Germany and Greece concluded the so-called Seehofer Deal in 2018. The administrative agreement named after German Minister of Interior Horst Seehofer says: migrants and refugees who have already applied for asylum in Greece and arrive to Germany via Austria should be refused entry and returned to Greece within 48 hours.
This is what happened to Syrian asylum seeker HT when he arrived to Germany in September 2018: he was arrested and forcibly returned to Greece on the same day. He was denied access to any procedure or effective remedy in Germany. Back in Greece, he was detained awaiting a forced return to Turkey. However, automatic removals under the Seehofer Deal – which deny any possibility to independently challenge, scrutinize and, or if necessary stop the removal– violate both the European Convention on Human Rights (ECHR) and EU law.
To challenge his automatic removal, HT filed an individual complaint against Germany and Greece before the European Court of Human Rights in March 2019. HT alleges that his forced return by Germany as well as his treatment and detention in Greece violate Article 3 (prohibition of torture and inhuman or degrading treatment), Article 5 (right to liberty and security) and Article 13 (right to an effective remedy) of the ECHR.
ECCHR and its partners PRO ASYL and Refugee Support Aegean submitted a Third Party Intervention to the court in October 2020 analyzing the legal implications of automatic removals with regards to the ECHR and EU law. In their intervention, ECCHR and its partners emphasize that Germany must grant refugees and migrants access to a procedure to assess the various risks in the destination country, in this case Greece. These risks include: inhuman detention conditions, general deficiencies in the asylum system, the risk of a chain refoulement (expulsion) to Turkey, as well as inhuman living conditions.
The Seehofer Deal, made between Germany’s Ministry of the Interior and the Greek Ministry of Migration, aims to circumvent the legal safeguards for refugees and migrants laid out in the Dublin III Regulation. In defence of this agreement, Germany argues that according to Paragraph 18 of the German Asylum Law (AsylG), asylum seekers can be refused entry at the border if they arrive via a “safe third country” or if another European state is responsible for their asylum procedure.
As EU law has primacy over national law, states cannot choose to circumvent it by signing bilateral agreements with other EU member states. Dublin III determines which European state should be responsible for examining an asylum application. Furthermore, the Asylum Procedure Directive obliges states to examine any asylum claim made if on their territory, including at the border. If it is then found that another EU state is responsible for carrying out the asylum procedure, the person may be transferred to the respective state – unless conditions in the respective destination country might result in inhuman or degrading treatment of the applicant. This was the case regarding Greece. Each removal decision must therefore be carefully and independently assessed prior to its execution.
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