Peripheralisation and externalisation of the EU asylum regime: implications for the right to seek asylum on the southeastern EU border islands

ABSTRACT

Since the increase of refugee arrivals in 2015, the longstanding trend of using islands to confine asylum seekers at the EU borders became a prominent aspect of asylum governance. By looking at the southeastern border of the EU, as it has been constructed around the five Greek islands that host the EU’s hotspot approach, I demonstrate the implications of the European governance of asylum on the individual right to seek asylum. In doing so, I argue that there is a newly introduced process of peripheralisation of asylum. Under the term peripheralisation I describe the multidimensional process of demotion or downgrading of a socio-spatial unit about other socio-spatial units, i.e. the Greek mainland and the northern EU member states. Although the externalisation of asylum, is key to understanding the impact of the right to asylum, peripheralisation provides the necessary conceptual tool to explain the new architecture of confinement inside the territory of the EU and on the southeastern border islands. The main contribution of the article is providing an understanding of how the right to asylum is also hampered within the EU through the peripheralisation of the islands and by the externalisation of Turkey.

KEYWORDS:

• EU asylum policies
• externalisation of asylum
• peripheralisation
• hotspots
• right to asylum

Introduction

This article explores the implications of the right to seek asylum at the south-eastern sea borders of the EU through the interlinked processes of externalisation towards Turkey, and what I call the peripheralisation of the border islands. The effects of the harmonisation of the European asylum and migration policies have been widely discussed since the 1990s, especially in relation to human rights, the legitimacy of non-state actors in border enforcement and diverse outcomes in different geographical localities (Lahav 1998). More recently and after 2015, a vivid academic and political debate has emerged in connection to the increase in arrivals, which came to be called a “refugee crisis” or “Mediterranean migration crisis.” The persistent emergency at the external EU borders has been addressed by scholars studying European integration who, even when holding different theoretical views, have concluded that there is a lack of political will to reform the Common European Asylum System (Börzel and Risse 2018; Geddes 2018; Sandra Lavenex 2018). Five years after the “refugee crisis”, in September 2020, the European Commission announced the long-anticipated New Pact on Migration and Asylum (European Commission 2020). In this policy document, it is once again stated that the asylum procedures need to be accelerated and the collaboration with third countries needs to be strengthened to ensure the swift return of rejected asylum seekers. The new pact continues with the same principles as the previous Agenda on Migration (European Commission 2015) and this brings the need to discuss these persistent trends to the forefront. These trends, I will argue, pose a threat to the integrity of the European asylum regime, in terms of not only externalisation, but also within the EU borders and in the peripheral border areas.

This most recent policy development speaks to a growing literature that discusses the alarming decline in the right to seek asylum globally. As Alison Mountz vividly describes in her latest book, “border deaths are increasing at alarming rates. While many mourn this loss of life, another death goes unnoticed: the death of asylum itself” (Mountz 2020). More specifically, at the southeastern EU borders, where 80% of all arrivals took place in 2015, numerous studies argue that the right to seek asylum has been hampered (Cornelisse 2016; Frelick, Kysel, and Podkul 2016; Gammeltoft-Hansen 2016). This article contributes to the above literature in two ways. The first is conceptual and consists of introducing the peripheralisation of the EU asylum regime to offer a better understanding of the complex situation on the southeastern EU border islands. The second is empirical and consists of exploring the implications of the right to seek asylum at the southeastern EU border islands.

At the outset of the crisis, the European Commission (EC) published the European Agenda on Migration (European Commission 2015). The Agenda prioritised action “together with partner countries to put in place concrete measures to prevent hazardous journeys” (European Commission 2015, 5). Under this political mandate, and to target the central and the eastern Mediterranean corridor, the EC has paved the way for the EU – Turkey Statement of 2016 (Council of the EU 2016; Demirsu and Cihangir-Tetik 2018; Dimitriadi 2016). Besides the well-known consequences on the right to asylum and the human rights of migrants, the success of these agreements has been questioned (Reslow 2017). Moreover, between April 2016 and the end of 2020 only around 1.4% of all newly-arrived migrants have been returned to Turkey from the Greek islands EU-Turkey Statement.¹ These facts raise, at the very least, serious doubts over the legitimacy of the externalisation of EU asylum and migration policies. In a nutshell, it leads to severe human rights violations, it is costly, and it is very difficult to assess its success. Furthermore, as it is shown by Hathaway and Gammeltoft-Hansen (2015) the role of such agreements in asylum management is mainly to deter asylum seekers from arriving.

The above limitations of the externalisation of asylum as a policy have led to a change in the EU strategies regarding the management of asylum. Although the externalisation remains a priority, the actual policies pursued during the crisis indicate another important component – the confinement of asylum management on the border islands. I argue that this development can better be captured conceptually by the emergence of a parallel peripheralisation of asylum.

The right to asylum in the EU and its external dimension

Since the Common European Asylum System (CEAS) was created the negative implications on the right to asylum in the EU have been discussed non the least about integrating border controls within the asylum procedure (Chetail 2016; Lahav 1998; Moreno-Lax 2017). In practice, this merging of functions has resulted in a series of processes and practices at the borders, which effectively decreases the level of international protection (Guild 2006). At the same time, and increasingly since the late 1990s, another key objective has been the externalisation of asylum outside the EU (Andrijasevic 2010; Boswell 2003; Hyndman and Mountz 2008; Lavenex  2004; Lavenex  2006). This objective has been pursued through bilateral and multilateral agreements with third countries and with push-backs at sea and land borders.

The extraterritorial management of asylum seekers, especially on islands, is a global trend and it has been historically connected to spatial strategies of confining dissent and unrest to the provinces or colonies of major world powers. Historical examples of island confinement beyond Europe shed light on the current trend and include the Andaman islands in southeast Asia (Anderson, Mazumdar, and Pandya 2016), Norfolk Island, Palm Island, Bruny Island and Rottnest Island in Australia (Nethery 2012) and in Guantanamo in the Caribbean (Magner 2004).

This discretionary sovereignty (Noll 2003, 341), which allows states to withdraw their obligation to international protection by using the marginal island territories, enables the creation of spaces where rights are suspended. When a state attempts to provide a haven for asylum seekers in another state’s territory under the preface of an emergency or a state of exception, then a significant breach occurs in the sovereignty of the latter state. The United States has been implementing offshore asylum procedures since 1981, by processing Haitian asylum claims at sea (Van Selm 2003). In 2001, Australia launched the ‘Pacific Solution’ which entailed the offshore processing of several hundred asylum seekers on the neighbouring islands of Nauru and Papua New Guinea. Inspired by the Pacific Solution, the UK government proposed the establishment of ‘Transit Processing Centres’ (TPCs) and ‘Regional Protection Areas’ to the European Union (Frelick, Kysel, and Podkul 2016). These would be placed outside the geographical area of the EU. Although the proposal from the UK was not ultimately adopted into EU law, it has left an ideological blueprint, which one can still see in the speech made by Commissioner Avramopoulos in 2015 regarding the hotspots approach (European Commission 2015).

In Europe, the Mediterranean borders are defined by three sets of islands: The Canary Islands to the west, Lampedusa and Linosa to the south, and the Aegean Islands to the east. As Triandafyllidou (2014) explains, the European and the national policies on asylum and migration have imposed the role of “gatekeepers” to these islands, notably through the Dublin II Regulation and the implementation of the “first safe country” principle. Mountz and Loyd have conceptualised how islands become key global sites and “archipelagos of enforcement in all the regions where asylum is sought, contested and highly politicized” (2014). Their work on Lampedusa and the Greek Islands shows the significance of different nested scales – the regional, the island/archipelago, and the body – as sites where sovereignty is reconfigured and contested by transnational mobility (Mountz and Loyd 2014). I engage with this scholarship by focusing on the process which turns islands into gatekeepers and/or part of an enforcement archipelago by analyzing the enabled legal provisions and by introducing the concept of the peripheralisation of asylum.

To explore the implications that peripheralisation and externalisation have on the actual right to seek asylum, I draw on document and fieldwork sources. I have accessed and analyzed all the relevant documents in their original language and I have conducted the fieldwork mainly in Greek and in English whenever my interlocutors would not speak Greek. Being trained in law in Greek has offered me a direct understanding of the process and it allowed me to have discussions unhindered by language barriers. The document sources consist of the legislative revisions and case law since 2015, as well as the policy papers issued by the European Commission concerning migration and asylum policies. The study fieldwork sources include data collected during seven field visits to the hotspot islands and are composed of 57 semi-structured interviews (conducted on the islands, in Athens, Brussels and by phone), as well as non-participant observations at the hotspot camps, and all other facilities for the reception of asylum seekers. The evidence I was seeking to gather through fieldwork relates to the implementation of the legislative revisions and the concomitant practices on the islands. The analysis of this evidence is legal-spatial, and it shows what implications the externalisation and peripheralisation of the EU asylum regime have.

Introducing peripheralisation: the right to asylum in the EU after 2015

Using the theoretical concept of peripheralisation, I take a step further from the existing theorisations, which grasp some aspects of the trend of using peripheral territories in asylum management. The need to conceptualise the new asylum architecture through the notion of peripheralisation is derived from the fact that after 2015 the islands on the subnational border periphery were not only used as transit spaces, gatekeepers, or open-air prisons. They also constituted a dynamic “frontline” space where legal, social, and political differences to the centre, i.e. the member-states further from the external borders, resulted in severe violations of human rights. They increased barriers to accessing asylum and decreased the possibilities of finding an effective remedy to these violations.

Since the publication of the Agenda on Migration in 2015 (European Commission 2015), there has been an increased emphasis on the “frontline” member-states through the hotspot approach. The “[hotspots] are first reception facilities which aim to better coordinate EU agencies’ and national authorities’ efforts at the external borders of the EU, on initial reception, identification, registration and fingerprinting of asylum-seekers and migrants.” (European Commission 2015). On the ground, hotspots created a zone at the external maritime borders where new actors and significant funding were aimed at the local -concentrated at the borders- management of asylum for the entire EU (Bousiou and Papada 2020; Vradis et al. 2019).

As I will show in the empirical analysis that follows, the newly introduced laws and practices aimed at implementing the hotspot approach and the EU-Turkey Statement have been fuelling a process of peripheralisation on the Aegean Islands. According to Piattoni (2010), political science debates on the concept of centre–periphery and the significance that territory has on established levels and hierarchies, usually refers to efficiency. The binary of centre–periphery is informed by some stereotypical ideas of modernity and especially efficiency as the pivotal force, which drives the nation-state in delegating administrative power to lower levels (Keating 1998, 2). This, in turn, fuels the idea that the peripheral is backward, provincial, and parochial, compared to the centre, which is modern (Keating 1998).

The study and knowledge production of complex social, economical and political hierarchies between territories through historical and geographical lenses is well established. Peripheralisation, as a concept, and applied to migration, in particular, relates to critical debates non the least on “provincializing Europe” (Chakrabarty 2009). Europe and its discursive construction around the questions of what is European, as in the European human rights regime and European asylum system, implies another question of where is the European located. While the work on provincialising Europe is putting a temporal emphasis on the historicity of European colonialism and its relationship to the rest of the world which has “not yet” modernised and developed to the image of Europe, the concept of peripheralisation brings the spatial emphasis of developed and modern vis a vis the backward and provincial within the EU. The European north represents the centre where human rights are cherished and defended, while the external border states of the south are the places where human rights law is bent and stretched to uphold the gates of Europe, a process which, in turn, assures that the north of Europe doesn’t have to process and provide for the asylum seekers who remain trapped at the gates.

Moreover, peripheralisation as a process that unfolds within the EU relates to provincialising Europe in terms of knowledge production on issues of asylum management. Migration studies, as a discipline, has been heavily criticised as Eurocentric and concerned with the impact of human mobility from the “rest” and towards the “west” (Vollmer, Sert, and İçduygu 2015). This puts Europe in the centre of migration epistemology and results in the superimposition of Euro-centred categories and narratives of mobility (Garelli and Tazzioli 2013). Peripheralisation, as suggested in this article, contributes by critically engaging with the meaning of the European within migration studies as non-homogenous and certainly not without internal hierarchies of Europeaness. Examples of these hierarchies of Europeaness can be found in the discourses and relations between western and more recently integrated eastern EU member states (Kalb 2007).

The European Agenda of Migration (European Commission 2015) reflects the ideas of efficiency and modernity and it outlines a picture of central member-states who are able to efficiently manage asylum on the one hand, and frontline or peripheral member-states who continuously fail to implement the EU acquis on migration and asylum on the other. This configuration of what counts as centre and what counts as periphery, in relation to asylum governance, and which member states are failing to “manage” the arrivals and overcome the so-called crisis, creates greater divides between the north and the south of Europe (McDonough and Tsourdi 2012). Moreover, it allows for further layers of centre–periphery within the nation-state as the case of Italy has recently shown, where certain regions resisted the legislative proposal for internal responsibility-sharing for the reception of refugees, leaving the management of the issue to the territories closer to the external border (Campomori and Ambrosini 2020).

To introduce the theoretical tools for analysing a process of peripheralisation I draw on recent debates on critical geography, which are largely based on the scholarship of Lefebvre and Nicholson-Smith (1991). More specifically, I adopt Kühn’s (2015) definition of peripheralisation as a “multidimensional process” of demotion or downgrading of a socio-spatial unit about other socio-spatial units. This definition allows for peripheralisation to occur at different levels as it focuses on socio-spatial units and not tiers of authority or administration. As Kühn (2015, 369) explains, we can study peripheralisation as a process even in a neighbourhood situated in the geographical centre of a city, region, or country. Moreover, peripheralisation can also be applied to any spatial scale: on the macro-scale it can be applied to developing countries, on the meso-scale to non-metropolitan regions or urban regions, and on the micro-scale to urban neighbourhoods (Kühn 2015). The notion of peripheralisation as a process is not synonymous with the notion of the periphery that describes a static space and is usually measured either as the distance between the centre and periphery,or in economic terms (Fischer-Tahir and Naumann 2013).

Peripheralisation can provide insights into the effects of marginalisation. In particular when certain socio-spatial units are excluded from decision-making centres and from actor-networks that have decision-making power (Kühn and Bernt 2013). In this case, peripheralisation captures the process of centrally deciding on the establishment of a common European asylum system which, in practice, translates to huge differences in implementation for various territories. The result is that the rule of law does not apply in the same way throughout each national territory. This, in itself, downgrades the specific areas since the rule of law lays at the core of the social contract between the people and the government. These differences in implementing asylum law have been widely discussed in terms of the variations among the member states’ asylum systems (Thielemann 2012; Toshkov and de Haan 2012). Recent literature has also studied the differences between the EU and the countries that lay just outside the Schengen Area, in terms of peripheralisation (Müller 2013). This research has looked at the ways that the Schengen rules on external border controls have affected longstanding socio-economic relations based on historical mobility over the border, therefore effectively demoting these areas. Although Müller’s work (2013) explores the ordering processes at the EU external borders about their effects on the countries just outside the borders, the recent events of the refugee crisis point to the expanding scope of the EU bordering and ordering processes of socio-spatial demotion, which also affect the areas within the external border. In this article, I examine the subnational differences within Greece by showing how the newly introduced laws, jurisprudence, and administrative practices created a subnational space on the border islands, where the possibility to seek asylum became severely undermined compared to other parts of the same country.

It is important to recognise as part of this discussion, that the study of the process of peripheralisation looks at the emergence of peripheries, as well as at the simultaneous emergence of centres in a relational manner (Kühn 2015). For the policy area of asylum, in particular, this translates to the divide between frontline member states and central member states, as well as between hotspot islands and the Greek mainland. When the European Commission initiated the hotspot approach, social, spatial, and political implications were felt not only on the border islands but also in the northern EU member states. This meant that after 2016, a steep decrease was recorded in the overall number of applications for asylum. More importantly, the peripheralisation of asylum has severe implications beyond the scale of the individuals trapped in the islands which are urgent and relevant for the whole of the EU and which signal a demotion of the European human rights regime by paving the “death of asylum”(Alison Mountz 2020).

EU-Turkey statement and the implications to the right to asylum

The EU-Turkey “deal” or Statement has been widely promoted by European leaders and highly contested by scholars and civil society. The idea that EU member-states can outsource their international obligations towards asylum seekers using a political agreement is not new. What is of interest, in this specific case, is the legal form of the statement, as well as, its concrete effects in terms of the right to seek asylum. Regarding the form and the content, the EU-Turkey Statement came as a political declaration and through a press release on 18 March 2016 by the Council of the European Union (Council of the EU 2016). In the brief and rather descriptive document, the signatory parties laid down the conditions for a readmission agreement under which Turkey agreed to take back every irregular migrant intercepted in its waters and to step up cooperation to prevent irregular entries into the Schengen territory. It stated that all asylum seekers who entered Greece via Turkey after 20 March 2016 would be returned to the latter.

According to the official data, out of the 157.652 people who arrived at the Greek hotspot islands since the EU-Turkey statement and up till the end of 2020, only 2140 have been returned to Turkey.² This is less than 1.4% and it talks directly to the criticism that the externalisation of asylum only functions as deterrence (Hathaway and Gammeltoft-Hansen 2015). But how can deterrence work or continue to work when only 1.4% of people have been returned under the EU-Turkey Statement? Further doubts about the deterring effects of the EU-Turkey statement bring the fact that Greece and Turkey had previously signed readmission agreements which have been rather ineffective regarding the actual number of returns and in terms of deterrence (Gregou 2014; Wolff 2014). The difference between these agreements was the prospect of confining asylum seekers to the island of their first arrival. The conditions for the confined asylum seekers at the islands have been thus important in discouraging people from attempting the dangerous crossing of the Aegean Sea. This fact points to a missing link, analytically, between the externalisation of asylum and the situation on the ground. I argue that the missing link between the externalisation and the peripheralisation of asylum relates to the way that deterrence has been intended for the specific case of the Southeastern EU Border Islands through a series of legal revisions and practices.

The EU-Turkey statement as it has been implemented in Greece aims at managing human mobility through reception and detention facilities (Agier 2011; Pope 2017) in Greece and Turkey. More specifically, and in relation to Syrians, which have been the main target group of the statement, Turkey has legislated a Temporary Protection Regulation. According to the regulation, Syrians became beneficiaries of a “temporary protection” regime which is based on three principles: Turkey's borders shall remain open to border-crossers seeking safety in Turkey and no Syrian national shall be sent back to Syria against their will (non-refoulement principle), and the basic humanitarian needs of persons arriving from the conflict in Syria shall be met. In reality, though, the situation for Syrians in Turkey has been quite different. Reports from human rights organisations indicate pushbacks to Syria with evidence of incidents where Syrian refugees have been beaten or shot at the border when trying to reach Turkish territory (Human Rights Watch 2019). Moreover, research conducted in Turkey on the situation of returnees from the Greek islands showed that only 57 people readmitted from Greece under the statement (out of 1360) were able to apply for international protection (Van Liempt 2017). The same research indicated the systematic use of detention for non-Syrians and extremely low chances to apply for asylum (Van Liempt 2017).

For the ones which remain on the islands, which, in terms of numbers, represent the vast majority of all arrivals, registration according to EURODAC is the primary focus of all processes. Although registration sounds like a neutral administrative process that could even facilitate the processing of the asylum claims in reality it hampers the individual assessment of each asylum application. Sorting and categorising migrants, asylum seekers, and refugees and assigning them a nationality, an age, or characterising them as vulnerable within the hotspot approach does not result in a “swift” process or a resolution of the reception crisis, as it has been demonstrated by numerous researchers conducting ethnographic work at the islands (Spathopoulou and Carastathis 2020; Spathopoulou, Carastathis, and Tsilimpounidi 2020; Tazzioli 2016). On the contrary, it induces a humanitarian crisis due to the issue of overcrowding, and it merely decelerates the migrant journeys (Papoutsi et al. 2018; Tazzioli 2018) or forces some migrants to accept a not-so-voluntary return to their country of origin (Spathopoulou, Carastathis, and Tsilimpounidi 2020). The prospect of prolonged entrapment at the island and the compromised asylum procedures can thus arguably have deterring effects on asylum seekers.

Peripheralisation: confining the asylum-seeking process to the hotspot islands

The peripheralisation of asylum has been paved by the geographical restriction to the island of the first arrival. To explore the process of peripheralisation on the EU border islands, I argue that we need to look beyond the divide of “frontline” and “central” member states and instead focus on the subnational units of the “frontline” states. In doing this, I analyse how the peripheralisation of asylum has been produced by legal-spatial processes on the Greek border islands. The legal revisions made since 2015 have introduced numerous spatial dimensions regarding access to asylum and restrictions that the hotspot approach places on mobility in the sub-national jurisprudence of the Greek border islands (Papoutsi et al. 2018; Tazzioli 2018). Below I outline the legal revisions, practices on the ground, and the case law which refers to the implementation of the hotspot approach on the Aegean Islands. Following this, I present evidence in support of my argument that the Greek hotspot islands have become a demoted socio-spatial unit (Fischer-Tahir and Naumann 2013; Kühn 2015) of the EU with detrimental effects on the right to asylum.

The geographical restriction was introduced by the Greek Law on asylum 4375/2016 (Karagiannopoulou, Agrafioti, and Chouzouraki 2021). In practice, asylum seekers subject to the EU-Turkey statement are issued a geographical restriction upon arrival, ordering them not to leave the respective island of arrival until the end of the asylum procedure (Karagiannopoulou, Agrafioti, and Chouzouraki 2021, 24). The asylum procedure ends when an asylum claim has been examined in the first degree and on appeal, or if they do not seek asylum, until their deportation. Up till the latest legal revision of the asylum legislation, persons who were identified as belonging to a vulnerable group during their registration at the border islands had their geographical restriction lifted and they could leave the islands. From 2020, vulnerable persons or persons in need of special reception conditions can have their geographical restriction lifted only when appropriate support cannot be provided within the area of restriction (Karagiannopoulou, Agrafioti, and Chouzouraki 2021, 117). This has further limited the possibility of lifting the geographical restriction for vulnerable people. The vulnerability assessment has been heavily criticised for its shortcomings, including long waiting times, failure to grant individuals access to their medical records, non-identification of certain vulnerabilities such as victims of torture, failure to refer individuals to specialised hospitals for necessary examinations (Refugee Support Aegean et al. 2021).

According to interviewees (EU agent, Lesbos, September 2016, Municipality employee Lesbos, September 2017), Turkey demanded the geographical restriction as a precondition to accepting returnees under the EU-Turkey Statement. Moreover, the geographical restriction serves to prevent secondary movements across the EU as it becomes easier to confine asylum seekers to a remote island. This is indicative of the relational aspect of the peripheralisation of the asylum, which affects different territories in different ways simultaneously.

In legal terms, the geographical restriction introduces a limitation to the freedom of movement. Greece is a signatory of the International Covenant on Civil and Political Rights and according to art. 12, “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence […]”. Asylum seekers are entitled to the freedom of movement during the time their application is pending according to art. 7 of the Directive 2013/33/EU and art. 26 Geneva Convention (UN General Assembly 1951). Therefore, the geographical restriction, as a measure that restricts the right to free movement, should fulfil some minimum conditions. According to the general principles of law, any restriction to a right should be clear and precise and its imposition should be proportional and based on a reasoned individual decision. The Greek Law 4375/2016 in Art. 41 (1.d) provides that “the freedom of movement for applicants for international protection may be restricted to a geographical part of Greece based on a decision of the Director of the Asylum Service”. This provision is generic, unclear, and does not guarantee the minimum provisions under which a measure restricting a human right may be introduced. In practice, the police impose geographical restriction on the islands indiscriminately, without any prior individual assessment or proportionality criteria. It is also imposed indefinitely, with no maximum time limit and no effective remedy in place (AIDA 2018). Therefore, this is a clear case of rights being restricted based on where people are located, and not based on any individual assessment. The only rationale behind it is that a person, who would otherwise be entitled to these rights, has entered the country through a specific geographical area – the islands. This is a clear violation of the rule of law, which results in demoting the islands as spaces where the law is not the same as it is in the rest of the country.

In light of the above, five Greek Bar Associations and the Greek Council of Refugees came before the highest Greek administrative court, the Council of the State, and brought an action against the geographical restriction. On 17 April 2018, the court ruled that “there were no serious and compelling reasons regarding the public interest which could justify the imposition of a restriction on the movement of international protection applicants entering Greek territory after 20 March 2016, and therefore it could not be determined whether the restriction was necessary and compatible with the 1951 Geneva Convention Relating to the Status of Refugees and EU Law”.³ Consequently, the court annulled the decision because the legal grounds, which permitted the imposition of the restriction, could not be deduced. Moreover, the court held that the geographical restriction within the Greek islands had resulted in an unequal distribution of asylum seekers across the national territory, and significant pressure on the affected islands, compared to other regions (AIDA 2018).

Three days after the annulment of the decision, a new regulatory decision from the Director of the Asylum Service was issued, restoring the geographical restriction on the Eastern Aegean Islands. The only difference from the previously annulled decision was the reasoning which has been amended according to the legal analysis of the court and which included the implementation of the EU-Turkey Joint Declaration of 18-3-2016 according to which “it is deemed necessary to impose the restrictive measure of restriction of freedom of movement on applicants for international protection who enter the Greek territory through the Greek islands.” (Administrative Decision 8269, GG Β’ 1366/20.04.2018).

Analytically, the legislation and the practice of the geographical restriction at the border islands are central to the socio-legal demotion of the islands. They create a spatial breach between rights, people and place, meaning that the freedom of movement is restricted based only on the fact that the asylum seekers in the hotspot islands entered Greece through the sea Greek-Turkish borders. The effects of the transformation of the European borders into spaces of humanitarian control (Jones et al. 2017; Pallister-Wilkins 2018) are well recorded concerning the ways mobility is controlled behind the facade of humanitarianism. The present legal analysis of the geographical restrictions contributes by further showing how the rule of law is bent and reinterpreted in different ways even at different border sites of the same country.

Besides the detailed account of the violation of the rule of law and its effects about the right to the asylum the second factor, which contributes to the demotion of the islands, and has a deterring effect on asylum seekers considering entering Europe through the Greek sea borders, is the very poor reception conditions. Asylum seekers on the islands are obliged to reside for prolonged periods in overcrowded facilities, where food and water supply is reportedly insufficient, sanitation is poor, and security is highly problematic (Human Rights Watch 2018; MSF 2018). The Greek National Commission for Human Rights has repeatedly stated “its firm and consistently expressed position about the immediate termination of the entrapment of the applicants for international protection in the Eastern Aegean islands and the lifting of geographical limitations imposed on them” (NCHR 2018). This is illustrative of the deterioration of the living conditions, as well as the diminishment of the right to an asylum due to the spatial confinement on the islands which has been legally and socially constructed through the geographical restriction. Moreover, it creates a lot of uncertainty for asylum seekers who do not understand why they cannot leave the islands, and how long the procedure will last (NGO worker, via Skype, September 2019). This adds up to a severe mental health emergency at the hotspots, which has resulted in the escalation of self-harm and suicide attempts, even among minors (Médecins Sans Frontières 2017; Nye 2018).

The effects of the geographical restriction on the islands have been exacerbated by the hotspot approach. These effects demonstrate what consequences peripheralisation as a process has in creating a geographical zone where human rights and the right to asylum are twisted and stretched through legal provisions and administrative practices. In the words of the EC, the scope of the hotspot is to “swiftly” process the asylum claims and to ensure “effective” returns to Turkey. As it has been implemented though it becomes evident that it rather creates the problem it is supposed to solve (Bousiou and Papada 2020; Vradis et al. 2019). Asylum seekers are forced to stay in the hotspots even when there is no space in the containers or the tents which are used as housing. This is because food and other non-food items are distributed only at the hotspots, and most importantly the asylum offices and other administrative services relating to their case are all located inside the hotspots. The only way for asylum seekers to receive information on their case is to listen for when their names are called by megaphone from inside the hotspots or if they are staying in one of the containers, when an employee can reach them there (Interviews with hotspot managers in all 5 islands between 2017 and 2019). Therefore, they are forced to stay inside the camps to receive information regarding the processing of their applications. Moreover, according to Greek legislation, failure to show up to an appointment related to the asylum procedure equals resignation from the asylum application, which then leads to a deportation order. The above analysis is pointing to another problematic synergy besides the merging of border controls and humanitarian assistance (Pallister-Wilkins 2018) which consists of creating differentiated territories within one nation-state and concerning the application of the rule of law.

The hotspot approach, as it has been implemented in Greece, and as the EU Fundamental Rights Agency has stated “[…] is not sustainable from a fundamental rights point of view”(FRA 2019). Moreover, and beyond the deplorable conditions, it has fostered a series of practices that are impeding the right to asylum. First is the introduction of a special border procedure that is valid only for the Eastern Aegean borders with Turkey. Article 60(4) L 4375/2016 foresees this “fast-track” border procedure, which has significantly reduced the length of the asylum process to less than two weeks in total, jeopardising the quality of the decisions. As the Director of the Asylum Service noted in 2016, “insufferable pressure is being put on us to reduce our standards and minimise the guarantees of the asylum process … to change our laws, to change our standards to the lowest possible under the EU [Asylum Procedures] directive”(AIDA 2018). In 2018, the total number of applications processed through this fast-track procedure was 30,943. This represented 42.9% of the total number of applications lodged in Greece that year. In 2020, the total number of applications lodged on the islands was 21,879, which represents more than half of a total of 40,559 applications lodged in Greece the same year (Karagiannopoulou, Agrafioti, and Chouzouraki 2021, 93).

From the above longitudinal data, it becomes evident that this procedure lowers the overall quality of the asylum procedure in Greece since it accounts for a substantial, increasing number of all applications that are lodged. It should also be noted that the very short time limits of the fast track procedure only apply to the applicant. In reality, an application process can take several months, on average. The average time on all islands in 2018 from when the application was fully registered to the issuance of a first instance decision, under the fast-track border procedure, was more than seven months (AIDA 2018). This constitutes evidence of a practice that significantly lowers the quality of the asylum procedure while failing to achieve the stated goal of a “swift” procedure, and failing to stop the violations of human rights as a result of being confined to the hotspots. Moreover, this practice is essential in creating the socio-legal demotion of the islands compared to the mainland and the rest of the EU. As Kühn (2015) points peripheralisation is a relational process. In the case of the peripheralisation of asylum, the confinement of the asylum applicants and their processing on the islands cannot be isolated from the right to seek asylum in Greece overall and the EU. The relational dynamic between the islands, the mainland and the EU is double. On the one hand, it decelerates asylum journeys and prohibits asylum seekers from arriving in the north of Europe, and on the other hand it is detrimental to the institution of asylum as it is established by International and European law.

Another important issue related to newly introduced practices and legislation that impedes the right to asylum and creates a breach of the rule of law through the geographical restriction and the hotspot approach has to do with the involvement of the European Asylum Support Office (EASO) in the asylum procedure. According to the fast-track procedure, the interview to assess the applicant’s claim may be conducted by EASO personnel.

Based on this, the European Centre for Constitutional and Human Rights (ECCHR) filed a complaint with the EU ombudsman regarding EASO’s involvement in the asylum process on the islands. The European Ombudsman found that “EASO is being encouraged politically to act in a way which is, arguably, not in line with its existing statutory role. Article 2(6) of EASO’s founding Regulation reads: ‘The Support Office shall have no powers in relation to the taking of decisions by Member States’ asylum authorities on individual applications for international protection.”(European Ombudsman 2018).

Furthermore, there are some procedural discrepancies when the interview is conducted by an EASO caseworker. In these cases, he/she provides a recommendation on the case to the Asylum Service, which then issues its decision. (AIDA 2018). This violates the right of the applicant to be heard since it fragments the procedure without any guarantee that the account of the events that the applicant wishes to give is passed on to the caseworker. The introduction of new actors in the asylum procedure on the islands which are beyond the nation-state functions as a controlling mechanism towards the Greek authorities (Martin and Tazzioli 2016) and it reinforces the peripheralisation through socio-legal demotion of the islands as these actors are not accountable (Horii 2018) in the same way that national authorities are.

Conclusion

In this article I have explored the implications of the right to seek asylum at the south-eastern sea borders of the EU through the interlinked processes of peripheralisation and externalisation. I argued that it is not possible for the externalisation of EU asylum in the form of the EU-Turkey statement, alone to explain the developments following the crisis. Therefore, I suggested conceptualising the confinement to the border islands as a process of peripheralisation. As I argued, the border islands have undergone a process of peripheralisation in the sense that they became severely and socio-spatially demoted, compared with the rest of Greece and the Northern EU member-states. In the empirical analysis, I demonstrated how the right to asylum on the south-eastern sea borders of the EU has been undermined by legal revisions and administrative practices on the EU level, on the Greek nation-state level, and the level of the islands. This contribution sheds further light on how the integration of border controls within the asylum procedure negatively affects the right to asylum in the EU (Chetail 2016; Moreno-Lax 2017).

The analysis of the EU-Turkey Statement demonstrated how the right to asylum at the borders has been demarcated through multiple legislative and administrative practices. The political persistence to uphold the statement both on the national and the EU level is striking. The implications for the Europeanisation of the EU asylum regime, especially after the Lisbon Treaty, range from a “race to the bottom” (Toshkov and de Haan 2012) to the direct questioning of the legitimacy of the EU policies which attempt to bypass parliamentary controls (Cardwell 2013). As this article shows, it also results in the creation of multiple zones inside and outside the EU where the right to seek asylum is hindered to varying degrees.

While the EU-Turkey Statement has significantly affected the right to asylum, it has not produced proportionate results about migration management. Only approximately 1.4% of all who arrived after 20 March 2016 have returned to Turkey. The main deterring factor for asylum seekers who stay in Turkey is being confined to the hotspot islands. This socio-spatial demotion of a whole area on the edge of Europe, caused by the introduction of legislation that applies only to the islands and not the whole of the country, and which aims to detain the asylum seekers on the islands, regardless of the deplorable conditions, constitutes the peripheralisation of the asylum. At the same time, the traditional centre of Europe, which lies far from the external borders can continue to benefit from the reduction in asylum applications after 2016, offering a higher quality of procedural standards. As I have shown, the right to asylum at the hotspot islands is severely constrained by the legislation, which constructs barriers by introducing extremely tight deadlines, imposing a blanket geographical restriction, and including actors such as the EASO agents who lack the necessary authority, as well as by practices such as a forced residency at the hotspot, a lack of interpretation, and a lack of, or obstruction of, legal representation.

Overall, when analysed through the lenses of law and geography, the governance of the so-called crisis on the hotspot islands has allowed me to engage in a discussion regarding politics, law, and space. The instrumental use of the geographical restriction in the creation of a buffer zone, which would restrict asylum seekers from moving to the north of Europe, and which would deter asylum seekers from crossing into Europe from Turkey, goes beyond on-going or future emergencies. Each legal action that hampers the right to asylum on the islands has affected thousands of individuals stranded on the edge of Europe, but it has also affected Europe itself by aiding in the deterioration of the European asylum regime.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Author’s compilation of UNHCR data available at https://data.unhcr.org/en/situations/mediterranean/location/5179

2 Author’s compilation of UNHCR data available at https://data.unhcr.org/en/situations/mediterranean/location/5179

3 For details see: Council of State, Decision 805/2018, 17 April 2018, EDAL, available at: https://bit.ly/2GmvbTI