Judicial review of the detention order

Cyprus

Author

FutureWorldsCenter (FWC)

The majority of asylum seekers in detention are provided with the administrative detention order, which mentions a summary of the articles of the law upon which the detention is based but does not include the facts and/or reasons for detention.1 It also includes a brief description of the right to challenge the order by recourse before the Administrative Court but not the right to submit a Habeas Corpus application to challenge the duration of detention. The administrative order is usually issued in English and rarely in Greek, and it is never provided in a language the applicant is known to understand.

In Menogia, detainees are given a list of lawyers and a general leaflet which is available in many languages informing them of their rights and obligations in detention but this does not include information on the right to legal challenges and the right to legal aid. Furthermore, from discussions with detainees it is evident that they do not have knowledge of the reasons for their detention or the legal challenges and legal options available.2 In spite of claims by the Civil Registry and Migration Department (CRMD) that detainees are always provided written information regarding the grounds of their detention and their rights to challenge the detention orders, and that every reasonable effort is made to ensure that detainees receive the information in a language they understand,3 little improvement has been made and the situation remains as reflected in older reports.4

According to national legislation, there are two legal remedies available to challenge detention for immigration purposes, and these can be used by asylum seekers in detention as they are usually detained for immigration purposes. The same legal remedies are also available if an asylum seeker is detained under the recently amended Refugee Law.5

 

Recourse

Firstly, if the administrative order is issued based on the asylum seeker being declared a “prohibited immigrant” (see section on Grounds for Detention),6 the order can be challenged by recourse under Article 146 of the Constitution before the Administrative Court. Although this is not provided for in the Aliens and Immigration Law, it is derived from the wording of Article 146 of the Constitution, as it is the case with all executive decisions issued by the administration. If the administrative order is issued based on the articles of the Aliens and Immigration Law that transpose the Returns Directive,7 or based on the Refugee Law,8 then again the order can be challenged under Article 146 of the Constitution before the Administrative Court and this instance is provided for specifically in the Law.9

The deadline to submit a recourse, regardless of the legal basis, is 75 days upon receiving notification of the decision.

There are no time limits within which the Administrative Court is obliged to examine a recourse, except when detention is ordered under the Refugee Law, in which case the Court is obliged to issue a decision within 4 weeks and in order to do so may instruct legal representatives to submit oral arguments instead of written arguments as the procedure usually requires.10 There have been no cases to date so as to review implementation.

For the cases where the law does not prescribe a time limit, priority is supposed to be given to cases of detention. However, in practice the time it takes to examine such cases is still lengthy and lasts average 8 months.11 The submission of recourse does not have suspensive effect, meaning the detainee can be returned to the country of origin within this time period. In the cases of asylum seekers, however, the deportation order is suspended for the duration of the examination of the asylum application and as of October 2016 this also includes the judicial examination of the asylum application. If the recourse is successful, the detention order will be annulled.

 

Habeas Corpus application

The second remedy, which is available before the Supreme Court, is a Habeas Corpus application provided for under Article 155(4) of the Constitution, which challenges the lawfulness of detention, but only on grounds relating to length of detention. This remedy is not mentioned in the Aliens and Immigration Law when detention is ordered as a “prohibited immigrant”, but is derived from the Constitution, whereas there are specific provisions in the provisions transposing the Returns Directive and the recently amended Refugee Law that refer to this remedy.12

While the maximum Duration of Detention of 18 months does not apply if detention is ordered based on the asylum seeker being declared a “prohibited immigrant”, a Habeas Corpus application can be submitted if it is possible to establish that the length of detention is excessive. Although, this is more difficult to substantiate, the Supreme Court delivered a ruling on 22 August 2016 in a recent Habeas Corpus application.13 The applicant, a failed asylum seeker, had been detained for a total of 4 years in this case. The Supreme Court held that non-collaboration on behalf of the applicant could not be used as a basis for his indefinite detention and that the Ministry of Interior erroneously considered that detention orders that do not fall within the scope of Article 18 ΠΣΤ of the Aliens and Immigration Law, transposing the Returns Directive, can entail indefinite detention without complying with the non-arbitrariness requirement of Article 5(1)(f) ECHR. Given that there was no reasonable prospect of removal of the applicant, as conceded by the Police to the Ministry of Interior, the applicant’s prolonged detention was arbitrary and in violation of the ECHR and the Cypriot Constitution.

A Habeas Corpus application can be submitted at any time. When detention is ordered under the  Refugee Law, a detained asylum seeker is entitled to submit more than one Habeas Corpus application if the detention is prolonged or when relevant circumstances arise or when new elements arise which may affect the legality of the duration of detention.14

There are no time limits within which the Supreme Court is obliged to examine the Habeas Corpus application, and the examination may take 1-3 months. By way of exception, for cases which fall under the Refugee Law, the Supreme Court is obliged to issue a decision within 3 weeks and may give necessary instructions to do speed up the process.15 To date there have been no such cases to monitor if the 3-week time limit is adhered to.

The submission of a Habeas Corpus application does not have suspensive effect, meaning the detainee can be returned to the country of origin within this time period. However, for asylum seekers, the deportation order is suspended for the duration of the examination of the asylum application, which as of October 2016 includes the judicial examination of the asylum application. If a Habeas Corpus application is successful, the detainee should be immediately released.

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There is a substantial number of cases where the Supreme Court has ordered the release of a detainee either on the lawfulness of the grounds of detention or length and the administration immediately issued new detention orders and re-arrested the person as they exited the Court. In July 2014, it was reported by KISA that an asylum seeker whose appeal at the Supreme Court had been pending since 2011, was detained for 8 months and eventually deported. UNHCR expressed concern regarding the potential violation of the principle of non-refoulement and called on the Government to thoroughly investigate this case and to ensure the protection and welfare of the family members of the deported person.16

Detention based on the Refugee Law or the Aliens and Immigration Law as a “prohibited immigrant” has no time limit or automatic review and can only be challenged judicially. Detention based on the Aliens and Immigration Law, under the articles that transpose the Returns Directive Law, has a maximum limit of 18 months and provides for periodic reviews of the lawfulness of detention or review of this upon request of the detainees but in practice, this does not take place. Even when the applicant or his or her legal representative requests a review, in most cases the administration does not even respond to the request. In the rare case a review is carried out, a proper review is not conducted and the initial justification is repeated, usually stating a lack of cooperation by the detainee for the issuance of travel documents, regardless if the detainee is an asylum seeker and without stating any reasoning or facts to support the claim of lack of cooperation.

In a ruling of 24 August 2016 concerning detention for the purpose of removal, the Supreme Court recalled that an order prolonging detention must be issued in writing and provide reasons for such prolongation, even if the maximum time limit of 18 months permitted by Article 18ΠΣΤ of the Aliens and Immigration Law has not yet been reached.17

The judicial review of detention is not considered effective due the lack of suspensive effect as well as the length of time to issue a decision. This was confirmed by the ECtHR in M.A. v. Cyprus where the Court held that the applicant did not have an effective remedy with automatic suspensive effect to challenge his deportation.18 The applicant was not deported to Syria only because of an interim measure issued by the Court under Rule 39 of its Rules of Court to the Cypriot Government indicating that he should not be removed until further notice. The Court concluded that there was a lack of effective remedy to challenge lawfulness of detention, as the only recourse in domestic law that would have allowed the applicant to have had the lawfulness of his detention examined would have been one brought under Article 146 of the Constitution. The Court held that the average length of such proceedings, standing at 8 months, was undoubtedly too long for the purposes of Article 5(4) ECHR, and rejected the argument of the Government that it was possible for individuals to speed up their actions by reaching an agreement with the Government. The Court ruled Cyprus had violated Article 5(4) ECHR (relating to lawfulness of detention) and that domestic remedies must be “certain”, and speediness, as an indispensable aspect of Article 5(4) ECHR, should not depend on the parties reaching an agreement.

The above position was confirmed in July 2015 in the recent ECtHR cases concerning the detention and deportation of 17 Syrian Kurdish asylum seekers from Cyprus to Syria, HS and Others v Cyprus and KF v Cyprus,19 where the Court held Cyprus responsible for the inadequate mechanisms and ineffective remedies that are in place to challenge the lawfulness of detention, and which violate Article 5(1) ECHR. In the context of the duration of detention, the Court concluded that the lack of a ‘speedy’ procedure of judicial review of the lawfulness of the applicants’ detention, amounted to a violation of Article 5(4) of the Convention.

The UN Committee against Torture (CAT) has also expressed its concern concerning the lack of protection against refoulement during the judicial review process, and stated that Cyprus should abide by its commitment to provide for an effective judicial remedy before a court with automatic suspensive effect over deportation of asylum seekers and other undocumented migrants.20 The Council of Europe Commissioner for Human Rights, Nils Muižnieks,  after a visit to Cyprus in December 2015, also raised concerns on the lack of an effective judicial remedy due to the lengthy procedures and the lack of automatic suspensive effect against deportations including of asylum seekers. In his report, he urged Cyprus to introduce in law and practice effective remedies concerning the detention of migrants, including asylum seekers, and their deportation.21

With the amendment of the Refugee Law in October 2016, an asylum seeker has the right to remain on the territory throughout the first instance judicial examination of the asylum application. Therefore detained asylum seekers are protected from deportation, and it has already been noted in practice that such cases are being released from detention. However, the remedies offered to challenge detention, Recourse, remain lengthy and, combined with the ineffective access to legal aid, continue to render access to an effective remedy against detention problematic.

  • 1. Information based on weekly monitoring visits carried out in Menogia Detention Centre by FWC in 2016.
  • 2. Ibid.
  • 3. Ibid.
  • 4. Ombudsman, Report on the visits to Menogia on 14 February, 3 April, and 19 April 2013, 16 May 2013; KISA, Comments and Observations for the forthcoming 52nd session of the UN Committee against Torture, April 2014, 10.
  • 5. Article 9ΣΤ(6)(a) Refugee Law.
  • 6. Article 14 Aliens and Immigration Law.
  • 7. Article 18ΟΓ Aliens and Immigration Law.
  • 8. Article 9ΣΤ(2) Refugee Law.
  • 9. Article 18ΠΣΤ(3) Aliens and Immigration Law and Article 9ΣΤ(6)(a) Refugee Law.
  • 10. Article 9ΣΤ(6)(b)(i) Refugee Law.
  • 11. ECtHR, M.A. v. Cyprus, Application No 41872/10, 23 July 2013, para 167.
  • 12. Article 18ΠΣΤ(5) Aliens and Immigration Law; Article 9ΣΤ(7)(a)(i) Refugee Law.
  • 13. Supreme Court, Azar v Republic of Cyprus, Case No 54/2016, 22 August 2016, EDAL summary available at: http://bit.ly/2jmoP73.
  • 14. Article 9ΣΤ(7)(a)(ii) Refugee Law.
  • 15. Article 9ΣΤ(7)(b)(i) Refugee Law.
  • 16. UNHCR Cyprus, ‘UNHCR expresses concern over potential violation of the principle of non-refoulement’, Press Release, 18 July 2014, available in Greek at: http://bit.ly/1HU2Itg.
  • 17. Supreme Court, Nessim v. Republic of Cyprus, Case No 66/2016, 24 August 2016, EDAL summary available at: http://bit.ly/2ka8UwE.
  • 18. ECtHR, M.A. v. Cyprus, paras 169-170.
  • 19. ECtHR, H.S. and Others v. Cyprus, Application No 41753/10, Judgment of 21 July 2015; K.F. v. Cyprus, Application No 41858/10, Judgment of 21 July 2015. For an analysis, see Mary Zalokosta, ‘Analysis of the Strasbourg case-law on Kurdish asylum seekers in Cyprus and the controversial practice of detention’, 28 August 2015, EDAL, available at: http://bit.ly/1IxXR0Y.
  • 20. CAT, Concluding Observations on the Fourth Report of Cyprus, 21 May 2014.
  • 21. CoE Commissioner for Human Rights, Cyprus report, 31 March 2016, para 1.1.3.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti