Blog post by Dilahan Bice-Kurtoglu, PhD candidate at Warwick Law School.
Introduction
After years of discussions, the New Pact on Migration and Asylum was adopted by the European Parliament and Council in April 2024. Despite strong objections from both right and left parties (seen as not strict enough by the former and a setback from human rights standards by the latter), and serious warnings by NGOs on its impact on fundamental rights, the Common European Asylum System (CEAS) was finally reformed. This new version of the CEAS introduces a more complex system and financially motivated burden-sharing scheme, opens space for more third-country agreements and externalisation, and finally focuses on stricter border and asylum procedures that could lead to serious rights violations. Europe’s borders will be tighter, vulnerabilities more ignored, and procedures rushed. The outcome for people on the move is not bright, and interpreting the CEAS reform as retrogression is not an overstatement. However, the Pact also includes few positive developments such as the provision of free legal counselling during the administrative stage of the procedure, also known as the ‘first instance’. Although doubts remain about the implementation and feasibility of the new Procedures Regulation introduced by the Pact, the provision of free legal counselling during the first instance stands out as unique and crucial, if implemented correctly.
The Pact, with its bold harmonisation goal, introduces a ’fundamental change’ regarding asylum procedures, due to the fact that the Regulation is no longer a minimum standards measure.[i] As noted in the Preamble, the Regulation does not prevent Member States from introducing higher standards in their national systems. However, as Peers (2024) underlines, the number of areas and articles in which higher standards are permitted are fairly limited compared to the previous Directive.[ii] The Pact’s new rules will be applicable for asylum applications lodged after June 2026. Until then, Member States (MS) must prepare national plans and make changes in legislation and operational capacities to comply with the fully harmonised procedures designed for any asylum claim in the EU. Although Member States (MS) still have time, and we await more detailed action plans, there are already problematic practices in refugee status determination (RSD) systems in Europe regarding legal support for asylum seekers. Unfortunately, these might be transferred into the novel practice of legal counselling.
This post examines the content and potential of legal counselling in relation to asylum practice in Greece, based on fieldwork conducted in spring and summer of 2024 in Athens, Thessaloniki and Ioannina investigating legal support for refugees and the lived experiences of individual asylum seekers and refugees in RSD. The analysis relies on 19 semi-structured interviews with legal NGO staff (mainly lawyers providing legal aid during different stages of the procedure) and observations in four refugee camps in Greece.
What is legal counselling? And why is it important?
The European Commission (EC) states that the new EU policy has four pillars and that the new Pact guarantees people’s rights during the asylum procedure, including through legal support available for applicants. This commitment is based on Article 47 of the Charter of Fundamental Rights of the European Union, which reads as follows: “Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”. Since the provision sets the standard for everyone, this includes third-country nationals, and therefore asylum seekers.
According to the Regulation, legal counselling is situated between providing legal information and legal aid. In its authentic connotation, legal aid covers legal assistance and legal representation. Legal counselling is a less extensive support mechanism as it lacks representation. However, it includes several means for legal providers to assist asylum seekers, such as lodging the application as well as providing information and guidance. However, it is also more advanced than merely providing legal and procedural information prescribed in Article 19 of the 2013 Procedures Directive, because the EC, in its explanatory memorandum, suggests that “the right to information is backed by a new right” thanks to the adoption of the Pact. Hence, the Commission implies that this practice will not be about providing basic information, as in the previous Directive; rather, this will mean a significant change in practice, raising standards of legal support for asylum seekers.
Even though the Regulation introduced legal counselling into asylum practice, it did not offer a clear-cut definition. In the final explanatory memorandum of the Commission, there are some references to legal counselling but none of them touches upon its content. Drawing from available legislation and parliamentary discussions, the European Council on Refugees and Exiles (ECRE) conceptualised legal counselling in the context of EU asylum law as “the provision of legal advice and guidance by a lawyer on procedural and substantive issues related to an asylum application during the administrative procedure, including assistance with the lodging of the application, support during the preparation for the first-instance interview and guidance on any legal issues arising throughout the procedure”.
Although clear, this definition seems optimistic especially with reference to the agency of a lawyer. In fact, a narrow interpretation of Articles 18 and 19 of the new Asylum Procedures Regulation, which detail the scope of and conditions for the provision of free legal counselling, might allow for the assignment of non-legal providers to asylum seekers. It is likely that some MS will favour this narrow interpretation. Another point of concern is that legal counselling should help asylum seekers prepare for their first instance asylum interviews. Interview preparation requires trust, time, and expertise. The Regulation touches upon “sufficient time” in recital 14, which explains what an effective opportunity given to asylum applicants would mean in the asylum procedures. Yet, this is not reflected in the following provisions detailing neither personal interviews nor legal counselling. Considering the reliance on accelerated procedures in the new Regulation, it looks as if the preparation practice could be conducted superficially. Arguably, interview preparation should also be individualised, and this not guaranteed under the current provision as Article 16 allows for several applicants to be handled at the same time.
In essence, the Pact introduced a new category of legal support in the EU’s asylum practice, which, though vague, is promising. Evidence from the fieldwork underpinning this article shows that legal counselling often is most valuable during the registration period, namely to assist with lodging asylum applications. Legal NGO staff participants acknowledged that the earliest intervention and assistance would be very helpful to overcome legal issues arising later in the asylum process. Due to NGOs’ constraints to access reception (and sometimes detention) centres, it is not possible for them to provide legal guidance during this registration stage of the asylum procedure, during which asylum-seekers are particularly vulnerable. Therefore, the introduction of legal counselling services in MS national asylum systems is a positive improvement and can address a gap where people on the move are left with limited or no support. Nonetheless, because of the current ambiguity about its content and actors involved, a global judgement on legal counselling will need time and observation of its practical implementation by different Member States. Until then, some preliminary evidence can be drawn from the experience of Greece, one the migration frontline EU states.
The Greek asylum system: A testing ground for the EU
Greece is arguably a perfect case study to analyse asylum practice in Europe for three main reasons. First, it is one of the major EU’s external border states. Recalling the 2015 refugee crisis, the country was labelled as a level-2 emergency by UNHCR. Its position at the geographical periphery of Europe entails several challenges and the country is often criticised for its migration policy and practices. Secondly, Greece has been described as “the European Union’s asylum policy laboratory”.[iii] The involvement of EU agencies in Greece is significant and the European Union Agency for Asylum (EUAA) is a very active and visible actor in the asylum system. Third, Greece has started to influence EU policy in return.[iv] Problematic practices implemented in Greece, such as strict border procedures and recognising border closures, have now entered the EU Regulation following the adoption of the new Pact. Some responses by interviewees regarding the Pact are revealing. For instance, discussing the ad hoc and arbitrary border closures implemented by the Greek government, as well as the emphasis on border management and migratory flow control in the newly introduced rules under the EU Pact, one interviewee remarked:
“This is actually acknowledging and giving the justice to what Greece arbitrarily did in 2021 in Evros borders. I think the new pact makes it institutionalised. Now, it is legal, and I believe it is a very bad direction for the EU.” (Anastasia, Appeal Lawyer, NGO T)
Another one claimed:
“The Pact somehow incorporates tools and initiatives that we’ve seen here in Greece since 2016 onwards. So, I don’t think it will be something extra or radically new for us. These are tactics and approaches that have been already tried and magnificently failed in Greece.” (Kostas, Legal Coordinator, NGO L)
What are the red flags in the Greek legal support system?
Legal support for asylum seekers may be delivered at different levels and through different kinds of services provided by various actors. Evidence collected in Greece includes legal information practices by state officials, legal assistance practices by NGOs, and state-established registry of lawyers for appeals.
Legal information practices in the Greek system.
Article 21 of the previous Directive articulates that “Member States may provide that the legal and procedural information free of charge referred to in Article 19 is provided by non-governmental organisations, or by professionals from government authorities or from specialised services of the State.” Therefore, the law permitted that this service could be delivered by state officials or employees. This practice is present in the Schisto refugee camp in Athens. The camp has a capacity of 1100 people. At time of research, it had 610 registered residents. Schisto is considered one of the “best” in the country in terms of staff per asylum seeker and space given per family. Camp residents are among the most vulnerable groups of asylum-seekers such as single-parent families, disabled people, people suffering from long-term illnesses, and, of course, many children. For these very vulnerable groups, camp management has an arrangement in place to provide in-person legal information. Near the entrance, a poster placed on a container states “Asylum Support & Legal Info”. At the time of data collection visit, a man was sitting inside the container, alone, young, quasi-formal. He informed me that two people including him were working in this section of the camp, and they were expected to advise all camp residents, potentially up to 1100 individuals when the camp was at maximum capacity. When asked about his qualifications, he claimed that he was employed by the Greek Ministry of Migration and Asylum and was not a lawyer. To the questions of how and why he provides legal guidance and support, his response was that he follows the guidance provided by the Ministry, such as leaflets from EUAA, UNHCR, and others as well as diagrams to explain the flow of the asylum procedure. From this description, it did not seem a thorough and specialised legal information service. Additionally, questions arise regarding the providers’ independence and professionalism. Among the study interviewees, a lawyer with five years of field experience in one of the hotspot Greek islands, shares concerns on free legal counselling practice:
“I should also add that any provider of this sort should be independent. They cannot be hired by the Ministry. If that’s the case, you cannot expect them to give independent legal advice. People are proving to the Greek authorities, and they are the ones who are having to prove. In that respect, it is almost a conflict of interest. In theory, it is great, but I am very cautious about seeing how it works in practice, if it will.” (Kate, Project Coordinator, NGO M)
Legal assistance practices in Greece
Evidence shows that legal assistance practices in Greece lack state-funded initiatives and the gap is filled by the NGO sector. Some organisations specialise in legal aid, and some others providing general social services also employ lawyers to assist and advise asylum seekers and refugees. Currently, most of the organisations are focused on assisting people during the first instance stage and particularly with interview preparation. To work in the area of migration and asylum as an NGO, they are expected to meet State requirements to be officially registered and pay considerable fees. Without this recognition, they cannot provide services inside camps. It is reported widely that NGOs in Greece are being pushed out from spaces where they can interact with refugee communities more effectively. Legal counselling services are normally needed and offered at a time when asylum seekers’ trauma is still fresh, not only due to persecution they had to flee from but also their hard journey experiences. Therefore it is vital that legal NGOs establish trust with their beneficiaries and work independently, confidentially, and in a trauma-informed way[v]. Similarly, relevant training should be provided for legal counsellors. The importance of trauma-informed lawyering was strongly emphasised by several interviewees:
“For me, it is not only about providing free legal assistance at first instance just to tick a box. If it is like ‘an hour with a lawyer, an hour of interpretation, one meeting’ and ticked… No. It should be properly done, having into account the complications of the case and the traumatisation of the person.” (Dimitra, Legal Coordinator, NGO A)
“You should be making time, so the person feels safe. And you cannot rush that. If you do that, it might make the person feel unwanted or like a burden. I find it very problematic when we have to sit down and say to someone, “OK, we have one hour. Tell me” or “Come on, you are not getting to the point, and we can’t waste time”. The conduct should be trauma-informed, and in order to achieve that, we need time. For me, this is the most important thing.” (Mary, Team Coordinator, NGO M)
State registry of appeal lawyers
Organised by the Greek Asylum Service, the registry’s modus operandi seems problematic for legal counselling practices. During fieldwork, in addition to discussions with NGO lawyers, two in-depth interviews were conducted with appeal registry lawyers: one based in Athens and one based in Thessaloniki, both of whom take on multiple asylum offices’ assignments in these locations.
Both lawyers were admitted to the registry in 2021, when recruitment was massive compared to previous calls and the selection criteria did not include any qualifications regarding expertise in asylum law. The basic requirement was to be a registered lawyer at one of the Bar Associations in Greece and to speak a good level of English. At the time of interviewees’ application, lawyers were admitted to the registry on a ‘first-come first-served’ basis. The appeal lawyer based in Athens had six years of experience and explained that she could not imagine holding this position at the appeal registry without her prior experiences in different legal NGOs. Therefore, she was suspicious about the competency of others who were recruited for the registry without proper assessment of their qualifications.
A key area of concern in the appeal registry practice in Greece is translation. Appeal lawyers have to use interpreters hired by the Asylum Service only. Client meetings are also arranged by the Service and there is not much room to decline or ask for rescheduling because the priority is finding a suitable time for the interpreter rather than the lawyer or the applicant. The second area of concern is time, and this is linked to practicalities. Appeal lawyers are only able to have a single one-hour-long meeting with their clients with no flexibility. For example, if a lawyer overruns a meeting, this time is taken from the next lawyer’s booked-in session. Although lawyers are able to fill the gaps left by the limited interaction time with clients thanks to access to their asylum files, it is worth remembering that legal counselling should help applicants to build those asylum files in the first place, and therefore it should not be so limited in time. Appeal registry lawyers are also compensated on a very low rate (a maximum of 160 EUR per case, 20 EUR for client meetings). The payment for client meetings is so low that reportedly many lawyers do not even make the effort, since the fee does not cover their travel expenses, let alone their professional service. As a result, it is unsurprising that legal aid at the second instance is a mere formality for many asylum seekers rather than genuine support and guidance. In order to prevent this from happening, for the novel practice of legal counselling, there must be acceptable standards that are complied with fully.
Conclusion
As illustrated in the case of Greece, there are many challenges and pitfalls in the provision of legal counselling in the context of asylum procedures. To prevent similar problems occurring in other MS, the following points should be addressed when reforming national systems:
- Legal counselling services should be provided by certified lawyers, or at least law graduates with some experience of asylum practice.
- The service arrangements should not be an employment scheme by asylum authorities. Freelance contracts should be prioritised in order to maintain independence.
- The number of applicants per legal counsellor should be reasonable (such as a maximum of ten assignments per week) by regularly checking capacity.
- Selection criteria for legal counsellors should be transparent, fair and expertise-oriented.
- The consultation appointment system should be practical yet also functional. Confidentiality should be ensured.
- Sufficient time to connect with asylum seekers should be maintained to build trust and ensure that crucial parts of their asylum journey are covered.
- Good quality and unbiased interpretation should be available.
- Information and assistance should be individualised.
- Training for service providers on trauma should be mandatory and frequently refreshed. On this matter, experience-sharing by NGOs working in this area of practice should be encouraged.
[i] Steve Peers, ‘The New EU Asylum Laws: Taking Rights Half-Seriously’ (2024) Yearbook of European Law 1, 41.
[ii] Ibid.
[iii] Eleni Karageorgiou, ‘The Impact of the New EU Pact on Europe’s External Borders: The Case of Greece’ 47 in Sergio Carrera and Andrew Geddes (eds), The EU Pact on Migration and Asylum in light of the United Nations Global Compact on Refugees (European University Institute 2021).
[iv] Angeliki Dimitriadi, ‘The Greek Asylum Regime: From Latecomer on Reception to Inspirational Model on Asylum Procedures’ in Migration Control Logics and Strategies in Europe (IMISCOE Research Series, Springer 2023).
[v] For a short but very helpful good practice guide, follow the hyper-link and see 28-31 in Lamonaca, S., Vanhoutte, K., Linthout, L., De Schrijver, L., Clarke, V., Correia, R., & Keygnaert I. (2021). Good practice tool for police hearings with migrant, applicant for international protection, refugee (MAR), trafficked, and LGBT+ victims of sexual violence. Payoke & Ghent University: Belgium.
*A shorter version of this blog post was previously discussed in a workshop of the HIDDEN (History of Identity Documentation in European Nations) COST Action Network at the University of East London.
**All names in this post are pseudonyms.
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