Rhodes (16). So far eight Regional Offices have become operational in the regions of Attica, Thrace, Thessaloniki, Lesvos, Samos, Chios and Rhodes. An additional Regional Asylum Office is due to be opened in the region of Attica (Piraeus) in the coming months. A further four Regional Asylum Offices are due to become operational in 2016 in the area of Kos, Leros, Crete (Heraklio) and Western Greece (Patra) with the latter office expected to be operation very shortly. This leaves the planned Regional Asylum Offices to be established in the region of Thessaly (Volos) and Epirus (Ioannina). Furthermore, two additional asylum units in Chios and Kos have been established, bringing the total number of asylum units to five (Amygdaleza, Xanthi, Patra, Chios and Kos). A Relocation Unit in Alimos has also been set up and is expected to be operational in July 2016.

(14)

In their first report, the Greek authorities also reported that they were in the process of recruiting more staff for the Asylum Service to increase its processing capacity. There are 370 members of staff currently working in the Asylum Service, which is double the capacity of the number of human resources that were available in 2015. One third is fixed-term contract staff, funded from different EU and EEA funding sources. The Greek Parliament has approved a further 300 posts for permanent members of staff to be hired over the forthcoming months (17). This is in addition to the fixed-term staff hired by the UNHCR and the Member State experts deployed via EASO to the Greek Asylum Service for a fixed period. However, it is clear that the current and planned staffing levels for the Asylum Service still fall far short of what is required to process the current and likely future case-load in an adequate manner. Greece should ensure that the Asylum Service is further reinforced with substantially more staff and material resources for it to be able to process the increase in asylum applications. To that end, a needs assessment should be carried out that takes into account the number of asylum applications that is likely to be handled by the Greek Asylum Service at any one time and the number of available staff required or likely to be required to process those applications.

(15)

The new Appeal Authority and Appeals Committees established by the recently adopted legislation (Law 4375/2016) should be progressively established and fully in place by the end of 2016. Given the likely significant increase in the number of applications that will be made in Greece in the coming months, a fully staffed Appeals Authority, capable of handling an expected significant increase in the number of appeals, is essential. Access to an effective remedy in Greece was a particular criticism of the M.S.S judgment, thus it is imperative that where in the future a reinstatement of transfers under the Dublin Regulation may occur, asylum applicants must be able to have an effective recourse to a judicial remedy against a negative decision on their claim.

(16)

In the interim, the old ‘Backlog’ Appeal Committees that were established to hear asylum appeals from Greece's backlog of cases have been given an additional mandate. For a transitional period, these ‘Backlog’ Appeal Committees intend to hear, in addition to substantive appeals on first instance decisions, the appeals against the decisions based on grounds of admissibility as part of the EU-Turkey Statement.

(17)

More progress has been made on the long-standing backlog of appeals under the ‘old procedure’ regulated by Presidential Decree 114/2010. The current backlog stands at approximately 13 975 cases (from a total of approximately 51 000 cases that were considered as part of the backlog at the beginning of 2013). The Greek authorities have committed to grant a permit for humanitarian purposes to persons whose application for asylum has been pending for a considerable time and who are eligible to acquire a residence permit on humanitarian or other exceptional grounds, according to the Greek Law 4375/2016. It is anticipated that approximately 10 000 backlog cases will be closed through the implementation of this measure. The residence permit will be issued for a period of two years and can be renewed (18). It will accord the same rights and benefits as those granted subsidiary protection status in Greece (19). Greece should continue its progress with clearing the backlog of pending appeals in this regard, ensuring that applicants with an outstanding appeal have an opportunity to exercise their right to an effective remedy.

(18)

The provision of free legal aid has been included in the new law (Law 4375/2016) for applicants at the appeal stage; however, until now, no free legal aid is being given in practice by the Greek authorities. A Ministerial Decision implementing the provision for legal aid under Law 4375/2016 is being finalised and the Greek authorities launched on 8 June 2016 a call for proposals for the provision of free legal aid and representation at the appeals stage for 6 750 eligible applicants under their national programme under the Asylum Migration and Integration Fund (AMIF) to support a roster of attorneys for legal aid (20). This call will end on 24 June 2016. Additionally, a grant agreement was awarded to the UNHCR under EU emergency assistance funding for the total amount of EUR 30 million. This funding will, amongst other things, be used by the UNHCR to provide free legal assistance to applicants for international protection at the appeals stage for a period of up to four months until the Greek authorities are expected to put in place their own free legal aid scheme. Greece should take the necessary steps to guarantee the right to free legal aid in the asylum procedure without delay.

(19)

The new Law 4375/2016 provides for a new Directorate for Reception and a Directorate for Social Integration that both include specialised departments for the reception and integration of unaccompanied minors, including the provision of a representative. Despite this, implementing measures still need to be adopted by the Greek authorities to ensure that appropriate procedural guarantees and reception conditions are provided in practice to unaccompanied minors. While a Ministerial Decision concerning the age assessment of unaccompanied minors seeking asylum has already been adopted by the Greek government (21), a further Presidential Decree that should include provisions for an efficient guardianship system still needs to be adopted.

(20)

As of June 2016, the total number of available reception facilities for unaccompanied minors in Greece is 585 places. These facilities are currently full and there is a waiting list for 625 unaccompanied minors who need to be placed in appropriate facilities. According to the letter sent by the Greek authorities to the Commission on 8 June 2016, Greece intends to establish a further 800 reception places for unaccompanied minors by end of July 2016. Greece needs to ensure that an appropriate number of reception facilities for unaccompanied minors are in place to deal with the demand for such accommodation.

(21)

There are growing concerns from NGOs that many children in Greece are unable to access education and that the situation for unaccompanied minors is in general precarious, with some citing that children are still held in detention until appropriate accommodation can be found for them.

(22)

The European Commission has provided substantial funding to Greece to support the country in its efforts to bring its asylum management system up to EU standards.

(23)

Since the beginning of 2015, a total of EUR 262 million in emergency assistance has been awarded through Home Affairs Funds (AMIF and Internal Security Fund (ISF)) to Greece, either directly to the Greek authorities or through Union Agencies and international organisations operating in Greece, of which some EUR 81 million was awarded in May 2016. On 20 May 2016, EUR 56 million in emergency funding was awarded to the Greek authorities (EUR 13 million), to IOM (EUR 13 million) and to UNHCR (EUR 30 million), to increase the capacities of the Greek authorities to register newly arriving migrants and to process their asylum claims, create better conditions for vulnerable migrants and strengthen the registration and asylum process with additional human resources, ensure better IT infrastructure, increase availability of interpreters and ensure better access to information. On 24 May 2016 the Commission awarded EUR 25 million in emergency funding (AMIF) to the EASO to enhance its capacity to further support the Greek authorities. This funding will contribute to the implementation of the emergency response plan developed together by the Commission, the Greek authorities and relevant stakeholders to address the ongoing humanitarian situation on the ground and the implementation of the EU-Turkey Statement of 18 March.

(24)

This emergency assistance comes on top of the EUR 509 million allocated to Greece for the period 2014-2020 through its national programmes under the AMIF and ISF Funds, thus making Greece the first beneficiary of EU Home Affairs funds amongst EU Member States.

(25)

Greece should ensure that such financial resources are fully used in the most efficient and effective manner and without further delay. For that purpose, the ongoing revision of Greece's national programmes under the Home Affairs funds (AMIF, ISF) to adjust them to the new priorities should be urgently completed. Likewise, the process of transfer of the authority responsible for the management of those funds to the same Ministry managing also the structural funds, should be completed as a matter of urgency in order to ensure a more efficient use of available resources. Greece should notably complete a number of practical implementation issues (staffing, management and control, audit opinion, formal notification) so that the new Responsible Authority can become operational before July 2016.

(26)

As acknowledged in the Commission's Communication of 4 March 2016 on the ‘Back to Schengen’ (22), ensuring a fully functioning Dublin system is an indispensable part of the wider efforts needed to stabilise the asylum, migration and border policy. These efforts should lead to a return to a normal functioning of the Schengen area, at the latest by December 2016. It is therefore important that Greece takes as a matter of urgency the outstanding actions identified in this recommendation so as to ensure that a resumption of transfers to Greece under the Dublin Regulation can take place within the same time-frame, and at the latest by December 2016. At the same time, reforming the Dublin rules as proposed by the Commission (23), based on the objective of solidarity and fair burden-sharing between Member States, should be a priority.

(27)

Regular reporting by Greece on the progress being made in implementing these actions, as well as other relevant elements including any forthcoming reports from UNCHR and other relevant organisations, should clarify the assessment of whether the conditions are such as to allow for Member States to resume individual transfers to Greece under the Dublin Regulation, bearing in mind that the volume of transfers and the categories of persons to be transferred should correspond to the specific progress made. Greece should provide an updated report covering the periods April to June 2016 where no monthly report was received for the next reporting period in June 2016.

(28)

The Commission envisages taking stock of progress made and updating as appropriate its specific recommendations in September 2016.

(29)

Any resumption of Dublin transfers to Greece should also take into account that Greece still needs to deal with a potentially large number of new asylum applicants, notably as a result of the implementation of the so-called pre-registration exercise, and it should be avoided that an unsustainable burden is placed on Greece.

(30)

The responsibility for deciding on such resumption of transfers in individual cases lies exclusively with Member States' authorities under the control of the courts, which may make preliminary references to the European Court of Justice on the interpretation of the Dublin Regulation.