The debate on intra-EU mobility and welfare in Europe has shown how concepts of "undeservingness", "scrounging", "unfairness" or "welfare-transit" were not only used to describe bogus asylum seekers or irregular migrants *en route* to Europe but could be easily transposed to describe "unwelcome" intra-EU migrants from Southern and Eastern Europe. Yet, analysis of the Spanish case in this article shows that the restrictionist turn was not limited to South-North labour-motivated mobility but can be easily extended to the intra-EU non-labour motivated mobility in Southern Europe. This has been for instance the case of the restrictions to public healthcare for EU citizens which were introduced in Spain after the Great Recession of 2009. As Finotelli (2021, p. 615) argued in a previous study "Paraphrasing Maurizio Ferrera (2016), it can be argued that the Spanish central government has tried to reintroduce a 'modicum' of state autonomy on intra-EU mobility by applying 'more severely' the principle that EU citizens may reside in another Member State for a period longer than 3 months if they have suffcient resources for themselves and their families." Yet, such a restrictive turn was followed by the decision of the Spanish government together with the private healthcare sector to promote Spain as a healthcare tourism destination under the umbrella offered by the Directive on cross-border patients' mobility. Against this backdrop, the Spanish case shows that different approaches can be taken when the logics of the EU citizenship regime intersect with logics other than the "protection" of the public healthcare sector such as accumulation logics embedded in the economic and the tourist sector. So, the importance of Spain as a tourist destination has prevented to revise the reimbursement procedure for healthcare treatment provided in Spain to intra-EU retirees. Likewise, the approval of the Directive has promoted widespread euphoria to attract cross-border patients possibly keen to receive medical treatment in the Spanish private sector. Even though the objective to turn Spain into a medical destination par excellence has not been achieved to date (Finotelli, 2021), analysis of the Spanish case shows that the European citizenship regime as embedded in a complex interplay of regulations and practices where important imperatives other than that of guaranteeing equal access to healthcare play a role. The purpose to guarantee fair access to the public healthcare sector to EU citizens and natives was balanced by the will to promote the access of EU citizens to the private sector showing how the context of reference, in this case the public or the private healthcare system, can make a difference on how EU citizens are observed (and acted upon) within the same EU citizenship regime.

#### **References**

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# **Part VI Asylum Policy**

# **Chapter 14 Welcome Culture and Bureaucratic Ambiguity: Germany's Complex Asylum Regime**

**Dietrich Thränhardt**

#### **14.1 Welcome Culture in the Crisis of 2015 and Afterwards**

During the European asylum crisis of 2015, Germany opened its doors. The country accommodated 890,000 asylum seekers in 2015 alone, and 706,852 people received approval for asylum in 2016 and 2017, out of 1,154,995 in the entire EU. Chancellor Merkel responded to the welcoming attitudes of an engaging majority of the German population and the media, after the agonising reports about smuggled refugees suffocated in an abandoned lorry in Austria, and the iconic picture of a little boy washed up on the Turkish coast. Merkel identifed with the opening, and became TIME magazine's Person of the Year. When she said, "*Wir haben so vieles geschafft – wir schaffen das*! (We have done so much, we can do that)," she evoked memories of earlier immigration waves, and the country's economic strength and social cohesion. Support came from all walks of life: church communities, student groups, schools, retirees, business groups, and trade unions. Volunteers spontaneously collected and provided food, blankets, and children's toys, as well as practical and emotional support. Surveys showed that a record of 46% of the population

Due to the contentious nature of asylum policies, I have relied on offcial government documents, as well as on many NGO publications and press reports, often based on interviews with refugees, volunteers, or offcials, both open and confdential. The most informative sources have been parliamentary inquiries, with detailed questions; these require the government to gather and present statistical information that sheds light on administrative processes. One member of the opposition in the parliament (*Bundestag*) who specialises in these issues has extracted hundreds of pages of information, following the events year by year. My role has been to check and double-check all this information, systematise it, and defne the characteristics that form a "regime". Since the activation of temporary protection for displaced Ukrainians, we can speak of two regimes, one for Ukrainians, and another for all other asylum seekers and refugees.

D. Thränhardt (\*)

University of Münster, Münster, Germany e-mail<EMAIL_ADDRESS>
contributed in some way, and only 18% answered that they would not want to contribute at all (Ahrend, 2017). Elderly women remembered the harsh times after being expelled from their homes in the territories Germany lost in 1945, and wanted to help out of their own experience. Against the ever-present memory of the Nazi past, this was a kind of positive redemption (Freedland, 2015). Despite setbacks, disappointments, and terrorist attacks, the welcoming spirit is still alive among many volunteers. The Russian aggression in Ukraine triggered a new wave of aid in 2022, with hundreds of thousands of Ukrainians fnding shelter in private homes.

The arrival of refugees overshadowed all other public issues from August 2015 until 2020 (graph in Fachkommission, 2021, p. 87). This "welcoming spirit" was omnipresent in 2015, but the public discourse soon became polarised, and the xenophobic *Alternative für Deutschland* (AfD) party has been voted into all state diets (*Landtage*) as well as into the federal parliament (*Bundestag*) since 2015. Even though the general public has continually come out in favour of helping refugees to fee from war and oppression, doubts about security – and particularly young male refugees – became more widespread. The Christmas market attack in Berlin in December 2016 and other murderous events, as well as right-wing arson attacks, stoked fears. After the Cologne rape events on New Year's Eve 2015–2016, the media began to speak about a change in the public climate. Open conficts between Chancellor Merkel and Horst Seehofer (Leader of the CSU – the CDU's sister party – and Bavarian Minister-President) about limits on the number of refugees and about border controls affected the government's reputation from 2016 to 2018. Since Seehofer's warning about a "reign of injustice" (*Herrschaft des Unrechts*), a "myth of illegality" was in the air with respect to the decisions Merkel made regarding refugees in 2015 (Detjen & Steinbeis, 2019). Despite this open confict, Seehofer served as Federal Minister of the Interior from 2018 to 2021, which meant that he was responsible for asylum matters. In March 2020, public attention shifted entirely to the Coronavirus pandemic. Since February 2022, the Ukraine crisis has led to a new nationwide "welcoming spirit," but this time it has been far less controversial, encompassing all political strata.

#### **14.2 Quality Problems in the German Asylum Decision System**

When Chancellor Merkel concluded in March 2018 that, all in all, the exceptional humanitarian situation of 2015–2016 had been well handled (*gut gemeistert*), she was right with respect to the work of local governments, state governments, and volunteers. Together, they were able to accommodate the refugees, cooperating effectively with volunteers and charitable organisations. With the exception of a few cases in Berlin, nobody had to live on the streets, and no informal settlements sprang up.

Contrary to public expectations, the Federal Offce for Migration and Refugees (BAMF) emerged as the weakest actor in the crisis. It was hampered by a lack of resources and poor organisation, and could not even register half a million applicants in 2015. The failure to decide about asylum applications in time affected all other integration and welcoming activities. "All day waiting" (Christ et al., 2017) frustrated the ability of refugees, volunteers, and employers to be more productive, led to conficts in refugee centres, and delayed integration. The government reacted by opening language courses and allowing work before an asylum decision for Syrians, Iraqis, Iranians, and Eritreans, and later for Somalis as well (Table 14.1).

The BAMF President, Manfred Schmidt, resigned in September 2015. The new BAMF leadership accelerated the decision-making process, and tripled the agency's personnel between 2015 and 2020. The BAMF became the largest asylum agency in the world, and was lauded as the "asylum world capital" by Gerald Knaus, the mastermind of the EU-Turkey Agreement of 2016 (Knaus, 2020, p. 156). Its bureaucratic coherence has been re-established since 2018. However, the quality problems did not disappear, despite lower numbers of incoming refugees.

Judges became critical about the ineffciency of the asylum decision process. In a parliamentary hearing in 2019, Stefanie Killinger, the president of an administrative court in Lower Saxony, complained about the "inferior quality" of asylum decisions in Germany. Sending "unclear signals of an asylum lottery", German authorities "play with the hopes and expectancies and in extreme cases even with the life of people who take part in the lottery," she testifed. Together with the good chances to remain in the country even after a negative asylum decision, this creates, she argued, a "pull factor" – "everybody who comes here sees himself as a potential winner in the lottery." Backlogs at the BAMF and at the courts lead to long years of waiting, resulting in good chances to stay in the country even if all legal means are exhausted. Thus, Killinger summarised, "we are situated in the worst of all worlds" (Innenausschuss, 2019, p. 10).

In the same hearing, a renowned lawyer with 40 years of experience told the Bundestag that in more than half of his cases, the applicant had not been presented with the objections that had led to the negative verdict, so that they could have been clarifed. This had been a systemic fault for decades, he argued. Improvement was not in sight, and the agency should not hand down such poor decisions (Innenausschuss, 2019, p. 19). He added that BAMF decision-makers often apologised to him for not being suffciently prepared and not having read the fles.

**Table 14.1** Average duration of asylum procedure in months, 2015–2020

a In 2015, about 500,000 asylum seekers had not even been registered. This was rectifed in 2016 and 2017. Source: BAMF yearly reports

Hearings were scheduled shortly after asylum applications, without appropriate preparation. As a consequence, lawyers could not adequately represent the applicants. Asylum offcials often had to decide on applications from many countries of origin, rendering them unable to obtain country-specifc expertise.

Statistical evidence supports the criticism concerning the malfunctioning of the German asylum system. In 2020, judges invalidated 31.2% of administrative asylum decisions. This was up from 26.4% in 2019, 31.4% in 2018, and 8.0% in 2017 (BT-Drs. 19/28109). On average, asylum decisions took 8.3 months in 2020, and court decisions 24.3 months (BT-Drs. 19/28109). At the end of 2020, 129,320 people were still waiting for a fnal court decision. In the end, most asylum seekers stay, and the number of deportations to non-European countries is low. In 2020, only 755 people were deported to African countries and another 675 to Asian countries (BT-Drs. 27,007, pp. 3–4). The long administrative and judicial processing times hampered integration, and the country spent €4.2 billion on accommodation and welfare benefts for people with an undecided status in 2020.

The problematic quality of asylum decisions was also obvious regarding the profound discrepancies between local BAMF organisation units. The results differed astoundingly for people with the same nationalities (see Table 14.2).

These discrepancies have been brought to public attention by parliamentary scrutiny in the last few years. The BAMF claimed that they had introduced oversight and quality control, but the discrepancies did not disappear. Understandably, three-quarters of asylum seekers who were denied asylum appealed to the courts (see Table 14.3). Even those with poor chances had reason to appeal, since they could remain in the country as long as court proceedings continued.

**Table 14.2** Recognition rates in local BAMF organisation units in 2020 (%)

Source: Deutscher Bundestag, Drucksache 19/28109, Question 3

**Table 14.3** Asylum seekers appealing against rejection (%)

Source: Deutscher Bundestag, Drs. 19/8701, Drs. 19/28109

#### **14.3 British and Italian Parallels and the Common Tension Between Asylum Principles and the Political Will to Reject Asylum Claims**

Looking into media reports about procedures in the United Kingdom, we fnd similar or worse problems. Again, the term "lottery" has been used to characterise the outcomes. And again, the reason given is the low quality of asylum decisions, due to the pressure to decide cases under time constraints. One BBC reporter at the evaluation units was reminded of the "atmosphere of a call centre" (Brewer, 2018). Offcials relied on "copy-paste" methods, and decided on cases having only limited knowledge of the specifc circumstances (Brewer, 2018; Lyons & Brewer, 2018). The Home Offce itself spoke of the need "to fx the broken asylum system so that it is frm and fair" (The Guardian, 12 November 2020). Similarly, limited administrative capacities have led to a backlog. Since the UK has had to deal with a rather low number of asylum requests, the shortage of personnel cannot be attributed to overburdening, but is a result of political decisions. British authorities decided 28,460 cases in 2019, while 60,548 applicants were still waiting for a decision in 2020. Thus, the waiting time is more than 2 years on average (Eurostat, 2021; Taylor, 2020).

Insofar as the UK and Germany both rank high in the World Bank Government Effectiveness Index, systemic defcits over decades cannot be explained by an inability to organise proper governance. Instead, the problem lies in the ambivalence between the legal principles of asylum and the political desire to contain infows. This is widely expressed in the political discourse in most European countries, and is a source of motivation for many governments (Thränhardt, 2019). Asylum agencies then come under pressure to produce a low percentage of positive asylum decisions. This pressure cannot be formulated in offcial texts, because this would be illegal and invalidated by the courts. The ambivalence is then present within the agencies, as it would be illegal to order agents to break the law. As a result, politicians like Austria's former Chancellor, Sebastian Kurz, can praise the Australian model of incarcerating and deterring refugees, but they cannot implement it. Contradictory signals about acting according to the law and simultaneously reducing numbers leave asylum offcials in limbo, and these offcials react with a broad range of different decisions. The authorities then turn a blind eye to the quality of the decisions. In the end, it is the courts that have to deal with the mess.

While the deciding bodies or individuals are theoretically free in their decision, bound only to the law, in practice we fnd pressure from the interior ministries of these countries. In Germany, we can follow this policy with respect to refugees from Afghanistan. In 2015, Minister of the Interior Thomas de Maizière was concerned with the high numbers of asylum seekers from Afghanistan. He wanted to "send a signal": "Stay put. We will repatriate you" (Lehnert, 2021). He added that only a few Afghans had the right to asylum, in contrast to the fact that 86.1% had actually received asylum in the third quarter of 2015 (BT-Drs. 18/6860, Question 1b). In turn, the coalition parties concluded that they wanted to create and improve intra-Afghan possibilities of refuge, and revise and adjust the BAMF's decision principles to follow this line. BAMF guidelines were adapted, and young men were expected to look for internal protection in Afghan cities. The courts were divided concerning the cases, but they granted asylum more and more frequently (Lehnert, 2021). In 2020, the BAMF lost 60% of the Afghani cases decided by the courts – a record percentage (BT-Drs. 19/28109, Question 22e). The BAMF, however, stuck to its line, even though it had lost a majority of court cases. As a law-abiding institution, it should be expected to follow the arguments laid down by the courts, and change its practices. However, the confict continued, at the expense of the taxpayer. In the end, most Afghans got asylum through the courts, including via judgements of the German Constitutional Court and the European Court of Justice.

The Territorial Asylum Commissions in Italy serve as a parallel example. The European Council on Refugees and Exiles (ECRE) has described the relationship as follows: "These bodies should be independent in taking individual decisions on asylum applications but, due to their belonging to the Department of Civil Liberties and Immigration of the Ministry of Interior, in more cases, they received instructions from the Ministry of Interior. Some examples are the instructions given for the grounds of inadmissibility, manifestly unfoundedness, border procedure" (AIDA, 2020, p. 32). In 2017, Italy was the last country to discontinue the tradition of having a UNHCR representative prepare asylum flings for the asylum commission. Now, this task has been assigned to an offcer of the Ministry of the Interior.

Such institutional ambiguity explains how the decision lottery exists not only in countries with weak government effectiveness, but also in those with strong ones. We can demonstrate these effects using Germany's BAMF. Between 2015 and 2019, the BAMF was technologically upgraded and personnel was tripled. Asylum decisions, however, were still ill-organised, and personnel was shifted to reviewing procedures against accepted refugees. All cases were checked again after 3 years, with very few negative decisions that again are challenged in court.

In this contentious atmosphere, ministries and asylum agencies often operate in a secretive style, and it is then up to journalists, parliamentarians, and researchers to shed light on the black box. In Germany, regular detailed parliamentary inquiries force the government to present information, often over several hundred pages long (for Austria, Diakonie, 2019; for Britain, Grierson, 2020; for Spain, Janker, 2020). All in all, these patterns and attitudes create a common regime in most Western European countries concerning the ambiguity of asylum decisions. In the UK, the problems were more intense because of a radical reduction of administrative capacities. In the last Eurostat statistical summaries that included the UK (in 2019), the country had a record success rate of 70% of court cases won by asylum applicants.

#### **14.4 The Policies of Backlog and Encampment**

Backlogs in asylum processes are as ubiquitous as government proclamations about speedy trials. At the height of the asylum crisis in 2016, the German government made a systematic and illuminating argument for speedy decisions:

The asylum procedures are too long, lasting six months on average. Therefore, persons affected live in insecurity about their further fate for too long. Those whose applications are decided positively in the end and are allowed to stay in Germany are offered integration activities relatively late. They then need a fairly long time until they can join the labour market. But even for those who have to wait long for a negative decision, the duration of the procedures hinders a return to their countries of origin. Particularly children, who integrate faster, participating in school education, can then be cut off from an environment with which they just have become familiar. Not least because of this, after a negative decision, the likelihood of exceptional leave to remain (*Duldung*) increases with the length of stay. This then requires resources that are needed for accepted people in need of protection. (BT-Drs. 18/7203).

The EU has set the same tone for years: in 2010, the Commissioner for Home Affairs, Cecilia Malmström, argued that "the best way to ensure effciency and fght against so-called abuses is to invest in an asylum process which provides robust and qualitative decisions in a rapid manner" (European Commission, 2010). Three years later, Article 31(2) of the Directive on Common Procedures for granting and withdrawing international protection (2013/32/EU) stated: "Member States shall ensure that the examination procedure is concluded as soon as possible, without prejudice to an adequate and complete examination." In the introduction to the European Commission's "New Pact on Migration and Asylum" in 2020, the Commission declared that "The frst pillar of the Commission's approach to building confdence consists of more effcient and faster procedures" (European Commission, 2020).

Thus, procedures should have been processed more quickly when the number of asylum applications declined and personnel tripled in Germany. However, procedures became even slower. As explained above, the average processing time in Germany was 8.3 months in 2020 (BT-Drs. 19/28109). Governments of wealthy countries with well-functioning bureaucracies still allow drawn-out, poorly handled procedures to occur, while at the same time arguing for faster processing.

Over the last few years, the character of many asylum centres has changed, from an admission site to a long-time encampment, and an environment of repatriation pressure. EU rules for the length of holding people in centres have been loosened. In Germany, the length has been extended sixfold, from 3 months to 18 months, and even to 24 months in some states. In the end, however, most occupants stay in the country, and are transferred to normal local accommodation. Some are accepted via court decision after years of waiting; others are unable or unwilling to return to their home countries and receive exceptional leave to remain (*Duldung*) (González Méndez de Vigo et al., 2020).

Waiting, uncertainty, backlogs, and overcrowding of admission facilities are not limited to Germany, but are a frequent feature of asylum reality in Europe – not only in countries and situations of sudden infows, but also in environments where planning and organising is possible. At the end of 2020, Eurostat counted 765,700 unresolved asylum applications in the EU, with 257,200 or 33.6% of them in Germany (Eurostat, 2021). Whether such inadequacies are the result of deliberate inaction, neglect, or incompetence is often not easy to investigate. In Germany, the 2018 coalition agreement envisaged large "AnkER" centres (arrival, decision, repatriation – *Ankunft, Entscheidung, Rückführung*) with the aim of speedy decision-making and direct departure of those who were not granted asylum. In the end, however, the decisions in the new centres took even longer than those in traditional settings (BT-Drs. 19/25435, p. 56), and people had to stay in the AnkER centres for increasingly long periods. Most of the centres are former military barracks, fenced in and monitored. The new 2021 coalition agreement stated that the AnkER concept would be discontinued.

These long delays in crowded camps are harmful for the physical and mental health of refugees as well as for their trust in the system, and for their integration. This is particularly true for children who are held there; they do not live in an appropriate environment and are denied a standard school education (González Méndez de Vigo et al., 2020). Employment bans linked to encampment also delay the economic integration of refugees. One empirical study found that "longer employment bans considerably slowed down the economic integration of refugees and reduced their motivation to integrate early on after arrival".

The media and activists in Germany, however, were much more concerned with the deplorable conditions on the Greek islands. The EU-Turkey Agreement did not work, largely due to the failure of the Greek government to carry out asylum procedures (Knaus, 2020, 190–199). Centres developed into long-term detention camps, which were overcrowded and degrading (see the contribution on Greece in this volume).

All in all, there is a broad consensus that the current asylum regime is defcient. It is expensive, but delivers poor results; it spoils the good will of the population and saps the energy of millions of volunteers who want to assist refugees. Most importantly, it holds millions of refugees in limbo and forces them to concentrate their activities not on integration and success in the host societies, but on ways to get past the hurdles that states build up to keep them out. Not only are the camps on the Greek islands expensive for taxpayers, but the long duration of camp life in Germany and other European countries is as well; it is demotivating and sometimes dehumanising for refugees, it delays the integration process, and it is ultimately futile for the asylum procedure. Large, permanent camps are public displays of crisis, incompetence, and unwillingness.

#### **14.5 Best Practices in Europe and the Reluctance to Optimise**

In 2015, while Germany was discussing the shortcomings of the asylum system, EU Vice-President Frans Timmermans told a German television station on 9 September that asylum procedures took 8 days in the Netherlands and 8 months in Germany, and this explained why so many Balkan refugees– a group with slim chances of getting asylum – came to Germany rather than to the Netherlands (Thränhardt, 2016a, b). In a search for solutions, the Bertelsmann Stiftung then published reports about the Swedish, Dutch, and Swiss asylum procedures (Parusel, 2016; Thränhardt, 2016a, b). Bertelsmann wanted to explore if Germany could learn from effcient practices in other countries. This next section takes up this question as well, and discusses the results.

In 2010, the Netherlands had found a way to organise fast, high-quality asylum decisions: the "improved procedure". A strict timetable is set, combined with statefunded legal representation, so that the applicant's asylum plea can be fully presented by a legal expert. Lawyers apply for each client. The assigned lawyer meets the asylum seeker before the hearing, prepares the client, and advises him or her, takes part in the hearing, comments if necessary on the draft opinion before the asylum decision, and can appeal to the courts in case of a negative verdict (Thränhardt, 2016a, b). The system worked speedily, and experts presented the system as a successful model to the outside world.

Later, however, the Dutch government cut administration personnel, so asylum seekers now face long waiting times before the "improved procedure" begins. The 2017 Dutch coalition agreement called for the provision of legal assistance only "after notifcation of intent to deny an asylum application has been issued." The coalition wanted to "eliminate gold-plating" and reduce the level of asylum standards. It is, however, doubtful that eliminating the "improved procedure" would "reliev[e] pressure on the justice system," as the coalition agreement (p. 52) asserts. Clearly, the 2017 Dutch coalition government mistrusted their effcient asylum system, and chose to focus on "detention" – a catchword in the coalition agreement.

Switzerland adopted the Dutch combination of speedy procedures and quality decision-making as well. Their "structured model" was discussed intensely among all levels of government and the public, and tested in Zürich from 2014 on. In a referendum on 5 June 2016, 66.8% of Swiss voters accepted the new system, and it was introduced across the country on 1 March 2019. After decades of strife, the new asylum procedure has been accepted by the public and has moved out of the headlines. Switzerland invests in the quality system. Charitable organisations provide legal representation, and receive a fxed remuneration for each client, with contracts over 5 years. Switzerland provides 5000 places in six federal asylum centres, even when the number of asylum seekers is low.

The "*Taktphase*" is organised like Swiss clockwork. After the asylum seeker has gone through medical and security tests, and Switzerland has been identifed as the country responsible, the legal representative meets the client to discuss the case. This representative is present at the hearing, can assist the client, and can make representations. Next comes "triage": the decision either to follow the structured model, or to switch to the extended procedure if the case is complex and further evidence is required. In the structured model, the asylum offcial then produces a draft asylum decision, and the legal representative has 1 day to comment. The offcial then writes the defnitive verdict. In case of a negative decision, the representative has 7 days to appeal to the Federal Administrative Court. The Court announces its judgement in 20 days, or it returns the case to the asylum administration if it identifes shortcomings.

The legal representative can bring the client's individual story into legal arguments. Through the whole process, the presence of a representative challenges the asylum offcial to pursue the case carefully and provide a well-founded decision. Both the offcial and the legal representative have access to training, data systems, and exchanges with colleagues. Legal counselling offers asylum seekers information and orientation, instead of rumours and fear. The system is designed to investigate thoroughly, and to come to a well-founded decision.

After a year's experience with the new system, there was a broad consensus that it worked well. The average asylum procedure took 50 days; 35 for Dublin cases, 50 in the structured model, and one hundred days in the extended procedure (SEM, 2020). Charitable organisations wanted some more time and fexibility, particularly for vulnerable clients, and ten instead of 7 days to prepare the appeal. An external review by the Swiss Center of Expertise in Human Rights was positive (Evaluation PERU, 2021). The state secretary argued that the new system offers asylum speedily for those with good cause, and discourages those without. The acceptance rate is high, but the quick process discourages those who stand little chance of getting asylum. The Swiss example demonstrates that a fast and fair asylum procedure can be organised, and that growth in public trust corresponds with effectiveness and open communication.

In 2017, Germany's BAMF organised a pilot project, imitating the Swiss procedure, in cooperation with Caritas, Diakonie, and the German Red Cross. The BAMF's internal evaluation was extremely positive, with respect to "improved administrative effciency", "better clarifcation of the facts", "asylum applicants' improved understanding", and a "better quality of asylum decisions". The "effciency of the agency's procedure" had also been improved. Five applicants had withdrawn their applications when advisers explained to them at an early stage that they had no chance of getting asylum. Deciders reported that planning became easier. The clear advice helped asylum seekers to understand the asylum system, and made them less dependent on rumours and smugglers.

In a "political decision", however, the Federal Ministry of the Interior overruled the BAMF specialists, and ordered the BAMF to keep the report secret (BT-Drs. 19/19535, p. 12). Later, it was leaked and published by the Refugee Council of Lower Saxony (*Flüchtlingsrat Niedersachsen*), an NGO (Evaluation, 2018). The coalition of Germany's major charities commented: "When refugees are able to access independent and free asylum procedure counselling, this improves the due process, fairness, quality, and effciency of the asylum procedure. Counselling does not decelerate it and helps the BAMF to identify persons with special protection needs (such as traumatised, sick, and disabled persons). This is our experience from the pilot project" (BAGFW, 2019).

Instead of working with charity advisers, the BAMF organised an internal counselling system, with a number of asylum offcials put in a new BAMF division, rotating with their colleagues. Charities can also offer counselling in parallel if there is state funding for it. However, the counselling is not comprehensive, differs among states, and does not include legal assistance, the core of the Swiss improvement (Thränhardt, 2020). It is an expensive but ineffcient arrangement. The new coalition agreed in 2021 to reintroduce independent asylum counselling, but it has not yet been formalised in law and implemented.

In Austria, all NGO counselling has been terminated, and the government has established a special "Federal Agency for Assistance and Support Services" (*Bundesagentur für Betreuungs- und Unterstützungsleistungen*). The intention was to cut off any civil society infuence, and – in the words of the former Minister of the Interior – "to tell many people: that you have no chance" (Kickl OE 24). Shortly after the legislation passed, the minister and his party, the FPÖ, were ousted due to a scandal, and the implementation was modifed under the subsequent conservativegreen coalition. From 1 January 2021 on, all counselling has been provided by the new state agency, independent in its work and bound to confdentiality (Diakonie, 2019; Die neue Volkspartei, 2020; Gahleitner-Gertz, 2020). In Austria as well as in Germany, asylum procedures still take a very long time, and the decision quality is insuffcient (Lahner, 2020, Table 14.2). Clearly, both governments, like many others, were more concerned with reducing the number of asylum seekers than with optimising the quality of the procedure. However, as long as there is an independent judiciary, these measures will fail to bring down numbers, but will continue to generate enormous costs, not only fnancially, but also in terms of public trust and refugees' quality of life.

#### **14.6 Conclusion: Administrative Ambiguity in an Integrative Asylum Regime**

In Europe, we fnd stronger and weaker regulators, and small and large asylum bureaucracies. What is in common, however, is the organised ambiguity towards the acceptance of refugees. This can be as simple as in Greece, where the Mitsotakis government attempted to abolish the Migration Ministry in July 2019, but then reinstated it after 6 months; this slowed and then spurred asylum procedures, all the while holding people in inhuman environments (ANSA, 2020). In Germany, with the largest asylum agency in the world, bureaucratic arrangements are organised in such a way that people wait for a decision in centres, hearings are organised in a fuzzy way, counselling is disorganised, and the courts have to resolve and correct a vast number of cases. In both countries, and in many others, the procedures are characterised by ineffciency, deliberately holding asylum applicants in limbo. On the other hand, the EU itself – as well as many European governments, including Germany – fund the humanitarian organisations and activists who support refugees and often distrust these agencies. Both sides frequently argue that the system is broken.

Partially an element of Cold War hypocrisy (Martin, 1989), showing the moral superiority of Western democracies against the Communist foe, the principles of asylum and particularly *non-refoulement* became part of an established international treaty system, nominally accepted by most countries in the world. In the European Union, these principles were codifed in an elaborate system of EU directives, to create an "area of freedom, security, and justice" for refugees. In her

seminal work, Natascha Zaun (2018) has shown how "strong regulating states" were successful in transferring their level of asylum administration into EU directives, while "weak regulators" cared little. Strong regulators were careful to include a right to legal representation, but no provision to fund and organise it. Thus, many asylum seekers are unable to present their case convincingly, and states allow for a fawed asylum decision process.

However, the asylum regime is much more than its bureaucratic practice. Eurostat's data on "fnal decisions" show that the courts grant asylum for an impressive percentage of the claimants that had been previously turned down by the asylum administrations. In Germany and Austria, the absolute numbers of these "fnal decisions" are almost as high as frst instance decisions: 100,100 against 128,600 in Germany, and 10,000 against 10,500 in Austria. In the EU as a whole, it is 232,800 against 521,000 cases. Eurostat (2021) reported that in 2020, 61.7% of asylum appeal court cases in Austria and 35.5% in Germany were decided in favour of the refugees. A system of judicial expertise has also developed at national and transnational level. This judicial system is complemented by a network of civil society organisations that had become energised and expanded during the 2015 asylum crisis, and organised into NGO structures, with links throughout various sectors of society. Public opinion is divided, moving in this or that direction after revelations and scandals, but in principle supportive of asylum. All in all, we can conclude that Germany has a receptive asylum regime, even if the practice of the responsible ministerial and administrative agencies remains ambivalent. The welcoming parts of the regime, however, are largely reactive, against the restrictive tendencies of the Ministry of the Interior. This makes it protracted, confrontational, and expensive, and hinders a proactive and coherent asylum policy.

#### **14.7 Postscript: The New Regime for Displaced Ukrainians – A Blueprint?**

Reacting against the Russian aggression in Ukraine, the EU activated the Temporary Protection Directive for displaced persons. In doing so, they introduced a second refugee regime alongside the existing one. Ukrainians are free to choose the country of refuge, they can return to Ukraine and come back again, and they can work and study. Temporary protection functions smoothly and without the toxic conficts between EU governments and within countries that had erupted in 2015 (Thränhardt, 2022). Ukrainians do not go through the asylum bureaucracy, and most are housed by ordinary citizens, relieving the burden on the states. It is an open question if the experience of an alternative regime in the same area will lead to reforms of the asylum system, thus making it more effcient, more humane, and more productive. Reem Alabali-Radovan, Minister of State at the Chancellery and Federal Commissioner for Migration, Refugees and Integration, has called it a "blueprint for what is possible if everyone cooperates" (FAZ, 2022).

#### **References**

World Bank Government effectiveness index. (2010, update 2017). World Bank Government effectiveness index, 2010 — European Environment Agency (europa.eu).

Zaun, N. (2018). *EU asylum policies: The power of strong regulating states*. Palgrave Macmillan.

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# **Chapter 15 Looking Into Policy Change: How the Italian Asylum Regime Came of Age**

**Irene Ponzo**

#### **15.1 Introduction**

In the feld of asylum, Italy has generally been depicted as a latecomer and recalcitrant recipient of the EU legislation (Trauner, 2016; Zaun, 2017). Indeed, for a long time Italy accepted requests to adapt its asylum policies to European standards with only the aim of being included in the Schengen Club without sharing the policy frames and goals underlying those requests.

In this contribution, I argue that the European refugee crisis represented a turning point in this regard, since in this contingency Italy began to share some fundamental traits with older European asylum countries. From the early 1990s to the "North African Emergency" declared in 2011, every new refugee infow triggered the dilemma of whether or not to provide protection and assistance, whereas the public debate currently revolves around the quality of protection and reception which are regarded as due. Moreover, secondary movements, which had been encouraged for a long time, have been drastically curbed by the adoption of the hotspot approach in 2015 and the consequent systematic fngerprinting of people who irregularly cross the borders. Finally, responsibility-sharing, the traditional concern of Northern European countries, is now at the core of Italian claims with regard to asylum.

In order to understand this policy change, I will analyse the development of policy frames and practices over the last three decades. Indeed, as illustrated in the volume Introduction (see Chap. 1), we can conceive of a migration regime as a mix

© The Author(s) 2023

I. Ponzo (\*)

FIERI (International and European Forum of Research on Immigration), Torino, Italy e-mail<EMAIL_ADDRESS>
C. Finotelli, I. Ponzo (eds.), *Migration Control Logics and Strategies in Europe*, IMISCOE Research Series, https://doi.org/10.1007/978-3-031-26002-5\_15

of ways of both observing and acting on migration (Cvajner et al., 2018), in other words as a mix of frames and practices concerning migration phenomena.1

Specifcally, I will argue that, after two decades of stability, practices and frames started to change in 2011 as a result of modifcations in the social phenomenon of migration and in the institutional settings where negotiation between Member States occurs. In contrast, the country's weak political-institutional capacity has slowed down this process, undermining the consolidation of the new practices. Moreover, this weakness appears as largely responsible for the gaps with older destination countries in the management of asylum whereas divergence in policy frames and goals has lost relevance.

Using a biological metaphor of human life, Sect. 15.2 reconstructs the "infancy" and "puberty" of the Italian asylum regime since the early 1990s; Sect. 15.3 illustrates its "adolescence" after the outbreak of the Arab Spring; and Sect. 15.4 explains its "coming of age", which occurred during the European refugee crisis. Section 15.5 focuses on the limited national political-institutional capacity as a key explanatory factor for some persisting weaknesses of the Italian asylum regime.

The reconstruction of the events that occurred in the 1990s and the frst decade of the 2000s (see Sect. 15.2) is based on secondary evidence, i.e., scholarly accounts supplemented by analysis of offcial documents. The analysis of the subsequent developments (see Sects. 15.3, 15.4 and 15.5) has been drawn from the research conducted within FIERI.2 Specifcally, it relies on the Horizon2020 projects CEASEVAL and TRAFIG where 53 semi-structured interviews with stakeholders and experts were conducted between 2018 and 2022.

#### **15.2 From Infancy to Puberty: The Emergence of the Italian Asylum Regime**

For a long time, in Italy the arrival of refugees was framed as a marginal phenomenon and gained little attention in policymaking (Marchetti, 2014; Campomori, 2016). This may sound odd, given that its coast represents a substantial part of the European Mediterranean border. Yet, the frst arrivals of Albanians by sea in 1991 took the country by surprise since "boat people" were perceived as a rather exotic phenomenon circumscribed to developing countries (Hein, 2010). Indeed, the maritime coast had been an irrelevant border for a long time given that Italy mainly played a key role as a channel for resettling refugees from the East to the West rather than a frontline state in the management of refugee infows. Following a rather institutionalised practice, from the end of World War II to the fall of the Berlin Wall,

<sup>1</sup>Drawing from the seminal work of Hall (1993) on policy change we could regard the change of regulation and practices as a modifcation of policy instruments (second-order change), and the change of policy frames as an alteration of the hierarchy of policy goals (third-order change), with the latter possibly leading to a shift in policy paradigm.

<sup>2</sup>For further info see https://trafg.eu/ and http://ceaseval.eu/

Italy was employed for two-step resettlements: around 220,000 individuals reached Italy from the Soviet Union and were resettled to other countries, mainly North America and Australia, while in the 1990s an agreement between Italy and Israel allowed thousands of Jews in transit to be transferred to the United States (*ibidem*).

This particular history of asylum probably contributed to framing the arrival of refugees as a transient phenomenon even when it was no longer the case. Against this backdrop, in the 1990s and 2000s European pressure and norms over asylum deeply affected Italian legislation without signifcantly impacting policy frames and actual practices. For those two decades, legislation changed deeply but Italy went on perceiving itself as a transit country and framing refugee fows as emergencies. Consistently, policy practices developed around three pillars: fostering secondary movements of asylum seekers towards other countries; keeping the asylum system (commissions for processing asylum claims, reception facilities, etc.) underdeveloped so that ad hoc emergency solutions and bottom-up initiatives became the ordinary ways to cope with refugee infows; opting for national form of temporary protection, convertible into a work, study or family permit in order to limit the number of benefciaries of international protection and the relative due assistance.

#### *15.2.1 Infancy, When You Think That Problems Will Fade Away: The 1990s Emergency Approach*

Section 10 of the Italian Constitution states that "a foreigner who, in his home country, is denied the actual exercise of the democratic freedoms guaranteed by the Italian Constitution shall be entitled to the right of asylum under the conditions established by law". Yet, this constitutional right has never been transposed into law: Laws 722/1954 and 95/1970, which enacted, respectively, the Geneva Convention and the Protocol of New York, were the only pieces of legislation on asylum passed by the Italian Parliament until 1990, when Law no. 39 was adopted.

Although the killing of the South African refugee Jerry Masslo in 1989 was a powerful trigger (Colucci, 2018), "the rationale behind the Act 39/1990 was part of the Schengen process, as a way to both implement some requirements for membership and to reassure 'old' immigration countries like Germany and the Netherlands that Italy was indeed able to prevent entry of unwanted migrants into the Schengen space" (Finotelli & Sciortino, 2009, p. 123). Since one of the requirements for entering the Schengen Club was repealing the so-called "geographical limitation" to the Geneva Convention which had allowed Italy to accept as refugees only citizens from European countries, this provision was included in Law 39/1990. In addition to that, Law 39/1990 introduced some procedures for recognising refugee status and set up the Central Commission for the Recognition of International Protection that included offcials from the central government who performed that task as an additional, non-exclusive assignment, and were complemented with experts from UNHCR with consultative functions.3 No specifc material support was foreseen except for small economic allowances (around 18 euros per day) provided during the asylum procedure for a maximum of 45 days. The underdevelopment of the asylum system, embodied in the nonprofessional staff of the Commission and the lack of material support, would remain a persistent trait of the Italian asylum regime for a long time.

The repealing of the geographical limitation together with the collapse of the Soviet Union soon generated a series of subsequent infows of refugees while the resettlement programmes of North America and Australia abruptly ceased, given that refugees from Eastern Europe lost the political relevance they had had during the Cold War (Hein, 2010).

As a consequence, the new Law found an immediate application when, in 1990, Albanian refugees brought to the country on Italian boats went through the asylum procedure (Bona & Marchetti, 2017). Yet, this was an exception rather than the rule. The refugee infows that followed throughout the 1990s were mainly managed by adopting an emergency approach and ad hoc measures rather than by applying Law 39/1990: people feeing conficts, when not immediately returned, were generally granted renewable temporary protection. This solution was partially aimed at managing those cases where it was assumed that the Geneva Convention, and then Law 39/1990, could not be applied because people were feeing general violence instead of individual persecution (Vincenzi, 2000; Campomori, 2016). At the same time, it allowed for speeding up the procedures and avoiding the provision of refugee status and the consequent assistance due (Bona & Marchetti, 2017).

Against the backdrop of recurrent exceptional measures, the solutions adopted to cope with the almost 80,000 displaced people who began arriving in 1992 from the former Yugoslavia produced long-term consequences for the Italian asylum regime. Since the collective centres set up by the state offered only 2000 places and maintained rather low-quality standards, civil society started to mobilise to host people in spaces made available by local authorities, parishes and private citizens under the coordination of local committees which were also responsible for fundraising. This mobilisation was then partially institutionalised: Law 390/1992 foresaw some form of coordination with the state through consultations with local authorities, NGOs and voluntary associations. Moreover, agreements were signed between Prefectures, i.e., the local branches of the Ministry of the Interior, and local administrations to cover at least part of the accommodation expenses (*ibidem*). This experience deeply shaped the subsequent development of the Italian reception system by determining a bottom-up, voluntary-based imprint almost incompatible with the mandatory distribution of asylum seekers which indeed has striven to emerge.

The other main piece of legislation concerning reception passed at that time was Law 563/1995 (the so-called Apulia Law) which, for the frst time, introduced reception centres to provide frst assistance to migrants in view of their

<sup>3</sup>Before 1990, the decisions on refugee status were made by the Cpe (*Commissione paritetica di eligibilità*) established in 1952 and made up of representatives of the Ministries of Interior and Foreign Affairs and of UNHCR (Hein, 2010).

identifcation and possible repatriation (CDA).4 Although the Law referred to a defned time span (1995–1997) and territorial area (namely Apulia where three centres were indeed set up) it has remained for a long time the main piece of legislation regulating frst reception centres, including the hotspots introduced in 2015 in the face of the European refugee crisis (Giannetto et al., 2019), revealing the longstanding underdevelopment of the Italian asylum policy.

#### *15.2.2 Puberty, When the Adults Ask You to Be Responsible: Towards the Setting Up of Ordinary Measures*

At the end of the 1990s, Italy started to develop some ordinary measures that represented the frst steps on the path out of a totally emergency-based approach relying on ad hoc solutions. Still, as with Law 39/1990, those changes were largely driven by European pressures (Paoli, 2018). Indeed, the abolishment of controls at sea and land borders between October 1997 and March 1998 as a result of enforcement of the Schengen Agreement was accompanied by increasing pressure on Italy for better management of infows, including those of asylum seekers, since Northern European countries such as Germany, the Netherlands and Sweden were afraid that their generous asylum and welfare systems might act as magnets for secondary movements (Boswell & Geddes, 2011).

A frst change in the government's approach emerged as early as 1998, when the government put the Kurds from Turkey and Iraq through the ordinary asylum procedure, with the aim of avoiding a pull effect of the easily accessible temporary ad hoc protection, and demonstrating to other Member States that Italy did not have excessively liberal immigration policies (Vincenzi, 2000).

In that same year, the centre-left government led by Romano Prodi passed the frst systematic and comprehensive immigration act, Law 40/1998 (called *Legge Turco-Napolitano*). Among the many provisions, this Law authorised the opening of centres for the temporary detention of irregular migrants to be returned, as a response to the Schengen requirements. At the same time, it introduced a permit for humanitarian reasons, defned in rather vague terms, lasting 2 years and convertible into a work, study or family permit. This nation-based protection put an end to the ad hoc pieces of legislation issued for managing specifc infows and was largely applied for the following two decades, until it was abolished by the Migration and Security Decree in 2018 (see Sect. 15.5).

At the same time, the arrival of people from Kosovo, together with the entry into force of the Dublin Convention in 1997, which put the responsibility for processing asylum claims on the frst-entry country, stimulated an effort to develop a more standardised and structured reception system that turned into the launch of Shared Action (*Azione Comune*) in 1999 (Marchetti, 2014; Bona & Marchetti, 2017). This

<sup>4</sup>They were renamed First Aid Centres and Assistance (CPSA) in 2006.

was a network of public and non-public actors stemming from the initiatives developed in the 1990s, co-funded by the European Commission, and based on the principle of decentralised provision of integration services and reception, with projects set up by local actors, including municipalities (CENSIS, 2005; OECD, 2019).

Shared Action developed into the National Asylum Programme (*Programma Nazionale Asilo*, PNA), which started in October 2000 with a Memorandum of Understanding signed by the Minister of the Interior, UNHCR and ANCI (National Association of Italian Municipality), and entered into force in July 2001. Municipalities became the only local actors eligible to submit reception projects to the Ministry of the Interior (Hein, 2010; Marchetti, 2014). The aim was to institutionalise the Italian reception system and meet the criteria of the European Fund for Refugees through which the PNA was funded (Bona & Marchetti, 2017). Indeed, funding schemes can be regarded as alternative means of pressure: as "soft policies" to pursue Europeanisation (Penninx, 2015).

This process continued during the centre-right government led by Silvio Berlusconi, when PNA was fully institutionalised by Law 189/2002 (called *Legge Bossi-Fini*) and renamed SPRAR (Protection System for Asylum Seekers and Refugees). Despite some recent changes in its name and access criteria (see Sect. 15.5), SPRAR has remained the Italian ordinary reception system until now. Its facilities are set up on a voluntary basis by local authorities that apply in response to the periodic calls for projects issued by the Ministry of the Interior which covers the largest share of the costs. Reception facilities, usually managed by local NGOs that participate in local authorities' public bids, are generally articulated in apartment-based solutions; they include integration measures and are highly regulated and monitored. Despite being largely acknowledged as a good practice, SPRAR has always suffered from the limited number of places available, constantly below the reception demands, and an uneven distribution throughout the country, as a consequence of its bottom-up and locally based approach.

Law 189/2002 also set up the National Fund for Asylum Policies and Services and reformed the asylum procedure, instituting the Territorial Commissions for the Recognition of International Protection operating throughout the country so that interviews could be done even outside of Rome. The Commissions were made up of representatives of local authorities, the police, the Prefectures and UNHCR. UNHCR participated in interviews and decisions, and was called on to play a key role over the following years by providing guidelines and information on the origin countries and courts' judgements, compensating for the other members' lack of specialised knowledge of asylum or human rights matters.

At the same time, Law 189/2002 introduced restrictive provisions similar to those adopted in older asylum countries, including stricter procedures for expulsion and detention of migrants caught without residence permits and a fast-track asylum procedure at the border (Hein, 2010; Marchetti, 2014).

The other major legislative change in the frst decade of the 2000s was the transposition of the EU Directives representing, together with the Dublin and EURODAC Regulations, the core of the Common European Asylum System (CEAS) launched at the European Council of Tampere in 1999. Despite the several national bills presented through the 1990s and the early 2000s, asylum provisions had always been included in migration acts so that the laws transposing the EU Directives have so far been the only acts specifcally addressing asylum, confrming the key role of the EU in shaping the Italian asylum legislation (Finotelli, 2018).

The concern for the implementation of the new provisions was scarce, however, since their adoption was perceived as responding to European rather than national interests. Consequently, at the end of the 2010s Italy was by no means equipped to process and host even a few tens of thousands of refugees, as was soon revealed by subsequent developments.

#### **15.3 Adolescence, When You Protest Against the Adults: The Management of the Arab Spring's Refugees**

Given that the above-mentioned advancement in the national legislation was largely driven by top-down pressures from Europe and was not accompanied by a shift in national policy frames, the old emergency approach soon resurfaced. Yet, the usual instruments and practices went through a series of failures which gradually led to a change in policy goals and frames.5 Indeed, this time Italy had to act in a new context, where infows grew signifcantly and the country was fully integrated into the Schengen Area and the CEAS. Being exposed to a similar problem pressure and regarding Italy as a full partner of the European mobility regime, the other countries became less tolerant towards its old practices. Employing the biological metaphor, we could say that during the "adolescence" stage, the adoption of emergency solutions by Italy appeared to be a sort of revolt against the "adults" of the club it had striven to join.

In 2011, in the face of the increasing infows unleashed by the so-called Arab Spring – with sea arrivals growing from 4400 in 2010 to 62,700 in 2011 (see Fig. 15.1) – the Italian government tried to export the emergency frame on a European level in order to suspend the regular procedures and activate the exceptional instrument of temporary protection set forth under EU Directive 2001/55/ EC. However, both the European Commission and the EU Council rejected the proposal and opted for providing fnancial and technical aid, framing the crisis as an ordinary infux of irregular migrants and calling for stronger border-control measures by the Italian authorities (Campesi, 2011).

As a result, on 12 February 2011 the Italian government adopted a nationalbased ad hoc solution: it declared the state of humanitarian emergency, labelled as the "North Africa Emergency" (ENA, in the Italian acronym).6 The Italian authorities considered Tunisian nationals arriving on the Italian shores neither irregular nor

<sup>5</sup> Indeed, according to Hall (1993), third-order change of policy follows the accumulation of anomalies and a series of policy failures.

<sup>6</sup>Order of the Prime Minister, 12 February 2011, OPCM 3933/2011.

**Fig. 15.1** Asylum applications and sea arrivals in Italy (2009–2020). Source: elaboration by the Author of data from Eurostat (https://ec.europa.eu/eurostat/databrowser/view/MIGR\_ ASYAPPCTZA/default/table?lang=en) and openopolis (https://www.openpolis.it/numeri/gliarrivi-di-migranti-in-italia-dal-1997-al-2020/)

subject to international protection (ENM, 2011), and arbitrarily detained them outside any lawful procedures while working with other Member States and the Tunisian government to negotiate diplomatic solutions. On 5 April the government signed an agreement with Tunisia on police cooperation and readmission of irregular migrants. On that same day, the Italian Prime Minister issued a decree whereby temporary humanitarian protection was issued according to Law 40/1998 for the Tunisian citizens who had landed since the beginning of the year (Campesi, 2011).7

The same decree provided the migrants with a travel document allowing them to freely circulate within the European Union (ENM, 2011; Marchetti, 2014). The explicit aim was to encourage their departure, and thus to obtain the consensus of the Northern League which was participating in the government and was reluctant to allow migrants from Tunisia to stay in the country (Campesi, 2011). In response, the French government contested the legality of the temporary visa, returning its holders to Italy, and reinstated border checks along the frontier due to "public order concerns" (Carrera et al., 2011). At the Justice and Home Affairs meeting on 11 April 2011, Italy was explicitly accused of violating the "Schengen spirit". As underlined by Campesi (2011), this was an occasion to open up the debate on the revision of Schengen governance. Indeed, in 2011 the European Commission proposed a series of amendments to the Schengen Borders Code that came into force in 2013.8 Specifcally, after those changes, Article 26 of the Code provides for

<sup>7</sup>DPCM 5 April 2011. Actually, only 11,800 out of the 23,500 Tunisian migrants who reportedly entered Italy during that period were granted this status (Marchetti, 2012).

<sup>8</sup>Regulation (EU) No 1051/2013 of the European Parliament and of the Council of 22 October 2013 amending Regulation (EC) No 562/2006.

exceptional circumstances allowing for the suspension of Schengen where the overall functioning of the free-movement area is put at risk as a result of persistent serious defciencies relating to external border control.

In the meanwhile, all of the subsequent newcomers who arrived after 5 April 2011, mainly Sub-Saharan Africans residing in Libya when the Gheddaf's regime collapsed, were somehow *a priori* classifed as asylum seekers,9 and automatically channelled into the reception plan set up within ENA. The government established specifc reception facilities outside the ordinary reception system SPRAR and put those facilities under the coordination initially of the Prefectures and then of the Civil Protection Service. Most of them were large-size collective centres concentrated in bigger cities and providing poor or no integration measures. This plan turned out to be a big failure. The majority of people hosted there were still homeless and jobless when, at the end of ENA in March 2013, they were abruptly expelled from those facilities so that some of them illegally occupied empty buildings (Marchetti, 2012; Ponzo et al., 2022; Pogliano & Ponzo, 2019).

It became clear that the rooted policy practices, i.e., fostering secondary movements and adopting reception emergency solutions, did not work so well in the new context, where unplanned fows towards Italy were boosted by the geopolitical instability in the Mediterranean area and the European partners became more demanding.

Against this backdrop, the state-managed Search and Rescue operation Mare Nostrum, started by Enrico Letta, Prime Minister of the then centre-left government, on 18 October 2013, in response to the tragic shipwreck of Lampedusa that had occurred 2 weeks earlier, can be regarded as the starting point of a new course.10 Mare Nostrum, by bringing people to the Italian shores under the coordination of the state, required that they be channelled through more structured paths, overcoming the contingent responses to spontaneous arrivals (interview with the Head of Italian Caritas' Immigration Offce, 11 December 2018). Most important, Mare Nostrum marked a shift in the Italian position towards Europe. It was indeed aimed at putting pressure on the EU within the struggle of Enrico Letta and his successor Matteo Renzi to fx the principle that the infows triggered by the Arab Spring could not be an exclusive concern of Mediterranean Member States (Pastore & Roman, 2014; Panebianco, 2016). Hence, the idea of responsibility-sharing, namely the traditional concern of Northern European countries (Boswell & Geddes, 2011; Bendel & Ripoll Servent, 2018), suddenly became Italy's main claim. The Joint Operation Triton that took over Mare Nostrum in October 2014 was a rather poor result in this respect since, beyond its much more limited assets, area of patrolling and mission, it kept bringing rescued people only to Italian ports (Pastore & Roman, 2014). Nevertheless, the revision of the old policy frames and practices did not stop.

<sup>9</sup> In October 2013 a general provision granted some form of protection to all the migrants assisted by ENA (*Circolare* of the Ministry of the Interior no. 400, 31 October 2012).

<sup>10</sup>The operation cost more than nine million euro per month, mainly covered by the Italian Navy's ordinary budget, and led to the rescue of more than 130,000 migrants (Pastore & Roman, 2014).

A further confrmation of the new emerging course came from the epochal change that occurred in public discourse. Still in the frst decade of the 2000s, the mechanisms for handling unwanted immigration in Italy were embedded in the economic legitimation of immigration (Finotelli & Sciortino, 2009), whereas in 2011–2013 the prevalent emphasis in public discourse shifted towards the humanitarian character of the crisis and Italian commitment (Marchetti, 2014), recalling the logics adopted by older asylum countries such as Germany (see Chap. 7).

Nevertheless, the established policy practices and frames were not dismantled altogether: secondary movements as a legitimate response to increasing infows persisted. A case in point is that of over 80,000 Syrians and Eritreans stopping a few days in Milan to organise their journeys towards other countries. Almost none of them got fngerprinted and since October 2013 the Ministry of the Interior provided economic support to the Municipality of Milan through the local Prefecture in order to establish reception facilities to host transit refugees, while frst-aid and information on journeys were provided at the Central Station (Pogliano & Ponzo, 2019). However, this practice became increasingly hard to implement and stopped in 2016, as we will see in the next section.

#### **15.4 Coming of Age, When You Cannot Step Back Anymore: The European Refugee Crisis**

The new course was reinforced and eventually institutionalised during the so-called European refugee crisis. Despite the skyrocketing arrivals registered between 2014–2016 (see Fig. 15.1), the emergency frame was abandoned in the public discourse and asylum was depicted as a structural phenomenon. Consistent with the strategy inaugurated by Enrico Letta, the emphasis was instead on the lack of support from the rest of Europe (Marchetti, 2014). On 23 June 2015, Prime Minister Matteo Renzi wrote in the national newspaper *La Stampa:* "The demand for peace and food that forces thousands of women and men, sometimes with their children, to risk death to reach Europe did not start today, it will not end tomorrow (…) We are a great country that does not get hysterical because a few thousand more refugees arrive in a year. If forced to go it alone, we will not step back (…) But having a European response would be useful to Europe frst, then to Italy"11 (translation by the Author).

In terms of regulations and practices, the Italian government started to pursue a "normalisation" in the management of asylum (interview with a high offcial in the Department for Civil Liberties and Immigration of the Ministry of the Interior, 12 October 2018). Indeed, after the end of ENA, the Italian government, in collaboration with the National Association of Italian Municipalities, the main national

<sup>11</sup> https://www.lastampa.it/esteri/2015/06/23/news/renzi-sui-migranti-l-italia-non-rinuncera-maia-salvare-vite-umane-1.35255023

NGOs and the UN agencies started a phase of feverish reforms (interview with a high offcial of SPRAR Central Service, 17 July 2018) and avoided the adoption of any further emergency plan, whereas several older asylum countries, from Finland to Germany, implemented such plans in 2015–2016 to accommodate the booming numbers of asylum seekers (Caponio et al., 2019; Ponzo, 2022).

As a frst step, the government mobilised in order to make up for the lack of places in the SPRAR system: in 2014, it adopted a National Plan for the relocation of asylum seekers which entitled the Prefectures to set up governmental reception facilities, called CAS (Extraordinary Reception Centres). Regrettably, the quality of services provided by CAS was extremely heterogeneous: CAS projects went from SPRAR-like solutions organised in apartments and aiming at peoples' empowerment, to large-size isolated centres with no integration services. However, this also happened in old asylum countries because of the high pressure to rapidly multiply the available places (Caponio & Ponzo, 2022).

In order to reduce the gap between CAS and SPRAR, internal administrative regulations (*Circolari*) issued by the Ministry of the Interior in 2014 asked the Prefects to follow SPRAR's guidelines and some of its key principles when setting up CAS centres.12 Nevertheless, implementation remained jeopardised since the Prefectures, enjoying a high level of discretion and being poorly equipped for managing the governmental reception, complied with those directions to a very different extent (Ponzo et al., 2022).

A key step in this process of normalisation was the "Agreement between the Government, Regions and Local Authorities on the Implementation of the National Plan to face the extraordinary infow of third country nationals, adults, families and unaccompanied minors" signed on 10 July 2014. It rationalised reception by articulating it into three categories, i.e., frst aid and identifcation centres at disembarkation points, frst-level reception at governmental facilities and second-level reception. Moreover, the Agreement acknowledged the principle of dispersed accommodation to prevent concentration in big cities as had occurred with ENA, and established an annual National Operational Plan on Asylum aimed at estimating the need for reception places and setting their distribution across the Italian regions.13

Many of those provisions were ratifed by the Legislative Decrees adopted in 2015 and transposed the recast EU Directives on asylum issued in 2013. Hence, those Directives were mainly regarded as a "window of opportunity" to rationalise and gather into single laws the decisions made until then, rather than top-down impositions (Ponzo, 2022).

In the meantime, the pressure around secondary movements coming from the EU and the European partners increased. In September 2014 the Ministry of the Interior,

<sup>12</sup>*Circolare* 104, 8 January 2014; *Circolare* 14,100/27/I, 2 May 2014; *Circolare* 0005484, 27 June 2014; *Circolare* 14,906, 27 December 2014.

<sup>13</sup> It refned the criteria fxed during ENA when, in March 2011, the Ministry of the Interior established a collaboration with the Regions to set regional quotas based on the number of residents (Department of Civil Protection – Presidency of the Council of Ministries, 12 April 2011), although with rather disappointing results.

acknowledging the complaints of other Member States in this regard, issued a *Circolare* that established tighter identifcation procedures14 (Caritas Roma, 2014). But it did not prove to be enough so that Italy's full membership in CEAS and Schengen was called into play. In December 2015 the European Commission took the frst step of an infringement procedure against Italy on the implementation of the Eurodac Regulation which provides for effective fngerprinting of asylum seekers and transmission of data to the Eurodac central system within 72 h.15 Moreover, between September and October 2015, neighbouring countries suspended Schengen and restarted border controls, with Germany and Austria raising the failure of Italy and Greece to apply the external border controls in their notifcations to the European Commission. On 1 December 2015, the European Council published a proposal entitled "Integrity of the Schengen Area" (14,300/15) for the application of Article 26 of the Schengen Borders Code as modifed in 2011 (see Sect. 15.3) and the reintroduction of internal border controls (Guild et al., 2015).

In this context, behaving as a transit country was no longer a viable option. Hence, the Italian government tried to bargain and used the systematic fngerprinting of newcomers as a currency of exchange to obtain more responsibility-sharing. This negotiation was ratifed by the "European Agenda on Migration" launched at the end of 2015 under the EC Presidency of Jean-Claude Juncker. Together with Greece (see Chap. 16), Italy accepted the adoption of the so-called hotspot approach at disembarkation ports which is based on tight cooperation between Italian police forces, EU agencies (Frontex, EASO, EUROPOL) and international organisations (IOM and UNHCR) with the aim of registering and fngerprinting every newcomer who irregularly crosses the sea borders. As a consequence of this decision, the gap between sea arrivals and asylum applications lodged in Italy started to diminish in 2016 and completely closed in 2017, as shown in Fig. 15.1. In exchange, Italy obtained more responsibility-sharing, mainly embodied in the European "emergency relocation mechanism" of third-country nationals in clear need of international protection (i.e., belonging to nationalities with a high recognition rate) from frontline countries to other Member States.

Yet, the unbalanced implementation of the two components of the agreement was regarded as a sort of betrayal by the Italian government: on one hand, the number of asylum applicants fngerprinted and registered in Italy grew signifcantly; on the other hand, the relocation of asylum seekers was poorly implemented by other Member States providing the frontline states with a limited amount of relief. "The only ones that hosted refugees in a serious way with a great sacrifce of the population and elected politicians, as you can see from the last elections, are Italy, Germany, Sweden, even Norway and Switzerland, although the last is not in the EU. The others have refused to host anyone, despite everyone having signed the Juncker Agenda, leaving Greece and Italy completely alone and failing to honour their obligations"

<sup>14</sup>*Circolare* of the Ministry of the Interior No. 28197, 25 September 2014.

<sup>15</sup> https://www.statewatch.org/media/documents/news/2015/dec/eu-com-infringements-10- 12-15.pdf

(interview with a high offcial of the Department for Civil Liberties and Immigration of the Ministry of the Interior, 12 October 2018).

In fact, secondary movements partially persisted but changed in nature: migrants started to apply for asylum in Italy and then moved towards other Member States on an irregular basis to seek jobs, returning to Italy to renew their permits (Hatziprokopiou et al., 2021). Therefore, Italy remains the state responsible for the asylum procedure, and secondary movements appear circular and related to the weak controls of both Italy and the destination countries, mainly France and Germany, rather than the result of a proactive Italian strategy to circumvent the Dublin Regulation, as when the state supported Syrians who were passing through Milan on their way to other European countries.

Meanwhile, the issue of the redistribution of asylum seekers across the country took a step forward. The idea of asylum seekers' mandatory relocation was opposed by local authorities since it would have undermined the bottom-up approach of SPRAR which was rooted in the initiatives set up in the 1990s to accommodate former Yugoslavian refugees. A compromise was found at the end of 2016 and ratifed in the so-called "Bari Agreement" signed by the National Association of Italian Municipalities and the Ministry of the Interior, establishing a specifc quota of refugees per municipality, i.e., a ratio of 2.5 hosted asylum seekers per 1000 residents. This mechanism resembles the redistribution methods adopted in Northern Europe, such as the German distribution key (*Königsteiner Schlüssel*) where the distribution quota is calculated annually according to the tax revenue and the population of single federal states (Glorius, 2022). Moreover, this decision was accompanied by the so-called "safeguard clause" (*clausola di salvaguardia*) 16: the municipalities whose SPRAR reception places met the above ratio would be exempted from the setting up of CAS by the Prefectures.

Thanks to the "safeguard clause" and an increase in the central government's co-funding from 80% to 95%, in 2016 SPRAR places grew by 20% and reached a total of 26,000. However, this growth was still not enough to keep pace with new arrivals which were over 181,000, so CAS continued to cover the largest share of reception (Ponzo et al., 2022). Despite the limits of CAS facilities mentioned above, they have in fact played a key role in closing the gap with older European asylum countries and following their same rationales, i.e., providing accommodation to every newcomer regardless of the size and variation of the infows.

Moreover, different from the limited-in-time solutions adopted in the 1990s and in 2011–2013 during ENA, CAS facilities have become a rather permanent component of the Italian reception system. This allowed the national authorities, generally under the pressure of civil society organisations, to develop strategies aimed at increasing CAS standards. Those improvements started in 2014, as explained above, and accelerated when Marco Minniti became Minister of the Interior in December 2016, under Paolo Gentiloni's centre-left government. Since the end of 2017 the

<sup>16</sup>*Circolare* of the Ministry of the Interior, 1 October 2016; Directive of the Minister of Interior, 11 October 2016.

organisations managing CAS have been requested to submit balance checks together with supporting documents to the Prefectures, whereas before that they used to submit invoices only, with little accountability about how the money was spent.17

In that same year, the Ministry of the Interior adopted a new bid scheme for governmental centres18 according to which CAS should provide reception and integration services similar to those offered in SPRAR facilities, with the exception of legal assistance to prepare for the interview, vocational training and support for job seeking and housing seeking. Although CSOs criticised the lack of these services, the 2017 bid scheme contributed to harmonising service provision in CAS and to reduce the gap with SPRAR facilities.

With regard to the asylum procedures, as early as 2014, Law 146 increased the number of Territorial Commissions for the Recognition of International Protection from 10 to 20, with 30 local sections, and established that their members had to undergo a dedicated training delivered by UNHCR and EASO. The process for increasing the effciency of asylum procedures accelerated with Legislative Decree 220/2017 (called the *Minniti-Orlando Decree*), converted into Law 46/2017, which entered into force on 31 January 2018 and introduced some crucial changes: the recruitment of ministerial offcials with specifc expertise to become permanent members of the Territorial Commissions, overcoming the turnover of different public entities' representatives with little knowledge of asylum matters; the replacement of the UNHCR representatives with experts proposed by the UN agency but employed by the government; the establishment of 26 specialised court sections responsible for examining asylum appeals only, without however providing additional funding for this task; the suppression of the possibility to appeal a negative Civil Court decision before the Court of Appeal so that the applicant can only lodge an appeal before the Court of Cassation (for details see Roman, 2000).

To conclude, we can affrm that the Italian asylum regime has come of age: the country has fnally recognised to be an asylum country and its general goals and rationales became similar to those of traditional European asylum destinations. Elements that were completely absent in the early 2000s are now taken for granted, such as codifed disembarkation procedures, systematic fngerprinting, professional commissions for the recognition of international protection, specialised court sections and the right to reception for all asylum seekers without fnancial means. Moreover, greater responsibility-sharing within Europe has become the cornerstone of every Italian government's migration policies regardless of its political colour.

<sup>17</sup> Inter-Ministerial Decree of the Ministry of the Interior and Ministry of the Economy, 18 October 2017.

<sup>18</sup>Ministerial Decree, 7 March 2017.

#### **15.5 Weak Political-Institutional Capacity: The Italian Asylum Regime's Main Hurdle**

Whereas modifcations in the social phenomenon of migration and the new institutional settings have fostered policy change, the country's weak political-institutional capacity, which results from a mix of the governments' instability and a weak state capacity, has pushed towards the opposite direction. Indeed, it appears to be a substantial obstacle to the consolidation of the new policies, practices and regulations.

Governmental instability and the high politicisation of migration have always been crucial in defning the contradictions of Italian immigration policy (Sciortino, 2009; Finotelli & Echeverria, 2017). This has become particularly evident in the feld of asylum over the last few years. In the second half of the 2010s, the frequent changes in the political colours of the short-lasting governments and their use of migration as an ideological fagship undermined the consolidation of the newly established policy practices. Reforms concerning asylum occurred almost every 2 or 3 years, with each piece of legislation partially dismantling the previous one – i.e. the laws adopted in 2015 to transpose the recast EU Directives, Legislative Decree 113/2018 on Security and Migration adopted by the Ministry of Interior Matteo Salvini, Decree 130/2020 adopted by the Ministry of Interior Luciana Lamorgese (for details see Ponzo et al., 2022). At the same time, those reforms seem to take the idea of Italy as a destination country for granted so that they offered the different governmental coalitions' recipes to better manage the phenomenon and, as in other asylum countries, mainly focused on asylum seekers' rights, i.e., the national forms of protection and eligibility for reception.

At the same time, the implementation of asylum policies has suffered from a weak state capacity which, in her seminal works, Skocpol (1979 and 1985) defnes as whether a state is able to implement offcial goals. Following Geddes (1996), we could say that state capacity can be equated to the implementation power of the state, a task that falls under its bureaucracy. More precisely, Skocpol and Finegold (1982) argue that the success of a certain state programme depends largely on the availability of a professional independent bureaucracy made up of employees with proper training and experience in public policies, endowed with fnancial resources, able to collect data and conduct policy-oriented research and analytical work indispensable for all control programmes without relying on extra governmental experts and organisations, and holding a public-service perspective while maintaining constant relations with the major interest groups.

As for Italy, a comparative overview of public administration characteristics and performance in the EU28 (Thijs et al., 2018) shows how the country scores low on transparency and accountability, professionalism of civil servants, human resources management capacity and performance. In the specifc feld of migration, Finotelli and Echeverria (2017) underline how in Italy the lack of administrative staff, its ineffcient selection procedures and the weak coordination of the bureaucratic apparatus have been major impediments to effective implementation of labour migration policies. Asylum policies seem to suffer from the same weaknesses. Yet, state capacity cannot be regarded as a fxed attribute: it varies over time and across domains (Skocpol & Finegold, 1982; Skocpol, 2008), as developments in the management of arrivals, asylum procedures and reception show.

The management of arrivals at sea has substantially improved since 2013, with fngerprinting becoming systematic and procedures after disembarkation being harmonised and codifed with the contribution of UNHCR, IOM and EU agencies (Giannetto et al., 2019). On the other hand, the state still depends on UNHCR and other NGOs to provide assistance and information to migrants at arrival points, identifying vulnerable people and carrying out referrals.

State capacity has grown signifcantly in asylum procedures too, thanks to the establishment of specialised court sections and the recruitment of ministerial offcials to make up the Territorial Commissions on the Recognition of International Protection in 2017, allowing the phasing out of the UNHCR, as explained in the previous section. At the same time, the backlog is still substantial: in January 2021 there were almost 34,000 pending claims in the Territorial Commissions and in June 2020 there were nearly 95,000 pending appeals in Courts, with a waiting time for the court's decision between 15 months and 3 years.19

Regarding reception, state capacity has greatly expanded so that all asylum seekers without means now have access to some form of accommodation. Yet, governmental facilities are not under the coordination and monitoring of a migration-specifc governmental agency or department, as in most other large EU receiving states, but rather under the responsibility of the Prefectures. Since the latter have not been adequately expanded and trained to properly manage those new tasks (Ponzo et al., 2022), several central governmental decisions over those facilities have remained on paper or have been implemented with wide territorial disparities and low accountability (Openopolis and Action Aid, 2018). Moreover, monitoring has been largely contracted out to UNHCR and other nongovernmental organisations through specifc projects substantially co-funded by the EU (Giannetto et al., 2019).

To sum up, the state's implementation power has substantially improved in various asylum domains but still falls short in some respects while national and international nongovernmental organisations compensate for the state's lack of internal skills in performing specifc tasks such as assistance at disembarkation and monitoring of reception. This limited state capacity, together with the above-mentioned regulation revisions promoted by every new government, undermines the consolidation of the new practices and hampers the ongoing policy change.

<sup>19</sup>Updated statistics on the average duration of the procedure are not available (AIDA, 2020). The data are drawn from an investigation report of the newspaper *Il Sole 24 Ore* (https://www.ilsole24ore.com/art/immigrati-attesa-una-risposta-richieste-140mila-richiedenti-asilo-ADkGZyEB).

#### **15.6 Concluding Remarks**

The chapter challenges persistent stereotypes depicting Italy as a deviant laggard compared to older asylum countries. With this aim, I have analysed the policy change that has occurred over the last three decades by singling out policy frames and practices, showing how the country has passed from what I have called, using a biological metaphor, infancy to adulthood.

Indeed, after a long period of stability, over the last decade policy frames and practices have been evolving in response to the failure of the old approaches.20 The main factors that led to those failures seem to be the modifcations in the social phenomenon of migration (the sharp increase of unplanned infows) and in the institutional settings where negotiations among Member States occur (the full inclusion of Italy into the Schengen Area and the CEAS). The resulting policy change consists of a new policy frame that acknowledges Italy as a destination country for asylum seekers and the implementation of new practices and regulations which overcome ad hoc emergency solutions. Moreover, Italy joined the older European asylum countries in the call for greater responsibility-sharing. Hence, European solutions are now actively pursued instead of being passively received as top-down impositions and possibly circumvented in practice, as happened in the past.

However, the country's weak political-institutional capacity, by undermining the consolidation of the new practices, has hampered this policy change. This weakness has become one of the main explanatory factors of the gaps existing between Italy's and older asylum countries' asylum regimes whereas strategic divergence from EU partners has lost relevance.

In the current context, with the EU struggling to agree upon the management of refugees and increasing geopolitical instability in third countries, including Ukraine, it is diffcult to say how Italy will deal with the dual pressure coming from a conficting Europe and the unpredictable infows, for which further research is needed.

#### **References**

<sup>20</sup> Indeed, according to Hall (1993), third-order change is always preceded by a series of policy failures that progressively undermine the consensus around the established policy paradigm (in this case, Italy as a transit country) and open the way to the adoption of a new one (Italy as a destination country).

Hein, C. (Ed.). (2010). *Rifugiati. Vent'anni di storia del diritto d'asilo in Italia*. Donzelli Editore.

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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# **Chapter 16 The Greek Asylum Regime: From Latecomer on Reception to Inspirational Model on Asylum Procedures**

**Angeliki Dimitriadi**

#### **16.1 Introduction**

Since the 1990s, the European framework has sought to enhance the mobility of EU citizens while restricting the (irregular) entry of third country nationals (Kostakopoulou, 2000), including asylum-seekers. The "gatekeepers" in this endeavour are frst and foremost the frontline states, specifcally Greece, Italy, and Spain. Due to their geographical location, they receive the majority of irregular arrivals, and they act as buffers to the rest of the EU. Unlike other frontline states, Greece lacked, until 2011, a suffcient institutional framework to process asylum applications and host asylum applicants. The country had been severely criticized in the period 2000–2010, for failing to provide to asylum applicants a functioning asylum process and dignifed conditions of stay (Cabot, 2014). Signifcant changes take place since 2015. Greece functions as the main entryway to the EU, with 850,000 migrants crossing its maritime border, according to UNHCR. The majority do not remain in Greece, opting to transit to other EU Member States (MS). This is evident in the rather limited number of asylum applications; only 13,197 applications were submitted in 2015 to the asylum service. Greece, in turn, was criticized for indirectly assisting transitory movements, by failing to register on EURODAC1 migrants on arrival to the land and/or sea border.

At the start of the "crisis", in May 2015, the European Commission announced the Agenda on Migration and Asylum (henceforth the Agenda). The Agenda

A. Dimitriadi (\*)

College Year in Athens, Athina, Greece e-mail<EMAIL_ADDRESS>
© The Author(s) 2023

<sup>1</sup> In 2015 the Commission initiated infringement procedures against Croatia, Greece, and Italy for failing to register migrants in the EURODAC upon arrival to the continent. The Commission noted that in Greece, 492,000 migrants were registered and only 121,000 fngerprinted of the estimated 890,000 that crossed (Zalan, 2015).

C. Finotelli, I. Ponzo (eds.), *Migration Control Logics and Strategies in Europe*, IMISCOE Research Series, https://doi.org/10.1007/978-3-031-26002-5\_16

incorporates the notion of the "hotspot approach". The latter is presented as a migration management tool, to ensure that those who reach the EU external borders are registered before processing their asylum claims. The "hotspots" originally are envisaged as both sites of disproportionate pressure as well as sites where the streamlined operation of screening and registration takes place.2 The hotspot approach renders newcomers' registration in the EURODAC database systematic (Tazzioli & Garelli, 2020). Greece establishes the frst registration facilities (known as hotspots) in June 2015, long before the EU-Turkey Statement of 2016. Yet, bureaucratic delays, and objections from locals on the islands, delay the project. The frst registration facility, Moria in Lesvos, is only introduced in October 2015, with the rest following throughout 2015 and early 2016. The EU-Turkey Statement (henceforth the Statement) of March 2016, *de facto* alters the nature of the hotspots. From temporary screening sites, they transform overnight into spaces of indefnite stay, where newly arrived migrants remain until such time as they receive asylum in Greece or are returned to Turkey as per the Statement. The latter infuences in unexpected ways the asylum processing in the country. Greece is the only Member State in the EU that implements two parallel asylum procedures, i.e., a regular procedure in the mainland and a fast-track border procedure on the islands,3 with signifcant repercussions on asylum applicants. It is the implementation of the Statement that offsets a period of unprecedented change in Greece as regards the asylum regime, from the processing of applications to reception.

To ensure implementation of the Statement, a swift transfer took place of all asylum applicants on the Greek islands that arrive prior to March 18, 2016, so that their applications are processed under the regular procedure (in contrast to those arriving post March 18, 2016). Their transfer to the mainland, in conjunction with the closure of the Western Balkan route, created an emergency, as regards reception, to which international organisations, local and non-state actors responded, resulting in synergies and partnerships. Through formal and informal practices of cooperation, Greece acquires a reception system that in 2021 passes under the full control and administration of the Greek state.

The different dynamics regarding the reception of asylum seekers but also the asylum procedures, constitute part of the broader asylum regime in Greece. The notion of regime derives from the feld of international relations but has been utilised in migration research since the early 1990s. The regime implies the exploration of the governance structures through a set of negotiating practices that can be formal but also informal (Rass & Wolff, 2018). In other words, public and private actors, state, and non-state actors, produce and implement various decisions as regards migration and asylum through a continuous interaction and negotiation (Cvajner et al., 2018, Finotelli and Ponzo, introduction). In the period 2015–2019, the Greek asylum regime is characterised by divergent implementation between the

<sup>2</sup> In the Agenda, the "hotspots" are borders facing disproportionate pressure (initially Greece and Italy) where the approach of screening and registration is implemented in facilities set up to enable the various EU Agencies (Frontex, Europol, EASO) to deploy and perform their tasks.

<sup>3</sup>Since 2020, the fast-track border procedure has been extended also on the land border in Evros.

border areas and the mainland. Different asylum processing and different reception conditions and accommodation options exist between the border areas. This divergence is reinforced by actors involved; non-state actors are actively involved in reception, and state and EU actors in the asylum procedures. Eventually by late 2020, all aspects of the asylum regime are administered by the state and a logic of deterrence is incorporated. Aspects of said logic are visible in the legislative reforms undertaken in the context of the International Protection Act (IPA) and subsequent amendments affecting both asylum processing and reception. The aim is to make Greece a less-attractive destination for asylum seekers. In turn, elements already applied in Greece have now found their way to the EU New Pact on Migration and Asylum of 2020, indicating parts of Greece's asylum regime are in line with the EU's overall asylum policy aims and objectives.

The chapter discusses the development of the asylum regime with a particular focus on the reception system in the mainland and the processing of asylum claims at the maritime border. Section 16.2 offers a brief discussion of the Europeanisation of Greece's migration governance prior to 2015, identifying the main approach of Greek migration and asylum policy until the refugee crisis. Section 16.3 focuses on the reception system that emerges from the implementation of the EU- Turkey Statement of March 2016; the core components and the synergies developed. Both sections are based on empirical research carried out in 2018 in the framework of the CEASEVAL project.4 Data collection identifed the legal changes in the asylum system, complemented by ffteen (15) semi structured interviews with key stakeholders at national and local level as well as non-state actors (e.g., international organisations, NGOs, researchers). Here, Greece maintains the role of the "student", developing reception services already in place by its European partners. Section four shifts the focus to asylum procedures, the legislative changes implemented both for the application of the Statement in 2016 and particularly in 2019–2020 with the hopes of re-invigorating core aspects of the deal, namely returns. The chapter concludes with a look at the elements of the New Pact that appear "modelled" on the experience of Greece, suggesting that the country functions both as a "student" when it comes to reception but also as an inspirational model for the EU as regards asylum procedures.

#### **16.2 Greece's Asylum Prior to 2015**

In the 1990s Greece lacked a functioning asylum system. Greece endorses and adopts the status of a "transit country" (Papadopoulou-Kourkoula, 2008; Dimitriadi, 2018), thereby assuming that migrants would seek to settle in other EU Member States. The Greek state, based on the logic of ethnic homogeneity and the desire to

<sup>4</sup>H2020 Project "CEASEVAL" (Evaluation of the Common European Asylum System) Grant Agreement No 770037.

maintain it, does "not trust or encourage the establishment of non-nationals in the country" (Papageorgiou, 2013, p.76). This "mistrust" according to Papageorgiou (2013), is incorporated in the governance of migration and asylum, resulting in the absence of a functioning asylum system until 2011. The Hellenic Police was responsible for asylum processing and routinely rejected asylum requests on submission (Cabot, 2014). No service provision was included, no fnancial assistance to asylum applicants nor accommodation options with one exception: a formal camp in the outskirts of Lavrio (port) in Attika. By reducing access and incentives, asylum applicants are "encouraged" to transit rather than settle in the country. This system is partially disrupted in 2010 as Greece undergoes a process of renewed Europeanisation5 of its asylum and reception system. Europeanisation is more than the adoption of institutional structures, or the transposition of European legislation (Sotiropoulos, 2007) but also the normative (a human-rights based asylum system) and policy processes, in this case refugee protection (Lavenex, 2001).

In Greece, the Europeanisation period of 2010–2014 is brought about by the decision of the European Court of Human Rights in *M.S.S. v Belgium and Greece*. The Court condemned Greece for failure to uphold Article 3 of the European Convention on Human Rights (ECHR) as regards the degrading detention and living conditions of the applicant (M.S.S). Belgium was also condemned for enforcing a Dublin return, despite the numerous and public information of Greece's inability to uphold the standards of the Convention (Moreno-Lax, 2011). The Court's decision resulted in suspension of Dublin returns for Greece (AIDA, 2014), extended until mid-2019. It also kicked off the Europeanisation process of the Greek asylum system, starting with the National Action Plan on asylum of 2010 and culminating in the adoption of Law 3907/2011 creating an independent Asylum Service and a First Reception Service.

Of importance is Law No. 3907 of 2011 "on the establishment of an Asylum Service and a First Reception Service", transposition into Greek legislation of Directive 2008/115/EC "on common standards and procedures in Member States for returning illegally staying third country nationals" and other provisions (see also AIDA report 2013–2020 for all the legislative changes). L. 3907 serves as an example of Europeanisation, as the governance structure of asylum in Greece aligns with EU practices. L. 3907 ends arbitrary detention in scattered locations that function also as *de facto* reception sites. It establishes a reception service responsible for new structures (frst reception centres), new detention facilities and a streamlined process from arrival to asylum. Two stages of reception emerge, frst and secondary, with L. 3907 explicitly referring to "frst reception". The latter indicates the shortterm supply of basic material conditions and services offered to asylum seekers on arrival, especially those deemed most vulnerable (elderly, women with children, unaccompanied children). In principle, those applying for asylum enter a "secondary reception" framework where material conditions are offered for the duration of their asylum process, while those who opt out and/or are rejected, remain outside

<sup>5</sup>The frst having taken place on accession to the EU.

the scope of any assistance (and often detained). However, it is important to note that these clear distinctions are not always implemented in practice, as asylum seekers do not always access frst and/or secondary reception, despite their eligibility.

The institutional and legislative changes coincide with the worst period of the Greek fnancial crisis (2010–2015). The fscal limitations imposed by Greece's creditors, impact reforms but most importantly, result in a gap between the design of the asylum procedures and reception and their implementation. The various agreements between Greece and its creditors prohibit additional hires in the public sector, limiting the staffng ability of the Asylum Service and the First Reception Service (European Commission, 2014). With staffng shortages and fnancial limitations, the Asylum Service becomes operational only in 2013, and the Regional Asylum Offces (RAO) open gradually over the next few years. The frst RAO outside of Attika, opens its doors in July 2015 in Thessaloniki, with offces in Thrace, Epirus, Thessaly, Western Greece, Crete, Lesvos, Chios, Samos, Leros and Rhodes opening from 2015 through 2019. The First Reception Service opens the First Reception Center (FRC) in the land border of Evros (Fylakio center) in 2013. Fylakio is a screening and registration center, where asylum seekers can remain in dignifed conditions up to 25 days. No FRC exists on the islands in 2015 when the refugee "crisis" unfolds. Throughout the mainland, detention, and pre-removal centers (PROKEKA) are also gradually set up. Asylum seekers whose applications are pending, rejected asylum applicants or migrants that have opted out of the asylum process are often detained for an indefnite period (AIDA, 2014, p.61), evidence of different implementation of the law (Rozakou, 2017). Despite attempts to improve the legislative and institutional framework asylum applicants encounter divergent practices across different entry points on asylum and detention but also in the mainland regarding their reception.

Reception is part of asylum management. It is applicable to asylum seekers only (hence the importance of registration) and thus, a way of distinguishing between the refugee and "unwanted" irregular migrants, with the former worthy of assistance and the latter undeserving of protection (Mantanika & Arapoglou, 2021; Holmes & Castaneda, 2016, p. 17). As prescribed in the Common European Asylum System, reception entails service provisions, and begins with identifcation, screening and submission of an asylum application rendering the individual under the care of the host State. It includes access to legal assistance, counselling, healthcare, shelter, food, education particularly for minors, special accommodation provisions for vulnerable groups, food, hygiene, interpretation. Despite the codifcation in L. 3907 of the material provisions for asylum applicants, most asylum applicants are left unassisted. In September 2014, a total of 1160 reception places are available) operated by 16 NGOs and funded through the European Social Fund (ESF), although the National Centre for Social Solidarity (NCSS) responsible for processing requests for accommodation of asylum seekers registers 4269 requests in that same year. Overall, Greece, at the start of the refugee "crisis" in 2015, lacked a reception system capable of addressing the needs of asylum applicants (accommodation and material provisions) and as a result the emphasis was placed on improving reception conditions and particularly accommodation. As the numbers of those stranded in Greece increased post March 2016, a humanitarian crisis unfolded necessitating a reception system put in place.

#### **16.3 The EU-Turkey Statement 2016 and Its Impact on the Greek Reception System**

Until March 2016, hundreds arrived from the islands to the Greek mainland on a weekly basis, joining thousands already waiting to register for asylum, or trying to organize the next leg of their journey. The Syriza government commits, in late 2015, to 30,000 reception places in collective accommodation schemes (i.e., camps), mostly in the mainland, to respond to the urgent need created by the refugee "crisis" as well as the transfer of the population of the hotspots before the implementation of the EU-Turkey Statement. Greece has a total reception capacity of 36,910 as of March 20, 2016. Around 10,000 are transferred to Northern Greece in newly set up camps in the mainland and/or near Athens (Human Rights Watch, 2016). In total, an estimated 50,000 (UNHCR, 2016) require accommodation and services provision.

Various problems are reported, particularly as regards accommodation provided by the Greek State (in camps set up by the military and in the hotspots), such as accommodation in inappropriate structures (e.g., tents or containers) for a prolonged period; the use of former factories with hazardous industrial residues; inadequate sanitary conditions and the lack of infrastructure, such as hot water and heating during harsh weather conditions (Greek Ombudsman, 2017, pp. 41–45). The Greek state is unable to ensure the provision of decent living conditions for all asylum seekers (*ibidem*), failing to respond to its obligations deriving from European and national law. This left signifcant room for international organisations, NGOs, and cities to step up and function as implementing partners, seeking to offer a holistic reception system that includes accommodation, social and health services provision, and assist, where possible, with integration.

#### *16.3.1 Non-state Actors in Reception*

International organisations do not immediately expand their presence in Greece. UNHCR and IOM's growth and expansion takes place towards early 2016, in parallel with the closure of the Western Balkan route (Dimitriadi & Sarantaki, 2019) and the implementation of the EU relocation scheme. The restrictions imposed on border crossings from end of 2015 through March 2016, combined with the transfer of thousands from the islands to the mainland, create an unprecedented demand for but also a large-scale provision of housing and services. UNHCR and IOM become implementing partners to the EU Relocation programme, with UNHCR responsible for housing those eligible and IOM for their transfer from the islands to the

mainland and/or their relocation fights. The accommodation scheme is known as ESTIA6 (I & II). ESTIA initially provides housing and cash assistance to the benefciaries of the relocation programme. By late 2016 the benefciaries expand to include Dublin family reunifcation candidates and vulnerable applicants. It is the frst attempt to offer holistic reception services to benefciaries. To implement the ESTIA programme, UNHCR cooperates with NGOs and local authorities.7 By the end of June 2020, UNHCR had established 25,792 accommodation places in 14 cities and 7 islands across Greece. ESTIA provides rented housing, in parallel with access to social workers, interpreters, assistance with accessing medical services, employment, language courses and recreational activities but most importantly cash-assistance. The latter reached until 2021, 70,000 asylum seekers and refugees. In December 2020 ESTIA transitioned to the Greek State and is now part of the national reception system (UNHCR, 2020). Similarly, in 2021, cash assistance transitioned under national administration. What began as a distinct activity by international organisations, currently forms almost 50 percent of the Greek state's capacity on reception.

In 2015, responding to the "emergency", NGOs (national and international) redirected their services to assist refugees in Greece (Skleparis, 2015). Many NGOs function as implementing partners to international organisations, in offering various services related to reception. Alongside the formal NGOs, informal/grass-root initiatives emerge, supporting asylum seekers. Self-organised movements of radical Left and anarchist spaces already active in supporting migrants' rights (Papataxiarchis, 2016) step in and occupy abandoned spaces in urban centres, particularly Athens, to address accommodation shortages.

The level of involvement of non-state actors in Greece is unprecedented and requires a continuous negotiation between the Greek state, the international organisations and non-state actors as well as the local level that will eventually also step in and assist with the buildup of reception.

#### *16.3.2 The Local Actors*

Though municipalities and regions have no legal authority over matters of migration including reception, they are an important actor that can either facilitate or hinder the setup of reception services in an area by objecting or supporting the transfer of refugees in their municipal limits. There is no redistribution mechanism of asylum applicants in Greece (Dimitriadi & Sarantaki, 2019). This has not prevented municipalities from participating (Sabchev, 2021a) but it has resulted in a patchwork of responses across the mainland with some cities taking a very active role and others

<sup>6</sup>ESTIA stands for Emergency Support for Integration and Accommodation. It includes urban accommodation and cash assistance. See http://estia.unhcr.gr/en/home/

<sup>7</sup>For example, in 2018 10 NGOs and 9 local authorities partnered with the programme. The number of local authorities has increased since.

actively opposing the presence of asylum seekers (e.g., protests, blocking hotels that would function as accommodation sites). For some cities, like Athens and Thessaloniki, reception is critical as in 2015, they are on the receiving end of signifcant numbers of asylum seekers arriving from the islands. The two cities opt to partner with NGOs and international organisations, drawing from best practices acquired through city networks (e.g., EUROCITIES) (Dimitriadi & Sarantaki, 2019).

The City of Thessaloniki forms the Refugee Assistance Collaboration Thessaloniki (REACT) programme (Sabchev, 2021b), for the reception of asylum seekers and refugees in private apartments in partnership with UNHCR (funded by the EU Civil Protection and Humanitarian Aid). It is, thus, part of the ESTIA programme. The municipality is responsible for organising accommodation places in private apartments and covering the utility costs with different NGOs assisting. Along the lines of ESTIA, it offers a holistic approach to reception.

For the City of Athens, 2015 marks a turning point in how migration is integrated in the administration of the City (OECD, 2018). The position of Vice Mayor for Migrants, Refugees and Municipal Decentralisation is created, indicating that migration is fast becoming a priority despite the absence of a legal framework. There are no accommodation places available in Athens, in 2015. Migrants transferring from the islands end up sleeping rough in public parks and squares (Squire et al., 2017), necessitating the City's engagement with reception. The City of Athens, in consultation with the Ministry for Migration, offers space for the setup of the frst reception center for asylum seekers (Elaionas), established under the auspices of the Ministry of Migration Policy. The lease with the Ministry is renewed annually per agreement by the municipal council, until 2021.8 The city also joins the ESTIA programme, cooperating with UNHCR for the distribution of accommodation spaces in different areas of Athens.

All the aforementioned examples focus on the mainland. However, both NGOs and International Organisations are also active on the islands, and in some cases (e.g., Lesvos) municipalities seek early on to cooperate with non-state actors in establishing reception processes, standards, and services. Kara Tepe on the island of Lesvos is one such example. The camp is created and managed by the Municipality of Mytilene and UNHCR in collaboration with the NGOs that offer for services provision. The camp offers temporary housing for asylum seekers waiting their registration process. Overall, there are fewer examples of partnerships between local and non-state actors on the islands that are unwilling to support further hosting of refugees. This is partly due to the presence of the hotspots but also the EU-Turkey Statement that stranded a large population of asylum seekers and refugees on the islands, thereby transforming them into a buffer zone (Tazzioli, 2018). This resulted in a divergence between mainland and the islands, where different reception practices are applied, largely due to different levels of mobilisation but mainly due to the different legal framework on the islands.

<sup>8</sup>Elaionas is scheduled to close down by early 2023 with the City Council of Athens having voted not to renew the license.

#### **16.4 Beyond Reception: The Greek Asylum System After the Statement**

Asylum drastically changes following the agreement on the EU-Turkey deal of 2016. In the words of a senior manager in the Asylum Service, '*Let's be clear, [Greece] right now is not a best practice, it is a unique practice*" (interview with Asylum Service staff, June 2018 Athens, in Dimitriadi & Sarantaki, 2019), referring to the application of border procedure on the islands and regular procedure in the mainland. The following section tries to identify the major changes that have taken place in Greek legislation and practice. It is important to note that this is not a detailed and exhaustive account of the changes and their impact, but rather a zooming in on specifc elements that the recent proposal on the New Migration and Asylum Pact appears to replicate.

#### *16.4.1 Reforming Asylum to Fast-Track Returns*

A key component of the Statement is that all new irregular migrants crossing to the Greek islands as of 20 March 2016 can be returned to Turkey, following an individual examination of their asylum application on the basis of (in)admissibility.9 The aim is to speed-up returns of Syrians. To implement the Statement, Greece reforms in 2016 its asylum and border procedures through Law 4375/2016, (adopted in April 2016). L.4375 provides for shorter deadlines and fewer safeguards to the asylum procedure and simultaneously establishes complex processing for different types of applicants. Fast-track border procedure initially applies only to the Syrian nationals. Gradually the procedure is extended to nationalities with a rate of international protection under 25 percent (AIDA, 2017). In contrast to the Syrians, the asylum applications of the latter are examined on merit. All other asylum claims are examined on the basis of merit through the regular procedure.

The law also regulates the organisation and operation of the Asylum service and Appeals Authority. The latter consistently rejected inadmissibility decisions, deeming Turkey not a "safe third country". The reform alters the composition of the Appeal Committees, now made up of judges (previously lawyers and trained staff), in an effort to enforce the provisions of the Statement. L. 4375 further undertakes administrative changes, renaming the First Reception Service into Reception and

<sup>9</sup>Admissibility is the procedure thanks to which the Member State that receives an application decides whether it is responsible to examine it or not. Per Statement, Greece can deem inadmissible- i.e. not examined on merit, the applications of Syrians since they are eligible for protection in the country they arrived from, in this case Turkey. Inadmissibility can also be applied to individuals that have remained in Turkey without facing persecution or risk of harm prior to their arrival in Greece. Merit refers to the actual examination of the person's claim to check if they fulfll the criteria to be recognized as a refugee.

Identifcation Service (RIS), responsible for overseeing the RICs (hotspots) and establishes the legal framework for the operation of the RICs.

The law transposes the recast Asylum Procedures Directive, establishes the Reception and Identifcation Centers (RICs) of the fve islands of Eastern Aegean (known as the hotspots) and clarifes the application of a fast-track border procedure on the maritime border (Petracou et al., 2018). Fast-track procedure is based on the examination of the admissibility of the asylum claim, rather than the merit. In the L. 4375 it is an exceptional procedure, applicable only to the fve islands of Samos, Kos, Leros, Chios, Lesvos for those arriving after 20 March 2016 and subject to the EU-Turkey Statement, and in particular *vis-à-vis* Syrians. Since April 2016, asylum seekers on the islands are subject to a "restriction of freedom of movement" decision issued by the Head of the RIC (FRA update 2019) which is revoked once registration completes. A deportation order is then issued, which is also suspended but a geographical restriction is automatically imposed on the island and/or in the RIC until the completion of the asylum (Greek Council for Refugees, 2018) or the return procedure.

On the islands, the screening takes place in conditions of detention and with limited legal assistance provided; interviews, particularly of Syrians under the accelerated border procedure, often take place at the moment of disembarkation, with interpreters frequently speaking different dialects (Dimitriadi & Sarantaki, 2019), and with little information offered to the applicants. The asylum interview is conducted by either Asylum Service or EASO staff. The role of EU agencies is not clarifed in the Greek legislative framework (AIDA, 2017) and remains murky to this day. Particularly EASO has been criticized for the quality of its recommendations, with the EU Ombudsman highlighting that "[…] when conducting admissibility interviews EASO fails to comply with the provisions on "the right to be heard" in the Charter of Fundamental Rights (Article 41), as well as EASO's own guidelines" (European Ombudsman, 2017). The fast-track asylum procedures in the period 2016–2019, have a time limit of 2 weeks (AIDA, 2017) that is impossible to meet. In fact, the entire asylum process lasts for years in most cases, with the exception of the Syrians whose claims are routinely prioritized, in an effort to implement the Statement.

The design of the Statement envisages swift processing and swift returns that will function both as a deterrent in reducing the number of irregular migrants but also ensure that the hotspots have space for new migrants. In practice, this does not happen. By the end of January 2020, only about 2000 people are returned to Turkey in line with the Statement. Pakistanis make up the largest group of returnees, many volunteering for return. Absence of returns impacts reception. While the capacity of the hotspots remains the same, the population increases and there are no transfers to the mainland (until 2019). Conditions deteriorate rapidly, and migration is a key campaign issue in the national elections of 2019 that results in the victory of the center-right party of New Democracy. Priority is given to legislative changes to support further the implementation of the Statement and reduce not only the number of arriving migrants but also the overall number of asylum seekers in Greece.

#### *16.4.2 The International Protection Act*

On 1 January 2020, Greece's International Protection Act (IPA) enters into force (voted in 2019, Law 4636/2019). It is Greece's ffth legislative asylum reform since the implementation of the Statement (GCR & Oxfam, 2020). The IPA seeks to regularise aspects of the Statement deemed exceptional measures in the previous legislation, and to accelerate the implementation of the Statement and develop further a restrictive asylum system.

Fast-track border procedure is not new (see above discussion on the L 4375/2016) but it is established initially as an emergency process that the IPA now normalizes. The law foresees that the fast-track border procedure "can be applied for as long as third country nationals who have applied for international protection at the border or at airport/port transit zones or while remaining in Reception and Identifcation Centres, are regularly accommodated in a spot close to the borders or transit zones" (Article 90 (3) IPA; AIDA, 2021). (In)admissibility is determined based on Turkey being a "safe third country"10 or a "frst country of asylum" for the applicant. Those inadmissible are also returnable. The fast-track border procedure is now disentangled from the Statement and can be applied to any location meeting the above requirements (for criticism of the IPA see ECRE, 2019; UNHCR, 2019; Greek Ombudsman, 2019). The new law, among others, severely restricts asylum safeguards, increases detention, limits the right to family unity and marks a return to the period of 2012–2014, when Greece prioritised deterrence and detention of migrants including asylum seekers.