Faculty of law blogs / UNIVERSITY OF OXFORD

Criminalising the Right to Seek Asylum



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5 Minutes

Guest post by Henrik Kjellmo Larsen and Eleanor Gordon. Henrik is a PhD candidate in The School of Social Science at Monash University. He spent four months as a field coordinator doing search and rescue on Lesvos in 2015 and has since then being working in the field of humanitarian and violent borderwork, criminalisation of humanitarian workers, security, global governance and human rights. In his PhD he investigates how spontaneous volunteers in humanitarian crises are affected post-volunteering. Eleanor is a Senior Lecturer in Politics and International Development at Monash University. She spent 20 years working in the field of conflict, security, justice and human rights, including 10 years working in conflict-affected environments with the UN and other international organisations. Her research, teaching and practice focus on inclusive approaches to building security and justice after conflict.

Photo: Marianne Myrvold Robertsen

A Syrian refugee was recently sentenced by a Greek court to 52 years in prison and fined 242,000 Euro for ‘illegally crossing into Greece’ and ‘facilitating illegal entry’. In a boat with his family, including 3 children, and 40 other migrants the man arrived on the Greek island of Chios in March 2020. He arrived shortly after the Greek authorities had suspended the right to claim asylum; a result of Turkey ‘opening the doors’ to migrants hoping to enter the EU, as Syrian refugees continued to enter Turkey. As a consequence, upon arrival, he was not only denied the right to claim asylum, but also charged and subsequently found guilty for attempting to enter Greece ‘illegally’. While it is not uncommon for migrants arriving in Greece to be charged with ‘facilitating illegal entry’ and subsequently sentenced to many years of imprisonment and fined extortionate amounts, the severity of the punishment in this case – for ‘illegal entry’ as well as ‘facilitating illegal entry’ – has been deemed ‘scandalous’ by civil society organisations. 

In this post, we argue that the criminalisation of the right to claim asylum is the latest example of the clear official commitment to deterrence by Greek authorities, using increasingly systematic, lethal and illegal methods to do so. This is evidenced not only by the criminalisation of migrants but also the criminalisation of those who seek to assist them in Greece and throughout Europe, pushbacks of migrant boats in the Mediterranean, and the deplorable conditions in which migrant camps in Greece are maintained.

Prosecutorial Deterrence

Since 2015, it has become apparent how different forms of violent border practices are routinely being used to discourage migrants from attempting to enter Europe across what is now regarded as the most dangerous and deadliest migration route on earth.

The decision of the Greek court to impose a lengthy prison sentence for ‘illegal crossing’ and ‘facilitating the illegal entry’ of others – a charge which is denied by the Syrian refugee and his family – could establish a precedent for what may be another dark chapter in Greece’s enduring criminalisation of migration.

Suspending the right to apply for asylum is a violation of international and European human rights law. Charging those who seek asylum - fleeing persecution, violence and war – with criminal offences which carry extraordinarily harsh punishments can be regarded as a clear sign of deterrence – criminalising those who flee to deter others from attempting to travel to Greece or the EU.

Other criminal charges levied against migrants in Greece include a pregnant woman charged earlier in 2021 with arson for setting herself on fire in a migrant camp on Lesvos. In November 2020, a father of a 6-year-old child who drowned while they were attempting to cross the Mediterranean into Greece has been charged with child endangerment.

Pushback as Deterrence

Attempts to undermine the right to claim asylum are not new. At least since 2007, the Greek Coast Guard have been performing systematic pushbacks of migrant boats. Since March 2020, up to 40,000 migrants have been victims of pushbacks in the Mediterranean. It is estimated that more than 2,000 people have lost their lives in this period in the Mediterranean as a consequence of these practices. Such pushbacks also violate the non-refoulement principle of the 1951 Geneva Conventions.

Today, the Turkish coast guard, and search and rescue (SAR) NGOs are publishing weekly, sometimes daily, reports and videos of violent pushbacks in the Mediterranean and the Aegean Sea by Italian, Maltese and Greek authorities. Such claims have been denied by the Greek Prime Minister, Kyriakos Mitsotakis, whilst the Greek Minister of Migration and Asylum, Notis Mitarakis, referred to the allegations as ‘fake news’. Meanwhile, the EU’s own border force, Frontex, has been put under investigation for allegedly facilitating illegal pushbacks.

Deterrence through the Criminalisation of Humanitarian Workers

Whilst illegal pushbacks endanger migrants, throughout Europe, humanitarian workers and ordinary citizens are being criminalised on a basis that their activity is facilitating irregular migration. Charges have also included money laundering, membership of a criminal organisation, espionage, and improper use of documentation. Some humanitarian workers have also claimed to have been subject to falsified police reports, seemingly supported by the fact that in almost every case, charges have subsequently been dropped or the accused acquitted. In 2019 The Global Legal Action Network filed a petition to the Court of Human Rights in Strasbourg challenging the Greek Authorities high profile arrests of Salam Aldeen in 2016. Despite activist efforts to ‘fight back’ against the criminalisation of aid, the fear of being targeted by the police have deterred many humanitarian workers and others from assisting migrants. For those willing to take the risk, it makes them more cautious in their work, less willing to cooperate with local authorities, reduces trust in authorities and negatively affects the freedom of association. More fundamentally, it has contributed to exposing migrants to more harm and risk, including as a result of a significant reduction in SAR capabilities in the Mediterranean in 2019 and 2020.

Poor Camp Conditions as Deterrence

There are strong indications that deterrence strategies are also being implemented through the management of refugee camps on the Greek islands. Being referred to as ‘a living hell’, and ‘the worst refugee camp on earth’, Moria, before it was destroyed by fire, had become the symbol of ‘the moral failure of Europe’.

During our research, the humanitarian workers and volunteers we spoke to who had worked in the camp thought that camp conditions were intentionally kept poor to discourage prospective migrants coming to Greece:

It is startling how the situation was bad then, and there were sounds of alarm you know, and now it's three or four or five times as bad. It just keeps on being this way, and it's not like there are steps taken to change the situation, rather there are steps taken to make it worse.

While infrequently openly admitted by Greek officials, Mitarakis recently remarked that the establishment of closed camps (camps with increased security and restricted access for NGOs, media personnel and others) ‘are a fence for future events. They certainly work as a deterrent.

Systematic state-endorsed deterrence strategies

Greece’s suspension of the right to apply for asylum was initially meant to end in April 2020, but due to the Covid-19 pandemic Greek authorities prolonged the suspension until 18th May 2020. In response to Greece’s suspension Ylva Johansson, EU commissioner for Home Affairs, asserted that Individuals in the European Union have the right to apply for asylum. This is in the treaty, this is in international law. This we can’t suspend.’ At the same time, Greece has been referred to as Europe’s ‘shield against migrants and offered 700 million Euros to help it ‘crack down on migrants’.

Nevertheless, there is no international or EU law that allows countries to deny individuals the right to seek asylum. Suspending and, indeed, criminalising the right to seek asylum is the latest in a long line of apparent systematic deterrence policies employed by European and national state authorities.

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How to cite this blog post (Harvard style) 

Kjellmo Larsen, H. and Gordon, E. (2021). Criminalising the Right to Seek Asylum. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/06/criminalising [date]

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