The Right to Asylum and EU Asylum Procedure in Greece

Introduction

1.1 In 1999, the EU member states committed themselves to the development of a common European asylum system based on the full and inclusive application of the 1951 Geneva Convention relating to the Status of Refugees (Vedsted-Hansen 2005). However, as Schuster (2011:102) argues, 'the asylum regime currently in place is marked by a narrow and exclusive interpretation of the Convention, one designed to keep those eligible to make a claim to the absolute minimum and to maintain those seeking the protection of the Convention in a state of insecurity for as long as possible, in order to facilitate their removal to another state or to their country of origin, and to deter others from seeking their protection'.

1.2 This article focuses on the Greek case, which saw, after many years of battling with an inadequate asylum system, some serious changes to an efficient asylum service. The article seeks to examine whether and to what extent the framing of asylum in Greece, as altered in 2013, has affected the asylum determination status, the narratives about safeguarding asylum protection under the types of responsibilities owed to refugees according to European Union law, i.e. refugee status, subsidiary status and humanitarian support.

1.3 It consists of two main sections. The first outlines the situation facing asylum seekers in Greece and the procedure followed in the newly founded Asylum Service and Appeals Authority. The second section examines the parallel development of policies and practices in the area of asylum determination system, from both a governance^[1] and a subjective angle. It analyzes the particularities of Greek asylum realities and political priorities, compares developments in the country with the recent past as well as in relation to the progressive framing of policies of asylum brought about as a result of Europeanisation^[2] of policies. We show how asylum status is governed as expected by state regulations but it is ultimately determined by the dynamic relation between asylum seekers and asylum committees during the entire administrative process which begins with the asylum application and ends with the final phase of status determination.

Methodological note

2.1 This article draws on data collected in Greece from 2011 until 2013, mostly through interviews pertaining to issues with regards asylum seeking and asylum status determination procedure. In addition it relied on participant observation in the activities of the Greek Asylum Service and Appeals Authority, NGOs specializing in providing assistance to asylum seekers during their application process such as Metadrasi and the Greek Council for Refugees (GCR), and fieldwork conducted at Fylakio in Evros and the Aliens Police Directorates in Athens and Orestiada.

2.2 During fieldwork we focused at the practice and discourse of administrative bodies set up by statute to manage the asylum applications. It seemed to us that a qualitative approach which draws on a combination of ethnography, participant observation and interviews is better equipped to prise open for the analysis of ambivalent issues related to how asylum status determination is ultimately taking place. This is a sphere of research, characterized by little scholarly attention, which involves practices and behaviors that refer to informal networks other than the institutional social relations.

2.3 We studied twenty five (25) asylum cases, men, women and unaccompanied minors, from their initial application procedure to their appeal and finally to either rejection or award of the refugee status. Much of material emerged from participant observation and informal talks with jurists and social scientists, over the period of several months regarding the processes of their decision-making. These were complemented by fifteen (15) in-depth, unstructured interviews with participants - asylum seekers - coming from a range of countries of origin and a variety of ethnic, socio-economical and political backgrounds, on their experiences in their own countries just before taking the decision to leave and in Greece during the time of their asylum-related status determination and their engagements with the different bureaucracies in the different stages of the procedure. Interviews with asylum seekers, typically lasting between one and three hours, were conducted in the participants' native languages with simultaneous translation in Greek. Our analysis of the scope and meaning underlying the discourses and practices of asylum determination derives from a combination of sources, legal obligations, formal statements of organizational policy, individuals' own reflections in relation to asylum management as well as from analysis of our own observations and interactions with asylum seekers and social movement actors.

Sphere of the 'ungoverned' and abjectification in refugee status determination.

3.1 Giorgio Agamben (1998) critically engages with the work of Foucault in the sphere of governance/governmentality,^[3] and he interprets and furthers Foucault's concept of it (Foucault 1991). Agamben's claim is that the crucial point in the concept of governmentality is that it concerns the articulation of power/authority with the administrative management of the population of a state. Agamben maintains, further than Foucault ever did, that for understanding how power and authority works in governmentality, the sphere of the 'ungoverned' is an important field of consideration. His claim is that the particular combination of sovereignty and administration in governmentality cannot be understood without attention to the 'ungoverned' as Agamben called the processes of subjectivation in the realm of governance (Agamben 1998, 2009). Starting from the definition of the 'ungoverned' as a form of power that considerably differs from the legal-constitutional understandings of politics, he analyzes how the act of governance operates through subjectified, dispersed practices and discourses that constitute a web of societal relations, and which in effect compromise the total categories of law and politics. Within the contemporary circumstances of the modern state the law suspends itself and in the process enables an ungoverned state of exception. (Raulff 2004) The dialectic between the governed/norm and the ungoverned/exception is a central element of political dynamics of modern states. (Agamben 1998, 2009). In tracing the significations of this as a valid object of study, he claims that at first glance it seems that governance through administration, through management is in the ascendancy, while rule by law appears to be in decline and that we are experiencing the triumph of the management, the administration of the absence of order (Raulff 2004). He notes that the concept has to do with a managerial or operational focus of governance. He says that the term is associated with the context of rhetoric in the governing activity of the modern states. This conception of the ungoverned is particularly important for this article as we are looking at it as the central characteristic of the contemporary political predicament in refugee status determination procedure at the Appeals Authority Asylum Commitees.

3.2 The other concept which is important for this article is Kristeva's (1992) concept the abject which exists between the concept of the object and the subject. The abject is something which used to be a subject and which can provoke a traumatic experience in one who comes into contact with it. The legal abject represents the form of utter exclusion in society and the abjection describes the state of often marginalized people, excluded bodies by law and through law who eventually become repulsive to society at large, in this case the asylum seeker. As De Genova (2007:440) argues, 'during an era when the abjection of non-citizens has become scandalously routine and the insecurity of citizens has been rendered a political resource of onerous gravity, the gathering revolt of denizens may yet signal a stringent clarification of our universal political predicament – as always – already susceptible to suspicion always-already potentially culprits' (ibid:442). As we shall show in this article, asylum seekers are transformed in the host country from legal subjects to repulsive legal abjects excluded from the host society. This process of abjectification also leads to different degrees of exclusion for these people and formulates different forms of human insecurities (see Konsta and Lazaridis 2010; Lazaridis and Konsta 2011).

Changes in Greek Asylum System and Procedure.

4.1 As asylum seekers and irregular economic migrants knocked at the doors of the European Union in the past decades, an increasing number of asylum seekers have arrived in Greece, the country mainly becoming a transit route to Europe. Because of its geographical position, Greece holds a significant role in the regulation of asylum in Europe, as a first stop of asylum seekers from Asia, the Balkans and Africa, arriving in Greece (by foot) via Evros and (by sea) via the Mediterranean (FRA 2011). Given Greece's limited fiscal resources, its perceived position as being a front entry line to the EU, has placed enormous pressures on the country.^[4] The laws that compose the Common European Asylum System (CEAS), the 2003 Dublin II Regulation being part of it, assign the responsibility for each asylum claim to a particular Member State, most often, that of the first State entered to evaluate all asylum requests it receives and to protect those determined to be in need of international protection (McDonough & Tsourdi 2012, Papadimitriou & Papageorgiou 2005). The countries responsible for a large number of applications in the EU are in fact Greece along with Malta, Italy and Spain (Joppke 2004). The responsibility for border controls and the examination of asylum applications have been pushed out from the borders of states like Germany, France and the Netherlands to the peripheries of the EU. This has had the effect that the buck of border control and examination of asylum applications has passed to the frontier member states. Following an ever increasing number of claims, the deterioration and delays in decision-making, as well as overcrowding in detention centers, many individual member states, since 2011,^[5] have suspended Dublin returns to Greece, led by humanitarian concerns that this might constitute a violation of the European Convention of Human Rights. Reports from local NGOs have documented important deficiencies during every stage of the refugee experience in Greece, from arrival at the border through to the implementation of a final asylum decision (FRA 2011).^[6] Case in point was the January 2011 decision of the European Court of Human Rights (ECtHR) which ruled that Greece is responsible for serious deficiencies in the asylum system, border procedure, reception support and detention. (cf. ECtHR, M.S.S. v. Belgium and Greece (Judgment) (2011) Appl. No. 30696/09 & CJEU, N.S. v. Secretary of State for the Home Department and M.E. et al. v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform Judgment) (Grand Chamber) (2011) Joined Cases C-411/10 and C-493/10).^[7] The significant increase in migration inflows in 2010, coinciding with the national financial crisis,^[8] vastly complicated efforts to manage the asylum 'burden'.^[9] In fact, before 2011, in Greece, a fantastically high number of backlog asylum cases, 47.000 remained pending examination at second instance according to the Ministry of Citizen Protection (MoCP), was the highest number in Europe (UNHCR 2010).

4.2 In 2011, Greece, began an asylum policy reform.^[10] The new legal framework reforming the asylum system was adopted in 2011 with Law 3907/11 (which was an adaptation of Greek legislation to the provisions of EU Directive 2008/115/EC) creating an Asylum Service, a First Reception Service and an Appeals Authority under the MoCP. The core change brought about by the new procedure relates to the authorities competent for handling the asylum procedure. Under the previous procedure, the police authorities were responsible for receiving and registering applications for international protection. Up to 30 persons were admitted to register their asylum applications and to receive a date for an asylum interview at the first instance once per week, of the hundreds queuing outside police premises and waiting since the day before - a situation which caused tensions and in some cases, resulted in serious incidents among the many that had been waiting for their 'chance' to register their asylum-application (UNHCR May 2012: 3). The Presidential Decree 114/2010 established and regulated a transitional phase of the asylum procedure. According to it, the first instance remained in the competence of the police, while the second instance became the responsibility of ten Appeal Committees to decide on appeals in asylum cases. During the two and a half years of their operation, efforts have been made to accelerate the processing of the backlog of appeals. Still, in 2013, asylum claims lodged under the earlier procedure, are still pending, until the backlog clearance of the long pending appeal cases is completed. Therefore, in order to address the problematic management of asylum applications pending with the police, the P.D. 114/2010 and the new asylum law now operate simultaneously.^[11] Under the current procedure, the reception, registration, examination and decisions on first instance of asylum applications are under the jurisdiction of the Asylum Service, a civil service, which is composed of the Central Asylum Service, based in Athens, and the Asylum Service Regional Offices, which are no longer under the auspices of the police. The official launch of the operation of the Asylum Service and Appeals' Authority was in June 2013 in Athens, regulated by Presidential Decree 113/2013. As of that date, a twofold regime for applications for international protection operates in Greece; applications lodged before June 2013 fall within the scope of PD 114/2010 and applications lodged after June 2013 fall within the scope of PD 113/2013.

4.3 As far as the actual asylum determination procedure is concerned, it goes as follows: Applicants for international protection can lodge a claim at entry points before the Asylum Service offices, in person. They may request not to be deported to a country on grounds of fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion according to the Geneva Convention or the risk of suffering serious harm according to Article 15 P.D. 96/2008 (O.G A' 152). Everyday images of the place include long queues of people quietly waiting to submit their application and to pass an interview, attending to instructions of where to stand and how to behave by armed police officers and state employees wearing no uniform but equipped with gloves, surgical masks and tiny containers of disinfectant sprays. These images are imbued simultaneously with the state's protective attributes through the possibility of acquisition of asylum status and prejudiced representations of difference. It is as if being an asylum seeker is the defining feature of a person to such an extent that it determines the conditions of his/her life and undermines his/her status simply as a bearer of a foreign culture fleeing his/her country. Asylum seekers therein become the recipients of others' peculiar attitudes, such as, on occasion, suspicion, fear, hostility, exclusion and/or special attention. The nature of these attitudes lies in the existence of prejudice and the exemption of responsibility for this prejudice. In Veikou (2014) is highlighted the role of race and body in shaping these categories as if the status of being an asylum seeker implies some sort of an impairment that limits and defines the whole person. Moreover, these images of policing practices tightly entwined with exclusion mechanisms reproduce structures of power and serve to reinforce frameworks of exclusion for people who seek protection. Inside the Asylum Service we may clearly decipher the we/they of sociological theory, the construction of the collective 'other', the dynamics of stereotyping and the psychological mechanisms that call for purity and expunging the other (Appadurai 2006). A further danger in this situation is that such exclusionary rhetoric and practices release conflictual and explosive potential which may cause the structures that administer the asylum to fall apart. In the contemporary era where the politics of asylum imbricate state security with integration governance and control, the asylum seeker/refugee is a figure of potential disloyalty, fusing the failure of living with the 'other' and the anxieties of immigration politics (Goldberg 2009; Fassin 2008). Benhabib (2002) urges us 'to learn to live with the otherness of others' as the only 'recipe of liberal democratic polities for shielding the balkanization of cultural encounters in civil society' (2002:130).

4.4 The persons who apply under Law 3907 to the Asylum Service are given an asylum seeker's card (white), valid for 3 months and renewed until the issuing of the final decision on the asylum application. The first instance interview takes place at the premises of the Asylum Service and is conducted by one asylum service employee with the presence of an interpreter while a representative of UNHCR or a lawyer accompanying the asylum seeker may attend. The MoCP takes the final decision of the first instance based on the interview report that includes basic claims and substantial evidence of the claimant, drawn up by an asylum service employee who is expected to have expert knowledge on the country of origin of the applicant. While applying for recognition of a refugee status the asylum seeker establishes a temporary relationship to the state in which the right to stay is itself highly transitory (Geddes 2005). Yet, in applying for asylum, asylum seekers request to be granted the status of refugee, but they are not recognized as such, so they occupy neither a fully legal nor an illegal position in the country, but a precarious in-between position. The same applies to their rights. They have some rights, but these are limited. They are entitled to free healthcare and they have permission to work, but the state does not provide housing, nor care to vulnerable categories of persons such as minors or trafficking victims^[12]. Asylum seekers thus undergo a process of abjectification when they are granted limited rights; they are transformed into new subjects of law; thus new subjectivities emerge. They are transformed by law and through law from potential legal subjects into legal abjects by the public authorities, thus being subjected into extreme forms of insecurity with high risk, vulnerability, irregularity and informality (Kristeva 1992; Konsta and Lazaridis 2010). The abject is a metaphore for the ultimate form of exclusion. This condition of becoming legal abjects is experienced subjectively by the asylum seekers in varied ways. Hamid, a 16 years old Afgan, who has been sleeping in an Athens park for at least 15 months, says:

I've spent over a year like this and all my family's savings. Greece is different than what I was expecting from the earth to the sky. I think I will apply for repartiation. They give us the money for the journey back.

4.5 During the lodging of their application, asylum seekers are given a card, their fingerprints are registered in EURODAC, and they are not allowed to travel. For this reason many asylum seekers feel 'trapped' in Greece. Murteza, another young Afgan man, told how he had attempted twice to arrive to Scotland where his brother lived, arrested in France and sent back to Greece as Greece is the country obliged under EU law to hear his claim:

I need the papers. I do not want to stay in Greece, I want to go to my brother. I want to escape my previous life and I want to be free.

4.6 We met many asylum seekers who, like Murteza, described their efforts to exit Greece with their temporary card and then brought back discovered by EURODAC. Vahid from Afganistan arrived to Greece with his wife and daughter, anticipated a brief stay for him and his family before heading to somewhere else:

I knew about the financial crisis here and I was not planning to stay more than a week. I used a faked passport to go to Italy and failed, so I decided to apply for asylum here. I didn't mind as long as I was accepted and looked at as a human being.

4.7 The temporary card is a proof of asylum application and protects holders from arrest for six months. The vast majority of cases (81.1%)^[13] who manage to secure it are rejected at this first stage, but the applicant has the right to submit an appeal on second instance, to the Appeals Authority in one of the Regional Asylum Offices involving, at times, a more detailed hearing in front of appeals committees that process the asylum claims. Claimants appeal before independent three-member committees with voting decision on second instance, consisting of jurists or political scientists specialised in refugee and human rights. One of the members is a representative of the UNHCR, and the others are chosen from a relevant experts' list established under the responsibility of the National Commission for Human Rights. The appeals level has higher recognition rate, but reaching this stage can take many months. After submitting an appeal, it normally takes one to two months to render a decision, although for exceptional reasons it may take longer.^[14] The Appeals Committees [under PD 113 (26) (4)], usually examine appeals in written form solely based on the evidence in the file and do not have the right to invite for an interview, unless doubts have arisen with regards to the quality of the first instance interview, or when the appellant has submitted serious new information or when the case is particularly complex. In case the Appeals Committee decides to call the appellant for an interview, s/he may have a lawyer present at the hearing who can intervene with questions and by written submission after the oral proceedings. The appeal before the Committees has automatic suspensive effect. In case the appeal is rejected, the asylum seeker and the MoCP may apply for the annulment of the decision of the Appeals Committee before the Administrative Court of Appeals^[15] (even though claimants must often wait years confined in this abject status, before the court issues a decision). After this process the person is either a recognized refugee or s/he becomes an undocumented migrant who must leave Greece in his / her own accord or else s/he will be deported upon arrest. As procedures to determine refugee status may take long, the asylum seeker card in practice often works as a type of residence permit document. Given this, many economic migrants apply for it, if only to extend their undocumented stay in the country.^[16] This is the reason why they may not show up to follow their application in fear that they might get deported.^[17] In a similar instrumental manner, the state makes use of this card as well, in an effort to use this document as a tool to document the number of undocumented migrants presently in its territory. This arbitrary function of the asylum seekers' card emphasises the powerful instruments of the regulatory authority of the state which is gaining control through obscuring formal and informal practices. On another level, it illustrates how this card reflects asylum seekers' active attempts to make this document and their waiting time in Greece meaningful and useful. Of course there are also many asylum seekers who are discouraged; distrustful of the system or kept in detention for too long while their application is considered, they decide not to take it further. Pejman, from Afganistan, says:

I was summoned for the interview four times, each time I waited hours before I was told to return a month later.

4.8 The problematic functioning of the asylum system so far resulted in a situation, where many people coming from refugee producing countries try to reach another state in Europe where they think they will have better prospects of being granted protection. Most of those who are released from detention prefer not to claim asylum in Athens or travel to other European countries.^[18] Significantly, for this reason, many people from Afghanistan, Syria, Iraq, and Somalia, that are nationalities with the highest recognition rates, do not ultimately apply.

Governance and Subjectivity in the assessment of asylum status

5.1 In addition to drastic reforms undergoing the asylum system in Greece nowadays with its new mode of governance in line with the EU framework, as described above, and with standards of intensive governmentality (Foucault 1991) when it comes to granting international protection, one observes a legal formal trend towards a more 'objective' assessment of the asylum seekers' claims (Millbank 2009). However, the issue of refugee status determination rests largely, and in essence, on the credibility of the narrative of the asylum seeker. Applicants in the stage of eligibility determination manifest anxieties in this most personal of inquiries and in numerous cases during the hearings expressed phrases such as "I am not lying, I am telling the truth" against a general atmosphere of disbelief during the refugee determination process, reflecting the problems in exploring applicants' credibility. Notwithstanding granting people international protection that requires reliable assessment of eligibility, credibility based decisions in asylum cases are frequently based on personal judgment, being a matter of the impression left to the second instance decision makers that may even be inconsistent from one decision maker to the next. In practice, some of the people that need protection the most, may have serious trouble convincing decision makers that they should be believed, especially since they can rarely support their claims with specific independent evidence. Given their special situation, namely, the traumatic nature of incidents that forced them to leave their countries, long and dangerous journeys, they are not able to carry all necessary evidence and important documents along with them. Onesime, a 22 year old catholic christian young man explains the circumstances of his flee from Congo and his undocumented identity:

After three weeks in detention for a political crime I did not commit, the pastor of the prison helped me escape. I left my country that night hidden in a container wagon for days. Ever since I have not been in any contact with my family back home.

5.2 It should be recognized that often asylum seekers would have fled without their personal documents. Establishing the value of the testimonies in oral or written form in refugee cases usually depends on whether the applicant has met the burden of proof to show that s/he is a refugee, as s/he is the only witness to the critical facts of his/her case. Lack of credibility (inconsistent statements, vagueness, omissions in testimony or contradictory evidence, implausibilities) is a leading reason for rejections in the refugee status determination system.^[19] In order to prevent people in danger of persecution from being refused protection because they cannot access evidence, the benefit of the doubt rule establishes that the Appeal Committee should start off with the presumption that the appellant is telling the truth. Someone could conceivably be granted refugee protection on factual evidence on the side of a non well substantiated claim of fear of persecution in his/her country of origin due to reasons of religion, political beliefs or race. Jamshid, for example, from Iran, presented a claim which was far from coherent and plausible; the Committee members, in their final decision, have shifted focus away from the claimant's credibility on his main claim as narrated, and awarded him refugee international protection on account of the fact that he presented credible written evidence on the side namely that he was sentenced by the Islamic Revolutionary Court in Tehran because of his political activity as a Mousavi^[20] supporter.^[21] Similarly, Nona, a Georgian young woman, quite evidently a victim of sex trafficking too afraid to admit it, declared in her asylum hearing that 'something happened in Georgia, making it dangerous for me to go home'. The Committee members were torn whether to recognize her as a trafficking victim and potentially putting her life in Greece into further risk due to the fact that her recognition as a refugee on account of trafficking would endanger her life once the procurer found out or to judge her claim at face value which was a 'simple' economic claim.^[22]

5.3 In a context where unstructured subjectivity remains inherent in asylum adjudication, the sphere of what Agamben calls the 'ungovernable' plays a pivotal role. Consider, for example, other additional factors that make it equally difficult to reach an assessment, such as language barriers, cultural differences, the psychological condition of the asylum seeker often subjected to traumatic experiences which makes it difficult to recall events, the power imbalance inherent in the nature of the interview, etc. Cases of asylum status determination that do not include an interview on second instance present special difficulties to decision-makers who read the written reports of these interviews on second instance and they are often unable to understand the complete story because of apparent inconsistencies, contradictions, cultural misunderstandings and language barriers. In other cases that do include an interview at second instance, asylum seekers have to present a credible story speaking through an interpreter who inevitably disrupts the interchange of communication by practically being an active participant in the interview particularly since interpretation and translation act as filters on the actual account. Studies in intercultural communication on asylum cases point out to the decisive role of the narrative itself in this bureaucratic process and show how the story of an asylum seeker while making its way through the bureaucratic process it is transformed in various ways, which may decisively affect the outcome of the case (Maryns and Blommaert 2001). Even more so, as the appellants' narrative emerges through the participation of all parties involved, i.e. the interviewers, the interviewee, the interpreter, etc., the appellant has to additionally juggle the roles of the subject of the story and the storyteller, and s/he has to manage being subjected to the imbalances of power during the interview process while attempting to simultaneously shape the expectations of his/her audience. In an asylum hearing individuals often appear in distress, arriving with hands trembling, voices shaken, concerned about the way they are dressed and their way of speaking, fearing not to look or sound disrespectful, attending to every little detail of their story to make it as direct a confession as required. Antonio, from Congo, a detainee at the Department of Deportations of Greek police, appearing in handcuffs in front of the Appeals Committee due to his failed attempt to escape custody, he expressed concern on his appearance that might have an impact on the decision upon the case:

As a final note, I'd like to say that please excuse my appearance. I am not normally like this. I mean no disrespect. Please do not judge me on how I appear before you. I am in prison. I haven't had a shower for too long and my clothes are all torn up.

5.4 Decisions on who will be 'rejected' depend also on the personal judgments of Committee members. The non verbal cues that people tend to rely on to decide if another person is telling the truth vary widely from culture to culture (Rousseau et al 2002) and can be unusually important. Consider familiar assumptions that asylum seekers have by and large been cast into an ethical territory of exclusion, they have become abjects, because they have failed to behave themselves ethically according to the law. They have been constructed as unethical because they are cast as lawbreakers – their illegality being attributed to the fact that they have no legal papers to be in the country. Issues of prejudice may be at play here as well. Assumptions based on prejudiced judgments attributed to their alleged inability to exercise responsible management of their own lives, which led them to the status of the asylum seeker, which, in turn, is taken to justify these peoples' inferior symbolic and material social status in a given society. New racism or neo-racism discourses (see Barker 1981, Balibar 1991) work as a pretext or an excuse to exclude, discriminate, subordinate and classify certain groups of people. Questions about voting members being strict or lenient also become relevant here. Two decision makers hearing the same case would not necessarily reach the same conclusion. Subjective assessments are highly personal to the decision maker, dependent on personal judgment, perception and disposition and very likely inconsistent from one decision maker to the other. This has been vividly illustrated in the assessment of the claims of an elderly mother and her adult son from Tanzania, applying for protection separately. Both mother and son testified to the same crucial events. The son reported having witnessed the murder of his father, his step mother and his three half-siblings on account of the fact that the second wife of his father and their children were albinos.^[23] He claimed that he and his mother hid while these people dismembered the members of his family and afraid for their own lives, he and his mother, fled in separate directions. Mother and son reported that they were afraid to go back to their country in case they were murdered by the same people who killed the rest of the family because they had been witnesses to the murders. They later met again in Greece where they had both applied for protection at separate times. Their stories were so intertwined, yet the son's case was rejected on grounds of credibility, and he thus became an abject, while the mother's case was recognized on second instance and she was awarded international protection^[24] Similarly, there are often controversies in decision making, i.e. two men from Congo, both escaped from detention centers of their country of origin, the one has been granted protection status on account of the fact that he was risking severe punishment on his return due to his illegal flee from his country of origin, the other's application was rejected at second instance.^[25]

5.5 Certainly there is evidence that some appellants, in an attempt to live up to institutional expectations of an eligible claim for protection according to the Geneva Convention try to produce a narrative which enhances the personal story with institutionally recognized details and in this way construct what Barsky called a productive other through discourse (Barsky 1994). Thus, the appeals committees other than deciding on the claims according to whether they comply with the Geneva Convention alone, they separately and crucially also decide on the reliability of such claims.

5.6 Appeals committee members may also find cases to be ineligible on account of unreliability often associated with stereotypical assessments on the country of origin of the claimant. African claimants, for instance, describing magic practices are often deemed utterly untrustworthy and therefore their claim is not examined further. Their narratives are thought to reference often notions of Africa which appear wild, strange and whimsical particularly when combined with a not quite workable story altogether.^[26] Mardea's narrative, from Cameroon, involved snakes, wolves and human psychical transformation:^[27]

I am unwilling to return because I will be tortured by my uncle who poisoned my husband… He will hunt me down and sacrifice me. He is a sorcerer. The night my husband was murdered, I hid and saw him drinking raw blood of snakes and his shadow transforming into a wolf and he howled.

5.7 Such stories not only bear content and narrative structures that, for members of the committees, skirt the edges of the possible, but they also suffer from appearing too dramatic, and otherwise ineffective because ultimately they deviate strongly from members' cultural sensibilities. The story told by asylum seekers takes on a kind of "magical" quality that does not bear out in reality (Ticktin 2011) and it is seen as 'noise'. As Foucault (1980:93) put it, discourses that which come into being through the exercise of power, create a specific economy of 'truth' or 'knowledge'. They authorize certain types of individuals to speak the truth, thus holding power over what can be legitimately said. These discources of truth structure and inform policies and laws and their implementation.

5.8 Ultimately, there are other dynamics at play which serve to constitute who is an eligible refugee. When members of committees are caught between the sheer size of claims, time pressure and fatigue as well as uncertainties, anxieties, and other challenges that characterize their work, they are drawn to reject certain applications, though not without anxiety and occasional frustration.^[28]

5.9 Through association with these discursive ambiguities in eligibility assessment and decision making process, it becomes apparent that the regulatory requirement for substantiated information about the claimant, official documents, valid country of origin reports, etc. go hand in hand with the narratives that accompany the submitted claim. Decisions produced or sought of tend to accept a good story-telling. Conversely, victims of the asylum system would be the asylum seekers whose authentic narrative does make sense but they do not get the chance to tell their story well. Beyond the procedural priority on institutional formalities, the verifiable facts, etc. and the crucial experiences and events as marked by the asylum seeker, it is the relationship between governance and subjectivity that ultimately observes the claim assessment in refugee determinations. Consider, for example, Mollah's claim, from Bangladesh a very convincingly presented otherwise case of political persecution:

I was an active member of the opposing party…the party in power produced these three fake law suits against me (he demonstrates certified copies of them) and I now stand accused by the government of three murders which I did not commit. It is an orchestrated plan by the authorities to imprison me for life sentence due to my political beliefs and actions.

5.10 Members of appeal committees are procedurally obliged to provide objective references that lead them to their judgments and it is this obligation that explains why they make a strong case about the documentation submitted by the claimants since it adds some qualifications to the validity of the claim. But certainly there are questions as to what extent documents brought along from the countries of origin of the claimants lend themselves to truly objective analysis as many can be fabricated and they can cause a great deal of controversy. Mollah is required to prove that he has a well-founded fear of persecution in his homeland. This seemingly simple criterion becomes complicated by the necessity of providing proof that his suffering was politically motivated. The information he provided in his oral testimonies was challenged by the committee members who reviewed his application and conducted the interview to determine whether his case was legitimate and merited asylum. Mollah had to describe the motivations of his oppressors (the government) as well as his group affiliations as part of a rebel act. The understanding of persecution is narrow and tied to specific historical values in Greece, obviously very different from the understanding of persecution and rebelism in Bangladesh. The lawyer who provided assistance to Mollah, the committee speculated, filled a crucial role in reframing his claim not only to be consistent with the law, but also, to correspond with Greek cultural socio-political values, regardless of the merit of the particular claim in itself, which ultimately compromised the assessment of the claim of Mollah as valid. This elusiveness in judgment and the cultural uncertainties through which a judgment is passed, is in direct reference to the ungoverned as a modality of power, which has been susceptible to cultural transformation in terms of the specific domain of its application (Agamben 2009).

5.11 Similarly, the gap between governance and subjectivity in the asylum determination procedure is constantly there: Take the example of determining the applicant's origin, for instance, which is a factor that plays a central role in the assessment of his/her asylum claim. Yet, although it is a key element in the procedure, national origin sometimes is very hard to determine and it can be an issue of subjective judgment. Sordar, is a teenager, stateless, born most likely in Myanmar with his latest place of residency in Bangladesh. To test the evidence and assess the credibility of his claim proves to be a daunting task. He himself says:

'My father always told that because of our tribe we do not have rights to our country (does not mention which country). We had to leave. I was four years old. Early on during the journey, I got lost… lost my family. I found myself in Bangladesh. Someone took me to an orphanage. Later I asked to get the citizenship of Bangladesh. The lady of the house I was staying at the time told me that she try to get it for me but it was not made possible. I do not know why'.

5.12 Sordar has faced multiple abuses since he was very young and he has not reached the stage of being able to recognize what he has experienced as abuse. Part of the process involves pushing the claimant to provide the often gruesome details of his experience. Sordar has a strong asylum claim, but it is very difficult to determine his country of origin and the members of the committee have to speculate on a variety of different scenarios concerning his future fate.

Conclusion

6.1 This article sought to examine how the framing of asylum in Greece in recent years, has affected the discursive construction of asylum (i.e. the narratives about safeguarding asylum protection, the responsibilities owed to refugees driven by EU, etc.) within the Greek administrative mechanisms, which occasionally leads to asylum seekers' abjectification, a process during which they are transformed from legal subjects to legal abjects excluded by the society exposed to different forms of human (in)securities (Lazaridis and Konsta 2011). Central to the analysis are these intersubjective dynamics, the gap between governance and subjectivity, during the asylum determination process at its final stage of appeal. It highlights how members of Appeals Committees, constantly adjust normative frameworks of assessment with modes of subjectivity that serve to expose the evolving and at times unruly nature of the process of governance itself (Agamben 1998). The appeals committee members actively participate in producing and reshaping the template through which eligibility is assessed. Deliberate or proactive this may be, it seems to refer to the sphere of the 'ungovernable'. In deciding upon a asylum case, the appeals committees members engage with dominant discourses of law and knowledge as well as with personal, contextualized and unpredictable considerations and subjective conditions. These become incorporated into the procedure through which assessment unfolds and by consequence into the governance of the frameworks of assessment in the asylum system.

Notes

¹Drawing on Foucault's assertion, the term indicates the mechanisms of regulation which become the objective of government as such (Foucault 1991).

²The gradual convergence of member states' domestic policies toward a common EU-wide legislative framework.

³Foucault's concept of the ethos and art of governing (governmentality). Governmentality can thus be understood in a more simplified way as the governmental rationality and the knowledge system that supports it (Foucault 1991).

⁴Especially in 2010 an unprecedented amount of undocumented migrants were documented in the northern region of Greece, Evros. By the end of the year, roughly 90 per cent of people detected entering the European Union (EU) irregularly followed this particular route to arrive firstly in Greece (FRA 2011).

⁵Since January 2011 a growing number of states suspended returns of asylum seekers to Greece under the regulation. That list includes Germany, Belgium, Finland, Iceland, Netherlands, Norway, Sweden and the United Kingdom.

⁶See minimum standards for asylum seeker treatment EU directives on reception conditions (Council Directive 2003/9/EC [January 27, 2003]) and asylum procedures (Council Directive 2005/85/EC [December 1, 2005]).

⁷The Court's judgment indicates that European governments that continue transfers to Greece are likely to fall foul of human rights law.

⁸The frail economy of Greece is often used as an excuse for putting asylum and migration at the lower end of the agenda in favor of more pressing government priorities.

⁹A term favored in EU official political discourse.

¹⁰EU measures were taken in support of Greece's efforts to implement EU border and asylum policies which included the European Refugee Fund (ERF) emergency funds, the EASO operations in Greece and practical co-operation by Frontex.

¹¹A condition which should improve the process for asylum decisions and appeals and may help bring down the backlog.

¹²Limited recourses are provided in cases of ultimate need by a number of NGOs.

¹³Data by the Ministry of Citizen Protection for the period 7/6/2013 to 31/3/2014.

¹⁴Interview with appeals committees' representatives on second instance, March 2014.

¹⁵Thus, the law provides both for the possibility of an appeal before the Appeals Committees, which is an administrative body, and an onward appeal before the Administrative Court of Appeals. That in Greece would be the Council of State Symvoulio tis Epikratias (STE) which is the highest court of administrative law in the country.

¹⁶Interview with migrants applying for a permit at the Asylum Service, August 2013.

¹⁷Ibid.

¹⁸Information by an interview with a Frontex operator in Fylakio, Evros, 2011.

¹⁹Data by an interview with a member of Appeal Asylum Committee, 2014.

²⁰Mr. Mousavi former presidential candidate in Iran, opposition figure and critic of the government who called for demonstrations to support the Arab uprisings across the region.

²¹Data by an interview with claimant of refugee status at second instance, November 2013.

²²Data gathered by an interview with a member of Appeals Committee, 2014.

²³Murder and mutilation of people with albinism in Tanzania is related to the practice of magic and the associated demand for their body parts fueled by their lucrative trade in a country facing poverty and other social challenges. (Amnesty International, Amnesty International Annual Report 2012 - Tanzania, 24 May 2012, http://www.refworld.org/docid/4fbe3909c.html, Freedom House, Freedom in the World 2013 - Tanzania, 6 June 2013, http://www.refworld.org/docid/51b1a74918.html).

²⁴Data gathered by an interview with member of Appeals Committee, September 2013.

²⁵Data gathered by an interview with member of Appeals Committee, February 2014.

²⁶Data gathered by an interview with member of Appeals Committee, September 2013.

²⁷Data gathered by an interview with claimant of refugee status at second instance, December 2013

²⁸Data gathered by an interview with member of Appeals Committee, February 2014.

References