Greece - Council of State, Fourth Section, Decision 805/2018, 17 April 2018

The Council of State first held that Article 41(1)(cc) of the Law 4375/2016 must be interpreted in light of Article 31(2) of the Geneva Convention which requires countries hosting refugees to impose on their movement only those restrictions that are necessary; Articles 6, 18 and 52(1) of the Charter of Fundamental Rights of the European Union, which require any restrictions on liberty to be imposed only insofar as they are necessary and effectively address objectives of general interest; and Article 7(1) of Directive 2013/33/EU […], which provides that asylum seekers can move freely in the territory of the host member state or in the region designated. Nonetheless, the Council, regarding the contested regulatory decision of the Director of the Asylum Service imposing a restriction on the free movement of asylum seekers, ruled that the absence of specific criteria to be fulfilled during the regulation of this issue is not prohibited by the Greek Constitution or other provisions of supranational authority […] if such regulation serves objectives of public interest and respects the principle of proportionality.

However, the Court ruled that according to Article 31(2) of the Geneva Convention, the reasons for which the measure was imposed must stem from the preparatory works of the administrative act behind its establishment, with a view to verifying whether the measure in question was necessary.

Furthermore, the Court ruled that the disputed restriction on the movement of applicants for international protection entails as a consequence the non-distribution of those persons across the entire Greek territory but, to the contrary, their unequal concentration in only certain regions of the territory and, as a result, a substantial burden on and the degradation of those regions compared to others. In fact, those regions are called to manage and respond to the entry and stay of a significant number of persons seeking international protection, with their existing infrastructure and amid a serious financial crisis facing the country, which as a result creates a serious risk of social tensions bearing ramifications on public order and the economic life of the regions in question, which also constitute touristic destinations.  

In the present case, however, the Court ruled that neither from the text of the contested decision nor from the elements cited in its preamble do lawful reasons mandating the imposition of the contentious restriction emerge, in order to be possible to assess whether this decision remains within the limits of the authorising provision of Article 41(1)(cc) L 4375/2016 which, according to paragraph 12, read in the light of Article 31(2) of the Geneva Convention, only permits the imposition of the necessary restrictions on applicants for international protection. In addition, the sole reference in the contested decision to the contentious restriction imposed on applicants for international protection who are entering the Greek territory following 20 March 2016 does not demonstrate in a certain and unequivocal manner, as required for judicial review to be possible, that the basis of the contested decision was the EU-Turkey Statement referred to in paragraph 7 of the judgment, which is not cited in the preamble or in any other elements of the file preceding the decision. Apart from that, in the event that the contentious measure was taken for the purposes of implementing the aforementioned Statement, it is not clear whether the Administration believed themselves to have discretion over the choice of necessary restrictions in its objective judgment, or in contrast considered there to be an obligation to impose the contentious restriction in view of a specific provision of the aforementioned statement. […]

Based on the aforementioned considerations, the Court ruled that insofar as no serious and imperative reasons of public interest and migration policy are established which could justify the imposition of restriction on the freedom of movement of applicants for international protection entering the Greek territory after 20 March 2016 on the islands concerned (Lesbos, Rodhes,Samos, Kos, Leros, Chios), it is not possible for the Court to scrutinise whether the contested regulatory decision is within the limits of the authorising provision of Article 41(1)(cc) L 4375/2016, given that it lacks justification of the contentious measure. Accordingly, for this reason, which is validly put forward by the applicant, the application must be allowed and the contested decision annulled. 

Whereas, the Court considering (a) the reason for which the annulment of the contested regulatory decision was ordered, (b) the large number of applicants for international protection present on the islands of Lesvos, Rhodes, Samos, Kos, Leros and Chios, and (c) the difficulties which the Administration will face from the factual situation which will unfold on the aforementioned islands from a retroactive annulment of the contested decision, the Court holds that there are grounds of general interest in the present case, according to the provision of Article 50(3)(b) P.D. 18/1989,  warranting the effects of annulment to run from a point in time subsequent to the entry into force of the annulled regulatory decision and precedent to the publication of the present decision, and sets the day preceding the publication of the present decision at such a point. Accordingly, the competent Authority may not impose the contentious restriction on movement, pursuant to the annulled regulatory decision, through an inscription on the applicant for international protection cards issued from now on, that is after the aforementioned date.

As a result the Court annulled the no. 10464/31.05.2017 Decision of the Director of the Asylum Service and ruled that the competent Authority may not impose the contentious restriction on movement to applicants for international protection entering the Greek islands after the date of the publication of the judgment.