Author
The Aliens and Immigration Law refers to alternatives to detention and states that detention is used as a last resort, yet alternatives to detention are not listed and the relevant article is rarely implemented in practice.[1] The Refugee Law includes a non-exhaustive list of recommended alternatives to detention:[2]
- Regular reporting to the authorities;
- Deposit of a financial guarantee;
- Obligation to stay at an assigned place, including a reception centre; and
- Probation.
The CRMD is responsible for assessing whether alternatives to detention may be applied. However, these are not subject to a statutory time limit or a proportionality test and there are no implementing regulations or guidelines for their application. Due to this, it is not clear how alternatives are implemented and, even though detention orders issued under the Refugee Law refer to an individualised assessment and the CRMD states that such assessments are indeed carried out, an extremely small number of detainees are released by implementing alternatives.[3]
The decision to detain is not based on an assessment of the asylum seeker’s individual circumstances or the risk of absconding, and the CRMD issues and renews detention and deportation orders simultaneously, without considering less restrictive alternatives to immigration detention.[4] This applies to all detainees, including asylum seekers, whose cases may still be pending.
The IPAC has raised issues related to the examination and implementation of alternatives to detentions in appeals challenging detention based on the Refugee Law,[5] such as the lack of an individual assessment and consideration of less restrictive measures.[6] Furthermore, the IPAC has highlighted the need for an individual assessment of detention in line with the principles of proportionality and necessity.[7] In cases ΔΚ 45/20[8] and ΔΚ 105/21,[9] the IPAC conducted an individual assessment of the personal situation and behaviour of the applicants to find that, even though the goal pursued by detention (ultimately, the non-interference with the removal process because of the submission of an asylum application) was justified and legitimate, detention was not the proportionate measure to achieve that goal for those specific applicants. The Court ordered the release of the applicants and imposed reporting duties as an alternative measure. In case ΔΚ 9/2022, the IPAC found that the fact that there is no permanent registered address or that the Applicant was convicted of circulating a forged document was not sufficient justification to maintain his detention and alternative restrictive measures could be imposed on hm instead of detention. However, the Court decisions have not affected change in the examination and implementation of alternatives to detention.[10]
In the 2019 report by the Committee Against Torture (CAT) on Cyprus, it was mentioned that ‘the Committee remains concerned by the criminalisation and routine detention of irregular migrants, the extended periods of detention of such migrants, and the functioning of the migration detention facilities throughout the country’. Furthermore, it is stated that ‘the Committee is concerned that no comprehensive identification procedures are in place to ensure the sufficient and timely identification of vulnerable persons prior to ordering detention’. Recommendations include for Cyprus to ‘Adopt regulations to fully and consistently implement the provisions of the Refugee Law providing for alternatives to detention, establish comprehensive procedures for the determination and application of alternatives to detention, and ensure that these be considered prior to resorting to detention, as part of an overall assessment of the necessity, reasonableness and proportionality of detention in each individual case’.[11]
The UN Human Rights Council in their Universal Periodic Review (UPR) in 2019 also recommended to the Cypriot State to ‘facilitate the integration of migrants and persons under international protection residing in Cyprus, put in place alternatives to long-term detention of asylum seekers, including those whose request for asylum has been rejected’.[12]
From July 2019 until mid-2023, the CyRC implemented a third EPIM-funded project on ATD in Cyprus – “Safeguarding Alternatives to Detention: Implementing Case Management in Cyprus”, which builds on the progress and achievements of the 2017-2019 Pilot.[13] Its main objectives are to reduce immigration detention, promote engagement based ATD and contribute to the growing evidence and momentum on ATD at a national and regional level. The project team provides individualised case management to persons in detention and/or at risk of detention including asylum seekers, rejected asylum seekers, irregular TCNs, and non-removable.
The implementation of the project, and specifically case management, provides the CyRC with further qualitative and quantitative data to demonstrate to the relevant authorities that the proposed model can lead to higher engagement rates and case resolution. Through the implementation of the project, the CyRC aims to pave the path towards generating ATD practices or policies for specific groups as well as to outline systemic gaps and the ineffectiveness of coercive-based approaches. CyRC is in communication with CRMD providing recommendations on individual cases, on the case management model used by CyRC and collaborating towards the effective implementation of ATD in Cyprus.
In 2023 and currently, there are two officers appointed by the CRMD who examine cases of detention, including the possibility of alternatives to detention. One officer is responsible for persons detained under the Aliens and Immigration Law and the other officer for persons detained under the Refugee Law. The CRMD officers conduct an examination every 2 months for each case; however it is unclear how these examinations are conducted. The examination seems to focus on whether the reasons justifying detention in the initial detention order remain valid and in the vast majority of cases the initial justification is repeated. The CyRC continues to communicate cases with recommendations for ATD however, the use of alternatives to detention remains extremely low.[14]
Overall “alternatives to detention” is rarely if ever examined prior to detention being ordered. As in previous years throughout 2023, alternatives to detention were ordered in an extremely low number of cases. Most cases of asylum seekers that are released from detention on alternatives to detention, concern detainees who challenge their detention order in Court successfully or detainees that have challenged their detention order before Court and as a result the CRMD cancels the detention order and issues a new decision, ordering alternatives to detention before the Court issues a decision.[15]
[1] Article 18ΠΣΤ Aliens and Immigration Law.
[2] Article 9ΣΤ(3) Refugee Law.
[3] Information based on monitoring visits to Menogia Detention Centre by the Cyprus Refugee Council and interventions carried out as part of the case management under the Pilot Project on the Implementation of alternatives to detention in Cyprus. See European Alternatives to Detention Network’s webpage available at: https://bit.ly/3cJ2v6C.
[4] See FWC, Promoting and Establishing Alternatives to Immigration Detention in Cyprus, November 2016, available in Greek at: http://bit.ly/2kAN5aG, pp. 44-45. See also summary in English at: http://bit.ly/2jEHGLz.
[5] Article 9ΣΤ (2)(δ) of the Refugee Law.
[6] G.N. v. The Republic, ΔΔΠ 155/2019 (5/11/2019); T.E.V. v the Republic, ΔΔΠ 270/2019 (8/11/2019).
[7] A.H. ν. Republic of Cyprus Case No. ΔΚ 73/2020, 29/1/2021.
[8] S.R. ν. Republic of Cyprus, Case No. ΔΚ 45/20, 17/11/2020.
[9] M.R. ν. Republic of Cyprus, ΔΚ 105/21, 15/11/2021.
[10] Information provided by Cyprus Refugee Council.
[11] UNCAT, Concluding Observations on the Fifth Report of Cyprus, Committee against Torture, 23 December 2019, available at: https://tinyurl.com/3jcjevns.
[12] UN Human Rights Council, Report of the Working Group on the Universal Periodic Review: Cyprus, Twenty seventh session, April 2019, available at: https://bit.ly/442rPNU.
[13] Implemented by FWC from March 2017-December 2017.
[14] Information provided by Cyprus Refugee Council.
[15] Information provided by Cyprus Refugee Council.