It is widely held that the two main pathways into irregularity are irregular entry into a country or overstaying a period of stay granted by a state. How do these two pathways interact with the wider asylum framework in the borderlands of Europe?
In order to claim asylum in an EU member state, it is necessary to set foot on European territory (de facto if not de jure). To do so requires an irregular entry. At the time of writing, Greece is the most common point of entry into the EU, though this was not the case in 2018 or 2017. Entry into Greece is either via the land border at Evros or across the sea from Turkey. Those who arrive via the sea route arrive on the islands of Lesbos, Chios, Samos, Kos, Leros, most of which are several nautical miles from the Turkish coast. Upon arrival, most are fingerprinted, some are detained, and virtually all begin the process of making an asylum claim. Those who don’t make an asylum claim can be detained and quickly deported: applying for asylum is in effect the only legal pathway to remain in Europe.
Applying for asylum is in effect the only legal pathway to remain in Europe.
Here, the fluid, flawed system of categorisation reveals itself. Upon arrival, all would be considered irregular migrants. Upon making an asylum claim, they become asylum seekers, and therefore (at least in theory) entitled to some protections whilst their asylum application is being processed. In the first weeks, they are issued with an International Protection Card (popularly known as an Osweiss or Whitecard) a form of identification recognised by the Greek state that grants the holder access to various state and non-state services.
And so to the first phase of what is a farce. The ‘hotspot’ approach means that those who arrive on the islands are required by law to remain on the islands while their asylum claim is processed. It is not necessary to dwell on the conditions of the hotspots; others have catalogued the horrendous conditions, chronic overcrowding and systematic violations of human rights. Each and every hotspot currently holds a minimum of four times its stated capacity; Moria camp on Lesvos was built to contain 3,000 people. It currently holds nearly 17,000. Many complain of the virtual impossibility of obtaining a doctor’s appointment, of queuing for hours for basic medical care and medical treatment limited to the prescription of paracetamol. Accommodation is basic, often just a shared tent; some have simply been given blankets and instructed to find somewhere dry. Thus, those with the International Protection Card on the islands have a card that theoretically provides access to services, but the services themselves are non-existent.
Those who manage to escape the islands (by using false cards, or buying or borrowing the cards of others) arrive in Athens, but find themselves without a valid IPC. They are thus irregularised once more; access to state services (and many, though not all, NGO services) is removed. They live with the daily threat of arrest, detention and return to the islands. Only those who are able to prove their vulnerability are (at the state’s discretion) able to continue their asylum claim on the mainland. Victims of torture, victims of rape, pregnant women, those with serious medical conditions that require treatment not available on the islands, and (until recently) victims of shipwreck and those suffering PTSD can, with the requisite documentation, continue their asylum claims. Those who cannot prove their vulnerability, and those not considered vulnerable, find themselves locked out of the asylum system, and caught in the most precarious of situations, without accommodation, without access to state medical care and without any source of income. The choice is therefore to remain on the island without basic services, or make your way to Athens and have access to those services removed.
Alongside this first subset of irregularised people is a second group; those who have had their asylum claims rejected, and have exhausted every legal pathway to appeal this decision. This latter group is the larger of the two. Since 2013, Greece has rejected the asylum claims of 56,053 people. (A brief caveat; Greece is not out of line with other EU member states. The purpose here is not to call Greece out, but to use the country as an example to illustrate what is happening across Europe.)
What has happened to the nearly 60,000 people who have had their asylum claim rejected over the last 7 years? According to Greek asylum law (until January 1, 2020) asylum seekers who received a first instance rejection had the right to appeal (though in 2018, the rejection rate for appeals was 91%). Upon receiving a second rejection, it was still possible to make a final appeal by taking the case to the Court of Appeals, but this typically required a private lawyer and would incur costs of around 800EUR. It is safe to assume that the vast majority of those who had their asylum claim rejected were not able to overturn this decision.
Some of these unsuccessful asylum applicants were forcibly returned, and others did so ‘willingly’ through IOM’s controversial Voluntary Assisted Returns programme. But forced return is expensive, and though precise statistics are hard to come by (Eurostat offers the number of non-EU citizens ordered to leave a member state, but being ordered to leave and being deported are not quite the same thing) it is safe to assume that the majority of unsuccessful applicants are not forcibly removed. Some head to a second EU country and attempt to apply for asylum again, despite the Dublin framework explicitly forbidding what it terms ‘asylum shopping’. However, the majority remain in Greece, in limbo, without documents (the IPC is retained by the state on the collection of the negative appeal decision), without access to accommodation or state healthcare and without any legal means of sustaining themselves.
Some head to a second EU country and attempt to apply for asylum again, despite the Dublin framework explicitly forbidding what it terms ‘asylum shopping’.
Both groups of irregularised people are produced by the tragi-farce that is the European asylum machine. It should be pointed out that these people are not the much-maligned young, single men who have perhaps legitimately been denied asylum; they are also women, children, families who have been rejected, often on a technicality, on a careless sentence uttered in the first minutes of a preliminary interview. In a more just world, many would have been granted asylum. But as Fortress Europe pulls up the drawbridge and progressively tightens acceptance criteria, these people are among the first casualties.
To acknowledge their presence, however, is to acknowledge the hopelessly flawed asylum procedure currently in force in Greece and across Europe. A procedure that is shot through with contradiction, patently unworkable, horribly unfair, and (dis)organised by a labyrinthine, laborious bureaucracy that seems to revel in its own incompetence. Instead, we do two things. Either we speak of ‘failed’ asylum seekers, of swarms of undeserving economic migrants sneaking into Europe, lacking both documents and basic morality; or we ignore them, forget them, leave them to live and die in the shadows of society.
Europe can, should, must do better.