Main problems of immigrants in Greece is the Deportation, Our tsismosaonline team together with our expert Immigration Lawyer will try here to explain the two types of Deportation in Greece, the Return decision and the Judicial deportation.
Decisions for the return of the third country nationals who illegally stay in Greece.
(Τhe provisions of articles 16 to 41 of Law 3907/2011)
We inform you that the Law 3907/2011 “Establish of Asylum Office and First Reception office, Adaptation of the provisions of Directive 2008/115/EK ‘ on common standards and procedures in Member States for the returning of the illegally staying third country nationals’ and other provisions” was published in «ΦΕΚ»/ «FEK»/7/A/26-01-2011 (Government Paper).
Matters on the returning of illegally staying third country nationals are regulated by the provisions of the articles 16 to 41. In particular chapter C is an adaptation of the provisions of that Directive.
That Directive establishes a harmonized, among the Member States of the European Union, procedure for the returning of the illegally staying third country nationals. By saying “illegal staying” we mean the presence in the Greek territory of any third country national that does not meet or no longer meets the conditions as set in Article 5 of the Schengen Borders Code or other conditions of entry or residence permit legislation.
The first principle of this process is that for every third country national that resides to the country illegally, a return decision should be adopted and priority should be given to voluntary return, especially when dealing with persons with prior lawful residence.
The “return decision” is the administrative act that declares as illegal the residence of the third country national and imposes the obligation to return,
• To the country of origin
• In a country of transit, in accordance with community or bilateral agreements or other settings
• In a third country that the person voluntarily decides and in which is well received
The return of the third country national residing illegally in the country, is completed in two steps:
1. either by voluntary compliance, where the third country national returns to his country within the time specified in the relevant return decision.
2. or, in case that the third country national does not comply within the period for voluntary departure, with the execution of the return decision, that concludes a forced removal. The removal involves the physical transfer of the third country national outside the Greek territory, in case he/she does not leave voluntarily.
The provisions of paragraph 1 of article 21 introduce the obligation for the relevant service of the Devolved Administrations and the Directorate of Migration Policy of the Ministry of Interior to issue a return decision for a third country national, in the following cases:
• denial of the appliance for an initial residence permit
• denial of the appliance for the renewal of a residence permit
• recall of the issue of a residence permit
• denial of the appliance because of failure of the third country national to submit on time, the request for the renewal of the residence permit.
We draw particularly your attention in the following cases:
In cases where the competent authorities of the Ministry of Citizens’ Protection recommend the revocation of the residence permit or the rejection of granting, or renewal of the residence permit, a return decision is issued for third country nationals because they are considered to be dangerous for the public order and security.
Cases of protection from the return:
(Article 41 of Law 3907/2011)
The return decision is prohibited for a third country national that belongs to one of the following categories:
a) the third country national is a minor and the parents or persons that have custody resident legally in Greece,
b) the third country national is parent or has the custody or support obligation of a national,
c) the third country national has over 80 years of age,
d) the third country national is a minor that has been imposed reformatory reasons with the decision of the Juvenile Court,
e) pregnant women during pregnancy and six months postpartum,
f) the third country national is a homogeneous.
Please note that in cases b, c and f, the return is not prohibited even if the third country national is dangerous to public order, national security or public health.
According to article 74 of the Penal Code, “1. The Court may order the expulsion of an alien sentenced to imprisonment according to the relevant provisions contained in international conventions ratified by the country. If the alien at the time that the offence was committed was a minor, the legal establishment and residence of his family, or in case that the family lives abroad, the serious risk to life, physical integrity, personal or sexual freedom are all factors that are seriously reconsidered for his deportation. When an alien resides legally in the country, deportation cannot be ordered unless they are imposed imprisonment for at least three months. Deportation is executed immediately after serving the sentence or the release of the prison. The same applies when the expulsion is imposed by Court as an ancillary penalty.
The Court may also order the expulsion of any alien to whom security measures of articles 69, 71, 72 of the Penal Code have been imposed. In this case deportation can be ordered in place of these measures.
Foreigners deported in this way may return to the country with decision of the Minister of Justice, after three years and for a certain period that can be extended. The Minister of Justice, is not limited by the time limit of the preceding paragraph, in case of a foreigner married to a Greek citizen, for as long as the marriage lasts, as well as in case of a returnee with a Greek origin. The decision above shall be taken after consultation of a three member council, composed by a counselor or Deputy Legal Adviser of the State, as chairman, suggested by the Chairman of the State Legal Council, a senior officer of the Immigration Headquarters of the Greek Police proposed by the Ministry of Public Order and the Director of the relevant Department of the Public Order. An employee of the relevant Department of the Ministry of Justice is the Secretary. The chairman, the members of the council, the secretary and their deputies are defined for three years by the Ministry of Justice.
The alien remains in custody, in special places of detention until the deportation.
There are certain guarantee conditions so that the measure of judicial deportation can be imposed against a foreigner. These conditions can be divided into formal and substantive and they are also cumulative:
a. The damnation of the foreigner to imprisonment or the imposition against him of another measure such as admission to a therapeutic store. When an alien resides lawfully in the country, expulsion can be ordered only if an at least three months sentence has been imposed against him.
b. The substantive condition is the need to remove the alien from the country because he is considered to be a serious and present threat for the public order and national security of the country. This judgment of the Court must be in compliance with the general juridical principle of proportionality applicable in all fields of law and is based on the nature and consequences of crime, on the behavior, career guidance and the existence or non existence of family.
As a rule, expulsion is ordered potentially by Court according to the article 74 of the Penal Code, except the case of imprisonment of the alien for drug trafficking, where, according to article 34 of Law 3386/2005, the expulsion is obligatory, unless the Court finds that there are important reasons to stay in the country.