VIII. Returns and Deportations

Unaccompanied children who enter Greece without valid documents and do not ask for asylum are issued deportation orders. Authorities issue such orders without tracing the child's family, without determining the child's best interest, without assessing who will take care of the child upon return, and without enabling the child to legally challenge such a decision. Greece has a track record of deporting unaccompanied children without any safeguards, especially to Albania, many of whom were believed to have been re-trafficked upon return.[319]

The Ministry of Interior issued a total of 12,904 deportation orders to children in 2007 and the first half of 2008. Out of these, 2,599 deportations were carried out.[320] We only received separate deportation statistics for unaccompanied children who have previously made an asylum application but not for unaccompanied children who never filed an asylum claim. The Ministry informed us that 76 unaccompanied children who had sought asylum were deported in 2007; this figure rose to 119 for the first seven months of 2008.[321]

Deportations from Greece

Deportation procedures in law do not differentiate between unaccompanied children and adults. Greek law provides that an alien without valid documentation can be deported under an administrative procedure.[322] There is no provision in Greek law that requires authorities to assess whether a deportation of an unaccompanied child is in his or her best interests, or whether adequate care is available upon return. Equally, the readmission agreement between Greece and Turkey for third-country nationals does not contain any special provisions for unaccompanied children.[323]

Greek law only provides for the safe repatriation of recognized trafficking victims.[324] Deportation orders mandate a person to leave Greece within a maximum of thirty days.[325] The failure to do so may result in repeated detention followed by the issuing of another deportation order (see chapter V).[326] 

A person has the right to appeal a deportation order within five days after notification.[327] The police, the body that issues deportations, also reviews the appeals.[328] Human Rights Watch interviewed children shortly after their release from detention on Lesvos Island. All had been issued a deportation order. Not only were they unaware of their right to challenge these deportation decisions, they didn't know what the order in Greek said. Some were of the mistaken view that the deportation order legalizes their stay for one month and allows them to travel onwards to another country.

The Greek Ombudsman called upon the government in 2005 to refrain from deporting children and to carry out safe repatriations that respect their rights.[329] The national commission for human rights in a 2007 observation equally urged the government to stop "the measure of deportation for alien minors."[330]

When we asked authorities whether unaccompanied children are deported from Greece, we received a range of answers. The general manager of the Aliens Division of Attica told us that they only deported children with passports, which suggests that the obstacle in deporting children is not of a legal nature but rather due to a lack of documents and cooperation from embassies.[331] During our visit to Amygdaleza detention center for unaccompanied boys, we were told: "Albanian children are kept for 10 days and then deported to their families."[332]

Returns to Greece under the Dublin II Regulation

The 2003 Dublin II regulation was designed to determine which EU member state is responsible for examining a person's asylum application.[333] It was meant to determine the country in charge of assessing an asylum seeker's application and to prevent asylum seekers from submitting applications in more than one country. While there are a number of criteria that may be used to determine in what country a person's asylum claim should be processed, in practice the criteria most often applied is the country in which the asylum seeker first set foot.[334] On the basis of this criterion, an asylum seeker may thus be transferred by one member state to another for the examination of the claim. Any member state may refrain from transferring an asylum seeker and examine the claim even if transfer criteria apply.[335] In order to trace asylum seekers and migrants, foreign nationals above the age of 14 are fingerprinted and their data are entered into an EU-wide database.

The regulation is slightly different for unaccompanied children: they may not be transferred to the member state they first entered but instead to where they first lodged an asylum application.[336] However, the regulation does not provide for unaccompanied children to make an asylum application in the country of choice.[337] The regulation also provides for unaccompanied children to be reunited with family members if it is in their best interests, yet the definition of a family member is very restrictive and only applies to parents, guardians or spouses.[338]

Several NGOs and the UNHCR have documented violations of international standards in the application of the provision for unaccompanied minors in several countries: children had been transferred to the country they first entered and not to the country in which they first applied for asylum, no assessment of their best interests preceded their transfer, their previous experience was not taken into consideration, and no legal representation for the child during the decision-making was made available.[339]

Human Rights Watch was unable to obtain data on the number of unaccompanied children who have been transferred from EU member states to Greece. Such data are not systematically gathered by either the sending or the receiving country and there is no such requirement under relevant EU regulation.[340]

After NGOs and the UNHCR openly criticized Greece's asylum system, including the lack of protection and care for unaccompanied children, several countries suspended transfers of asylum seekers to Greece under the Dublin II regulation. Norway announced in February 2008 it would stop transferring any asylum seeker back to Greece under the Dublin II regulation. In September, it backtracked and announced that transfers to Greece would be based on individual assessments.[341] In April 2008 Finland announced a similar move.[342] Germany and Sweden have limited the suspension of transfers to unaccompanied children only.[343]

Summary Returns from Italy

Human Rights Watch gathered numerous testimonies alleging that Italian authorities in the ports of Venice and Ancona have summarily returned asylum seekers and migrants to Greece.[344] "Ten persons are returned back from Italy on a daily basis," we were told in Patras.[345] Italy not only returns migrants and asylum seekers to Greece outside the Dublin II regulation, it returns unaccompanied children as young as 12 without providing the child with an opportunity to file an asylum application. Twelve-year-old Nader Q. told us,

I traveled to Italy inside a truck with 15 other persons to Ancona. We were found inside the port in Italy….The police in Italy did not discuss with us.

We were found when they checked the ship. They sent us back into the ship and they didn't ask us any questions. There was no lawyer and they just put us back on the ship. I was the youngest. There was a lot of police…. Back on the ferry they first put us into a big room then they brought ten of us into the toilet…. The toilet was very small. We were all sitting and we couldn't sleep. The ferry staff gave us macaroni to eat and also water. I was 24 hours inside the toilet. All the adults were strangers. I didn't know any of them.[346]

Sixteen-year-old Jafar F. spent his return trip to Greece similarly: "I was locked into the toilet downstairs. I had nothing to eat or drink. It was for one night. It was very noisy."[347]

Human Rights Watch found that Italian authorities permitted some unaccompanied children to remain in Italy. Fourteen-year-old Wali P. was detected on a ferry in Venice in July 2008 and was granted permission to stay.[348] Fifteen-year-old Ghulam S. traveled hidden inside a container to Venice on June 11, 2008. Italian authorities discovered a total of 12 persons, including him, and sent back everyone with the exception of a younger boy, who reportedly was around 12 years old. Ghulam S. wanted to apply for asylum in Italy but had no opportunity to file an application.[349] The physical appearance of Ghulam S., Jafar F., and Nader Q. strongly suggests that they were underage when they reached Italy. Italian authorities did not consider their special needs and their rights as unaccompanied children and instead treated them as migrants without valid documents.

European law mandates member states to sanction carriers that transport persons without valid papers.[350] An employee of one ferry company that operates out of Patras told Human Rights Watch that sanctions are not imposed as long as the company agrees to take intercepted persons back immediately. He told us they always take persons back, even when they're full.[351] Ferry company representatives, however, were reluctant to tell us whether they employ private security agents to check trucks prior to departure from Greece.[352]

Legal Standards Governing the Repatriation of Unaccompanied Children

The Convention on the Rights of the Child urges states parties to identify a durable solution that is in the child's best interests and addresses their protection needs as soon as possible after their arrival.[353] States parties are also obliged to guarantee children access to asylum and subsidiary protection procedures and they must protect and assist children who are refugees or seeking asylum.[354] The repatriation of an unaccompanied child shall only take place after a thorough assessment including whether such a move is in the child's best interests.[355]

States must refrain from returning a child if the principle of non-refoulement applies, in other words, if the return poses a real risk that the person will be subject to torture, inhuman or degrading treatment or if the return poses a threat to the person's life or freedom due to persecution, including child-specific forms thereof.[356] With regards to children specifically, the Committee on the Rights of the Child held that the return or deportation of a child is not an option if there is a "reasonable risk" that this would lead to the violation of a child's fundamental rights.[357] Such an assessment of risks includes, inter alia, the safety and security situation awaiting the child, socio-economic conditions, the availability of adequate care as well as the duration of absence from the home country.[358]

Children enjoy procedural safeguards during repatriation proceedings. If their return poses a risk of refoulement, as explained above, they must be given access to an effective remedy and the right to legally challenge a repatriation decision.[359] The Committee on the Rights of the Child asks member states to ensure children's representation by a guardian and a lawyer during such proceedings.[360] The UNHCR calls on states to carry out a best interest determination prior to deciding on any durable solution, and to document such an assessment.[361] Greece's routine practice of issuing deportation orders without ensuring representation or legal assistance for the child, and without providing children with an opportunity to appeal a deportation decision bars them from the right to an effective remedy. Furthermore, the practice of ordering and implementing children's deportation without any prior assessment of whether the child flees persecution or risks inhuman or degrading treatment upon return is a flagrant disregard of international norms.

In the case of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, which involved the deportation of an unaccompanied girl to the Democratic Republic of Congo, the European Court of Human Rights held that states parties to the European Convention on Human Rights must take requisite measures and precautions against torture, inhuman or degrading treatment when deporting a foreign national. The court stated that Belgian authorities "did not seek to ensure that she [the child] would be properly looked after or have regard to the real situation she was likely to encounter on her return to her country of origin."[362] In Nsona v. The Netherlands, which also involved the forced removal of an unaccompanied child, the court explained states parties' responsibility under Article 3 of the ECHR:

The responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting States at the time of the expulsion.[363] (emphasis added)

Returns and Transfers to Greece

Given the systemic deficiencies in protecting unaccompanied children in Greece, EU states should suspend the transfer of unaccompanied children to Greece under the Dublin II regulation, and they should stop returning children summarily at ports of entry. Instead, EU member states should refer unaccompanied children to their national child protection services, and if a child seeks asylum, take responsibility to assess the claim in a child-friendly, fair and expeditious manner.

International law stipulates that the child's best interest is a primary consideration in any decision affecting the child and that children deprived of their family environment are entitled to special protection and assistance by the state.[364] As documented in this report, Greece does not provide sufficient care places for unaccompanied children and no minimum standards govern existing places. Unaccompanied children outside care arrangements find themselves in an extremely vulnerable situation. They perform exploitative and dangerous work and they are at risk of being trafficked. Unaccompanied children may be detained in Greece, including in conditions that are below minimum standards and may in some cases amount to inhuman and degrading treatment. They are at risk of ill-treatment at the hands of state agents during arrest, and they risk violence by fellow inmates in detention.