Josepha Close, PhD
This series of posts aims to examine the EU policy of deterrence and containment of asylum seekers at the borders of Europe. The first one focuses on the hotspot approach, a cornerstone of this policy introduced by the EU Commission in 2015 to manage high levels of migration at the Greek and Italian borders. The post traces how the hotspots, also known as reception and identification centres, were rapidly transformed from places of transit into sites of containment oriented towards the return, rather than the protection of asylum seekers arriving on Greek shores. It is timely and relevant to scrutinise this evolving policy since it is inspiring other experimental approaches of the EU in the reception of migrants, such as the ‘closed and controlled centres’ recently opened on several Aegean islands, discussed in the nex post. Moreover, some problematic features of the hotspot approach have been incorporated in the draft proposal for a Regulation on a common asylum procedure that was presented by the EU Commission in September 2020 and is still going through the legislative process.
The EU response to the 2015 migration challenge
The so-called European ‘migration crisis’ designates the unusually high number of individuals who came to seek refuge in Europe in the mid-2010’s after undergoing long and perilous migration journeys. It reached its peak in 2015, with over 1 million arrivals, and 2016, with the lodging of around 1.2 million asylum applications in the EU. While these numbers are high, they represent less than 0.25 percent of the total EU population at the time.
In its May 2015 Agenda on Migration, the EU Commission put forward a set of measures to respond to the migration challenge. The hotspot approach, one of the centrepieces of this response, mandates EU agencies such as the European Asylum Support Office and Frontex to provide coordinated operational support to member states facing a large number of arrivals.
The hotspot approach started to be implemented in the Moria reception and identification centre (RIC) on the island of Lesbos in October 2015. It became operational in RICs on four other Aegean islands (Chios, Samos, Leros and Kos) and in southern Italy in early 2016. In practice, it entails that all migrants disembarked following a rescue at sea or otherwise landing ‘irregularly’ in the most affected areas are to go through identification and registration and at a designated hotspot.
The hotspot approach was meant as a temporary measure to adress an emergency situation. However, it continues to be applied to this day notwithstanding the absence of a specific legal instrument regulating the operation of hotspots and the responsibility of EU agencies involved in their activities.
The evolution of the hotspot approach
Hotspots were conceived as infrastructures to facilitate the identification and registration (including mandatory fingerprinting) of migrants on a large scale in a rapid and orderly fashion. Registered persons could then be channelled to the appropriate asylum or return procedure and transferred to adequate facilities on the mainland. Hotspots were initially meant as spaces of first landing and transit, rather than accomodation facilities.
Italian hotspots have thus generally functioned as registration centres where migrants stay no more than one or two days. The five hotspots on the Greek islands also initially functioned as places of transit. After undergoing preliminary checks and identification processes, most persons were granted a one-month residence permit allowing them to continue their journey to mainland Greece and beyond. According to statistics, asylum seekers arriving in Europe via Greece in 2015 rarely intended to apply for asylum in that country.
The functioning of Greek hotspots was profoundly altered as a result of an agreement concluded by the EU and Turkey on 18 March 2016, known as ‘the EU-Turkey Statement’. This agreement, for which no EU institution has accepted responsibility, provides that ‘[a]ll new irregular migrants crossing from Turkey into Greek islands … will be returned to Turkey’, thereby targeting persons who do not apply for asylum upon arrival and those whose application is rejected as inadmissible or unfounded.
The main objective of the EU-Turkey deal was to substantially reduce the number of migrant crossings from Turkey to Greece. It purported to do so through an organised and sustained deportation policy aiming to deter migrants from taking that route. In return, the EU pledged 6 billion euros to improve the conditions for refugees in Turkey, the largest refugee population in the world coming to 3.7 million individuals.
The EU-Turkey deal was denounced by the Parliamentary Assembly of the Council of Europe which, in a resolution of 20 April 2016, warned that it ‘raise[d] several serious human rights issues relating to both its substance and its implementation now and in the future.’ It was also widely condemned by civil society and academia.
The agreement had a pivotal impact on the application of the hotspot approach in Greece. In practical terms, while the number of persons arriving from Turkey decreased, the large majority of them now applied for asylum in Greece since this was the only alternative to being returned to Turkey.
The most remarkable effect of the deal was to change the focus of the hotspot approach as a matter of policy. While hotspots were conceived as inter-agency platforms to identify and channel asylum seekers to appropriate facilities on the mainland, they now became focused on the return of as much persons as possible. Since only those against whom a negative decision had been issued could be deported back to Turkey, this new objective necessitated the processing of asylum applications within the hotspots through accelerated procedures.
The first progress report of the EU Commission on the deal, dated 20 April 2016, accordingly states that ‘[w]ith the support of the Commission and Frontex, the hotspots are being adapted to facilitate swift returns to Turkey from the islands, and the integration of return and asylum officers in the infrastructure and workflow of the hotspots.’
In order to increase the number of returns under the deal, new grounds were introduced into Greek law to permit the rejection of more asylum applications as inadmissible, such as the concepts of safe country of origin and first country of asylum. In addition, legal provisions were adopted to drastically reduce the duration of the asylum procedure, from several months in the regular procedure to a maximum of two weeks in the fast-track border procedure applicable on the Greek islands. Pursuant to this procedure, applicants are allowed only one day to prepare for the first instance interview and a maximum of two days to submit any supplementary evidence before the examination of the appeal.
There was a considerable extension of the average duration of asylum seekers’ stay in Greek hotspots following the EU-Turkey deal. In comparison with a few days in the Italian hotspots, asylum seekers spend on average over five months in the Greek hotspots. However, the EU Fundamental Rights Agency has cautioned that:
The infrastructure and the services offered in the hotspots are not designed for long-term stay. If people remain in the hotspots for months, it results in interference in a wide array of individuals’ rights including the right to human dignity, rights of the child and others […].
To make matters worse, in order to facilitate readmissions to Turkey, geographical restrictions prohibiting asylum seekers to leave the island on which they landed have been systematically imposed since March 2016. These restrictions may only be lifted with respect to persons able to demonstrate a special vulnerability. Those found on the mainland in breach of this rule are arrested and placed in detention before being taken back to the hotspot. In its 2020 report on Greece, the UN Working Group on Arbitrary Detention expressed concern with regard to the policy of geographical restriction and the lack of awareness among asylum seekers of the consequences of breaching this restriction.
While the EU-Turkey Statement resulted in a considerable increase in the number of persons trapped on the Greek islands, it was ineffective in improving the rate of returns to Turkey. Indeed, as of 31 December 2018, more than two years after its conclusion, only 1,484 persons had been returned to Turkey on that basis, in spite of the vast amounts invested in return operations by the EU Commission.
The unbearable situation in Greek hotspots
Following the EU-Turkey deal, the number of persons staying on the Aegean islands grew disproportionately to the reception and asylum processing capacity of the hotspots. As reported by the EU Fundamental Rights Agency, on 16 November 2017 there were 12,554 persons staying in the reception centres against an official capacity of 5,576. On 18 September 2018, there were 17,072 persons in the hotspots against a capacity of 6,438. In 2019, 59,700 persons arrived on the Aegean islands by sea, bringing the number of individuals staying in the reception centres to 36,400. According to a press release from the European Commission, the number of persons staying in Moria reached 25,000 during 2020, more than eight times its maximum capacity of 3,100.
The hotspot approach was supposed to work in conjunction with a relocation mechanism made binding on member states by two decisions adopted by the Council of Europe in September 2015. However, the rate of relocation remained at very insufficient levels for the purpose of relieving pressure in the hotspots. At the end of the two-year relocation period in September 2017, only 19,244 persons had been relocated from Greece against an initial target of 60,400.
Starting in April 2016, the situation in the camps on the islands rapidly deteriorated. The Moria camp, in particular, was widely described as a ‘living hell’. Journalists and NGO workers have regularly documented the dire conditions in the hotspots, the anguish and despair of men, women and children indefinitely trapped in unsecure and unsanitary camps lacking the most basic necessities, destitute and dehumanised. NGOs present in the camps have repeatedly warned against the mental health crisis caused by life in these abysmal conditions, emphasising the distress of children, making up about a third of the population of the hotspots, some of whom self-harmed or attempted suicide.
With years passing, the overcrowding of the reception facilities only got worse, breeding tensions and violence. The hotspots’ capacity was already overstretched in 2018, with a severe impact on infrastructure and services, particularly medical and mental health services, sanitary facilities and waste management as well as the supply of food and water. The arrival of tens of thousands of new people on the islands throughout 2019 brought the situation completely beyond any limit or control.
On 31 October 2019, the Council of Europe Commissioner for Human Rights, Dunja Mijatović, described the situation as ‘explosive’ and called for urgent measures to address the ‘desperate conditions in which thousands of human beings are living.’ In an address to the EU Parliament on 6 November 2019, the Director of the EU Fundamental Rights Agency, Michael O’Flaherty, characterised the situation as ‘the single most worrying fundamental rights issue that we are confronting anywhere in the European Union’.
On 21 February 2020, this grim assessment was confirmed by the UN High Commissioner for Refugees, Filippo Grandi, who described the conditions in the Greek hotspots as ‘woefully inadequate’, ‘shocking and shameful’:
Many people are without power, and even water, living amid filth and garbage. Health services are negligible. The risks faced by the most vulnerable individuals, pregnant women, new mothers, the elderly and children are among the worst seen in refugee crises around the world.
The situation in Greek hotspots was exacerbated even further in March 2020 due to the pandemic and as a result of the suspension of asylum procedures, inappropriate quarantine policies and facilities. These degrading conditions generated increasingly dangerous and violent incidents eventually culminating in a fire which burned down most of the Moria camp on 9 September 2020. The new makeshift camp to which asylum seekers were moved became known as ‘Moria 2.0’ since the conditions there are reported as being as bad – or worse – as in Moria.
The containment of asylum seekers in hotspots as a best practice
It seems clear that the integration of asylum procedures in the functioning of Greek hotspots following the EU-Turkey deal was an important factor, if not the main contributor, in the humanitarian catastrophe which thereafter enfolded. This created a bottleneck as more and more people arriving on the Aegean islands were forced to stay in the hotspots for the whole duration of their asylum procedure under a geographical restriction. As the overcrowding in the camps worsened, so did the material living conditions, subjecting the men, women and children trapped there to serious breaches of their fundamental rights doubtless amounting to inhuman and degrading treatment.
The grave defects of the hotspot approach were acknowledged by the Fundemantal Rights Agency in a report of 2019:
The processing of asylum claims in facilities at borders, particularly when these facilities are in relatively remote locations, although per se not unlawful, brings along built-in deficiencies. As almost three years of experience in Greece shows, this approach creates fundamental rights challenges that appear almost unsurmountable.
However, some of the core features of the hotspot approach as applied in Greece are informing EU policy-making and legislative efforts. On 15 November 2017, a staff working document of the EU Commission entitled ‘best practices on the implementation of the hotspot approach’ described the experience in Greece as ‘a tangible operational achievement’. With a view to ‘expedite processes and ensure efficiency gains’, this document advised that ‘[t]he experience with the implementation of the hotspots approach in Greece has also showed the added value of initiating the asylum and return procedures and, when appropriate, finalising them, in the hotspots.’
Along the same line, the amended Regulation on a common asylum procedure presented by the EU Commission in September 2020 as part of its New Pact on Asylum and Migration proposes legal changes aiming to standardise the application of the hotspot approach in the reception of asylum seekers in Europe. This proposal effectively normalises and expands the use of the border procedure by making its application mandatory for all asylum seekers coming from a country with a low asylum recognition rate. The maximum length of the border procedure is extended from four to twelve weeks and a new paragraph explicitly provides that the persons subject to this procedure shall not be authorised to enter EU territory. If adopted by member states, this Regulation will generalise the application of the hotspot approach, which in Greece materialised into dehumanising camps, for the majority of persons arriving to seek refuge at the borders of Europe.
There are two diametrically opposed views on the hotspot approach as implemented in Greece. On the one hand, EU human rights experts and professionals having worked in the hotspots characterise the situation as the worst fundamental rights issue in Europe. On the other hand, the executive branch of the EU has described it as a success and is proposing to standardise its application for the majority of persons arriving to seek refuge in Europe. Notwithstanding the outcome of the current negotiations on the 2020 migration pact, the fact that such a blatant discrepancy exists between these particular actors on this subject is a very worrying sign for the state of human rights in the European Union.
 See Darren Neville, Sarah Sy and Amalia Rigon, ‘On the frontline: the hotspot approach to managing migration’ European Parliament, LIBE Committee (May 2016) 26-29; Update of the 2016 Opinion of the European Union Agency for Fundamental Rights on fundamental rights in the ‘hotspots’ set up in Greece and Italy (February 2019) 15 (2019 FRA Update).
 A study commissioned by the European Parliament’s LIBE Committee emphasised the need for an independent legal instrument regulating hotpots as soon as May 2016. See LIBE Committee, ‘On the frontline: the hotspot approach to managing migration’ (n 1) 29-30, 43-44.
 Martina Tazzioli and Glenda Garelli, ‘Containment beyond detention. The Hotspot System and disrupted migration movements across Europe’ (2018) Environment and Planning D: Society and Space 38(6), 11-15.
 2019 FRA Update (n 1) 22-23.
 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Greek Government on the visits to Greece carried out from 13 to 18 April and 19 to 25 July 2016, CPT/Inf (2017) 25 (CPT Report on 2016 visit to Greece) 5 and 11.
 See LIBE Committee, ‘On the frontline: the hotspot approach to managing migration’ (n 1) 20.
 The closure of the Western Balkan route also contributed to the virtual entrapment of migrants in Greek camps, see LIBE Committee, ‘On the frontline: the hotspot approach to managing migration’ (n 1) 20-23.
 Ibid, para 6. A first tranche of 3 billions was mobilised in 2016-2017 and a second one in 2018-2019 to finance the EU Facility for Refugees in Turkey which oversees a series of projects to improve conditions for refugees in Turkey.
 See e.g. Amnesty International, ‘A Blueprint for Despair: Human Rights Impact of the EU-Turkey Deal’ (2017); European University Institute, Maybritt Jill Alpes, Sevda Tunaboylu and Ilse van Liempt, ‘Human Rights Violations by Design: EU Turkey Statement Prioritises Returns from Greece over Access to Asylum’ (2017) Policy Brief 2017/29; Ilse van Liempt, Maybritt Jill Alpes, Saima Hassan, Sevda Tunaboylu, Orcun Ulusoy and Annelies Zoomers, ‘Evidence-based assessment of migration deals: the case of the EU-Turkey Statement’ (December 2017) Utrecht University.
 LIBE Committee, ‘On the frontline: the hotspot approach to managing migration’ (n 1) 20; European Commission, ‘First Report on the progress made in the implementation of the EU-Turkey Statement’ (20 April 2016) COM(2016) 231 final, 5.
 In the words of the EU Commission in a report of 16 March 2016 paving the way for the EU-Turkey deal: ‘[i]n particular, the hotspots in the islands in Greece will need to be adapted – with the current focus on registration and screening before swift transfer to the mainland replaced by the objective of implementing returns to Turkey. For instance, the infrastructure in the hotspots would need to be reconfigured to accommodate the readmission and asylum offices and to deal adequately with vulnerable groups’, see European Commission, ‘Next operational steps in EU-Turkey cooperation in the field of migration’ (16 March 2016) COM(2016) 166 final, 4.
 European Commission, ‘First Report on the progress made in the implementation of the EU-Turkey Statement’ (n 14) 5.
 Law 4375/2016 On the organization and operation of the Asylum Service, the Appeals Authority, the Reception and Identification Service, the establishment of the General Secretariat for Reception, the transposition into Greek legislation of the provisions of Directive 2013/32/EC (entered into force on 3 April 2016) articles 55 to 57.
 Ibid, 23.
 Ibid, 202-203.
 UN Human Rights Council, Visit to Greece, Report of the Working Group on Arbitrary Detention, UN Doc A/HRC/45/16/Add.1 (29 July 2020) para 57.
 AIDA Country report, Greece (2018) 31. In April 2016, it was estimated that 280 millions euros would be provided by the EU over six months to finance the costs of the return operations under the EU-Turkey deal, in addition to the 66,5 millions made available to Frontex for funding return operations in EU member states, see European Commission, ‘First Report on the progress made in the implementation of the EU-Turkey Statement’ (n 14) 6.
 2019 FRA Update (n 1) 24
 According to the UNCHR, there were 74.600 arrivals in Greece in 2019, 59.700 by sea. This represented an increase of 50% compared to the number of arrivals in 2018, see UNHCR, Fact sheet on Greece (1-31 December 2019). See FRA bulletin, 38.423 at the end of December 2019.
 These decisions required EU member states to relocate 160.000 asylum applicants from Greece and Italy based on a specific repartition key, see Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece; Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece.
 European Commission, ‘Fifteenth report on relocation and resettlement’, Annex 1 (6 September 2017) COM(2017) 465 final.
 See e.g. Human Rights Watch, ‘Greece: Refugee “Hotspots” Unsafe, Unsanitary’ (19 May 2016); Human Rights Watch, ‘Greece: Dire Risks for Women Asylum Seekers’ (15 December 2017); Médecins Sans Frontières, ‘Self-harm and attempted suicides increasing for child refugees in Lesbos’ (17 September 2018); Euronews, ‘Moria migrant camp: Thousands of people remain living in dire conditions in Greece’ (27 December 2018); Daniel Boffey and Helena Smith, ‘Oxfam condemns EU over ‘inhumane’ Lesbos refugee camp’ The Guardian (9 January 2019); Marianna Karakoulaki, ‘The invisible violence of Europe’s refugee camps’ (22 October 2019) Al Jazeera.
 Harriet Grant, ‘‘Moria is a hell’: new arrivals describe life in a Greek refugee camp’ The Guardian (17 January 2020); Observer special report, ‘A doctor’s story: inside the ‘living hell’ of Moria refugee camp’ The Guardian (9 Fébruary 2020); Aurélie Ponthieu, ‘Moria Camp: If the only way to break free is to burn your house, something is very wrong’ (11 September 2020) Médecins Sans Frontières; Nikolaj Nielsen, ‘Moria is EU’s shame’ (11 September 2020) EU Observer.
 Peter Yeung and Pavlos Kapantais, ‘Lead poisoning fears at Greek refugee camp built on military site’ (2 October 2020) Al Jazeera; Nikolaj Nielsen, ‘Greece closes humane camp for refugees, sends them to Moria’ (4 May 2021) EU Observer; Soraya Ebrahimi, ‘Depression and anxiety but little change at Greek migrant camps a year after Moria fire’ The National (10 September 2021).
 2019 FRA Update (n 1) 7.
 European Commission, ‘Commission Staff Working Document – Best practices on the implementation of the hotspot approach’ (15 November 2017) SWD(2017) 372 final, 1.
 Ibid, 4.
 European Commission, ‘Amended proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU’ (23 September 2020) COM(2020) 611 final, 26-27 (new article 41(3) read in conjunction with new article 40(1)(i)).
 Ibid, 27-28 (new article 41(6) and (11).
 At the start of the document, the Commission explains that migrants coming from countries with low recognition rates (less than 20%) now represent more than half (55%) of those arriving to seek refuge in Europe, see ibid, 1.