02.09.2019

After a Ger­man court ques­ti­ons lega­li­ty of con­tro­ver­si­al »See­ho­fer Deal« bet­ween Greece and Ger­ma­ny, the under­si­gning orga­ni­sa­ti­ons demand the imme­dia­te imple­men­ta­ti­on of the judi­ci­al order

More than three weeks pas­sed sin­ce the Admi­nis­tra­ti­ve Court of Munich orde­red in a land­mark judgment in a sum­ma­ry pro­cee­ding, the return of a depor­ted Afghan refu­gee to Ger­ma­ny and ques­tio­ned the law­ful­ness of a con­tro­ver­si­al Admi­nis­tra­ti­ve Arran­ge­ment (so-cal­led »See­ho­fer deal«) con­clu­ded bet­ween Greece and Ger­ma­ny.

»Every day that pas­ses wit­hout the con­cer­ning refu­gee being trans­fer­red is ano­t­her day in unju­s­ti­fied detenti­on in Athens for him! His arbi­tra­ry detenti­on illus­tra­tes the gaps in the Greek pro­tec­tion sys­tem. Fur­ther, Greece’s recep­ti­on sys­tem remains ina­de­qua­te and faces tre­men­dous chal­len­ges and gaps in the pro­tec­tion of indi­vi­du­als. The­re are 24,000 refu­gees and migrants stran­ded on the Aege­an islands, most of them in severely over­crow­ded hot­spots such as Moria. Mean­while, refu­gee camps in the main­land are also overstret­ched and con­di­ti­ons the­re can be poor. Greece thus is not a place to return asyl­um-see­kers,« says Natas­sa Stra­chi­ni of Refu­gee Sup­port Aege­an (RSA).

»In this case both Ger­ma­ny and Greece by-pas­sed EU law, name­ly the Dub­lin III Regu­la­ti­on, by app­ly­ing a bila­te­ral Admi­nis­tra­ti­ve Arran­ge­ment. The Ger­man court decisi­on res­to­red the rule of law,« sta­tes Spy­ros Riza­kos of AITIMA. »Both coun­tries should pro­ceed with all the necessa­ry arran­ge­ments so that the Court decisi­on is exe­cu­t­ed prompt­ly and the asyl­um-see­ker returns to Ger­ma­ny. What is more, from now on they should stop app­ly­ing the Admi­nis­tra­ti­ve Arran­ge­ment.«

»The Ger­man Federal Minis­try of the Inte­rior sta­tes that they are going to con­ti­nue imple­men­ting the deal, as the ruling alle­ged­ly con­cerns the indi­vi­du­al case, only. The Minis­try clear­ly mis­jud­ges the decisi­on, which says that the pro­ce­du­re is ille­gal and this pro­ce­du­re will app­ly for every upco­m­ing per­son con­cer­ned. That makes the court order gene­ral, not indi­vi­du­al,« exp­lains Robert Nest­ler of Equal Rights Bey­ond Bor­ders. »The deal makes legal pro­tec­tion near­ly impos­si­ble. Every case adres­sed to a court is at the end of a long list of coin­ci­den­ces. See­ho­fer just hopes that the­re won’t be many ‚indi­vi­du­al‘ cases to come. The Minis­try keeps imple­men­ting an evi­dent­ly ille­gal prac­tice. That shows the rela­ti­ons­hip to the rule of law. Its a scan­dal!«

Karl Kopp of RSA/ PRO ASYL says, »The Court order is the begin­ning of the end of the so-cal­led See­ho­fer deal. The poli­cy of refu­sed ent­ry at the Ger­man-Aus­tri­an bor­der and depor­ta­ti­ons to Greece are ille­gal. It is a vio­la­ti­on of European Law. We call on the Ger­man government to end this unlaw­ful deal poli­cy and return to the rule of law. And bring back the vic­tim of this cyni­cal deal poli­cy imme­dia­te­ly.«

Admi­nis­tra­ti­ve Court: Fun­da­men­tal doubts regar­ding con­for­mi­ty with European Law

The case con­cerns an Afghan male asyl­um-see­ker inter­cep­ted by the Federal Poli­ce after crossing the Ger­man-Aus­tri­an bor­der in May 2019. Wit­hout any invol­ve­ment of the Ger­man Asyl­um Ser­vice BAMF, the com­pe­tent aut­ho­ri­ty for asyl­um app­li­ca­ti­ons, the Federal Poli­ce retur­ned the per­son con­cer­ned to Greece, only on the basis of a so-cal­led EURODAC‑1 hit (i.e. regis­tra­ti­on and app­li­ca­ti­on in Greece). No fur­ther exami­na­ti­on took place. De fac­to, the­re was no access to a lawy­er. The Federal Poli­ce stres­sed that they sole­ly fol­lo­wed the so-cal­led »See­ho­fer Deal«. Wit­hin 48 hours, the con­cer­ned pro­tec­tion-see­ker was back in Greece – whe­re he has been impri­son­ed for almost three mon­ths to the pre­sent day. In Greece, his asyl­um pro­ce­du­re was inter­rup­ted wit­hout any exami­na­ti­on of his claim in sub­s­tan­ce – a resump­ti­on of his asyl­um pro­ce­du­re did not take place in the mean­ti­me.

The court orde­red the imme­dia­te return of the app­li­cant to Ger­ma­ny. Nevertheless, the Federal Poli­ce took a who­le week to inform their Greek col­leagues about the ille­gal depor­ta­ti­on and to arran­ge for the return. Still, the date of the imple­men­ta­ti­on of the juri­di­cal order remains open.

Legal­ly, the mat­ter is clear – and has been con­fir­med several times by legal experts: The bin­ding EU Dub­lin Regu­la­ti­on lays down the pro­ce­du­re and cri­te­ria for whe­ther and how an asyl­um app­li­cant can be trans­fer­red from one Mem­ber Sta­te to ano­t­her – after suf­fi­ci­ent exami­na­ti­on and with effec­tive access to legal pro­tec­tion. The­se ele­men­ta­ry rights have been repeated­ly empha­si­zed by the European Court of Jus­ti­ce, too.

The signi­fi­cant jud­ge­ment con­firms this assess­ment in expres­sing con­si­dera­ble doubts on the lega­li­ty of the app­lied pro­ce­du­re.

Howe­ver, the Ger­man Minis­try of the Inte­rior remains unim­pres­sed by the judi­ci­al­ly con­fir­med doubts and announ­ced in its reply to par­li­a­men­ta­ry and press requests, its inten­ti­on to uphold the fast track pro­ce­du­re.

The cir­cum­ven­ti­on of the Dub­lin Regu­la­ti­on leads to the thre­at of human rights vio­la­ti­ons

First and fore­most, the Dub­lin Regu­la­ti­on fol­lows the princip­le, that an exami­na­ti­on on the ques­ti­on which Mem­ber Sta­te is respon­si­ble for the asyl­um pro­ce­du­re has to be con­duc­ted as soon as an asyl­um app­li­ca­ti­on is lod­ged with the respec­tive Mem­ber Sta­te. A EURO­DAC-1-hit can be an indi­ca­ti­on for the respon­si­bi­li­ty of Greece, the­re are howe­ver still other opti­ons, such as fami­ly ties, that take pre­ce­dence. The pro­ce­du­re is also con­duc­ted becau­se no one may be depor­ted into an inhu­man or degra­ding situa­ti­on (Arti­cle 3 of the European Con­ven­ti­on on Human Rights). In Greece, howe­ver, the­re is an ina­de­qua­te recep­ti­on sys­tem, and the­re is serious­ly insuf­fi­ci­ent and appro­pria­te shel­ter and basic medi­cal care for thousands of asyl­um-see­kers as well as many pro­tec­tion chal­len­ges. While the European Com­mis­si­on advi­sed to resu­me returns under the Dub­lin Regu­la­ti­on to Greece gra­dual­ly and under cer­tain cir­cum­s­tan­ces alrea­dy in Decem­ber 2016 only 7 returns have been effec­ted in the first half 2019 (bet­ween 01.01–31.12.2018, returns took place in 6 cases).

On the con­tra­ry, bet­ween August 2018 and July 2019, 28 returns to Greece took place on basis of the “See­ho­fer deal”  and wit­hout assess­ment of the con­di­ti­ons upon return. The Admi­nis­tra­ti­ve Court of Munich, too, voi­ced con­si­dera­ble doubts whe­ther returns to Greece are in accordance with human rights. The inter­rup­ti­on of the applicant’s asyl­um pro­ce­du­re in Greece was fur­ther con­si­de­red by the Court as one of the rea­sons orde­ring the applicant’s return.

Dod­gy Deal bypas­sing par­li­a­men­ta­ry con­trol

The deal has been the pro­duct of an undis­c­lo­sed nego­tia­ti­on bet­ween Horst See­ho­fer, the Ger­man Minis­ter of Inte­rior and his Greek coun­ter­part and was signed a year ago. It pro­vi­des details on the coope­ra­ti­on bet­ween Greek and Ger­man aut­ho­ri­ties in cases of refu­sal of ent­ry to per­sons see­king pro­tec­tion in the con­text of tem­pora­ry checks at the inter­nal Ger­man-Aus­tri­an bor­der. Neit­her the Ger­man nor the Greek Par­li­a­ment have been invol­ved or infor­med. Only a leak by RSA / PRO ASYL has made the agree­ment publicly avail­ab­le in Novem­ber 2018.

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