Opinion of Greek State Legal Council concludes that detention pending removal may lawfully exceed 18 month maximum set by Returns Directive

Tuesday, April 8, 2014

Foreign nationals in Greece who refuse to cooperate with their deportation can be lawfully detained pending removal for longer than the maximum of 18 months permitted by the EU Returns Directive, according to an Opinion published on 20 March 2014 by the Greek State Legal Council. The Opinion has reportedly been approved by the Minister, allowing the police to implement the policy.

The Opinion concerns detained migrants in Greece whose deportation cannot be executed due to a lack of cooperation by the migrant. In these circumstances, the Opinion states that, if there is a justifiable risk of absconding after 18 months passes, ‘a restrictive measure of compulsory residence in the centre of detention before departure may be automatically imposed upon the foreign national until he/she cooperates with the competent authorities’.

According to the Opinion, such detention beyond 18 months is considered lawful because ‘if all illegal aliens are released, [...] that jeopardizes the public interest and the purpose of the EU and national legislation, since we are led to indirect ‘legitimization’ of their stay [...] while it is estimated with certainty [...] that this release will inevitably lead to the rapid population growth of illegal immigrants in the interior of the country, with resultant adverse effects on the public order and safety’.  The Opinion claims that ‘both the public interest and their individual interest are simultaneously protected since they are vulnerable persons, without permanent residence, without legal documents and without the opportunity to work and they are in danger of falling into deep poverty or illegal networks which will exploit them’.

The Court of Justice of the European Union in C-357/09 Kadzoev ruled that the Returns Directive ‘in no case authorises the maximum period [of 18 months] to be exceeded’, even where ‘the person concerned ... is not in possession of valid documents, his conduct is aggressive, and he has no means of supporting himself and no accommodation or means supplied by the Member State for that purpose’.

The Hellenic League for Human Rights notes with ‘grave concern’ that ‘the absolute deprivation of personal freedom is called a restrictive measure of compulsory residence in a detention area in order, allegedly, to safeguard the public interest, as well as the individual interest of each alien’.

Médecins Sans Frontières this week published a report which concludes that ‘the prolonged and systematic detention of migrants and asylum seekers in Greece is having devastating consequences on their health and human dignity’.

Read the Opinion (Greek only) of the Greek State Legal Council and the Press Release of the Hellenic League for Human Rights.

04 April 2014

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