Regular procedure

Cyprus

Country Report: Regular procedure Last updated: 30/11/20

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Regular procedure

According to the law, the Asylum Service shall ensure that the examination procedure is concluded as soon as possible, without prejudice to an adequate and complete examination.[2] Furthermore, the Asylum Service shall ensure that the examination procedure is concluded within 6 months of the lodging of the application.[3] In instances where the Asylum Service is not able to issue a decision within six months, it is obliged to inform the applicant of the delay and, upon request, of the applicant, provide information on the reasons for the delay and on the time-frame in which a decision on the application is expected.[4]

 

The six month time-frame can be extended for a period not exceeding a further nine months, where: (a) complex issues of fact and/or law are involved; (b) a large number of third-country nationals or stateless persons simultaneously apply for international protection, making it very difficult in practice to conclude the procedure within the six-month time limit; (c) where the delay can clearly be attributed to the failure of the applicant to comply with his or her obligations as provided for under the law.[5] By way of exception, the Asylum Service may, in duly justified circumstances, exceed the time limits laid down by a maximum of three months where necessary in order to ensure an adequate and complete examination of the application.[6]

 

The Head of the Asylum Service may postpone concluding the examination procedure where the Asylum Service cannot reasonably be expected to decide within the time limits laid down, due to an uncertain situation in the country of origin which is expected to be temporary. In such a case, the Asylum Service shall conduct reviews of the situation in that country of origin at least every six months; inform the applicants concerned within a reasonable time of the reasons for the postponement; inform the European Commission within a reasonable time of the postponement of procedures for that country of origin.[7]

 

Finally, the law states that in any event, the Asylum Service shall conclude the examination procedure within a maximum time limit of 21 months from the lodging of the application.[8]

 

In practice, the time required for the majority of decisions on asylum applications exceeds the six-month period, and in cases of well-founded applications, the average time taken for the issuance of a decision takes approximately two-three years. It is not uncommon for well-founded cases to take up to three-four years before asylum seekers receive an answer.[9] While there had been improvement in processing times for fast-tracked nationalities (see section on Regular Procedure: Fast-Track Processing), due to the high numbers of applications in 2018 and 2019 there are still long delays.

 

Delays in issuing decisions do not lead to any consequences and the Asylum Service does not inform the asylum seeker of the delay as provided for in the law, unless the applicant specifically requests information on the delay. Even when such a request is submitted to the Asylum Service, the written response briefly mentions that the decision will be issued within a reasonable time, yet no specific time frame or reasons for the delay are provided to the applicant.

 

From 2017 until present, efforts have been made to address the backlog and the time in which cases are examined. Under its Support Plan to Cyprus,[10] EASO has continued to deploy caseworkers to support the Asylum Service, and provided 21 caseworkers in the course of 2018, of which three are Member State experts and 18 locally recruited interim experts.[11] Under the signed Operating Plan for 2019, EASO provided six interim caseworkers for a 12-month period and another eight for a seven month period to support the Asylum Service.[12] Toward the end of 2018 EASO initiated recruitment procedures to locally recruit officers for the examination of asylum applications; the caseworkers took up duties in February 2019. In early 2019, the Asylum Service also initiated procedures to recruit staff on a four-year contract. There will be 13 administrative officers out of which eight are expected to be caseworkers.

 

The Asylum Service issued 4,372 decisions in 2019 compared to 2,669 decisions in 2018, based on a recommendation issued either by Asylum Service caseworkers or EASO caseworkers. EASO drafted 188 recommendations on asylum applications in the period 1 January to 30 June 2019[13] and 724 recommendations on asylum applications in 2018.[14]

 

Nonetheless, the backlog of pending cases remains high and increased sharply in 2019 to 17,171 compared to 8,545 applicants at the end of 2018 and 3,843 at the end of 2017.

 

Prioritised examination and fast-track processing

 

The Refugee Law includes a specific provision for the prioritised examination of applications, within the regular procedure, applicable where:[15]

 

(a)   the application is likely to be well-founded;

(b)   the applicant is vulnerable,[16] or is in need of special procedural guarantees, in particular unaccompanied minors.

 

Although efforts are made to ensure such prioritisation is given especially to vulnerable cases such as to victims of torture, violence or trafficking, it does not necessarily imply that other important safeguards are followed, such as the evaluation of their vulnerability and psychological condition and how this may affect their capability to respond to the questions of the interview. There are examiners that are better trained or sensitised to carry out the interview in an appropriate manner, yet overall, prioritisation of a vulnerable individual’s case does not necessarily ensure that the interview is carried out under the appropriate procedures specified in accordance to vulnerability (see section on Special Procedural Guarantees). In addition, these cases may start out prioritised but there are often delays due to the heavy work-load of examiners handling vulnerable cases, lack of interpreters or requirements for other examinations to be concluded before a decision can be made, such as examination of victims of torture by the Medical Board or victims of trafficking by the Anti-Trafficking Department of the Police.

 

In 2017, within the EASO Special Support Plan, applications were screened to identify vulnerable cases so that they could be prioritised as well as allocated to an EASO expert specialised in vulnerable groups.[17] By the end of 2018 it was not clear how effective this measure was, as there are no statistics on the number of cases that were considered vulnerable and were prioritised and examined by an EASO expert. Moreover, EASO experts on vulnerability, provided by other Member States, were not consistently present in the country as they were deployed for periods of six weeks. In 2019, efforts were made by EASO and the Asylum Service to increase the number of examiners trained to examine vulnerable cases, and by the time of publication there were indications that such measures were beginning to take effect. However, the sharp increase in asylum applications, including vulnerable cases, has affected the impact of such measures.

 

Further to the instances of prioritisation mentioned in the Refugee Law, the Asylum Service continues to prioritise certain caseloads and examines them within the regular procedure and not the accelerated procedure, under two circumstances:

 

(1)   When the country of origin is deemed generally safe;[18]

(2)   If a conflict is taking place in the country of origin, such as Iraqi cases in the past and Syrian cases currently.

 

In 2018 and 2019, the time required for the examination of cases of Syrians and Palestinians ex Syria increased in comparison to previous years, from an average of 12 months to 18 – 24 months.

 

Personal interview

According to the law, all applicants, including each dependent adult, are given the opportunity of a personal interview.[19] The personal interview on the substance of the application may be omitted where:[20]

(a)   The Head of the Asylum Service is able to take a positive decision with regard to refugee status on the basis of available evidence; or

(b)   the Asylum Service is of the opinion that the applicant is unfit or unable to be interviewed owing to enduring circumstances beyond his or her control. When in doubt, the Asylum Service shall consult a medical professional to establish whether the condition that makes the applicant unfit or unable to be interviewed is of a temporary or enduring nature.

 

In practice, all asylum seekers are interviewed, and in the majority of cases, the interview takes place 18-24 months after the application has been lodged, including cases that are being prioritised under fast-track processing (see section on Regular Procedure: Fast-Track Processing). In 2017, the Asylum Service noted that they had omitted the interview in cases where the applicant was unfit or unable to be interviewed owing to enduring circumstances beyond his or her control.[21] No information is available for 2018. In 2019, the interview was omitted in one case of a deaf applicant from Syria, due to extreme difficulties in communication – illiteracy and no knowledge of sign language.[22]

 

The Refugee Law also permits, where simultaneous applications by a large number of third-country nationals or stateless persons make it impossible in practice for the determining authority to conduct timely interviews on the substance of each application by the Asylum Service, the Ministerial Council to issue an order, published in the Gazette, providing that experts of another Member State, who have been appointed by EASO or other related organisations, to be temporarily involved in conducting such interviews.[23] In such cases, the personnel other than the Asylum Service, shall, in advance, receive the relevant training and shall also have acquired general knowledge of problems which could adversely affect an applicant’s ability to be interviewed, such as indications that the applicant may have been tortured in the past.

 

This provision was triggered in 2017 through Ministerial Decree 187/2017, enabling EASO experts to conduct in-merit interviews between May 2017 and January 2018, due to the number of simultaneous asylum applications made in Cyprus and the inability of the Asylum Service to conduct those in time.[24] EASO presence continued throughout 2018, 2019 and 2020.[25] The presence of the EASO examiners initially sped up the examination of applications but has not impacted the backlog (see Regular Procedure: General).

 

All interviews are carried out at the Asylum Service, which is the authority responsible for taking decisions on asylum applications, by local staff or EASO experts; EASO caseworkers conducted 730 interviews in 2018, mainly covering asylum seekers from Syria, Egypt, Iraq, Nepal, Cameroon, Iran, Turkey, Democratic Republic of Congo and the Gambia.[26] Between 1 January to 30 June 2019 EASO caseworkers conducted 337 interviews principally covering asylum seekers from Syria, Nepal, Egypt and Iran.[27]

 

 Quality of interview

 

According to the law,[28] the Asylum Service shall take appropriate measures to ensure that personal interviews are conducted under conditions that allow the applicant to explain in detail the reasons for submitting the application for asylum, and in order to do so the Asylum Service shall:

(a)   Ensure the competent officer who conducts the interview is sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant's cultural origin, cultural origin, gender, sexual orientation, gender identity or vulnerability;

(b)   Wherever possible, provide for the interview with the applicant to be conducted by a person of the same sex if the applicant so requests, unless the Asylum Service has reason to believe that such a request is based on grounds which are not related to difficulties on the part of the applicant to present the grounds of his or her application in a comprehensive manner;

(c)   Select an interpreter who is able to ensure appropriate communication between the applicant and the competent officer who conducts the interview. The communication shall take place in the language preferred by the applicant unless there is another language which he or she understands and in which he or she is able to communicate clearly. Wherever possible, an interpreter of the same sex is provided if the applicant so requests, unless the Asylum Service has reasons to believe that such a request is based on grounds which are not related to difficulties on the part of the applicant to present the grounds of his or her application in a comprehensive manner;

(d)   Ensure that the person who conducts the interview on the substance of an application for international protection does not wear a military or law enforcement uniform;

(e)   Ensure that interviews with minors are conducted in a child-appropriate manner.

 

Furthermore, when conducting a personal interview, the Asylum Service shall ensure that the applicant is given an adequate opportunity to present elements needed to substantiate the application in accordance with the law as completely as possible.[29] This shall include the opportunity to give an explanation regarding elements which may be missing and/or any inconsistencies or contradictions in the applicant’s statements.[30]

 

In practice the quality of the interview, including the structure and the collection of data, differs substantially depending on the individual examiner.[31] The absence of Standard Operating Procedures and mechanisms for internal quality control to date contribute to the diverse approaches.

 

As regards the EASO experts, cases are allocated according to expertise and a standardised interview structure is followed. However, based on cases represented by the Cyprus Refugee Council in 2018, there have been issues such as lack of expertise for complex cases.[32]

 

Regarding the gender of the examiner and the interpreter, if applicants make such a request it is usually granted in practice. However, due to the absence of information and legal advice or representation (see Regular Procedure: Legal Assistance) most applicants do not have knowledge of this right in order to make such a request.

 

Interpretation

 

Asylum Service caseworkers often conduct interviews in English, using interpretation where needed; this is often due to the fact that it is easier to identify interpreters that can speak the applicant’s language and English rather than Greek. This, however, often affects the quality of interviews where the caseworker would arguably be more comfortable using Greek instead of English and the language barrier is often visible in the interview transcript and the recommendation, which often have several grammar, spelling and syntax mistakes, statements may be misunderstood or passages are poorly drafted or unclear.[33]

 

In cases examined by EASO, caseworkers conduct interviews in English, using interpretation where needed. This is also the case for Greek-speaking interim experts who could also be more comfortable using Greek instead of English. The language barrier is at times visible in some of the recommendations, where some passages are poorly drafted or unclear and have several grammar, spelling and syntax mistakes.

 

Although interpreters are always present in interviews, they are not professional interpreters nor adequately trained, and there is no code of conduct for interpreters.[34] Asylum seekers often complain about the quality of the interpretation as well as the impartiality / attitude of the interpreter, yet such complaints are seldom addressed by the Asylum Service.[35] During monitoring of interviews at the Asylum Service, it has been noted that although asylum seekers are asked by the interviewing officer whether they can understand the interpreter, most of the time they are reluctant to admit that there is an issue with understanding and prefer to proceed with the interview as they feel they have no other choice or are unwilling to wait for a longer period of time (sometimes months) for another interview to be scheduled.[36] In addition, there have been cases where the applicant has complained about the interpreter regarding the quality of interpretation or attitude, and this has been perceived as a lack of cooperation on behalf of the applicant.

 

In the case of interviews carried out by EASO caseworkers, the interpreters are often provided under the EASO Support Plan and may have been brought to Cyprus for this purpose. These interpreters seem to have received training and follow Standard Operating Procedures. However, in 2019 complaints were received regarding an EASO interpreter that led to a complaint and the subsequent termination of services by the interpreter.[37]

 

Recording and transcript

 

The Refugee Law permits audio / video recordings.[38] However, in practice only a verbatim transcript of the interview is drafted.

 

The law also provides that the examiner must provide an opportunity to the applicant to make comments and/or provide clarifications orally and/or in writing with regard to any mistranslations or misconceptions appearing in the written report or in the text of the transcript at the end of the personal interview or within a specified time limit before a decision is taken by the Head of the Asylum Service on the asylum application.[39] Furthermore, the legal representative / lawyer can intervene once the interview is concluded,[40] and this is the only stage at which corrections are permitted. However, in practice the situation varies between the examining officers, as some officers will allow such corrections and will only take into consideration the corrected statement, whereas others will allow such corrections but then consider the initial statement and the corrected statement to be contradictory and have often used this as evidence of lack of credibility on behalf of the applicant. In some cases, the officer has not accepted any corrections at all.

 

There are often complaints by asylum seekers that the transcript does not reflect their statements, which is attributed either to the problematic interpretation or to problems with the examining officer, such as not being appropriately trained, especially for the examination of vulnerable persons or sensitive issues, not being impartial, having a problematic attitude and not allowing corrections or clarifications on the asylum seeker’s statements.

 

According to the law, before the decision is issued on the asylum application the applicant and/or the legal advisor / lawyer has access to the report of the personal interview or the text of the audio and/or visual recording of the personal interview.[41] When an audio and/or visual recording of the personal interview is carried out, access is provided only if the applicant proceeds with a judicial review of the asylum application before the IPAC,[42] with the exception of applications examined under the accelerated procedure.

 

As audio / video recording is not used in practice, access should be provided to the report of the personal interview, prior to the issuance of the decision. According to the Asylum Service, such access is provided and applicants are informed of this right during the personal interview, however very few applicants seem to be aware of this right and there is no evidence of anyone accessing this right, to the knowledge of the Cyprus Refugee Council. Access entails reviewing the report which is in Greek or sometimes in English, without translation / interpretation and without having a right to receive a copy of it, which may also contribute to applicants not accessing this right.

 

In the case of the legal advisor / lawyer accessing it prior to the issuance of the decision, very few applicants have a legal advisor / lawyer at the first instance examination, and even if they do, not many lawyers are familiar with the asylum procedure. However, in the rare cases where access is requested, it has been granted, as seen from cases represented by the Cyprus Refugee Council.

 

Furthermore, access to the file, including the report of the personal interview, is not provided to the applicant after the decision has been issued but only to the legal advisor / lawyer. Again a copy is not provided but only the right to review the file and its contents.

 

Regarding asylum applications examined whilst in detention, the overall quality of the asylum examination is not particularly affected by the fact that the applicant is in detention, as the examination, including the personal interview, is carried out by an officer / caseworker from the Asylum Service with the assistance of an interpreter. However, it is evident that the psychological state of individuals who are in detention is rarely taken into consideration during the interviewing process, including possible victims of torture, trafficking or violence. The majority of interviews are carried out at the offices of the Asylum Service, as with all asylum seekers; even if carried out in the detention centre it will be in a private room by the caseworkers of the Asylum Service.

 

It should be noted that on account of the global escalation of Covid-19, interviews for the examination of asylum applications have been suspended since March 2020 and until further notice. However, examination of cases where the interview has taken place is continuing.

 

All the decisions taken by caseworkers on asylum claims need to be confirmed by the Head of the Asylum Service.[43] In practice this is done on his behalf.

 

Appeal

Appeal bodies

 

In order to ensure that asylum seekers in Cyprus have a right to an effective remedy against a negative decision before a judicial body on both facts and law in accordance with Article 46 of the recast Asylum Procedures Directive, the relevant authorities have taken steps to modify the procedure as follows: abolish the Refugee Reviewing Authority (RRA), which is a second level first-instance decision-making authority that examines recourses (appeals) on both facts and law, but is not a judicial body, and instead provide judicial review on both facts and law before the Administrative Court between January 2016 – June 2019 and from June 2019 before the newly established International Protection Administrative Court (IPAC).

 

Regarding the RRA, which has been the second instance administrative authority, and in view of the changes referred to above, the 2016 amendment to the Refugee Law removed all articles that concern the operations of the RRA. Regardless of this, the RRA continued operations including receiving new appeals until July 2019. Currently it operates only to examine the backlog, which at the end of 2019 was just over 1,300 cases.

 

In view of the intention to abolish the RRA in recent years, most officers of the RRA have been transferred to other authorities, leaving only five examining officers for the backlog.

 

Regarding the Administrative Court, it was established in 2015 and started operating on 1 January 2016, taking over from the Supreme Court as the first-instance judicial review authority for asylum cases.[44] The backlog of asylum cases from the Supreme Court was transferred on to the Administrative Court with the exception of cases that were at the final stage of examination pending a decision.

 

The Administrative Court only examines applications made on 20 July 2015 onwards on both facts and law. For applications made prior to the given date, the Administrative Court will only examine on points of law, as did the Supreme Court. As a result, applicants who applied prior to 20 July 2015 will never have access to an effective remedy before a court or tribunal, as required by the recast Asylum Procedures Directive. In addition, the Administrative Court comprises of only five judges, without any legal assistants, who must determine any judicial review pertaining to an administrative decision, not just asylum decisions, which has raised concerns about the capacity of the Court to deal with such a workload. In 2018, it was acknowledged that the Administrative Court could not fulfil its mandate toward asylum cases. This led to the establishment of a new specialised court to take on international protection cases, named the International Protection Administrative Court (IPAC).[45]

 

Regarding the IPAC it initiated operations in June 2019 and has taken on the backlog from the Administrative Court, as provided in the law which at the time of transfer of jurisdiction was estimated to be approximately 800 cases but this has not been confirmed officially[46]. Due to the short time it has been operating as well as the lack of statistics, the timeframe in which cases are examined is not yet clear, however there are indications that the IPAC is examining faster than Administrative Court.  The Court will be receiving support under the EASO Support Plan 2020 in the form of two Member State experts, five seconded research officers and one interim statistician as well as the possibility of additional training where needed.[47]

 

The main challenges identified when setting up the Court were the lack of comprehensive rules of procedures, infrastructure challenges, a lack of administrative and logistical support and the expected size of the backlog (consisting of new cases, the backlog from the Administrative Court and appeals against decisions by the Reviewing Authority).

 

Rules and time limits

 

In view of the above developments and as of July 2019, an appeal is submitted before the IPAC, within 75 calendar days; this information is included in the first instance decision issued by the Asylum Service. Decisions issued by the RRA can also be appealed within 75 days before the IPAC, which is again communicated in the negative decision issued by the RRA. The appeal before the IPAC has suspensive effect and examines both facts and points of law.[48] There is no specific time limit set for the issuance of a decision but rather the law provides that a decision must be issued as soon as possible.

 

All decisions issued by the IPAC can be appealed before the Supreme Court within 42 days. The onward appeal before the Supreme Court examines only points of law and does not have suspensive effect. However, this remedy is not communicated in the decision that rejects the appeal before the IPAC.

 

During 2017, a policy changed was noted whereby beneficiaries of subsidiary protection who submit an “upgrade appeal before” the RRA against the decision that rejected their application for refugee status remain asylum seekers until a decision on the appeal was issued as the decision granting them subsidiary protection is suspended. This did not apply to beneficiaries of subsidiary protection who submit an appeal before the Administrative Court or IPAC. Furthermore, cases were identified where beneficiaries of subsidiary protection who submit an appeal before the RRA were informed that they were asylum seekers and are not entitled to assistance provided to beneficiaries of international protection but the CRMD continued to issue them with a Residence Permit that stated them to be subsidiary protection holders. However, it has been noted that the overall interest in appealing decisions granting subsidiary protection is low, including among Syrians, the majority of whom receive subsidiary protection. It is not clear whether this is due to fear of reverting to the status of asylum seeker, the low success rate in appeals, or the lack of access to legal representation. In any case, with the RRA ceasing to receive appeals in July 2019 this issue has become obsolete except for the cases that are still pending before the RRA.

 

The Refugee Law allows access, before a decision is issued on the asylum application, to the interview transcript, assessment / recommendation, supporting documents, medical reports and country of origin information (COI) that have been used in support of the decision [49]. However, the vast majority of asylum seekers as well as legal advisors / representatives are not aware of this right and do not exercise it. Access to the aforementioned documents is also provided after rejection of the asylum application. Again, the vast majority of asylum seekers and legal advisors / representatives are not aware of this right or do not exercise it. Access consists of reviewing the file and taking notes of the documents before an administration officer of the Asylum Service; copying or scanning the documents is strictly prohibited. As documents are mostly in Greek and some in English, such as COI reports, it is in fact impossible for an asylum seeker to effectively access their file as they will not be able to understand the content or take copies for someone to translate.

 

The procedure before the RRA is administrative, not judicial, and applicants have a right to submit an appeal without legal representation. However, if they do not have legal representation the chances of succeeding are extremely limited. Due to the fact that legal aid was never provided by the state at this stage of the asylum procedure (see section on Regular Procedure: Legal Assistance), only a small number of applicants are represented and are able to submit well-argued appeals against the decision of the Asylum Service. Before the 2016 amendment to the Refugee Law, it was provided that it is up to the discretion of the RRA to provide for a hearing. In practice, a hearing is very rarely provided for. Such hearings are not carried out in public and the decisions are not published, however a detailed decision is sent to the applicant.

 

The RRA can grant refugee status or subsidiary protection to asylum seekers. The average time taken to issue a decision varies depending on the case. As in the first instance examination for well-founded cases, it is not unusual for the RRA to take over three years to issue a decision. In 2017, due to the rising backlog, the processing time before the RRA has increased even more, with no improvements in 2018 or 2019. However, the RRA is expected to issue decisions on all cases by the end of 2020 when it will cease operations. If rejected by the RRA, an asylum seeker has the right to submit a recourse before the IPAC within 75 calendar days.

 

The procedure before the IPAC is judicial. Applicants can submit an application without legal representation. However, this is not widely known in general and it is discouraged by the Court itself as the procedures are very complicated. Moreover, in view of the problematic access to legal aid (see Regular Procedure: Legal Assistance) it is questionable how many applicants will actually be able to access this remedy. Regarding the procedural rules followed by the Court, these are not considered sufficient [50] and there are important gaps concerning issues related to asylum claims such as the examination of expert witnesses.

 

Following on from the global escalation of Covid-19, the procedures before all national courts since March 2020 have been suspended with the exception of urgent cases and/or cases with a deadline set by the Constitution. This means the Court Registrar of the IPAC will receive legal aid applications and appeals against asylum decisions and other related asylum cases (i.e. family reunification) but the proceedings are suspended. Only proceedings on detention orders are considered urgent and are examined.

 

Legal assistance

 

Asylum seekers have a right to legal assistance throughout the asylum procedure, if they can cover the cost, as free legal assistance is not easily available and pro bono work by lawyers is prohibited by the Advocates Law [51], and may lead to disciplinary measures against lawyers.

 

Legal information and assistance at first instance

 

For the first instance examination, the Refugee Law imposes an obligation on the state to ensure, upon request, and in any form the state so decides, that applicants are provided with legal and procedural information free of charge, including at least information on the procedure in the light of the applicant’s particular circumstances and in case of a rejection of the asylum application, information that explains the reasons for the decision and the possible remedies and deadlines.[52]

 

According to the law,[53] such information can be provided by:

1. Non-governmental organisations;

2. Professional public authorities, provided that they secure the consent of the state authorities;

3. Specialised government agencies, provided that they secure the consent of the specialised government agencies;

4. Private lawyers or legal advisers;

5. The Asylum Service officers who are not involved in processing applications.

 

Finally, the Head of the Asylum Service has the right to reject a request for free legal and procedural information provided that it is demonstrated the applicant has sufficient resources. The Head may require for any costs granted to be reimbursed wholly or partially if and when the applicant’s financial situation has improved considerably or if the decision to grant such costs was taken on the basis of false information supplied by the applicant. If the applicant refuses or fails to satisfy this requirement, the Head may take legal action to recover the relevant amount due as a civil debt to the RoC.[54]

 

According to the Asylum Service, an officer from the Asylum Service who does not examine asylum applications has been designated to provide such information by way of appointments. However, there is no evidence indicating that applicants are aware of this service, nor has anyone mentioned accessing it so far [55]. For cases before the RRA, no such information is provided.

 

In practice, the only free legal assistance available at the administrative stages is extremely limited and under funded projects. Due to the lack of state-provided legal assistance, UNHCR has consistently funded the project “Strengthening Asylum in Cyprus”, implemented by the NGO Future Worlds Center from 2006-2017 and by the Cyprus Refugee Council for 2018, 2019 and 2020 [56]. The project provides for only three lawyers for all asylum seekers and beneficiaries of international protection and, therefore, concentrates on precedent-setting cases. A project funded under the European Refugee Fund (ERF) which provided free legal assistance specifically to asylum seekers was implemented once for the first six months of 2013, then for the first six months of 2014 and for another six months until June 2015 by the NGO Future Worlds Center.[57] Although legal assistance was included as a priority under the Asylum, Migration and Integration Fund (AMIF) at a national level, a relevant call for proposals has not been issued since the introduction of the AMIF.[58] The lack of legal assistance provided by the state, the lack of funding for non-state actors to provide such assistance combined with the lack of any information provided currently by the state (see section on Information for Asylum Seekers and Access to NGOs and UNHCR) leads to a major gap in the asylum procedures in Cyprus.

 

Regardless of the significant rise in the number of asylum applicants in recent years there was no indication in 2019 or early 2020 that the state has taken steps to ensure the right to free legal and procedural information.

 

Asylum seekers 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 NGOs and UNHCR) or via other NGOs that may not have legal assistance and may refer asylum seekers to NGOs that do. Individual officers working in various departments of the government that come in contact with asylum seekers may refer them to NGOs to receive legal assistance, whereas asylum seekers residing in the reception centre may be referred by the staff working there. In the case of asylum seekers in detention, they come into contact with NGOs again through other detainees but also by NGOs carrying out monitoring visits to the detention centre.[59]

 

Legal assistance in appeals

 

Legal aid is offered by the state only at the judicial examination of the asylum application before the Administrative Court (between Jan 2019 – June 2019) and as of June 2019 before IPAC.[60] The application for legal aid is subject to a “means and merits” test.[61] According to this test, an asylum seeker applying for legal aid must show that he or she does not have the means to pay for the services of a lawyer. This claim will be examined by an officer of the Social Welfare Services who submits a report to the IPAC. In the majority of cases, asylum seekers are recognised not to have sufficient resources.

 

Regarding the “merits” part of the test, which is extremely difficult to satisfy, the applicant must show that the “the appeal has a real chance of success”. This means that asylum seekers must convince the judge, without the assistance of a lawyer, that there is a possibility the Court may rule in their favour if it later examines the appeal. Additionally, in this process the state lawyer representing the Republic acts as opponent and always submits reasons why the appeal does not have a real chance of success and why Legal Aid should not be provided, which leads to an extremely unequal process. As a result, it remains nearly impossible for a person with no legal background to satisfy this requirement and since the 2010 amendment of the law for Legal Aid which extended legal aid to the asylum procedure, very few applications for legal aid have been submitted and even less granted.[62]

 

Although IPAC initiated operations in June 2019, at the time of publication no statistics are available. Furthermore the decisions issued by IPAC, including legal aid decisions, are not published on the CyLaw online platform,[63] as is done with all other Courts in Cyprus but only on the online platform Leginet that requires a subscription and only for cases from June to November 2019.[64] This has made it difficult to observe the number of applications for legal aid and the success rate as statistics are not released. However, based on the published decisions on legal aid applications submitted before the IPAC for the period June-November 2019 only one legal aid application has been successful, leading to the observation that the “merits” part of the test remains extremely difficult to satisfy. In early 2020, another two legal aid applications were granted but these were assisted by legal advisors of the Cyprus Refugee Council.

 

Administrative Court decisions on legal aid in asylum cases

 

2016

2017

2018

Granting legal aid

2

2

0

Refusing legal aid

20

13

5

Total decisions

22

15

5

Success rate

9.1%

13.3%

0%

 

Source: Search carried out on the Cylaw database, 2016-2018. In June 2019, the IPAC initiated operations and pending cases were transferred. It is estimated that approximately 800 cases were transferred onto the IPAC.

 

Furthermore, in cases were legal aid is granted the court fees need to be covered up front, which are €96 if the applicant submits without a lawyer and €137 if submitted with a lawyer. This amount, along with other expenses, will be reimbursed after the conclusion of the case but with extremely long delays; such delays occur in all court cases and are not limited to asylum-related cases, however this also acts as deterrent to lawyers to take up cases under legal aid.

 

The UN Committee against Torture (UNCAT) has stated in its fifth report on Cyprus that it is concerned that prospective recipients for legal aid must argue before a court to convince it about the prospects of success of their claim before being granted legal aid.[65] Moreover, the report of the Working Group on the Universal Periodic Review of Cyprus included a recommendation to ensure that asylum seekers have free legal aid during the examination of their application in the first instance and from the assistance of a lawyer. [66]

 


[1]Only upon request of the applicant. The applicant must review the file which is in Greek. A copy of the detailed reasons is not provided to the applicant or to legal representative, they can only take notes.

[2]Article 13(5) Refugee Law.

[3]Article 13(6)(a) Refugee Law.

[4]Article 13(6)(b) Refugee Law.

[5]Article 13(7) and Article 16 Refugee Law.

[6]Article 13(8) Refugee Law.

[7]Article 13(9) Refugee Law.

[8]Article 13(10) Refugee Law.

[9]Information provided by the Cyprus Refugee Council.

[10]EASO, Special support plan to Cyprus – Amendment No 4, December 2017, available at: http://bit.ly/2DWSHm9, Measure CY 8.1.

[11]Information provided by EASO, 13 February 2019.

[12]EASO, Operational & Technical Assistance Plan to Cyprus 2019, December 2018, Measure CY 3.0.

[13]ECRE, The role of EASO operations in national systems: An analysis of the current European Asylum Support Office (EASO) Operations involving deployment of experts in asylum procedures at Member State level, 29 November 2019, available at: https://bit.ly/3dcX6D0.

[14]Information provided by EASO, 13 February 2019. EASO does not take the actual decision on the application, as this remains within the remit of the Asylum Service.

[15]Article 12E Refugee Law.

[16]Within the meaning of Article 9KΔ Refugee Law.

[17]EASO, Special support plan to Cyprus – Amendment No 4, December 2017, Measure CY 8.1.

[18]Note that this is also a ground for using the accelerated procedure.

[19]Article 13A(1) Refugee Law.

[20]Article 13A(2) Refugee Law.

[21]Information provided by the Cyprus Refugee Council.

[22]Information provided by the Cyprus Refugee Council.

[23]Article 13A(1A) Refugee Law.

[24]Ministerial Decree 187/2017 of 9 June 2017 pursuant to Article 13A(1A) of the Refugee Law, available at: http://bit.ly/2G5dSDs.

[25]Ministerial Decree 297/2019 pursuant to Article 13A(1A) of the Refugee Law available at http://bit.ly/3c9bpb7.

[26]Information provided by EASO, 13 February 2019.

[27]ECRE, The role of EASO operations in national systems: An analysis of the current European Asylum Support Office (EASO) Operations involving deployment of experts in asylum procedures at Member State level, 29 November 2019, available at: https://bit.ly/3dcX6D0.

[28]Article 13A(9) Refugee Law.

[29]Article 16(2)(a) and Article 18(3)-(5) Refugee Law.

[30]Article 13A(10) Refugee Law.

[31]Based on review of cases between 2006-2018 by the Cyprus Refugee Council and previously the Humanitarian Affairs Unit of the Future Worlds Center.

[32See ECRE, The role of EASO operations in national systems: An analysis of the current European Asylum Support Office (EASO) Operations involving deployment of experts in asylum procedures at Member State level, 29 November 2019, available at: https://bit.ly/3dcX6D0.

[33]Based on review of cases between 2006-2018 by the Cyprus Refugee Council and previously the Humanitarian Affairs Unit of the Future Worlds Center.

[34]KISA, Comments and observations for the forthcoming 52nd session of the UN Committee against Torture, April 2014, available at: http://bit.ly/1I2c0K3, 39-40.

[35]Information provided by the Cyprus Refugee Council.

[36]Information from legal advisors of the Cyprus Refugee Council present at the interviews.

[37]Information from legal advisors of the Cyprus Refugee Council on cases represented.

[38]Article 18(2A)(a)(i) Refugee Law.

[39]Article 18(2A)(a)(iii) Refugee Law.

[40]Article 18(1A) Refugee Law.

[41]Article 18(2B)(a) Refugee Law.

[42]Article 18(2B)(b) Refugee Law.

[43]ECRE, Asylum authorities: an overview of internal structures and available resources, October 2019, available at: https://bit.ly/2xwLqdP.

[44]Law N. 131(I)/2015 on the establishment and operation of the Administrative Courts, 21 July 2015.

[45]Law N. 73(I)/2018 on the establishment of the Administrative Court for International Protection. (IPAC Law)

[46]Information provided by Cyprus Refugee Council

[47]EASO Operating Plan 2020, available at: http://bit.ly/382C6eI.

[48]Article 8 Refugee Law.

[49]Article 18(2B) and (7A) Refugee Law.

[50]EASO Operating Plan 2020, available at: http://bit.ly/382C6eI.

[51]Article 17(9) Advocates Law.

[52]Article 18(7Γ)(a) Refugee Law.

[53]Article 18(7Γ)(c) Refugee Law.

[54]Article 18(7Γ)(d) and (e) Refugee Law.

[55]Information provided by the Cyprus Refugee Council.

[57]For an overview, see FWC, Provision of Free Legal Advice to Asylum Seekers in Cyprus, available at: http://bit.ly/1Mahy6e.

[58]Ministry of Interior, European Funds, available at: http://bit.ly/2mcB4sq.

[59]Information provided by the Cyprus Refugee Council, which carries out weekly visits to the detention centre.

[60]Article 6B(2) Legal Aid Law.

[61]Article 6B(2)(b)(bb) Legal Aid Law.

[62]According to a search carried out on the Cylaw database, for 2010-2017, approximately 87 applications for legal aid submitted by asylum seekers were found, out of which 9 were granted.

[64]Leginet is a subscription-based database for legislation, caselaw and secondary legislation, available at: https://bit.ly/2WfLqsR.

[65]UNCAT, Concluding Observations on the Fifth Report of Cyprus, Committee against Torture, December 2019.

[66]UN Human Rights Council, Report of the Working Group on the Universal Periodic Review: Cyprus, Twenty seventh session, April 2019.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation