According to the law, an application for legal aid can be submitted for the judicial review of detention (see Recourse) before the Administrative Court when detention is ordered under the provisions of the Aliens and Immigration Law transposing the Returns Directive,1 or under the Refugee Law.2 If detention is ordered based on the asylum seeker being declared a “prohibited immigrant”, then he or she is not eligible for legal aid. For Habeas Corpus applications before the Supreme Court, legal aid can be applied for only if detention has been ordered under the Refugee Law, 3 but not when detention is ordered under the articles of the Aliens and Immigration Law transposing the Returns Directive4 or when detained as a “prohibited immigrant”.5 Legal aid is also not provided to challenge or request a review of detention before the authorities through administrative procedures e.g. request for review, challenge of purpose, length, and lawfulness.
All applications for legal aid are subject to a “means and merits” test, with the exception of applications for legal aid for Habeas Corpus applications when detention has been ordered under the Refugee Law, where only the ‘means’ are examined:
Means: According to this, the detainee applying for legal aid must show that they do not have the means to pay for the services of a lawyer and this will be examined by a Welfare officer who will submit a report to the Court and in most cases for detainees, this leg of the test will considered to be met.
Merits: A detainee must submit reasons in the application that there is a possibility for the Court to issue a positive decision on the lawfulness of detention. Regarding the “merits” part of the test, which is extremely difficult to satisfy,6 in November 2016 the wording was changed from “the appeal is likely to be successful” to “the appeal has a real chance of success.”
Up until, January 2016, legal aid applications were examined by the Supreme Court which only examines points of law, this meant asylum seekers had to raise legal / procedural points without the assistance of a lawyer and convince the judge that there is a possibility the Court may rule in favour of the detainee if it later examines the lawfulness of detention. Additionally in this process the state lawyer representing the Republic acts as opponent and submits reasons why legal aid should not be provided, which leads to an extremely unequal process. Although the newly established Administrative Courts examine both points of law and fact, the applicant still has to raise points to establish that there is a real chance of success again with the state lawyer arguing the opposite. As a result there has been no sufficient change in the success rate of legal aid applications granted.
The main obstacle to accessing legal assistance in detention is the lack of resources on behalf of the detainee to contract the services of a lawyer and the aforementioned problematic procedure for accessing legal aid. Contacting a lawyer is not much of an issue and detainees do receive a list of lawyers and their telephone numbers as compiled by the Cyprus Bar Association and as required by law.7 However, they rarely use this. Meetings with lawyers in detention are confidential and held in a specialised room which has been designated as the lawyer’s room. The clients are contacted mainly through their mobile phones.
Asylum seekers in detention reach NGOs providing legal assistance primarily through word of mouth, especially since the information available to asylum seekers is often not available or outdated (see section on Information for Asylum Seekers and Access to UNHCR and NGOs), or by NGOs carrying out monitoring visits to the detention centre.8 If an NGO visiting the detention centre cannot offer legal assistance, it often refers asylum seekers to NGOs that do offer such services. It has been noted that there is a general lack of use of interpreters during all procedures in the detention centre, which is problematic especially in relation to illiterate detainees. This makes communication for illiterate detainees nearly impossible and they are unable to make use of their rights relating to access to legal remedies, food, clothing and medical examinations. If an asylum seeker was represented prior to his or her detention, there may be a slightly better chance of challenging the detention. However, similar issues will arise, as an asylum seeker who was represented by a private lawyer prior to detention may not have funds to continue contracting the lawyer’s services.
Besides the judicial review of detention, a legal representative can challenge the detention of an asylum seeker or request his or her release through administrative procedures that do not carry expenses. Such representation is offered for free to detained asylum seekers through the project “Strengthening Asylum” funded by UNHCR, implemented by FWC. Both projects are limited in their capacity to offer representation to all asylums seekers that may request it.
A FWC-run project entitled “Provision of Free Legal Advice to Asylum Seekers” and funded by the ERF,9 has not continued given that no legal assistance services are funded by AMIF.
Free legal assistance is available to asylum seekers in detention, as to all asylum seekers, by NGOs. However the capacity is limited or the services not consistent as they depend on project funding. Furthermore, judicial review requires court expenses of approximately €150, which often the NGO or the detainee are in a position to provide.
- 1. Article 6Γ Legal Aid Law.
- 2. Article 9ΣΤ(2) Refugee Law.
- 3. Article 6B(7)(b) Legal Aid Law.
- 4. Article 6Γ Legal Aid Law.
- 5. Article 6B and 6Γ Legal Aid Law.
- 6. According to a search carried out on the Cylaw database, throughout 2016 only 2 applications for legal aid to challenge detention were submitted and none were accepted.
- 7. Article 8(3)(b) Rights of Persons who are Arrested and Detained Law.
- 8. Information based on weekly monitoring visits carried out in Menogia Detention Centre by FWC in 2016.
- 9. The ERF funded a project implemented by FWC, providing free legal advice to asylum seekers. It started in February 2014 and ended in June 2014. It was granted again to FWC from January 2015 – June 2015.