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 lack of an individual assessment and consideration of less restrictive measures was raised in two decisions issued in 2019 by the IPAC.[5] They related to appeals challenging detention based on article 9ΣΤ (2)(δ) of the Refugee Law.[6] In both decisions, the IPAC mentioned the lack of assessment of any objective criteria that would justify the applicant’s detention. It also held that there needs to be an individualised assessment of the subjective criteria of each case, before issuing a detention order. In G.N. v. The Republic, the IPAC mentioned that the authorities “did not even bother” to examine any alternative measures to detention and held, therefore, that the principle of proportionality was not taken into consideration. It ordered the immediate release of the applicant with reporting obligations to the authorities three times per week. In T.E.V. v. the Republic, the Court stressed the need to provide a specific justification for each detention order issued and made a reference to the need to take the proportionality and necessity principle into consideration for every detention order issued by the CRMD.
In early 2019, the Supreme Court delivered a positive decision on a Habeas Corpus application with reference to alternatives to detention, ordering the immediate release of an asylum seeker who was detained for nearly one year.[7] Specifically, the Court clarified that the possibility to order less coercive alternatives exists not only upon the issuance of the detention order but during the entire period of detention, and should be examined when detention exceeds reasonable time limits.
Additionally, in the ΔΚ 73/2020 judgement,[8] the IPAC highlighted the need for an individual assessment of detention in line with the principles of proportionality and necessity. In cases ΔΚ 45/20[9] and ΔΚ 105/21,[10] 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 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]
In 2015-2016, a research project was implemented by FWC with funding from the European Programme on Integration and Migration (EPIM) with the aim of identifying and promoting alternatives to detention (ATD) that can be implemented in the Cypriot context. In 2017-2019, the CyRC, building on the findings of the project, implemented a pilot project under EPIM based on the CAP model developed by the International Detention Coalition (IDC) within the procedures followed in Cyprus, with the aim to promote alternatives to detention, as well as the overall resolution of cases.[13] This was carried out by providing case management and conducting evidence-based advocacy following on the findings of the cases.
Since July 2019 and continuing until mid-2023, the CyRC has been implementing 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. 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.
In October 2020, the CRMD appointed an officer to examine the use of alternative measures to detention. The officer performs visits to places where undocumented migrants or asylum seekers are being detained and carries out screening interviews. A report is prepared based on the interview, which recommends whether alternatives to detention should be used or not. Since the appointment of the ATD officer, CyRC has been 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. However the use of alternatives to detention remains low.
Overall “alternatives to detention” is rarely if ever examined prior to detention being ordered. Throughout 2020, 2021 and 2022, 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.
During the spring in 2020, all deportations were suspended due travel limitations throughout the world. Following the Commissioner for Human Rights of the Council of Europe´s remarks,[14] the CyRC recommended that detainees under removal procedures be released as removal was not possible. However, no detainees were released during the lockdown which lasted from March until the end of May 2020. In April 2020, the CRMD started releasing detainees from Menogia by ordering alternatives to detention. However, the alternative was to move them to Pournara, the First Reception Centre which has been operating as a closed Centre from February 2020.
In July 2020, an asylum seeker from Gaza who had been detained in Menogia and later transferred to Pournara filed an application requesting legal aid in order to challenge the decision that ordered him to stay there as an alternative to detention.[15] The success of a legal aid application is subject to a ‘means and merits’ test, according to which an asylum seeker applying for legal aid must show that they do not have the means to pay for the services of a lawyer and that “the appeal has a real chance of success”. The applicant’s main claim was that the alternative used in his case was disproportionate: it was imposed on him without a prior individualised assessment and mainly, itself constituted de facto detention and therefore was not less coercive. Indeed, at the time, asylum seekers detained in Menogia were afraid to be transferred to Pournara, as the living conditions there are much worse than Menogia. The legal aid was successful and a few days after the decision of the Court, all detainees that had been ordered to stay in Pournara as an alternative to detention were released into the community with reporting conditions.[16]
[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, 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, 44-45 See also summary in English at: http://bit.ly/2jEHGLz.
[5] G.N. v. The Republic, ΔΔΠ 155/2019 (5/11/2019); T.E.V. v the Republic, ΔΔΠ 270/2019 (8/11/2019)
[6] Ibid.
[7] Supreme Court, Application 1/2019, 24 January 2019, available in Greek at: https://bit.ly/2GgJeKM. See also Philenews, ‘Ανώτατο: Άμεση αποφυλάκιση αιτητή πολιτικού ασύλου’, 5 February 2019, available in Greek at: https://bit.ly/2RJefrX.
[8] A.H. ν. Republic of Cyprus Case No. ΔΚ 73/2020, 29/1/2021.
[9] S.R. ν. Republic of Cyprus, Case No. ΔΚ 45/20, 17/11/2020.
[10] M.R. ν. Republic of Cyprus, ΔΚ 105/21, 15/11/2021.
[11] UNCAT, Concluding Observations on the Fifth Report of Cyprus, Committee against Torture, December 2019.
[12] UN Human Rights Council, Report of the Working Group on the Universal Periodic Review: Cyprus, Twenty seventh session, April 2019.
[13] Implemented by FWC from March 2017-December 2017.
[14] Council of Europe, COVID-19 pandemic: urgent steps are needed to protect the rights of prisoners in Europe, April 2020, available at: https://bit.ly/3rPOadE.
[15] Article 9ΣΤ(3)(γ) Refugee Law.
[16] The decision has not been published. The applicant is a beneficiary of CyRC and had been assisted throughout the legal aid application.