REU, Alm.del - 2015-16 - Bilag 351: Orientering om at bl.a. fodnoterne er udeladt i den uautoriserede oversættelse af den græske appelinstans afgørelse i en enkel sag, fra dagsordenen for rådmødet (retlige og indre anliggender) den 10. juni 2016, fra udlændinge-, integrations- og boligministeren

Retsudvalget 2015-16
REU Alm.del Bilag 351
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Hellenic Republic

Ministry of Interior and Administrative Reconstruction

….. APPEALS COMMITTEE

Established under article 26 of P.D. 114/2010 as modified by P.D. 113/2013

and P.D. 167/2014 by the Joint Ministerial Decision GDPES/1-2-228A by the

Alternate Minister of Interior and Administrative Reconstruction and the

Minister of Finances (O.G. YODD 226/4-5-2016)

DECISION 05/133782

(29994)

In the location of Vyronas, Attica and at the premises of the Committee

(Kallipoleos and Alatsaton str. formerly the Vyronas police station) on

Thursday, 5 May 2016, following the relevant invitation by its president

under 05/133782-160397 calling notice, the … Appeals Committee met,

composed by:

1. ….. as the President

2. ….(member designated by the UNHCR), full member

3. …..(member appointed by the Minister of Citizen Protection from the

relevant list established by the NCHR),

and in the presence of its Secretary, ….., police officer from the Aliens

Department.

The Committee was invited to adjudicate on the appeal lodged on 22-4-

2016 by the Syrian national, ….. (surname) …….(name) son of ….. and ….,

born on 28-1-1989, holding the identity card with number ……. issued by

the Syrian Arab Republic, against decision number 29994, issued on 21-4-

2016 by the Regional Asylum Service of Lesvos which rejected as

inadmissible the applicant’s application for international protection

submitted on 12-4-2016.

The Committee took into account:

The provisions of Legislative Decree 3989/1959 (O.G. A’ 201) on the

ratification of the Convention relating to the status of refugees as amended

REU, Alm.del - 2015-16 - Bilag 351: Orientering om at bl.a. fodnoterne er udeladt i den uautoriserede oversættelse af den græske appelinstans afgørelse i en enkel sag, fra dagsordenen for rådmødet (retlige og indre anliggender) den 10. juni 2016, fra udlændinge-, integrations- og boligministeren

by the Obligatory Law 389/1968 on the ratification of the relating New York

Protocol of 31 January 1967 (O.G. A' -125).

2. The provisions of Presidential Decree (P.D). 96/2008 on the

“transposition into the Greek legislation of Council Directive 2004/83/EC

from April 29, 2004 on minimum standards for the qualification and status

of third country nationals or stateless persons as refugees or as persons

who otherwise need international protection and the content of the

protection granted (L 304/30-9-2004) (O.G. A’ 152) and P.D. 141/2013 (O.G.

225/21-10-213) “transposition into the Greek legislation of Council

Directive 2011/95/EU from December 13, 2011

on standards for the

qualification of third-country nationals or stateless persons as beneficiaries

of international protection, for a uniform status for refugees or for persons

eligible for subsidiary protection, and for the content of the protection

granted».

The provisions of P.D. 114/2010 (O.G. A’-195) on the establishment of a

single procedure for granting the status of refugee or of beneficiary of

subsidiary protection to aliens or to stateless persons in conformity with

Council Directive 2005/85/EC on minimum standards on procedures in

Member States for granting and withdrawing refugee status (L

326/13.12.2005) as amended by P.D. 113/2013 (O.G. A’-146/14.6.2013)

and P.D. 167/2014 (O.G. A’-252/1.12.2014).

The provisions of Law 2690/1999 (O.G. A’-45) on the “ratification of the

Code of Administrative Procedure and other provisions.

The provisions of Law 4375/2016 (O.G. A-51) on the organization and

operation of the Asylum Service, the Appeals Authority, the Reception and

Identification Service, the establishment of the General Secretariat for

Reception, the transposition into Greek legislation of the provisions of

Directive 2013/32/EU “on common procedures for granting and

withdrawing the status of international protection (recast) (L

180/29.6.2013), provisions on the employment of beneficiaries of

international protection and other provisions.

The Joint Ministerial Decision GDPES/1-2-228A (O.G. YODD 226/4-5-

2016) by the Alternate Minister of Interior and Administrative

Reconstruction and the Minister of Finances.

7. Decision number 4000/1/70/a (O.G. B’ 1725/2-8-2010) by the Minister of

Citizen Protection on the Internal Regulation of the Appeals Committees set

under P.D. 114/2010 and decision number 4000/1/70/b (O.G. B’ 1167/13-5-

2013), decision number 4000/1/70/i (O.G. B’ 2105/27-8-2013) and decision

number 4000/1/70/74 (O.G. B’ 2452/15-9-2014) modifying this latter.

8. The joint EU-Turkey Statement from 18-3-2016.

9. THE

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN

PARLIAMENT, THE EUROPEAN COUNCIL AND THE COUNCIL. First Report on

the progress made in the implementation of the EU-Turkey Statement.

COM (2016) 231 final.

10. ANNEX to the COMMUNICATION FROM THE COMMISSION TO THE

EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL AND THE COUNCIL First

Report on the progress made in the implementation of the EU-Turkey

Statement COM (2016) 231 final (EU).

11. COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN

PARLIAMENT, THE EUROPEAN COUNCIL AND THE COUNCIL NEXT

OPERATIONAL STEPS IN EU-TURKEY COOPERATION IN THE FIELD OF

MIGRATION. COM (2016) 166 final.

12. Regulation 604/2013 (EU) of the European Parliament and the Council.

13. Letter under ref. ares. (2016) 2149549 – 5-5-2016 by the General

Director for Migration and Home Affairs of the European Commission.

14. The appellant’s application from 12/4/2016

15. The decision

issued on 21-4-2016 by the Regional Asylum Service of

Lesvos.

16.

The appellant’s appeal from 22/4/2016

17. The appellant’s submission from 6/5/2016

18. The minutes from the appellant’s interview from 12/4/2016

19. The opinion from the EASO expert on the admissibility of the

application of the now appellant

20. All elements contained in the appellant’s administrative file.

AND CONSIDERS ACCORDING TO THE LAW

I. Procedure

The appellant, who remains in the Lesvos Reception and Identification

Center, applied for international protection to

the Regional Asylum Service

of Lesvos

on 12/4/2016. The Regional Asylum Service of Lesvos rejected his

application as inadmissible on 21-4-2016.

The said decision was notified to

him on 22-4-2016; he appealed against this decision on 22-4-2016 asking,

at the same time, to be heard orally by the Appeals’ Committee.

The appellant expressed his intention to appeal

against the a/m negative

decision to …… staff from the European Asylum Support Office, as it

appears from the document dated 22-4-2016 and drafted in English, which

is included in the file. This document does not fulfill the conditions to be

considered as a public document having full authentication value; however,

given the nature of the right exercised through the appeal, the Committee

is satisfied with the indications of the expression of intention (a document

in English and its registration in the “ALKYONI” data base) and considered

that the appeal has been lodged in due form and accepted the application

for an oral hearing. The hearing took place, through a tele-phonic

connection between the seat of the Committee in Vyronas and the RA

Office of Lesvos, on 5-5-2016 in Greek and Arabic, the appellant’s mother

tongue, with the assistance of a competent interpreter from the NGO

“Metadrasi” appointed by the president of the Committee and in the

presence of the appellant’s attorneys. …………. (Athens Bar Association

number …) in the seat of the Committee and (Athens Bar Association

number …..) in the RA Office of Lesvos.

II. The appellant’s claims on the basis of his interview on 21-4-2016 and

the oral hearing on 5-5-2016

The appellant was born on 28-10-1989 in Syria, he is an ethnic Arab, his

mother tongue is Arabic, has a relationship with …. (surname) ….. (name), a

Syrian national who is in Sweden, while the rest of his family (parents, three

sisters, one brother) are in Syria, Aleppo. While in Syria, he resided in

Aleppo.

He left his country on 6-4-2015 and went to Turkey where he remained for

ten days. As concerns his stay in Turkey, during his first interview, he had

declared that he initially went to the city of Gaziantep, where he had a

Syrian friend and then moved to Antalya where he stayed for a long period,

found a job to earn money but was not paid as he was promised. In the oral

hearing before the Committee, he declared that he stayed in the small

town of Manugat, near Antalya, in the house of his boss where he worked

illegally. He was paid very little and was forced to work for several hours.

He does not have any relative in Turkey.

As far as the reasons that led him to leave his country, during his first

interview, he had declared that he was called to draft in the army but he

failed to report before the conscription office. If the Syrian authorities

found out that he is in Turkey, they may take him back to Syria and

imprison him. Because of his young age, he is also afraid that he may be

forcibly enlisted into the ISIS. In Syria there is no stability and security.

As far as the reasons that he does not want to return to Turkey, during the

oral hearing, he declared that his is afraid that in the camps near the border

there may be Alevis who support the Assad regime and they may kidnap

him and surrender him to the regime’s authorities. During his stay in

Antalya, twice, Alevis had approached him. The appellant described that,

when he was working in construction works, a fellow worker approached

him and started asking him questions as to whether he was in favor or

against Assad. When the appellant replied that he was against the regime,

his fellow worker told him “he should be slaughtered”. The second time,

some Alevis told him that, as a Syrian, he was responsible for Syria’s

destruction and attacked him with a sharp object. In addition, in Turkey he

feels a change of treatment by Turks, who, after the terrorist attacks,

consider Syrians to be responsible for the situation and he fears that he

might “be in trouble”. Finally he claimed that, in Turkey, he may be located

by persons belonging to Isis, extremist movements, the Free Syrian Army or

the Syrian regime which all may want to enlist him in their ranks due to his

young age.

III. Legal basis

According to article 18 of Presidential Decree 113/2013 in force, the

Determining Authority shall reject as inadmissible an application for

international protection if, inter alia, another EU member state or a state

bound by Council Regulation 343/2003 has taken the responsibility to

examine the relevant application, pursuant to this Regulation, or if the

applicant enjoys adequate protection by a country which is not an EU

member state and is considered as a first country of asylum for him or if the

competent authorities deem that a country is considered a safe third

country for the applicant, according to article 20 of the above p.d.

According to the Committee’s opinion, from among the various alternative

cases set by article 18 of Presidential Decree 113/2013, logic implies that

the case of the first country of asylum should be examined before the case

of the safe third country, since the former is an ascertained fact while the

latter a potentiality, implying a certain degree of uncertainty.

Thus, the Committee

by majority

considers that, as the decision under

appeal rejected the application on the basis that there is a safe third

country (Turkey), it had implicitly examined and rejected the possibility that

there has been a first country (whether the same or another) of asylum for

the appellant. As a result, this part, as well as the other logically preceding

reasons for inadmissibility,

are not transmitted through the appeal lodged

by the appellant, since the Committee cannot, in principle, worsen his

position and there is no rule of law which sets an exception to this general

principle.

The President notes that

according to article 19 of Presidential Decree

113/2013 in force, a country (which is not an EU member state) shall be

considered to be a first country of asylum for an applicant, if the applicant

enjoys effective protection in that country, including benefiting from the

principle of non- refoulement.

According to the dissenting opinion of the

President, the appellant’s claim

should first be examined on the preceding reasons for inadmissibility, in

particular the existence of

another country (first country of asylum) where

the appellant

enjoys other adequate protection and the relevant decision

clearly decides thereupon.

According to article 33 of directive 2013/32/EU of the European Parliament

and of the Council of 26 June 2013 on “common procedures for granting

and withdrawing international protection” (article 54 of law 4375/2016 to

enter into force on 1

July 2016) the Decision Authorities shall reject an

application for international protection as inadmissible, inter alia, if another

EU member state or a state bound by Council Regulation 604/2013 of the

European Parliament and of the Council has taken the responsibility to

examine the relevant application, pursuant to this Regulation or the

applicant enjoys adequate protection by a country which is considered as a

first country of asylum for him, or if they deem that a country is considered

a safe third country for the applicant (article 54 of law 4375/2016 to enter

into force on 1

July 2016).

In addition, according to article 35 of directive 2013/32/EU (article 55 of law

4375/2016 to enter into force on 1

July 2016) a country shall be considered

to be a first country of asylum for an applicant provided that he/she will be

re-admitted to that country, if the applicant has been recognized as a

refugee in that country and can still enjoy of that protection or enjoys other

effective protection in that country, including benefiting from the principle

of non- refoulement.

Subsequently, the Committee examines the legal basis, based on which the

decision under appeal rejected the application for international protection

as inadmissible, considering that Turkey is a safe third country for the

applicant, according to article 20 of p.d. 113/2013.

According to article 20 of p.d. 113/2013 (article 38 of directive 2013/32/EU

and article 56 of law 4375/2016 to enter into force on 1

July 2016) a

country shall be considered as a safe third country for a specific applicant

when all the following criteria are fulfilled:

a. the applicant's life and liberty are not threatened for reasons of race,

religion, nationality, membership of a particular social group or political

opinion,

b. this country respects the principle of non-refoulement, in accordance

with the Geneva Convention,

c. the applicant is in no risk of suffering serious harm according to Article 15

of Presidential Decree 96/2008 as modified by Article 15 of Presidential

Decree 141/2013,

d. the country prohibits the removal of an applicant to a country where

he/she risks to be subject to torture or cruel, inhuman or degrading

treatment or punishment, as defined in international law,

e. the possibility to apply for refugee status exists and, if the applicant is

recognized as a refugee, to receive protection in accordance with the

Geneva Convention and

f. the applicant has a connection with that country, under which it would be

reasonable for the applicant to move to it.

The Committee

by majority

notes that in the first place, the concept of a

safe third country is a vague legal concept, which is applied (and

interpreted if in need of interpretation) by the authority ruling on the

application for international protection. The identification of a country as a

safe third country through relevant acts by the executive or legislative

powers of a member state or by the EU institutions may establish a

presumption. Such an act would bind the authority ruling on the application

for international protection and reverse the burden of proof to the

applicant for international protection. Exactly for the reason of the reversal

of the burden of proof, the presumption that a country has been identified

as a safe third country should undergo judicial control as to the correct

application of the criteria set by the law and, in particular, European law.

Following the Statement of 18-3-2016 between the EU and Turkey, the

latter took over the obligation to readmit Syrian nationals who entered

Greece on 20-3-2016 or later having crossed Turkey, while the member

states of the former took over the obligation to accept for resettlement

Syrian nationals from the territory of the latter.

The Committee

by majority

considers that this Statement, independently

of its legal nature, does not in principle refer to the application for Turkey

of the vague legal concept of a safe third country; rather it refers to the

obligation of Turkey to readmit those Syrians whose application for

international protection shall be rejected on that ground. Besides, a

presumption under the Statement that Turkey is safe presupposes that

such presumption must be invested the form of a regulatory or other act,

which can be challenged before justice and be controlled as to its

conformity with the vague legal concept of a safe third country.

The Committee, taking into account the appellant’s claims as provided,

shall examine the concurrence of the five criteria in order to judge

whether Turkey is a safe third country for the applicant:

As to criterion (a),

according to which one’s life and liberty are not

threatened for reasons of race, religion, nationality, membership of a

particular social group or political opinion.

The Committee notes that today in Turkey there are about 2,290,000

Syrians, beneficiaries of «temporary protection», out of which around

290,000 residing in 25 refugee camps, located in ten provinces in the south

of Turkey, while the rest are scattered all over the country in rented

houses. Up-to-date research on Turkey published by international human

rights organizations or government agencies do not contain references as

to attacks, assassination, body harm or other violent acts against Syrian

refugees in Turkey.

As a rule, “temporary protection” beneficiaries are not detained, although

there is an exception to this general rule for persons excluded from

“temporary protection” status on the grounds of article 8 of TPR

(Temporary Protection Regulation)

Concerning Alevis, the United Kingdom Home Office in a report

states that

«Alevi

is the term used for a large number of heterodox Muslim Shi’a

communities with different characteristics. Alevis constitute the largest

religious minority in Turkey and they differ considerably from the Sunni

Muslim majority in their practice and interpretation of Islam. Alevis

comprise 15 to 25 percent of Turkey’s total population. The government

considers Alevism a heterodox Muslim sect and does not financially support

religious worship for Alevi Muslims. Alevis face problems in the

construction of new places of worship; however, this does not prevent

them in practice from worshipping in places that are not licensed as legal

places of worship. They face unequal treatment in education, there are

reports of them being mistreated by the authorities, in particular when

repressing their demonstrations, and of isolated incidents of social

discrimination and violence against them. Although there are reports that

confirm that Alevis support the Assad regime in Syria, it is not confirmed

Available at

http://www.asylumineurope.org/reports/country/turkey/detention-

framework-temporary-protection

United Kingdom Home Office, Country information and Guidance – Turkey: Alevis,

February 2016 Version 1.o available in

http://www.refworld.org/cgi-

bin/texis/vtx/rwmain?page=search&docid=56c182ee4&skip=0&query=Alevis&coi=TUR

that Sunni Moslem Syrians are ipso facto in danger because of their faith or

their ethnic origin from Alevis, who, in any case, are a marginalized religious

minority in Turkey. Moreover, there are no special characteristics in the

person of the appellant which may differentiate him from the rest of the

Syrian population residing in Turkey and which may lead to him being

personally targeted.

From the above it ensues that the appellant’s life or freedom are not

threatened. The Committee rules therefore that

criterion (a)

of article 38 of

the Directive is fulfilled.

As far as

criterion (b) is concerned,

namely respect of the principle of non-

refoulement, in accordance with the Geneva Convention, and the related

criterion (d),

namely prohibition of removal to a country where the

applicant risks to be subject to torture or cruel, inhuman or degrading

treatment or punishment, violating article 3 of the ECHR, the Committee

examined the following:

According to article 4 of the Turkish law on Foreigners and international

Protection «No one within the scope of this Law shall be returned to a place

where he or she may be subjected to torture, inhuman or degrading

punishment or treatment or, where his/her life or freedom would be

threatened on account of his/her race, religion, nationality, membership of

a particular social group or political opinion»

. Furthermore, article 6

paragraph 1 of the Temporary Protection Regulation states that «no one

within the scope of this Regulation shall be returned to a place where he or

she may be subjected to torture, inhuman or degrading punishment or

treatment or, where his/her life or freedom would be threatened on

account of his/her race, religion, nationality, membership of a particular

social group or political opinion»

. Finally, according to the Asylum

Information Data Base (AIDA), the new procedure for «granting

international protection» provided for by the Law on Foreigners and

. Republic of Turkey, Ministry of Interior, Directorate General of Migration

Management Publications,

PART ONE PURPOSE, SCOPE, DEFINITIONS AND NON-

REFOULEMENT

SECTION TWO Non-refoulement , article 4. May 2014

. http://www.goc.gov.tr/files/_dokuman28.pdf

International Protection provides protection from refoulement which is

valid equally for all asylum seekers, independently of whether they

originate from a «European» or «non-European» country.

However the Committee notes that according to the UNHCR’s opinion on

the extraterritorial application of the principle of non-refoulement under

international refugee law, the prohibition of

refoulement

to a danger of

persecution is applicable to any form of forcible removal, including

deportation, expulsion, extradition, informal transfer or “renditions”, and

non-admission at the border. Τhe Declaration on Territorial Asylum

adopted by the United Nations General Assembly on 14 December 1967

states in article 3 that no person referred to in Article 1, para. 1, shall be

subjected to measures such as rejection at the frontier or, if he has already

entered the territory in which he seeks asylum, expulsion or compulsory

return to any State where he may be subjected to persecution. Recently,

non-governmental organizations have alleged that Turkey violates the

principle of non-refoulement, specifically against Syrian refugees. The

incidents are reported as massive and concern both a systematic refusal of

entry with the use of force at the border, as well as systematic and mass

returns to the Syrian territory.

Therefore the Committee concludes that there are indications that the

principle of non-refoulement is not respected by the Turkish state and

disputes the fulfillment of criterion (b). Similarly, due to the massive

number of the incidents and given that the treatment of many Syrian

nationals, if returned to their country of origin, might exceed the limits set

by article 3 of the ECHR, there is a serious possibility that criterion (d) may

not be fulfilled either.

As far as

criterion (c ) is concerned,

namely the risk of serious harm for the

applicant according to Article 15 of Presidential Decree 141/2013, the

Committee points out the following: according to Article 15 of Presidential

Decree 141/2013 “serious

harm consists of: a) the death penalty or

execution; or b) torture or inhuman or degrading treatment or punishment

of an applicant in the country of origin; or serious and individual threat to a

civilian’s life or person by reason of indiscriminate violence in situations of

international or internal armed conflict”.

On the basis of what already stated above, the appellant, if returned to

Turkey, does not risk the death penalty or execution, nor is he at risk of

torture or inhuman or degrading treatment or punishment since Syrian

refugees in Turkey are protected by the Temporary Protection Regime and

on that basis they are granted access to basic rights and services. Finally

there is not, in Turkey, a situation of indiscriminate or generalized violence,

which could lead to the appellant being at risk of serious harm.

Accordingly,

the Committee concludes that

criterion (c )

of article 38 of the

Directive is fulfilled.

As for the fulfillment of

criterion (e),

namely the possibility to apply for

refugee status exists and, if the applicant is recognized as a refugee, to

receive protection in accordance with the Geneva Convention,

The Committee by majority points out the following:

The provisions of the Geneva Convention, viewed in their totality, point to

the emergence of a core of required protection; if this is not fulfilled, then

the protection provided is substantially different and cannot be considered

to be in accordance with the Geneva Convention. This core contains, in any

case:

a. The individualized, in principle, nature of the protection provided, which

does not exclude the possibility of granting protection status

en masse,

but

sets limits to the termination of the granted protection (a reasoned

judgment as to the cessation of the risk of persecution) rather than the

indiscriminate withdrawal from an entire group of population of the

protection granted.

b. A real possibility for the refugee to be integrated, not only living under

conditions of security but also as a member of the society. This possibility

presupposes the granting of a residence permit for an assured period of

time, naturally susceptible to withdrawal or revocation on the grounds of

the exclusion, cessation or allowed exception from non-refoulement.

Obviously, this possibility must be seen in conjunction with the number of

refugees hosted in a given country and the country’s possibilities to provide

them with opportunities for integration. It cannot, however, be totally

cancelled through the granting of conditional residence permits, or permits

with a very brief duration, or by excluding the refugee from any possibility

to claim, even in perspective, a more stable residence status.

c. The exercise of the rights of freedom of movement and establishment

and salaried employment on conditions similar to the rest of aliens, without

discriminating against either refugees specifically or a particular group of

refugees.

In case these prerequisites are not fulfilled, the protection status cannot

under any circumstance be considered to be in accordance with the Geneva

Convention; it is rather similar to forms of temporary protection status,

granted en masse.

Such temporary protection status, granted

en masse,

could be considered to be in accordance with the Geneva Convention only

if they contain clear and full safeguards that beneficiaries of such

protection would, within a reasonable time, move from temporary

protection to protection in accordance with the Geneva Convention.

Turkish legislation provides rules for the treatment of asylum seekers

within the Turkish territory and establishes a system of protection, but

limits the rights guaranteed by the 1951 U.N. Convention only to refugees

originating from Council of Europe member states, keeping the

geographical limitation for non-European refugees; it also sets limitations in

the movement of refugees who have been granted temporary protection.

On April 2013, Turkey adopted a new Law on Foreigners and International

Protection – LFIP) which establishes a special framework for asylum and

confirms the obligations of the country vis-à-vis those in need of

international protection, irrespective of their country of origin. The new law

provides for the establishment of a Directorate General of Migration

Management – henceforth DGMM), as the institution responsible for

setting up the new asylum system.

While the LFIP itself fully came into force in April 2014, it was not until

October 2014 that the Temporary Protection Regulation (henceforth TPR)

was finally published. Including more specific provisions, the TPR came to

constitute the main piece of domestic legislation that was to govern and

regulate Turkey’s existing de facto “temporary protection” practice that

was already in place since 2011 for persons arriving in Turkey from Syria.

Ever since, refugees from Syria benefit from a group-based “temporary

protection” regime, which was formalized by the Temporary Protection

Regulation of 22 October 2014. The decision to grant temporary protection

status to aliens entering Turkey under the conditions set by article 1 of TPR

is competence of the Council of Ministers following a proposal by the

Minister of Interior (article 9 of TPR). This status grants beneficiaries the

right to stay legally, protection from refoulement and access to a set of

basic rights and services, including free healthcare (respectively articles

25,6 and 26 of TPR). The DGMM is the agency in charge of registering and

granting this status. As of 7 December 2015, the number of beneficiaries of

“temporary protection” was listed at 2,291,900 refugees. Of this

population, about 263,000 are accommodated in 25 refugee camps spread

across 10 provinces in the south of Turkey, whereas the remaining live in

residential areas in private accommodation on their own resources and

dispersed all over the country.

The “temporary protection” status in granted on a prima facie, group-basis,

to Syrian nationals and stateless Palestinians originating from Syria. DGMM

is the responsible authority for the registration and status decisions for

persons within the scope of the “temporary protection” regime, based on

article 91 of the LFIP and article 10 the Temporary Protection Regulation

(TPR) of 22 October 2014. On the other hand, asylum seekers from other

countries of origin, such as Iraq, Afghanistan or Iran, may lodge an

application to receive international protection on an individual basis and

fall in the status recognition procedure by DGMM. This said, the Provincial

Offices of DGMM have only recently started to be fully operational and up

till now have processed only a small number of cases examined and rulings

issued for international protection status determination.

More specifically as to the temporary protection offered to Syrians who

entered Turkey after 28 April 2011, as per articles 1 and 3 of TPR,

“temporary protection” within the scope of article 91 LFIP, is a

discretionary measure that may be deployed in situations of mass influx of

refugees where individual processing of international protection needs is

impractical due to the high numbers of beneficiaries. As such, “temporary

protection” within the framework of TPR is not defined as a form of

“international protection” but a complementary measure used in situations

where individual “international protection” eligibility processing is deemed

impractical

As per article 16 of TPR, any requests for international protection presented

to competent authorities by beneficiaries of “temporary protection” shall

not be processed as long as the “temporary protection” regime is in place.

This principle is also reiterated in Provisional Article 1 of TPR, according to

which beneficiaries of “temporary protection” who arrived in Turkey on 28

April 2011 or later shall be barred from making a separate “international

protection” application. If they had already made an application for

“international protection” before the publication of the TPR, these

applications shall be suspended. It should be noted, at this point, that the

UNHCR does not register beneficiaries of “temporary protection” and

implements procedures for Refugee Status Determination under the United

Nations High Commissioner for Refugees Mandate.

The “temporary protection” framework laid down by the TPR provides a

domestic legal status to beneficiaries, granting legal stay in Turkey,

protection from criminal punishment for illegal entry or presence and

protection from refoulement. However, article 25 of TPR explicitly excludes

“temporary protection” beneficiaries from the possibility of long-term legal

integration in Turkey. According to article 25 of TPR, the “temporary

protection” identification document issued to beneficiaries does not serve

as “residence permit” as such, nor may it lead to “long term residence

permit” in Turkey in accordance with Articles 42 and 43 LFIP. Time spent in

Turkey, as a “temporary protection” beneficiary, may not be interpreted to

count into the fulfillment of the requirement of 5 years uninterrupted and

legal residence as a precondition in applications for Turkish citizenship.

Furthermore, according to article 15 of the TPR, temporary protection may

be limited or suspended by the Council of Ministers “for a specific period or

indefinitely” in the event of circumstances threatening national security,

public order, public security and public health. In such cases, the Council of

Ministers has the discretion to decide on the future of “temporary

. ECRE Asylum Information Data Base national country information report Turkey.

December 2015 pp. 102 and foll.

http://www.asylumineurope.org/sites/default/files/report-

download/aida_tr_update.i.pdf

protection” beneficiaries, without any explicit guarantee that these persons

would have access to the procedure for receiving international protection

status. According to article 10 of the TPR, the Council of Ministers may

decide to grant temporary protection regime, in response to a specific

situation of mass influx and has the discretion to decide on the duration of

that regime and the conditions to prolong it after its initial duration. Thus,

this regime may be terminated at any moment by a Council of Ministers

decision. In addition, as per article 11 TPR, where this regime is terminated,

the Council of Ministers may decide on a specific course of action

concerning treatment of former beneficiaries. In particular, the Council of

Ministers may a) order the return of all former beneficiaries to country of

origin, b) order the granting of international protection status to all former

beneficiaries on prima facie basis, c) order for the individual processing and

determination of international protection requests and d) allow for the stay

of former beneficiaries subject to conditions to be laid down within the

framework of the LFIP.

The protection provided to the appellant in Turkey in the context of the

Temporary Protection Regulation (TPR) manifestly falls short of the legal

guarantees enshrined for recognized refugees in the Geneva Convention

which refer to the right of free movement in the territory of the contracting

country (article 26 of the 1951 Convention), the right to citizenship (article

34 of the 1951 Convention) and the right to employment (articles 17,18,19

of the 1951 Convention).

More specifically as to the freedom of movement, article 26 of the 1951

Convention provides that refugees have the right of free movement and

choice of their place of residence, subject to any regulations applicable to

aliens generally in the same circumstances. Article 33 TPR provides that

beneficiaries of “temporary protection” regime are obliged to comply with

administrative requirements, failure of which may result in administrative

sanctions. Among other requirements, they may be “obliged to reside in

the assigned province, temporary accommodation center or other location”

while in August 2015, the Turkish authorities introduced, with a special

written instruction, controls and restrictions in the movement of Syrians in

Turkey. This instruction was issued by DGMM, signed by the Minister of

Interior and circulated to all the Governorates across the country, includes

a number of measures for the control and restriction of the movement of

Syrians in Turkey, among them frequent document checks on inter-city

highways. Any Syrians identified to have left the province where they were

registered without written permission, are to be referred or taken back to

their province of legal residence. This instruction introduces a

discriminatory treatment of Syrians compared with the treatment provided

to other aliens.

As to the right of employment, the Geneva Convention provides that

refugees should receive favorable treatment and, in any case, not less

favorable than that accorded to aliens generally. However, the European

Economic and Social Committee report states that, according to law, each

employer is obliged to hire 10 Turkish nationals for each Syrian hired and 5

Turkish nationals for each non-Syrian alien hired.

Furthermore, according to a resolution adopted on 20-4-2016 by the

Parliamentary Assembly of the Council of Europe

, point 2.5 mentions, inter

alia, that returns

of asylum seekers, whether Syrians or not, to Turkey as a

“safe third country” are contrary to European Union and international law,

as Turkey does not provide them with protection in accordance with the

1951 Convention relating to the Status of Refugees, while there have been

reports of onward

refoulement

of both Syrians and non-Syrians.

Besides the other conditions which must be fulfilled for a country to be

considered as safe for a particular applicant for international protection, it

must be possible for him to apply for refugee status and, if he is recognized

as a refugee, to receive protection in accordance with the Geneva

Convention. The text of article 38 of Directive 2013/32/EU, transposed with

the same phrasing into Greek legal order by article 56 of law 4375/2016,

raises the question of the level of protection corresponding to the Union

legislation requirements for a country to be considered a safe third country.

Article 39 of the Directive on the European safe third country and article 35

on the first country of asylum establish a highest and a lowest level

protection, in the middle of which lies article 38 on the safe third country.

Article 39 provides for a high level of protection offered by a country which

. Resolution 2109 (2016). The situation of refugees and migrants under the EU-Turkey

Statement of 18 March 2016. Available at http://assembly.coe.int/nw/xml/XRef/Xref-

DocDetails-EN.asp?FileID=22738&lang=2

has ratified the Geneva Convention without geographic limitations, which

means in practice that, on the one hand it offers 100% of the protection

stipulated by the Convention and on the other that article 36 of the

Convention is fully applicable and the country falls under the control

mechanisms of the Convention. On the other side, article 35 is satisfied

with the refugee protection provided or other adequate protection, whose

core is the application of the non-refoulement principle.

From the combination of these provisions it ensues that a safe third

country must provide international protection substantially similar to that

of the Geneva Convention; not a different (“other”) from it, without having

had to ratify without geographic limitations the Convention and to fall

totally under its control mechanisms. Such protection represents

international protection and lies beyond the non-refoulement principle

(which is stipulated separately under condition (b) covering the most

important part of the rights stipulated in the Convention.

For the above reasons, the Committee considers that the temporary

protection, which Turkey may grant the appellant, as a Syrian national,

does not recognize to him rights similar to those stipulated in the Geneva

Convention. Hence, if the appellant is returned to Turkey, he will not

receive international protection equivalent or corresponding to that

granted to refugees in accordance with the Geneva Convention. Thus,

criterion (e) of article 38 of the Directive is not fulfilled.

As for condition (f) of article 38 of Directive 2013/32/EU of the European

Parliament and the Council of 26 June 2013, it should be examined if the

applicant has a connection with the said third country, under which it

would be reasonable for the applicant to move to it.

As far as the connection with the third country, the relevant position of the

United Nations High Commissioner for Refugees

refers to the literal

meaning of the article claiming that it implies the requirement of a

. Legal considerations on the return of asylum-seekers and refugees from Greece to

Turkey as part of the EU-Turkey Cooperation in Tackling the Migration Crisis under the

safe third country and first country of asylum concept. 23/3/2016 available in

http://www.unhcr.org/56f3ec5a9.pdf

“sufficient” connection with the third country. In UNHCR’s view, transit

alone is not a ‘sufficient’ connection or meaningful link. Transit is often the

result of fortuitous circumstances and does not necessarily imply the

existence of any meaningful link or connection. Similarly, a mere right to

enter does not constitute by itself a substantial connection on the basis of

which it might be reasonable for the person to return to that country.

Examples of such connections could be the presence of family links,

including distant relatives. In some cases, the connection with a wider

community could also constitute a form of connection with the third

country. A meaningful link could also be considered the previous residence

in that country, such as long visits, studies and linguistic or cultural links.

Such links should be required, in addition to the mere transit from the

country.

The Committee, by majority, ruled that is it not expedient to examine the

fulfillment of this condition, since the law requires that all conditions are

fulfilled and, in the present case, the Committee already considered that

criterion (e) is not.

The dissenting opinion of the President as to criteria (e) and (f)

and in view

of the adverse frame of time and up-to-date information and research,

stresses the following:

- The individualized nature of the protection offered by the Geneva

Convention.

- The

en masse

granting of protection is not excluded from the Geneva

Convention, on condition that the termination of protection takes

place following a reasoned judgment on the termination of the risk of

persecution (cessation), rather than an indiscriminate withdrawal of

protection granted from the totality of beneficiaries of protection.

- Temporary regimes granted

en masse

may be considered to be in

conformity with the Geneva Convention, if they contain clear and full

safeguards that beneficiaries of such protection would, within a

reasonable time, move from temporary protection to protection

equivalent with the Convention.

- «Temporary protection” by virtue of the LFIP is a discretionary

measure that may be deployed in situations of mass influx of

refugees where individual processing of international protection

needs is impractical due to the high numbers of beneficiaries.

“Temporary protection” within the framework of the Temporary

Protection Regulation (TPR) is a complementary measure used in

situations where individual “international protection” eligibility

processing is deemed impractical.

The

“temporary protection” framework established by the

TPR

provides its beneficiaries with

a domestic legal status, guaranteeing

their legal stay in Turkey, protection from criminal punishment for

illegal entry or presence and protection from refoulement.

According to article 10 of the TPR, the Council of Ministers decides to

grant temporary protection regime in response to a specific situation

of mass influx and has the discretion to decide on the duration of

that regime and the conditions to prolong it after its initial duration.

The publication of the

Temporary Protection Regulation (TPR)

regulated Turkey’s existing de facto “temporary protection” practice

that was already in place since 2011 for persons arriving in Turkey

from Syria.

Refugees from Syria benefit from a group-based

“temporary protection” regime, which was formalized by the

Temporary Protection Regulation.

This status grants its beneficiaries the right to stay legally, protection

from refoulement and access to a set of basic rights and services,

including free healthcare (respectively articles 25,6 and 26 of TPR).

The up till now operation of the Directorate General of Migration

Management – henceforth DGMM), as the institution responsible for

setting up the new asylum system and the agency in charge of

registering beneficiaries of

“temporary protection”,

granting this

status and issuing relevant decisions.

As of 7 December 2015, the number of beneficiaries of “temporary

protection” was listed at 2,291,900. Of this population, about

263,000 are accommodated in 25 refugee camps spread across 10

provinces in the south of Turkey, whereas the remaining live in

residential areas in private accommodation on their own resources

and dispersed all over the country.

The “temporary protection” status in granted on a prima facie,

group-basis, to Syrian nationals and stateless Palestinians originating

from Syria.

- The right of a refugee to live as a member of the society and, thus, to

receive a residence permit for an assured period of time, must be

seen in conjunction with the number of refugees hosted in a given

country and the country’s possibilities to provide them with

opportunities for integration. Furthermore, the legislation of all

countries provides for the reassignment, withdrawals etc. of a

residence permit.

- The adoption by Turkey, in April 2016, of a new, modified, legal

framework for aliens and international protection (Regulation

amending the Temporary Protection Regulation (Cabinet Decree no

2016/8722 of 6 April 2016), Regulation on work permit of

international protection applicants and international protection

status holders (Official Journal of 26 April 2016)) which sets rules for

the treatment of asylum seekers in the territory of the country and

establishes a new system of protection in order to respect Turkey’s

obligations vis-à-vis those in need of international protection,

independently of their country of origin.

The present decision the international sources refer to a period of

time preceding the EU-Turkey Statement while it does not include

international references on the period after the

new legal framework

Turkey.

The European Commission, European Union institution competent

with the legislative initiative and responsible for the correct

application of EU legislation, through the letter of the Director-

General of Migration and Home Affairs, under reference ref.

Ares

(2016)2149549

05/05/2016, points out that following the

subsequent legislative changes adopted by Turkey (in April 2016) in

conjunction with

the

assurances

provided by Turkey by letter of 24

April 2016

(2016/70946263-A VOIR

DT/10830418), it is indicated that

each

non-Syrian – which the European Court of Human Rights

decided to take into consideration in its judgments- The European

Commission considers that Turkey has taken all the necessary

measures mentioned in Communication COM (2016) 166 final,

which, inter alia, contained clearly all measures that Turkey should

take in order for Greece to be allowed to reject an application for

asylum as inadmissible according to article 33 (2) (b) or (c) of the

Asylum procedures directive (directive

2013/32/EU “on common

procedures for granting and withdrawing the status of international

protection). The

European Commission underlines that the

(temporary) protection offered on the basis of the legislation by

Turkey to Syrian nationals is equivalent to that foreseen by the

Geneva Convention.

The Joint EU-Turkey Statement provides, as

additional action point

that «All

new irregular migrants crossing from Turkey into Greek

islands as from 20 March 2016 will be returned to Turkey. This will

take place in full accordance with EU and international law, thus

excluding any kind of collective expulsion. All migrants will be

protected in accordance with the relevant international standards

and in respect of the principle of non-refoulement. It will be a

temporary and extraordinary measure, which is necessary to end the

human suffering and restore public order. Migrants arriving in the

Greek islands will be duly registered and any application for asylum

will be processed individually by the Greek authorities in accordance

with the Asylum Procedures Directive, in cooperation with UNHCR.

Migrants not applying for asylum or whose application has been

found unfounded or inadmissible in accordance with the said

directive will be returned to Turkey. Turkey and Greece, assisted by

EU institutions and agencies, will take the necessary steps».

- The COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN

PARLIAMENT, THE EUROPEAN COUNCIL AND THE COUNCIL- First

Report on the progress made in the implementation of the EU-

Turkey Statement (COM(2016) 231 final) states that “There has been

good progress in making the Statement operational. Joint efforts by

the Greek and Turkish authorities, the Commission, Member States

and EU agencies have made headway in setting up a framework for

processing increasing number of asylum applications in Greece,

returning irregular migrants safely to Turkey, ensuring that asylum

seekers receive the necessary protection in Turkey if needed, and

opening a legal pathway to Europe via resettlement».

- It also stresses that «The Commission will remain fully engaged in

implementing all elements in the next phases, including by

accelerating the disbursement of the Facility and launching projects

that will support refugees from Syria in Turkey. Further efforts are

required by Turkey to make sure that those who need international

protection receive the support they require, including through the

Facility».

- The European Parliament and the Council should swiftly finalize the

decision-making process on the Commission proposal of 21 March

2016 to use for resettlement purposes the 54,000 places originally

foreseen for relocation.

- The Commission will present its Second Report on the progress made

in the implementation of the EU-Turkey Statement in early June

2016.

Thus, according to the dissenting opinion of the President, if the

appellant returns to Syria, he may enjoy the necessary international

protection, equivalent to that of the Geneva Convention (and also

within a framework of regular review of the correct application of

international standards) and thus condition (e) is fulfilled.

As for condition (f), namely the applicant’s connection with the said

third country, under which it would be reasonable for the applicant to

move to it, the President points out that:

The now appellant

stayed for 10 months in Turkey and, while

there, he lived in the town of Manugat, near Antalya, in the house

of his boss where he worked in order to earn money for his

onward travel. He claimed he was paid 30 Turkish liras for 12

hours and in 9 months he made 1000 dollars, 700 of which he

would use for continuing his trip to Europe.

- He did not contact the competent Turkish authorities in order to

obtain, through legal means, a temporary protection status,

foreseen in the case of this very massive refugee influx,

characterized as a refugee crisis; nor did he apply for a work

permit.

- Nevertheless, during the 10 months he spent in Turkey, he

worked, was hosted, earned money; it is thus easily concluded

that the appellant has established a connection with the said third

country where he enjoyed fundamental rights, such as the right to

life and work, and has established a connection with it, on the

basis of which it is reasonable for him to return there. As a result

criterion (f) is also fulfilled.

FOR THE ABOVE REASONS

THE COMMITTEE RULING BY MAJORITY

Annuls the decision of the Regional Asylum Office of Lesvos

Considers the appeal to be admissible

Returns, in accordance with article 26, paragraph 6 of p.d. 113/2013, the

case to the Regional Asylum Office of Lesvos in order to examine in

substance the application for asylum.

Done and decided in secret deliberation, without the presence of the

appellant

The President

The Secretary

For the copy

(signature)

The Secretary