Some people assume that the deteriorating conditions in Afghanistan will increase the likelihood that those fleeing the country receive asylum in places such as Europe and the United States. And to some extent, this may be true. But this has not been the case in Greece, where the increasing instability and coinciding crackdown on human rights in Afghanistan appear to be having the opposite effect. Anticipating an influx of Afghan refugees, the Greek government has responded by fortifying its borders and denying meaningful consideration of their asylum claims.
Greek officials have been clear in their stance: Afghan refugees are not welcome. Shortly after the August 15 fall of Kabul, Greece’s Minister of Migration vowed publicly that Greece would not serve as a “gateway to Europe” for those fleeing Afghanistan. The Civil Protection Minister stated that Greece would not “wait passively for the possible impact” of a flood of Afghans, calling Greek borders “inviolable.” And the Prime Minister maintained in early October that Greece would not permit uncontrolled migratory flows due to the deteriorating situation in Afghanistan under Taliban rule.
In fact, the Greek government undertook measures to make irregular entry into the country more difficult and less desirable even before the final phase of the Taliban takeover. In recent months, Greece designated Turkey as a “safe third country” for Afghan nationals, extended the wall on its land border with Turkey, and completed construction of the first ‘closed’ camp on the Greek island of Samos. These moves have been criticized for their lack of humaneness and raised questions about whether Greece is circumventing its obligations under international and European law. But for Greece’s center-right New Democracy Party, it’s just business as usual. Last year, images of bright orange tents adrift in the Aegean became a stark symbol of Greek efforts to expel asylum seekers by forcing them into rescue equipment and dragging them out to sea toward Turkey. Lighthouse Reports recently announced that it collected and analyzed 635 videos of alleged pushbacks in Greece since March 2020, prompting the European Union executive to call for a formal investigation.
The result of Greece’s latest efforts to expel asylum seekers – by exercising its new safe third country designation to deem Afghan nationals “inadmissible” – is that people fleeing Afghanistan are denied any meaningful right to asylum and forced into an undefined period of legal limbo.
Designation of Turkey as a Safe Third Country for Afghan Asylum Seekers
As a State party to the 1951 United Nations Convention Relating to the Status of Refugees (1951 Refugee Convention) and its 1967 Protocol, Greece must adhere to the principle of non-refoulement. This means that it cannot return someone against their will to a territory where he or she would be “at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.” In August, the United Nations High Commissioner for Refugees (UNHCR) issued a non-return advisory for Afghanistan. However, Greece conveniently – and knowingly, in anticipation of the fallout from the U.S. withdrawal – skirted its non-refoulement obligations by designating Turkey as a safe third country for Afghan nationals seeking protection in Greece.
The safe third country designation typically applies when asylum seekers transit through a country in which they (at least in theory) could have applied for international protection but did not. It is often made as an agreement between states – such as the Canada-U.S. Safe Third Country Agreement and the controversial “Asylum Cooperative Agreements” that the Trump Administration signed with Guatemala, Honduras, and El Salvador (and which the Biden Administration has suspended). According to international standards, application of the safe third country concept requires an individual assessment by the receiving country that the designated third country will “(1) readmit the person, (2) grant the person access to a fair and efficient asylum procedure, (3) permit the person to remain while a status determination is made, and (4) accord the person standards of treatment commensurate with the 1951 Convention and international human rights standards.” Moreover, the safe third country procedure should only be applied in instances where a meaningful connection exists between the asylum seeker and the third country. Directive 2013/32/EU of the European Parliament and Greek Law 4636/2019 set forth similar requirements for application of the safe third country concept.
On June 7, 2021, through a Joint Ministerial Decision, Greece unilaterally designated Turkey as safe for asylum applicants from Afghanistan, Pakistan, Somalia, Bangladesh, and Syria. (Turkey has been serving as a safe third country for asylum seekers arriving on the Greek islands from Syria since March 2016.) Greece also extended the application of its safe third country procedure to those arriving from these countries on the mainland – meaning that the first, and possibly only, interview asylum seekers from Afghanistan now have in Greece is an admissibility interview to determine if they should be returned to Turkey, with no consideration of their substantive claims.
Greece declared Turkey a safe third country without any agreement with Turkey about the designation and therefore without any guarantee that Turkey would afford Afghan nationals access to its asylum procedures. Turkey is a State party to the 1951 Refugee Convention and the 1967 Protocol; however, in acceding to the latter, Turkey declared that refugee status applies only to “persons who have become refugees as a result of events occurring in Europe[.]” Those fleeing events in Afghanistan fall squarely outside these parameters. Moreover, under Greece’s admissibility procedure, it typically is insufficient to show an absence of connection to Turkey. The Greek government places the burden on the applicants to prove why Turkey is unsafe for them personally. If they cannot, their applications for asylum get rejected as inadmissible based on Turkey’s safe third country designation.
Notably, Afghan nationals account for an estimated 45 percent of refugees and migrants who have arrived Greece this year, and nationals of the five countries identified in Turkey’s safe third country designation together comprise more than two-thirds of all asylum applicants in the country. Greece’s extensive application of safe third country procedures thus now permits it to reject the majority of asylum seekers in the country as inadmissible regardless of the substance of their underlying claims or the fact that they have no real connection to Turkey.
Legal Limbo as Turkey Refuses Forced Returns from Greece
The designation of Turkey as a safe third country is unworkable and a clear attempt by Greece to shift its obligations under international and European law. Reaching this conclusion requires no more than an examination of the preliminary requirement of a safe third country: that the designated third country will readmit the person.
Turkey has refused to accept asylum seekers forcibly returned by Greece for more than a year and a half – since March 2020 – purportedly due to the COVID-19 pandemic. According to Article 38(4) of EU Directive 2013/32/EU and Article 86(5) of Greek Law 4636/2019, if the third country refuses entry, Greece must ensure the applicant access to its international protection procedure and examination of the substance of the asylum claim. At present, there is no clear end date to Turkey’s position. Yet Greece continues to reject Afghan asylum seekers on admissibility grounds under the pretext that Turkey is a safe country where they can lodge their applications for international protection.
What this means for many asylum seekers from Afghanistan is protracted legal uncertainty. The Greek government deems them inadmissible under the safe third country paradigm, yet Turkey refuses to accept them. They can appeal the inadmissibility decision, but if Greece’s application of the safe third country concept to Syrian asylum seekers on the Greek islands since 2016 is any indication, the vast majority of appeals by Afghans will be rejected. After the rejection of their appeals, they’re stuck living in Greece with no legal status. This jeopardizes their ability to receive food, housing, and financial assistance from the government or to legally access employment. The resulting legal limbo puts Afghan asylum seekers in a desperate situation for even basic means of survival.
No Action by the European Union
Despite the Greek government making very clear its intent to deter and reject Afghan asylum seekers, the EU and individual European states have said little and done even less about the potential rights violations implicated by Greece’s safe third country designation. While rights groups in the country moved swiftly to condemn the move, criticism of Greek migration policies by northern European countries has instead focused on concerns over secondary movements of asylum seekers from Greece to other European countries.
Decision-making and burden-shifting dynamics between the EU and Greece notwithstanding, Greece has an obligation to afford persons fleeing persecution a meaningful right to asylum. It cannot obfuscate this obligation by inaccurately designating Turkey as a safe third country. The Greek government’s decision to do so places thousands of Afghans – including families with young children – at risk and without protection. International players – including governments as well as U.N. agencies and international organizations – should not turn a blind eye to the violations of Afghan asylum seekers’ rights in Greece in the midst of all the ongoing chaos surrounding Afghanistan. Greater pressure should be placed on the Greek government to withdraw its sweeping safe third country policy and examine Afghan asylum seekers’ claims on their merits.
Note: This article is written in the author’s personal capacity and does not reflect the views of the institutions with which she may be affiliated.