Access to Protection: a Human Right

The  Country Report of Greece

 

 General Introduction

 

Access to protection presumes access to a safe territory.
Asylum is a physical place where the person in need of  protection finds security and safety. However, how to reach a safe place? There are barriers, material and virtual borders.
The situation of persons in need of protection has become more tangled since crossing European borders has been made more difficult, almost impossible, because of  the Schengen System  which  has erected an insurmountable wall around the external borders of the European Union.

The declared reason for erecting such a ”wall” is the political, economic, social necessity to hinder uncontrolled  migration.
As a matter of fact, from the point of view of international law, States are legitimated to determine who is allowed to enter their territories, exception made for their own citizens, who always have the right to return to their country.
States may establish rules and conditions, for instance through the obligation of entry visas and requirements  for the issuance of visas.
Member States of the European Union, through the 2009 Schengen Visa Code, in continuity with the policy carried out over the last 20 years, have delegated EU institutions to establish those rules, sacrificing part of their national sovereignty.
At the same time, States have adopted a wide range of measures in order to ensure that those rules are respected, as well as to prevent non authorised persons from crossing their borders.
Such measures do not only concern the control of physical frontiers and the surveillance of territorial and international waters, but also interventions in third countries, those of origin or of transit of migrants and refugees, including the provision of technical assistance at departure airports, seaports and maritime zones. Such an “externalization” system of controls has been developed, in particular, during last decade.
The policy of contrasting irregular migration meets the restrictions placed by international and European law on the protection of refugees, in particular by the principle of non-refoulement, as well as by general human rights, in primis by the right of the person of not being exposed to the risk of torture, inhuman or degrading treatment or punishment.
The obligation of a State to respect these rights may actually result in the obligation to admit people, at least temporarily, to its territory even when they do not meet the requirements for crossing its borders.
The historical judgment of the European Court of Human Rightsin the case Hirsi v. Italy, of  February 2012, not only condemns Italy for having pushed back migrants, intercepted in the high seas, to Libya in 2009, also lists out  guiding principles regarding control and surveillance of borders. These principles must be observed to ensure strict compliance with the rules laid down in the European Convention of Human Rights which the States adhered to .
These principles have also found some resonance in the EU Recast Directive on the procedure for the recognition of international protection, adopted in June 2013 as well as in the amendment to the Regulation governing the European Agency Frontex and in the amendment to the Schengen Border Code .
The primary objective of the project “Access to protection: a human right” is to assess how the principles established by the Strasbourg Court and the EU legislation are implemented in the six European Countries involved in the project, and to put forward recommendations based on the desk-research, the interviews with a wide range of stakeholders and the round tables organised in 2013 in the various Countries.
 With regard to methodology we consider important the fact that the project has facilitated and opened a dialogue between the authorities involved in border control and rescue operations, international organisations and NGOs committed to the protection of refugees, migrants and human rights in general. 
September 2013
Christopher Hein  

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