A (different) strategy for immigration policy
* The text is the product of collective work by a group of the Hellenic League for Human Rights, which consisted of Garifallia Anastasopoulou, Eleni Kalampakou, Vagelis Mallios, Antonis Spathis, Ilias Tsaousakis, Andreas Takis, Konstantinos Tsitselikis, and Dimitris Christopoulos coordinated by the latter.
Translation from Greek: Katia Andronikidou and Stella Noutsou
The way the immigration has been handled in Greece must urgently change. The legislation should be streamlined in some places while some provisions that remain unimplemented by the adoption date until today should be activated immediately. But above all there must be change of direction in political will: the migration policy is not material for election campaign use but highly complex social compromise whose dealing constitutes a request of social cohesion, security and dignity of people living in Greece.
This text is documentation of the need for this change. It is based on the simple belief that a majority of immigrants in Greece are already into a definitive process of social and political integration with the final destination the Greek citizenship. Another part may enter into such a dynamic with the contribution of the legislature and the administration because it is on the verge of exclusion and inclusion. Given that these people have inevitably carried their living relations in the country, integration is the only way. Another part of immigrants devoid of legal documents lives under social exclusion conditions with no visible prospects for social integration, especially in today΄s crisis conditions. The public debate taking place today before the elections is referring only to this part, although in a vulgar and irresponsible way all immigrants are becoming a target.
It is known that deportations to countries of origin of immigrants devoid of legal documents are not made for reasons beyond the will of both the Greek state and often immigrants themselves. These immigrants since they cannot be deported must be recorded to get out of obscurity. When and if the expulsion becomes feasible, then it can be done. If on the other hand, the expulsion does not take place for a sufficient period of time, the state should take care of the residence status of those people. There is an urgent need, therefore, the Greek state to implement mechanisms to ensure that this population could be living in rudimentary conditions that do not feed neither crime, nor fear of crime, threat and despair both to themselves and the Greek people.
The migration policy in Greece is related to
– factual migration data (how many, what is and what immigrants do)
– a failed immigration policy that not only violates a series of rights but is also ineffective in its objectives
– and mainly the reflection of the previous two to aggressive anti-immigrant attitudes that infest and seem to conquer a growing part of the Greek public.
The electoral rise of neo-Nazi Golden Dawn is an indication of the impact of these perceptions. The desperation or frustration of a portion of the Greek society which itself can largely attribute (rightly or not) to immigrants is a fact that we have to take into account when discussing migration. A few years ago, some used to say that “immigrants are not a problem, they have problems.” Today, for us it is clear that this slogan was wrong for two reasons: first, because usually people do not prefer to live with people with problems, and secondly, because the fact that immigrants have problems does not mean that immigration cannot be a major problem if not treated with seriousness, realism and respect to human dignity. All those that lacked for about twenty years from Greek immigration policy with the results we see.
In Greece today, the problem is not any more focused on the Albanian migration of the 90s. Despite the existent vibrations and tensions for the bulk of public opinion “Albanians are integrated”, as opposed to the ΄new΄ immigrants from Asia and Africa, who generally lack full legal documents. The problem in the Greek public discourse lies there: the “illegal immigrants” or “clandestine immigrants.”
Particularly this text documentation is dealing with this issue. At this juncture, the need for a migration strategy is becoming a political priority aim. The text begins by presenting the issue in the dominant public discourse today and continues with the proposed steps of (another) strategy. Legislative basis for such a strategy exist in the Greek legal system (particularly in the Law 3907/11) but they are either consciously undermined by the very Greek police and administration, or lost in a broader context of lack of political will of the civilian personnel who rules the country and inability of the state apparatus as a whole. Finally, the text focuses on two major issues of current affairs, the health issue and detention centres highlighting the deeply problematic and inappropriate way to address these issues with the recent ministerial announcements which recycle the issue in a manner that exacerbates the already dangerous aggressive reflexes of Greek public opinion.
1. IMMIGRATION AS COMMUNICATION MATERIAL USED FOR ELECTION CAMPAIGNS
Lately, migration has come in the news once again in the wrong way in view of forthcoming elections. Hellenic League for Human Rights consider and documents following that the formulation of contradictory, unrealistic and in some cases unlawful proposals in a cloudy election climate is not conducive to clarity of arguments, or the formulation of guarantees for establishing solutions to chronic problems and outstanding issues awaiting resolution directly: ghettos in Athens, flourishing of crime and violence from all sources, the trampling of human dignity in places of detention, insecurity and fear consolidation in large sections of Greek society, including immigrants.
The uncontrolled course of impressing from the Government is continued with a supposedly committed, frontal “treatment” of the immigration issue. Incidentally, just before the elections in an effort to change the election agenda, they remembered the immigrants and the accumulated problems created by their own lack of political will to implement a solid, fair, responsible immigration policy.
Last sample of such treatment (especially coming from supposed enemies of populism), is the cynical way in which the ministers of Citizen Protection and Health attempted, in a joint statement, to associate immigrants with the ?source of evil? for major public health problems of the Greek society. They described immigrants as ΄a ticking time bomb ready to explode΄, while the real danger of ignition of society comes from the confrontational rhetoric and hate speech, which feeds directly the political extremes.
The relevant, rough, late filed amendment was withdrawn. However, the risk of domination of harmful, racist generalizations and obsessions remains serious. A society where each immigrant would be considered ?risk to public health? and ?biological enemy?, can only be an intolerant and fearful society. An undemocratic society, with dividing lines and zero respect for the rights of immigrants and refugees.
At the same time, the New Republic (Nea Dimokratia) and LAOS invest with a vulgar, irresponsible and obsessive way on the delegitimization of the reform of the Greek citizenship law (Law 3838/2010). PASOK, on the other hand, behaves politically as if the civil law was not theirs. The main ideological argument against this reform is that the “law on citizenship makes Greece a magnet for illegal immigrants.” This argument is unfounded and dangerous. It is unfounded because it is nowhere apparent – and could not occur anyway – that migration flows were strengthened because of the new law. On the contrary, there seems to be a decline in these flows due to the economic crisis and intensity of outflows of migrants from Greece, as the continuous naval incidents in the Ionian (and not anymore in the Aegean) prove. The relative rhetoric of ND and LAOS however is dangerous as it contributes decisively to the intensification of the anti-immigrant reflexes of the Greek public opinion at a time when nothing can guarantee that in crisis stroked Greece any arrangements for the migration (and beyond) will come through appropriate institutional channels.
It is also established that in election periods the adoption of such communication strategies favours predominantly the genuine racist right-wing parties and not the parties that adopt them. This was demonstrated by the campaign of the 2009 European Parliament elections, and it is demonstrated again now, only on the tip of the right spectrum the Golden Dawn is placed who just collects the profits of its silence. What was once called in Greece “power parties”, in their effort to hold the electoral audience that abandons them, are drifting to more and more extreme positions, resulting in a total shift of public discourse to the far right. The loser from this dangerous communication strategy is certainly the quality of democracy in Greece and human rights.
We consider as an obligation of a government that wants to play an important role in the migration approach, realizing that risk. It is unacceptable, especially in a country with such a weak immigration policy, such critical humanitarian issues to become prey to partisan games and electioneering impressing.
2. THE STEPS OF AN(OTHER) STRATEGY FOR THE IMMIGRATION IN GREECE
In Greece today, is living a large number of immigrants. A portion of this population lacks legal documents. Unfortunately, from nowhere except the findings of the national censuses of 2001 and 2011 and some research we do not have evidence that could precisely lead us to identify the exact number. So, numbers like 800 000 that recently leaked by the Greek police are checked completely inaccurate.
What should be immediately made clear here is the heterogeneity of the lacking legal documents migrant population. A portion of this population is either socially integrated or getting integrated: Immigrants? spouses, mostly mothers of children born or brought up here, people who fell out of legitimacy because of inflexible and unfair standards of work and residence status, or others who are unable due to responsibility of the Greek bureaucracy and their own to settle their stay in Greece etc. The identification of this population is vital. A man who has moved to Greece the centre of his living relations and yet, failed to be placed under the legal residence or worse at some point was deducted from its legitimacy, has all good reasons to require his inclusion in the legally resident population of this country. So should the country: for reasons of social cohesion and security both at stake today has all good reasons to want this population to a social integration path and not that of exclusion and marginalization. So, for these people, where most of the so called “asylum seekers” are included there is no other solution than a transitional regulation which, to be realistic and human, like Spain did in 2005, it will provide specific conditions that can be covered by a sufficient number of people who live and have carried their and their families? livelihoods here. But there are people who live and people who wander in Greece. Often the boundaries between the two groups are not clear which makes the same distinction schematic. The second category is more complex since it consists of immigrants who, as we know, live in absolute exclusion outside the urban networks, often without families, with the aim that at some point, they can go to another European country. These people have nothing, they often do nothing, in short, they are nothing to Greek law. Under conditions of crisis like the ones we face now, they are not even considered cheap labor. The answer to this major issue that systematically leads the Greek society into a crisis of permanent moral panic is to learn (about) these people. Record them. To see where and how they live, how healthy they are, whether they have children, etc. In simple words: it is not possible a state to depart from knowing who and how many people live in its territory and under what conditions.
The first group may consist of those who, although lacking legal documents are embedded in society. For this group a mechanism should operate that would also allow their lawful status in the social network. A second group may consist of the majority of the people lacking legal documents, who neither are yet integrated into the social network nor have the possibility of returning to their country or leave the country, so they remain trapped in obscurity that follows social marginalization. In this case a mechanism must be activated to exit from this obscurity, which will also reserve a temporary mechanism of residence. Moreover, such an approach had been initiated earlier by the Ombudsman highlighting the need for an “in tolerance” status before the new Cabinet in October 2009 while the same logic was detected in law 3907/2011 that has not been applied yet.
The debate refers to the necessity of recording and identification of the already existing immigrants that lack legal documents in the country, who, though embedded in society, typically they do not exist, which results to them living in “darkness.” Their recording constitutes the first step in order following to be grouped and then as teams to be dealt with different policies, based on the characteristics of each category.
For the recording is proposed the implementation of Criminal Law for the postponement of removal pending to be issued, based on Articles 24 and Articles 37 of Law 3907/11. This specific scheme on the grounds that the removal is not feasible for technical reasons provides also the possibility of access to the labour market. So setting the inclusion in a six months scheme with possibility of renewal, which gives access to the labour market a systematic effort to record immigrants devoid of all legal documents, can be organized. In any case, this scheme is not counted for permanent residence permit, but its constant renewal could lead to a residence permit on exceptional grounds (Article 44 Law 3386/05 as amended by Article 42 of Law 3907 / 11). Within less than a year, the legislature realized that the period of twelve years that was projected for the relevant permit (from Law 3907) was onerous and was decreased in 10 years (4018/11). We believe that the reduction of years in 7 to 8 years of residence for this permit is a fair and feasible solution that balances data with realism.
Postponement of Removal
The inclusion of these people in the ΄in tolerance΄ regime (postponement of removal) is required which is equivalent to an act of return and simultaneously the inhibition of removal according to the relevant provisions of the new Law 3907/11 (Article 24 paragraph 2) which provides that “the competent police authority may, by reasoned decision, postpone the removal, for reasonable time, taking into account the specific circumstances of each case…” in conjunction with Article 37 paragraph 3. according to which “The competent authority shall assess the feasibility of removal in each case based on specific data, upon which it relies, taking into account all available information regarding the practice followed in each country, in terms of cooperation on readmission. To this end, the competent authority may request assistance from the competent department of the Asylum Service.”
Migrants who will qualify for this status may have right to work. The right to work is recognized under conditions and needs to be issued a presidential decree under Article 37 § 5 of the Law. However, these people will not be able to travel back to home countries as they will be under return status and will renew this singular permit every six months. Under the provisions of the new law, applied only to the hunger strikers of Hypatia in March 2011, which essentially has not been applied yet and the police itself appears rather reluctant to implement it, anyone who has been at the expense of the return decision and qualifies for deferral of removal because he/she is not deportable can ask to be induced to this “in tolerance” status, without of course having to resort to hunger strike in order to succeed, as was proved by the experience of 2011.
The tightly closed system described above reproduces the basic problem of all political management of migration in Greece over the last fifteen years: making practically impossible a normal process of legal settlement of people that live and work in Greece, based on an individual assessment of their applications, rewards actually a treatment for “exceptional reasons” which, after all, are far from “excellent”. In simple words, the “closed” system of non-regularization, which is put forward as a “solution” to manage migration flows, is essentially the reason that leads inevitably to ad hoc arrangements.
Consequently, are urgent:
– The reconsideration and render of residence permits to those deducted from legalization in 2005 or did not meet the standards back then (in conjunction with the reduction of the required stamps for a residence permit, facilitation in way of payment, etc.).
– The possibility of individualized consideration of entry and render of residence permits of art. 21 § 4, Law 3907/11 (for humanitarian reasons),
– Direct decentralization and investigation of ΄exceptional reasons΄ committees in order to be able to process the relevant applications as quickly as possible.
– (or/and) Issue of 6 month renewable permits of art. 24, Law 3907/11, combined with the commitment of non-enforcement of expulsion for those immigrants proven work and renewal of their permit for four semesters with eligibility in the normal procedure after a certain period of time.
– The implementation of a fair system of recognition of political asylum, according to Law 3907/11, enabling people to be filed for asylum, rapid clearance of pending applications and focus on building infrastructure for the timely and valid test in first grade requests.
– The implementation by the Police of the possibility of voluntary departure to the country of nationality (Art. 20-22, Law 3907/11)
– The establishment of reception centers (and not spaces of deprivation of freedom) at the border for the registration and identification of irregular entrants, with the possibility of collecting asylum requests, conducting medical examinations and supply the necessary care when needed. The inapplicable existing legal framework to be reviewed (Special Immigrant Areas (Article 81 law 3386/05) First Reception Centers (law 3907/11) in connection with the election campaign promises concerning setting up Detention Centres.
– The creation of open social accommodation structures for vulnerable groups, like asylum seekers, victims of trafficking, torture victims, elderly etc.
– Especially for children, whose detention is prohibited by law, the creation of open accommodation and education structures.
– Deportation / removal, when required and it is possible to be directly implemented under conditions and procedures that do not violate human dignity.
– The complete reform of the art. 14 of 3386/05 for personal invitations with the release of committees that make the process lengthy and bureaucratic, only at the request of the employer. Expected EU Directive for seasonal invitations.
3. CURRENT ISSUES
A. The sanitary provision on “REGULATIONS CONCERNING THE REDUCTION OF THE SPREAD OF INFECTIOUS DISEASES? and the relevant circular of the Department of Health and Social Solidarity, 2.4.2012.
The sanitary provision of the Ministry of Health and Social Solidarity, which has not been published yet so as to come into force, aims, according to the explicit declarations of the Ministers of Citizen Protection and Health in their joint press conference on 1.4.2012, to take steps “to protect public health from risks posed by the uncontrolled flow of illegal immigrants in city centers” (see Press Release of 04/01/2012 Ministry of Citizen Protection).
In a recent press conference concerning public health and “illegal immigration” the Minister of Citizen Protection and the Minister of Health spoke of “a sanitary bomb ready to explode that has to be treated with seriousness, responsibility, devoid of all kinds of populism.” Accordingly, on the one hand, they referred to the squalid living conditions of immigrants without legal documentation residing in central Athens and the rapid increase of HIV cases, while on the other, they connected “illegal immigration” to the existence of more than 600 unlicensed brothels. Finally, it was not long ago, that the immigrants lacking legal documents were linked to diseases allegedly no longer affecting the Greeks, such as malaria and tuberculosis.
Nonetheless, the same sources alleged by the Ministers in support of their positions rebut their stance, revealing that what they assert is unfounded and unscientific. In particular, the official reports of the Center for Disease Control (KEELPNO) and of the European Centre for Disease Prevention and Control (ECDC) show that while tuberculosis is steadily declining in recent years, and that in any case the figures of Greece are clearly lower than those of other European countries; malaria, which is not transmitted from person to person unless certain conditions exist [κάτι λείπει από το ελληνικό κείμενο]. With regards to HIV positive individuals, KEELPNO confirms that the unprecedented increase in their numbers is attributed to the use of intravenous drugs. Finally, the allegation connecting immigrants without legal documents to the existence of brothels without permission is also insubstantial. And this, because the existence of unlicensed brothels is the primary result of the groundless enlargement of the limitations associated with the settlement of prostituted persons in habitats by Law 2734/1999 (eg minimum specified distance), irrelevant to the existence of immigrants. In this respect, the official position of the Doctors of the World and the Doctors Without Borders is quite enlightening, who encounter on a daily basis immigrants and homeless patients, the former in deprived areas of Athens and the latter in the country?s borders. According to their testimonial, immigrants are not ill prior to their arrival. On the contrary, they are taken ill in Greece because of the squalid living and hygiene conditions, just as Greeks do. Specifically, the research showed that 63% of diseases presented in the Evros region derive from the detention conditions. It is thus clearly documented that while most of the people illegally crossing the Greek borders are healthy (otherwise how could they biologically withstand this adventure?) they first get sick in Greece as detainees in squalid confinement conditions.
What is worst, however, is that the proposed regulations violate every measure of human dignity, since immigrants (legal and otherwise) are being forced into medical examinations. Yet the compulsory examination and treatment of patients is expressly prohibited both by article 47 § 3 of Law 2071/1992 regarding the rights of hospital patients and by article 5 of Law 2619/1998 which ratified the Convention of the Council of Europe on Human Rights and Biomedicine, while it clearly violates the patient΄s right to autonomy ratified by article 5 of the Constitution. Exceptionally, there is only one case where one is liable to an obligatory medical examination, which for the asylum seekers falls under article 9 of the Directive 2003/9/EC, while for the immigrants it is a condition of their entering the country and not one of their residence in it, according to article 31 paragraph 2 of Law 3991/2011 (International Health Regulations of WHO). Compulsory treatment, however, can be considered only if there is evidence of an imminent public health risk, i.e. a potential incident which would adversely affect public health (art. 31 § 2 of n.3991/11). This risk must be real rather than presumed, and every medical procedure without the consent of the person to be subjected to the treatment is illegal.
Finally, the health provision predicts the creation of specially designated areas inside hospitals for the restriction, isolation, quarantine and treatment of immigrants (No. 1 § 3 and 8). The restriction of those who have entered the country illegally is predicted, for the entire duration of their medical examinations, so that Public Health will be protected. Hence, they become liable for detention in such areas even before they are certified as a risk. Such a practice, however, directly violates not only Article 5 § 2 of the Constitution that protects without discrimination the freedom of anyone within Greek territory, but the very D.Y.K. the P.O.Y declared in the preamble of the Sanitary Provision. According to this provision, public health measures should not include law enforcement or security purposes (article 1), while quarantine may only be imposed in cases of imminent public health risk.
With the circular dated 2.4.2012, the Secretary of YpYKA went a step further, by actually requiring from hospitals to create separate areas specifically for the treatment of illegal immigrants, regardless of whether or not they are carriers of infectious diseases. It should be stressed that the right to health as this is enshrined in art. 5 § 5 of the Constitution, must be implemented without discrimination, so as to ensure equal access to the appropriate quality of health care (see art. 3 Law Convention on Human Rights and Biomedicine). If anything has been learned from the movement for the abolition of discrimination is that every kind of segregation constitutes a discrimination. Segregating patients during their hospitalization not according to their carrier status, but according to the availability of legal documentation permitting them residency in the country, is a direct offence of human dignity and of the fundamental right to non discrimination (see also art. 3 D.Y.K. of P.O.Y). According to the press release of 2.4.2012 by YpYKA “in case illegal immigrants are in need of hospitalization hospitals will provide special inpatient wards, as they are to do in the case of infectious disease outbreaks.” With this circular, it is actually requested by hospital administrations to form distinct, special rooms for the treatment of immigrants without legal documents. From the wording of the circular, it can be inferred that the obligation exists regardless of whether or not immigrants present symptoms of infectious diseases.
Finally, the condition of the Sanitary Provision (No. 2 § 4) which obliges doctors to report to the police or the prosecution any violation of its provisions on health certificate etc is in fact a deterrent for the immigrant patient to seek medical treatment, which could ultimately result in a major problem both for the public health (if the immigrant is actually ill from a contagious disease) and for the patient?s own health and well-being.
B. The “detention centres”
As an effective way to solve a problem caused not only – or even primarily – by the increase in migratory flows, but by the ? conscious or not ? successive years of absence of any rational management and the weakness, and why not, even the reluctance to absorb even a minimum rate of the European mammoth funds received by our country, the hasty creation of 30 detention centres in Greece was decided, with a detention capacity of 30,000 foreigners. According to the preamble of the Act of March 21st, 2012 on “Regulation of contractual issues relating to the centres of reception and the detention facilities of illegal immigrants residing in the country and ways of their detention,” there is an exceptional case of an “extremely urgent and unforeseeable need for the creation and the immediate operation of detention facilities of the illegal immigrants residing in the country who have flooded the centre of the capital and other major cities, creating serious problems in security, social cohesion, public health and economy. “
The abovementioned legislative act is unconstitutional for two reasons: Firstly, the Constitution provides an exceptional urgent legislative procedure by the government and the PtD when there is an extremely critical and unforeseeable need. The residency of illegal immigrants in major cities does not classify for an unexpected situation. It has been occupying the legislator for the past twenty years and there are legal provisions which aim to tackle it. This is not about an earthquake, a flood or some other natural disaster or emergency which the legislatore could have not predicted and which requires special handling from the government and the PtD. Secondly, the sole thing regulated concerns the detention of the immigrants to be confined-detained in the centres, and specifically the fact that this responsibility can be undertaken by private security companies. However, the detention of people detained-confined on the basis of administrative or material acts of the Greek government – police, is part of the core of the Greek state?s sovereignty and cannot be granted to private individuals. The state is the sole body responsible for the enforcement of their rights during their detention which consists in a restriction of their personal security and freedom, namely a restriction of one of the most fundamental human rights enshrined in the Constitution and the international conventions.
Beyond the argument of a state of emergency, a recent justification of the abovementioned regulations is the issue regarding the danger of Greece?s exit from Schengen, which, as expected, all those who are seriously informed about this issue know that did not arise just now, but has on the contrary been of actual concern for at least a year. At the same time, it is stated that the abovementioned actions are allegedly dictated by the international commitments of our country. Is, however, the goal espoused by our ministers feasible? Will the immigration issue be resolved this way, even at a minimum? Will problems on security, social cohesion, public health and the economy, created as side-effects of the issue, be resolved? And most importantly, is the above proposal in itself an adequate and appropriate way to address the immigration problem?
It is true that a realistic approach to the issue generates the following facts: there are currently about 400,000 foreigners in Greece without legal documents a number, admittedly, much larger than a country like Greece can handle, the vast majority of whom reside in the center of Athens. So even if 30,000 of them are removed and transferred to detention centres it is extremely doubtful whether there will be a visible improvement in the city centre.
Secondly, their transfer to abandoned camps and other unused obsolete constructions seems more like a displacement of these people rather than a comprehensive and responsible handling of the issue. And this because according to the existing facts on the one hand tens of thousands of people will continue to remain trapped in the gears of the extremely poor, slow and inefficient asylum system, one which makes them ineligible for deportation for years, and on the other, deportation rates will remain extremely low. It is sufficient to mention that there are 3,000 foreigner applications currently pending in IOM, under the voluntary repatriation program, co-financed by the EU, which are not processed due to Greece?s failure to assume the 25% of the funding, in other words to cover the cost of its part. At this point, actually, reasonable doubts are raised regarding the reasons for which that the state avoids to request the reduction of its contribution to 5% of the program?s funding, as it is eligible to do. It is therefore a paradox that even today the law 3907/2011 has not been enforced covering the voluntary departures, i.e. the cases when the immigrant assumes the responsibility to cover the expenses of his journey exclusively on his or her own. And such cases have occurred many a time. In fact, some of them did not proceed because the Greek police were unable to provide a vehicle for their transfer to Athens from the province, while others were hindered because an explanatory circular had not been issues and the police authorities were not informed about the process that was to be followed.
Another very important question enquires about those to be kept in the abovementioned detention centres. And this becomes a concern because migration flows are diverse, so except financial immigrants (the prime group eligible for deportation) there are also those who belong to vulnerable groups, such as refugees, asylum seekers, victims of trafficking, unaccompanied minors and others who call for special legal treatment. However, the largest part of this population has not been recorded and the way in which the Greek police “sweep” operations are realised leaves no doubt that they are not going to be recorded, raising serious questions regarding the legality of the abovementioned regulations.
Specifically, the Minister reverses the entire logic of the 3907/2011 and of the Directive 2008/115 stating that detention is not the first but the last resort of the state to implement their final removal. Both the law 3907/2011 and the Directive 2008/115 find their main scope of implementation in cases where individuals forfeit legality, while Article 30 of the law regulates the issues arising from the detention of third country citizens subjected to the process of repatriation and not deportation, which, as an institution introduced by Article 76 of Law 3386/2005 it continues to apply to cases of third countries citizens as these are provided for by paragraph 1 of this article (76 Law 3386/2005) and remain outside the critical more favorable provisions of Chapter III of Law 3907/2011. Additionally, asylum seekers are to be detained under the current legislative regime (Article 13 of Presidential Decree 114/2010) only by exception. Law 3907/2011 provides for the accommodation centers for asylum seekers which, if not otherwise delineated they are understood as open, according to the regulation which the law (115/2008) incorporates. But neither have these been established yet. Finally, third country citizens to be repatriated are detained during preparation for the return and completion of the removal process, in case the implementation of adequate and effective but less restrictive measures and conditions is unfeasible, and the relevant provision grounds stand (§ 1), the detention continues for as long as the conditions of paragraph 1 refer and constitutes the individual?s successful removal essential. The maximum detention period may not exceed that of six months (§ 5), while it can be extended for a limited time without exceeding twelve months, in cases where, despite the reasonable efforts of relevant departments the removal operation is likely to last longer because: a) the third country citizen refuses to cooperate or b) the reception of the necessary documentation from third countries is delayed. Regarding those who are already residing in the territory, they may by law be included in the process of first reception, only if they fail to provide a document confirming their identity.
Right now, since the reception centres have not been established, only those who are under a deportation act and have not left voluntarily can be kept within one month past the decision issue. If, however, they have been kept in prospect of their deportation, without this being feasible, then they cannot be deported and cannot be detained again. These are the «de facto non deportable”, i.e. those who regardless of the state?s course of actions cannot for objective reasons return to their country. Note that for this category the European Court of Human Rights has held the detention illegal, exactly because their deportation has been proven, according to the Greek standards unfeasible.
But even for theoretically deportable it should be noted that the rate at which deportations currently occur, for some immigrants at least 15 years will be required for them to finally return to their country, while their detention is obviously illegal, unconstitutional and against the international treaties in case their deportation exceeds the period of 18 months. So what is the feasibility and legality of their detention in camps without the appropriate acceleration and ultimately achievement of the removal procedures?
In every case, the experience on the immigration issue as well as the broader subject of detention in Greece, have demonstrated the absolute failure of the state in the safeguarding of the detention conditions in line with international standards, which does not refer to immigrants, but also concerns the nationals detained in prisons and not in detention centres (prosperous jurisprudence of the EDDA on this subject). Accordingly, there is no doubt that the 30 new detention centers, which are even supposed to be ready within a month, will be constructed so as to ensure decent living conditions for prisoners, while the detention of people in such gives rise to vital issues of their fundamental rights? violation under the Constitution and article 3 of the ECHR.
In conclusion, the way by which once again in view of elections the immigration issue is attempted to be addressed by the state will fail to solve any problems concerning security, social cohesion, public health and economy, as claimed by the two Ministers of the second electoral periphery of Athens, which (by the way) is the largest constituency in the country. The business plan is neither new nor innovative, as it follows the typical and completely failed policy of all the Greek governments in recent years, based solely on preclusion and repression, and who encouraged the situation in the city center. Surely, the detention of 30 out of 400 thousand illegal immigrants will not solve the problem, such as the 12.5 km Ebro fence will not prevent migration flows into a country with a coastline of 15,000 km. This is why neither the fence nor the 30 new detention centres failed to receive funding approval by the Commissioner Cecilia Malmstr?m. The immigration issue will not be addressed without directly implementing Law 3907/2011, providing for the establishment and operation of first reception centres, if the asylum process is not unblocked and the new asylum service is not operational, if the existing legal arrangements for voluntary departures and the possibility of 6-month certificates for deportation deferment for the non-deportables are not applied, if IOM?s voluntary repatriation program is not funded and finally if the Greek state does not decide to deal seriously and comprehensively with the issue rather than engage in such spasmodic, costly and ultimately ineffective and dangerous actions.
The immigration issue is not an easy matter and is not suitable for emotional readings (either ways) let alone pre-election rhetoric. The ability of the Greek state to achieve a minimal response to the urgent need for the aggregation of the majority of immigrants in the country is by no means a given, especially in the current context where a large proportion of Greeks is drastically pushed towards poverty and social exclusion. So, the ?inclusion ? exclusion? dilemma, is one emphatically raised for everyone, Greeks and immigrants. At first sight paradoxically, the native population can be pushed to the margin equally or even more easily by the immigrants, as the latter, due to the comparatively increased difficulties and injustices they have faced in the Greek labor market, have developed a resistance that seems to be missing from a large part of Greek workers. In this sense, the crisis presents ambiguous results with respect to immigrants: while pushing some of them in foreclosure and exclusion, the distance dividing another part of the immigrant population and the natives seems to be diminishing, due to the acute self-preservation reflex. These contradicting processes highlight the complexity of the immigration management matter in 2012 Greece but at the same time it shows how urgent and necessary is for the Greek state to contemplate – seriously at last – on a strategy for the immigration issue. One could wonder: “even under these circumstances?” The answer is, unfortunately, “especially under these circumstances.”