III. Implementation of the Common Ministerial Decision 9889/2020 regarding the determination of the minority in the RIC of Fylakio, Orestiada
A new challenge that has arisen recently, both for the bodies active in the field of child protection within the RIC of Fylakio, and for the administration of the RIC itself, is the implementation of the new JM 9889/2020 Government Gazette 3390 / Β / 13- 8-2020 concerning the determination of the minority of third-country nationals or stateless persons entering the country without meeting the legal formalities.
According to article 1 par. 5 of the new JM 9889/2020, the assessment of the age of the person is done once in the following successive steps:
a) Evaluation of the physical development of macroscopic features, such as height, weight, body mass index, voice and hair growth after clinical examination and obtaining a medical history based on reference values or somatometric data. This clinical examination is performed by a properly trained health professional (physician, pediatrician, etc.).
b) In case of justified inability to assess age based on the above examination, a psychosocial assessment is followed by a trained psychologist and social worker, who examine the cognitive, behavioral and psychological development of the individual and compile a report. If a psychologist is not employed or there is no social service in the nearest structure of the public health system, the above psychosocial assessment can be performed by a trained psychologist and social worker of a certified civil society institution registered in the Register of Greek and Foreign Non-Governmental Organizations provided in Article 58 of law 4686/2020 (A’96). It is excluded from the conduct of the above psychosocial assessment any actor in charge of the care or accommodation of persons whose age is disputed. The above psychosocial assessment includes at least one semi-structured interview, during which the personal history of the individual is investigated, taking into account all the necessary elements related to the psychological maturation of the individual. The result of determining age at this stage results from the combination of psychosocial assessment, but also the examination of the physical development of macroscopic features.
c) If, following the above examinations, there is still a reasonable doubt, then the assessment of age will be made either by a x-ray of the left wrist and extremity of the hand to determine the bone age, or dental examination, or dental radiography, or, finally, with any other an appropriate instrument, which, based on international literature and practice can give a valid conclusion.
Exhaustion of each of the above stages is mandatory before the implementation of the next and must be adequately justified and notified to the referring body for further referral actions in cases of justified inability to ascertain the minority.
Within the RIC of Fylakio, this process is carried out in a compulsory way by the competent body of EODY, while the bodies active in the field, including the HumanRights360 team in Evros, are called to evaluate those cases in which it is deemed necessary and in the best interest of beneficiaries to file an administrative appeal against the acts determining the age. These acts are issued by the Management of the RIC and within fifteen (15) days from the notification of the act to the beneficiaries, there is a right to file the above appeal, according to article 25 of the Code of Administrative Procedure (Law 2690/1999, A’45), before the body that issued the contested act (article 1 par. 9 of Joint Ministerial Decision 9889/2020).
In order for the above appeal to be successful, it is necessary to provide official identification documents or legally issued travel documents by the countries of origin, as according to par. 12 of article 1 of the Joint Ministerial Decision, the submission of such documents eliminates the doubt on minority. In this case, however, the issue of the extreme difficulty of collecting and presenting official documents from the country of origin, within such a short time limit provided by law for lodging an appeal, arises. The fact that there is a restriction of freedom inside the KYT of Fylakio, as it is the only closed center in Greece, makes it difficult to collect any documents from the country of origin and consequently to ensure the best interests of the beneficiaries, whose minority is disputed.
From the beginning of the implementation of the Joint Ministerial Decision, HumanRights360 filed four administrative appeals against the age assessment acts, in accordance with article 25 of the Code of Administrative Procedure and article 1 par. 9 of the JMC 9889/2020. The appeals were found by the Administration of the RIC to be both admissible and well founded, the age assessment decisions were revoked, with the result that the beneficiaries are now considered minors. In the majority of our cases, official identification documents were provided by the countries of origin. Pursuant to paragraph 12 of JMC No. 9890/2020, the provision of identification documents or legally issued and officially translated travel documents from the countries of origin interrupts the pending process of determining the minority and eliminates the ambiguity. In addition, the common ground of all the appeals was the arbitrary raising of doubts about the minority, the lack of training of the health professionals, the non-exhaustion of the mandatory successive stages provided by law and the lack of reasoning for the decision ascertaining the age.
The urgent need for the strict application of the new JMC, has already been apparent in recent decisions of the Appeals committees, during the examination of requests in the second instance οf applicants who invoke their minority in the exercise of the appeal. A competent committee found that there was a doubt about the minority of the applicant, who received a decision rejecting his asylum claim, after determining his age at the Lesvos Health Center by performing a wrist x-ray and an age assessment, which did not provide an age range, but simply judged him as 18 years old. With a reasoned view that it did not result whether the examinations took place in the order provided by law (Article 1, JM 9889/2020) and the fact that the referral of the applicant to the next stage was not sufficiently justified, the committee considered necessary to postpone the issuance of a final decision and to forward the file to the Regional Asylum Office of Lesvos, in order to carry out the age assessment procedure, according to the steps defined in JM 9889/2020.