Josepha Close, PhD
The first post in this series reviewed the evolution of the hotspot approach as it was applied on the Greek islands. The present one focuses on a new incarnation of the hotspot approach: the ‘closed controlled access centres’ that are meant to replace hotspots in the reception of migrants on the Aegean islands. Three centres of the kind have already been inaugurated on the islands of Samos, on 18 September 2021, Leros and Kos, on 27 November 2021. Two more are being built on Lesbos and Chios at the time of writing. Entirely funded by the EU budget, these new camps purport to provide decent living conditions for protection seekers, by contrast with the dire situation still prevailing in Greek hotspots. They also enable the constant surveillance and control of residents in high security facilities akin to prisons. Among other concerning aspects of the new centres, this post examines whether the situation of asylum seekers in these prison-like settings may raise an issue under article 5 of the European Convention of Human Rights (ECHR) protecting the human right to liberty.
From Moria to the closed controlled access centres
As developed in a previous post, the EU experiment with hotspots has, in the case of Greece, resulted in the inhuman and degrading treatment of men, women and children coming to Europe to seek protection. The conditions in which thousands of individuals were held for months, or years, in overcrowded and squalid camps on the Aegean islands have been regularly denounced by NGOs, international organisations and journalists since the infamous EU-Turkey deal was signed on 18 March 2016. Moria, the largest and most notorious camp on the island of Lesvos, was widely described as a ‘living hell’ and was eventually burned down in September 2020.
The reality on the ground after the fire was that over 12,000 persons were left without shelter, completely destitute. Most of them lived in the streets for weeks while the authorities put up a new makeshift camp on a former military shooting range, raising issues with regard to the risk of lead poisoning. This new camp soon became known as ‘Moria 2.0’ since the conditions there are reported as being as bad – or worse – as in the former Moria.
Meanwhile, on the official level, the EU created a Taskforce on Migration Management mandated to improve conditions for migrants arriving in Greece. In this context, a pilot project of the EU Commission on the establishment of ‘controlled centres’ to replace hotspots started to be implemented on the islands. In order to ‘test’ this new concept, the Commission encourages member states to set up such centres on a voluntary basis. The construction budget for the three controlled centres on Samos, Leros and Kos – over 117 million euros – has thus been entirely covered by the EU Asylum, Migration and Integration Fund.
In most respects, there is continuity between the hotspots and the controlled centres. The underlying rationale is still to ‘process’ third country nationals close to the border in order to distinguish between ‘irregular migrants who have no right to stay in the EU’ and asylum seekers who may have such a right, provided that they cannot be returned to ‘safe’ third countries such as Turkey.
The new approach consisting in keeping asylum seekers in hotspots for the whole duration of their asylum procedure also continues to be applied. This is significant as asylum procedures – even in their accelerated ‘border procedure’ form – take months or even years, with the result that asylum seekers, including children, may be kept in the controlled centres for very lengthy periods of time.
While there has been some improvement from the squalid makeshift tents of the hotspots to the shiny containers of the controlled centres, which are equipped with actual beds, toilets and basic services, residents do not describe the change as a positive one. Indeed, the carceral features of the new camps seem to offset any positive changes in terms of the installation and equipment. Five months on from their transfer to the Samos controlled centre, following a longer period of confinement on the island, sometimes as much as two years, residents highlight feelings of insecurity and imprisonment in this fortified camp where the emphasis on control and surveillance is omnipresent.
In connection with the construction of the new centres, the EU Fundamental Rights Agency recommended that:
A centre intended for the first identification and registration of new arrival should not look like a prison. To avoid as much as possible the risk of re-traumatising effects for people who have experienced violence and persecution, barbed wire and prison-like fencing should not be used […].
The controlled centres, however, resemble prison in many respects including the double barbed wire fence surrounding them. They are monitored 24/7 by uniformed police officers and private security guards, notably from elevated observation posts making their presence ubiquitous. The centres also feature an integrated digital surveillance system including CCTV, video monitors, patrolling drones, perimeter violation alarms, control gates and loudspeakers to broadcast announcements.
Access to the site is allowed solely between 8 am and 8 pm through a turnstile magnetic gate with a two-factor access control requiring both an electronic card and fingerprinting. Every time residents enter or exit the camp, or one area of the camp, they have to go through searches including x-rays and metal detector devices. Inside the camp, different areas are separated by fences and secure gates manned by security officers.
This emphasis on control and surveillance is part of a broader securitarian trend regarding the treatment of asylum seekers in Greece and, more generally, Europe. Whereas advanced surveillance systems are presently being installed in reception centres across Greece, concrete walls are being built around refugee camps on the mainland. These projects are for the most part funded by the EU. When questioned by Members of the European Parliament regarding the walling off of Greek refugee camps, the EU Commissioner Ylva Johansson reverted to the semantics of the Greek government emphasising the security and safety of the camps’ residents and staff.
With respect to the controlled centres, EU Commissioner Johannson has promised that ‘[t]hese are facilities that will not be closed, they will be humane’. However, the Greek authorities officially designate them as ‘Closed Controlled Access Centres’ and the combination of the barbed wire fences, prison-like design and advanced surveillance systems convey the impression of a prison, rather than an accomodation facility.
While residents of the camps are normally allowed to leave the premises during the day, they are prohibited from leaving the island where they reside pursuant to geographical restrictions systematically imposed on all persons arriving on the islands since the EU-Turkey Statement. Those found on the mainland in breach of this rule are arrested and placed in detention before being transferred back to the island.
The liberty of movement of asylum seekers inside and outside the camps is subject to such a high degree of control and supervision that it lacks substance in practice. Inside the camps, residents are under permanent surveillance and subject to security checks and invasive searches every time they move from one area to another. If and when they are allowed outside, the geographical location of the centres in isolated areas and the often unaffordable costs of transportation mean that they can seldom access inhabited centres and enjoy any kind of autonomy or social inclusion.
Some residents are simply not allowed to exit the facilities. In past months, several NGOs have denounced a discretionary practice of the administration of the Samos centre pursuant to which residents who are not in possession of a government-issued asylum seeker card may not exit the camp. About 100 residents of the Samos camp have thus beendeprived of their liberty for several months since 17 November 2021. While this exit ban has been ruled unlawful by a Greek administrative court on 17 December 2021, the camp authorities reportedly continue to arbitrarily apply it.
The closed controlled access centres in light of article 5 of the ECHR
When assessing measures restrictive of liberty under article 5 of the ECHR, the European Court of Human Rights (the Court) makes a critical distinction between, on the one hand, deprivation of liberty and, on the other, restriction on liberty of movement. The applicability of article 5, and the attendant procedural guarantees, depends on whether a situation of restriction of liberty is deemed to rise to the level of a deprivation of liberty.
The Court has recognised that the difference is ‘merely one of degree or intensity, and not one of nature or substance’ and that ‘some borderline cases are a matter of pure opinion’. Nonetheless, it has established that ‘mere’ restrictions on liberty of movement do not trigger the application of article 5 but are governed by article 2 of the fourth Protocol to the ECHR, which affords a lower level of protection and has not, in any case, been ratified by Greece.
According to the Court, ‘the starting point must be [the applicant’s] concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.’ Hence, the question of whether a particular measure triggers the application of article 5 involves a factual analysis of all relevant factors in the particular circumstances of the case.
In assessing whether the restrictive regime in the controlled centres raises an issue under article 5 of the ECHR, the Court would probably start by observing that residents of the centres are allowed to leave the facilities during the day, though exit and entry are subject to a high degree of control and supervision.
The Court has attached much importance to the ability to leave a place in such contexts. In J.R. and others v Greece (2018), concerning the Vial hotspot on Chios island, the Court distinguished between an initial period of one month during which the family of asylum applicants could not leave the reception centre, and a further period during which they were allowed to leave the centre during the day. The Court found that the first period amounted to detention while the second corresponded to a ‘mere’ restriction on their liberty of movement.
The prohibition to leave a place is not, however, a necessary precondition for a finding of detention. In the landmark case of Guzzardi v Italy (1980), the Court noted that deprivation of liberty may take many other forms than ‘classic detention in prison’. In borderline cases, its approach has been to consider all aspects of the restrictive regime ‘cumulatively and in combination’ rather than focusing on one factor in particular.
For instance, in Stanev v Bulgaria (2012) whith respect to a mentally-ill patient, the Court affirmed that ‘the question whether the building was locked [was] not decisive’. It noted that ‘although the applicant was able to undertake certain journeys […] he was under constant supervision and was not free to leave the home without permission whenever he wished.’ A significant factor was that, when the applicant did not return from a leave of absence, the police was sent to search for him.
In cases concerning the confinement of asylum seekers in transit zones or reception centres, the nature and degree of the actual restrictions imposed on them form part of the factors specifically taken into account by the Court. In the recent case of R.R. and others v Hungary (2021), with regard to the confinement of a family of asylum applicants in the Röszke transit zone, the Court considered that ‘the applicants’ freedom of movement was severely restricted, in a manner similar to that characteristic of a certain type of light-regime detention facility’.
The most decisive factor, however, which has an impact on the Court’s assessment of the other relevant factors, is the duration of the applicants’ confinement. Indeed, the Court has considered that the confinement of aliens, whether in an airport international zone (e.g. Amuur v France, Riad and Idiab v Belgium) or a reception centre (e.g. J.R. v Greece), ‘is acceptable only if it is accompanied by safeguards for the persons concerned and is not prolonged excessively. Otherwise, a mere restriction on liberty is turned into a deprivation of liberty’.
For instance, in Ilias and Ahmed v Hungary (2019), also concerning the Röszke transit zone, the Grand Chamber emphasised that ‘the presence of domestic legal regulation limiting the length of stay in the transit zone is of significant importance’. This was reiterated in R.R. v Hungary where the Court criticised the absence of a procedural safeguard against excessive waiting period. In that case, the Court also pointed to the ‘inaction or lack of diligence’ of the Hungarian authorities in examining the asylum claims.
In R.R. v Hungary, the family of applicants was confined in the transit zone for a period of three months and 27 days, which was considered excessive by the Court. Taken in combination with the other factors mentioned above, the long duration of that stay led the Court to finding that the applicants’ confinement amounted to a de facto deprivation of liberty. By contrast, the confinement of asylum seekers in the same transit zone for 23 days in Ilias and Ahmed was not found to amount to detention as the duration was found acceptable for the purpose of processing their applications, and procedural safeguards applied.
There are no legal or procedural safeguards against excessive waiting periods in the controlled centres. Furthermore, since the conditions in which asylum seekers are confined in these facilities severely restrict their liberty of movement, similarly to certain types of ‘light regime detention facilities’, it appears likely that, confronted with a claim by an applicant having spent several months in these carceral settings, the Court would find this regime to amount to a de facto deprivation of liberty. This seems all the more likely with respect to children, considering the obvious risks for their development and mental health arising from prolonged stays in such prison-like environment.
As the controlled centres are formally regarded as reception facilities rather than detention centres, the placement of asylum seekers in these centres is not validated by a judicial or administrative decision. Thus, not only is there no clear and accessible legal basis for their confinement, but they are also deprived of their right to challenge the legal reasons for this measure, since these reasons have not been communicated to them, in breach of the requirements of article 5(1) and 5(4) of the ECHR. If the holding of asylum seekers in the controlled centres is found to amount to a de facto deprivation of liberty, the claim that these detention measures violate article 5 would thus be relatively straightforward.
As the model of the closed controlled access centres is being portrayed as a best practice in border control and migration management, some foreign ministers have already expressed interest in replicating these centres on their borders. Therefore, it is crucial that the Court examines the compatibiliy of the conditions in these camps with the right to liberty and other fundamental rights protected by the ECHR. Indeed, rather than improving the living conditions of asylum seekers, these camps seem to actually dehumanise them even further. Then, it is to be hoped that European human rights courts, first among them the European Court of Human Rights, will perform their much-needed function to speak truth to power and check the growing tendency to blur the lines between prisons and accomodation facilities for asylum seekers.
 In terms of overcrowding, a press release from the EU Commission reveals that the number of persons staying in the Moria camp reached 25,000 in 2020, more than eight times its maximum capacity of 3,100, see European Commission Press Release, ‘Migration: A European taskforce to resolve emergency situation on Lesvos’ (23 September 2020). Other camps on the Greek islands were also dangerously overcrowded, particularly those on Samos and Chios, see 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) 24-25.
 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).
 According to the Greek Ministry of Migration and Asylum, the construction budget for the controlled centre on Samos has been about 43 million euros, for the centre on Leros 35,30 million euros and for the centre on Kos 35.30 million euros.
 ‘non paper on controlled centres in the EU’ (n 3).
 See ibid; European Commission, ‘Best practices on the implementation of the hotspot approach’, Staff Working Document (15 November 2017) SWD(2017) 372 final, 4; Memorandum of Understanding on a Joint Pilot for the establishment and operation of a new Multi-Purpose Reception and Identification Centre on Lesvos, 7.
 As explained in a previous post, asylum seekers initially spent only a few days in Greek hotspots but this changed as a result of the EU-Turkey deal. After March 2016, the average length of asylum seekers’ stay in the hotspots was five or six months, depending on their nationalities. A staff working document of the EU Commission dated 2019 recommends processing asylum procedures within hotspots as a best practice, see European Commission, ‘Best practices on the implementation of the hotspot approach’, Staff Working Document (15 November 2017) SWD(2017) 372 final, 4.
 “All I want is to be free and leave’ Life in the Closed Controlled Access Centre in Samos’ A report from the Samos Advocacy Collective and Europe Must Act (18 December 2021); ‘Stories from Samos: A Collection of Testimonies’, based on a visit by Oxfam and the Greek Council for Refugees to the Samos controlled centre in December 2021.
 EU Fundamental Rights Agency, ‘Establishment of Multi-Purpose Reception and Identification Centres: Aide-memoire on issues to consider from a fundamental rights point of view’ (February 2021). This document was obtained through a Freedom of Information Request in the framework of investigative work conducted by Katy Fallon, Elisa Perrigueur and Franziska Grillmeier, see ‘Prisons in Paradise: How the EU put refugees behind barbed wire’ (22 October 2021).
 See ‘Walling off welcome: New reception facilities in Greece reinforce a policy of refugee containment and exclusion’, report signed by 45 civil society organisations (8 September 2021).
 Alexia Kalaitzi and Katy Fallon, ‘Concrete walls and drones: Greek plans for refugee camps decried’ Al Jazeera (25 May 2021); ‘Walling off welcome: New reception facilities in Greece reinforce a policy of refugee containment and exclusion’ (n 11).
 AIDA Coutry report, Greece (2020) 202-203. 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, see 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.
 See ‘Lesbos Bulletin: Update on Lesbos and the Aegean Islands’ by the Greek Council for Refugees and Oxfam (7 March 2022); “All I want is to be free and leave’ Life in the Closed Controlled Access Centre in Samos’ A report from the Samos Advocacy Collective and Europe Must Act (18 December 2021).
 Guzzardi v Italy App no 7367/76 (ECtHR, 6 November 1980) para 93 ; Khlaifia and Others v. Italy [GC] App no 16483/12 (ECtHR, 15 December 2016) para 64.
 Amuur v France App no 19776/92 (ECtHR, 25 June 1996) para 42.
 Guzzardi v Italy (n 16) para 92.
 The Court followed the same reasoning in Kaak and others v Greece App no 34215/16 (ECtHR, 3 October 2019) paras 88-90. In both cases,however, the Court did not consider that the detention of the applicants in the reception centre for a duration of one month was excessive for the purpose of performing reception and identification procedures, see J.R. and others v Greece (n 19) para 114; Kaak and others v Greece, paras 108-111.
 Guzzardi v Italy (n 16) para 95.
 Stanev v Bulgaria [GC] App no 36760/06 (ECtHR, 17 January 2012) para 124.
 Ibid, para 128.
 Ibid, para 127.
 See Ilias and Ahmed v Hungary [GC] App no 47287/15 (ECtHR, 21 November 2019) para 217.
 R.R. and others v Hungary App no 36037/17 (ECtHR, 2 March 2021) para 32.
 See Riad and Idiab v Belgium Apps nos. 29787/03 and 29810/03 (ECtHR, 24 January 2008) para 68; Amuur v France (n 17) para 43; J.R. and others v Greece (n 19) para 84. See also Ilias and Ahmed v Hungary (n 26) para 227; R.R. and others v Hungary (n 27) para 78.
 Ilias and Ahmed v Hungary (n 26) para 227.
 R.R. and others v Hungary (n 27) para 79.
 Ibid, para 80.
 Ibid, para 83. In M.B.K. and others v Hungary App no 73860/17 (ECtHR, 24 February 2022), the Court followed the same reasoning and found that the detention of a family of asylum seekers for seven months in the Röszke transit zone violated article 5.
 See Khlaifia and Others v. Italy (n 16) paras 105-108, 117-122, 132-135.