Author
The Refugee Law allows the detention of asylum seekers subject to no time limit. Therefore, in most cases persons will remain in detention until they are deported, opt to leave voluntarily or receive international protection. A limited number of cases will be released based on a Court Order.
Since 2017, a new practice emerged whereby once a person that is already detained applies for asylum, a new detention order is issued under the Refugee Law under the presumption that the person is submitting the application for international protection merely in order to delay or frustrate the enforcement of the return decision. As a result, their detention has no time limit.
In January 2019, the Supreme Court ordered the immediate release of an asylum seeker who was detained under the Refugee Law for nearly one year. The Court noted that, although asylum detention has no specified maximum time limit, Article 9ΣΤ(4)(a) of the Refugee Law provides that detention shall be imposed for the shortest period possible and shall be carried out without undue delay. Therefore, delays in processing the asylum application of a person in detention which cannot be imputed to the applicant do not justify the continuation of detention.[1]
In 2019, the number of asylum seekers in detention at any time lowered to approximately 45 from an average of 75.[2] The duration of detention also went down, and asylum seekers were released on average following one and a half to two months of detention, with the exception of asylum seekers who were detained for “national security reasons” or “public safety”.[3] This included nine Syrian nationals, with some detained over 24 months. In late 2019, the Syrian detainees as well as one Egyptian detainee initiated hunger strikes in protest at the lengthy detention.[4] All of these nine Syrian nationals as well as the Egyptian national, have been since released, with no criminal charges brought against them. [5]
In 2020, there was a substantial deterioration in the duration of detention for asylum seekers, from around 1-2 months in 2019, to indefinite detention which continues until present. Once detained, an asylum seeker will in most cases remain detained for the duration of the asylum procedures. For asylum seekers detained in Menogia Detention Centre, the duration of the first instance examination of the asylum application is on average 2 months, whereas if detained in a holding cell it may take longer. Furthermore, if an appeal is submitted before the IPAC against a negative decision on the asylum application the duration of detention may reach or even go over 12 months. Duration of detention remained an issue throughout 2021 and 2022.
In 2020, after a series of Habeas Corpus applications before the Supreme Court, 4 detainees who had been detained for “national security” reasons were released due to their period of detention being unreasonably long.[6] In July, the Court ordered the release of a Syrian detainee after 16 months of detention for “national security reasons”.[7] It decided that the applicant’s detention was in violation of the Refugee Law because they were not held for the shortest period possible and no steps had been taken for their removal although the application for asylum had been rejected.[8] The Court also commented that the state, as well as European Union institutions, need to identify solutions with regards to detention of third-country nationals considered as a threat to national security. In September 2020, the Supreme Court ordered the release of an asylum seeker of Egyptian origin, also detained for reasons of national security.[9] He had already applied for Habeas Corpus five months after being detained and the application had failed. He was eventually detained for 19 months because he was suspected of being a member of a terrorist organisation, without any evidence that he was an active threat. The Court found that the administration had made no attempt to assess the reason for detention and, therefore, the element of “necessity” for his detention was not satisfied.
In early 2021, the Supreme Court again decided on a Habeas Corpus application of a Syrian national detained for reasons of “national security”.[10] The applicant had been detained for 21 months during which his asylum application had been examined and he had been excluded from Subsidiary Protection, as he was considered to be a threat to national security due to his participation in a terrorist group. He appealed the exclusion decision, appeal that was still pending, and thus was still considered to be an asylum seeker. The Court ordered his release as he could not be returned to Syria. The criminal investigation of his case had been concluded on 3 February 2020: no criminal proceedings had been ordered, and no other actions taken in relation to the terrorist charges, therefore his detention could no longer be justified.
In November 2022, the Supreme Court[11] ordered the release of a Syrian asylum seeker who was detained for reasons of ‘national security or public order’ when the police discovered photos he had posted on his Facebook account showing himself holding a gun and wearing the uniform of terrorist organisations. The Asylum Service found that he met the criteria to be recognised as a refugee since his return to Syria entailed risks of persecution; he was nevertheless deemed ineligible for an international protection status because of his involvement in extremist armed groups; his asylum application was rejected. The applicant appealed against the rejection and, through a separate application, challenged his detention through an application for habeas corpus. In the application, he requested disclosure of the documents and information which the authorities had in their possession, which according to the authorities, justified his continued detention. The trial court rejected his application for habeas corpus, stating that the applicant already knew the reasons for his detention, namely his social media posts implicating him with terrorist organisations. He appealed the first instance rejection of his habeas corpus application arguing that the failure of the authorities to disclose the information on the basis of which they detained him infringed the principle of equality of arms and his right to a fair trial, in violation of the EU Charter for Fundamental Rights and the ECHR. The Appeal Court set aside the trial court decisions that rejected the habeas corpus application and ordered the applicant’s release from detention, on the ground that the authorities failed to adequately and accurately justify why the applicant was seen as a risk to national security. As a result of the authorities’ failure to justify why the applicant’s detention for 14 months was necessary, his detention was rendered unlawful and the habeas corpus order was issued.
The above-mentioned court decisions have not had an impact on the policies or practices followed with regard to the length of detention which continues to be indefinite in 2021 and 2022. Furthermore in 2022, there has been an increase in detainees being deported, as well as a significant increase in detainees opting for voluntary return[12] which has led to a decrease in the average duration of detention.
[1] 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.
[2] 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.
[3] Article 9ΣΤ(2)(ε) Refugee Law.
[4] 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; For more information see: https://bit.ly/2w90nT3.
[5] Information based on monitoring visits to Menogia Detention Centre by the Cyprus Refugee Council.
[6] Supreme Court, Application 4/2020, 24 February 2020, available in Greek at: https://bit.ly/3qO3o1h ; Supreme Court, Application 64/2020, 9 July 2020, available in Greek at: https://bit.ly/2OoatZv ; Supreme Court, Application 28/2020, 28 July 2020, available in Greek at: https://bit.ly/2PVWJFw ; Supreme Court, Application 56/2020, 15 September 2020, available in Greek at: https://bit.ly/3eFI77O.
[7] Supreme Court, Application 64/2020, 9 July 2020, available in Greek at: https://bit.ly/30NlBkU.
[8] Article 9ΣΤ(4)(α) and (β) Refugee Law.
[9] Supreme Court, Application 56/2020, 15 September 2020, available in Greek at: https://bit.ly/3qRRZxw.
[10] Supreme Court Application 177/2020, 24 February 2021 available in Greek at: https://bit.ly/316sMoA.
[11] Supreme Court, Appeal, Application 15/22, 17 November 2022, available in Greek at https://bit.ly/3ln9FEH.
[12] Based on information from the monitoring visits to the detention centre by Cyprus Refugee Council