Author
In the past, asylum seekers were detained under the Aliens and Immigration Law instead of the Refugee Law, which provides for the detention of asylum seekers in accordance with the recast Reception Conditions Directive. In 2020 and 2021, this practice gradually changed and, with the exception of a limited number of cases, whose specificities will be described below, the majority of asylum seekers are detained under the Refugee Law.
Detention under the Refugee Law
The Refugee Law prohibits detention of asylum applicants for the sole reason that “he” is an applicant,[1] and prohibits detention of child asylum applicants.[2] Detention of asylum seekers under the Refugee Law is based on an administrative order and not a judicial order,[3] as was previously the case, and is permitted for specific instances that reflect those in the recast RCD. According to the law, unless it is possible to effectively apply less coercive alternative measures, based on an individual assessment of each case, the Minister of Interior may issue a written order to detain the applicant for any of the following reasons:
- to establish his identity or nationality;
- to identify those elements on which the application is based, which could not be obtained otherwise in particular when there is a risk of absconding of the applicant;
- to decide, in the context of a procedure, on the applicant’s right to enter the territory;
- when held within the scope of the return procedure under Articles 18ΟΓ up 18ΠΘ of the Aliens and Immigration Law, in order to prepare the return and / or carry out the removal process, and the Minister substantiates on the basis of objective criteria, including the fact that the person has already had the opportunity of access to the asylum procedure, that there are reasonable grounds to believe that the person is submitting the application for international protection merely in order to delay or frustrate the enforcement of the return decision;
- where necessary to protect national security or public order;
- in accordance with Article 28 of the Dublin III Regulation.
In addition, in 2018, the Refugee Law was amended to include provisions regulating the detention of asylum seekers under the Dublin Regulation, and, in particular, specifying when there is a significant risk of absconding, in which case the detention of an asylum seeker may be ordered. These include: non-compliance with a return decision; non-compliance with or obstruction of a Dublin transfer, or a reasonably verified intention of non-compliance; the provision of false or misleading information; previous expulsion or return; false statements on the person’s address of usual residence; previously absconding; abandonment of a reception centre; unfounded statements in the course of the Dublin interview; deliberate destruction of identity or travel document; and failure to cooperate with the Cypriot authorities with a view to establishing identity or nationality.[4]
In general, there is no evidence that there is an effective procedure in place to examine less coercive alternative measures, based on an individual assessment of each case before detention is ordered (see Alternatives to detention).
Until lately, all detention orders reviewed included only the wording of the article and, although it was stated that an individual assessment had been carried out, there were no individual facts or reasons for detention or any other reference, justification or findings of an individual assessment. Furthermore, the detention order would refer to “objective criteria” but there was no mention or analysis on what those objective criteria were and how they were applied or justified in the individual case. This raised comments by the IPAC. Judges would often comment that the detention orders did not have adequate justification. Detention was not considered illegal but they instructed the CRMD to review them. [5] As a result, since late 2021 till this day, detention orders now list the reasons for which detention has been ordered, for example, illegal entry, delay in applying for asylum, convicted for criminal offence, lack of travel document or address. However, there is no mention of the facts of the case or an individual assessment on how these reasons justify detention. The situation remained the same in 2022.
Detention under the Aliens and Immigration Law
The Aliens and Immigration Law provides that a person can be detained if declared a “prohibited immigrant” and provides 13 instances under which a person may be declared a “prohibited immigrant”.[6] When declared a “prohibited immigrant”, a person can be detained under separate provisions of the Aliens and Immigration Law that transpose the Returns Directive,[7] for the purpose of return, although the return order is suspended until the asylum application has been decided on.
In the past, asylum seekers were mostly detained as a “prohibited immigrant”. However, from late 2017 onwards, the practice changed: in the majority of cases, once the person has applied 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.[8] The change in practice was also noted in the recent CAT report on Cyprus.[9] Throughout 2021 and 2022, the only cases identified where an asylum seeker was detained under the Aliens and Immigration Law were instances where the person was firstly detained, then applied for asylum whilst in detention and there was a delay in issuing the new detention order under the Refugee Law.
Detention Orders
Until November 2022 administrative orders issued for detention are issued by the CRMD, which is under the Ministry of Interior. The Asylum Service does not issue such orders.[10] In December 2022, a number of detention orders were issued directly from the Ministry of Interior. These cases concerned persons who were allegedly involved in clashes that took place in Pournara camp[11] and thus detention orders was issued against them as ‘necessary to protect national security or public order’.[12] More than 70 persons were issued detention orders for their alleged involvement in the clashes, regardless of the fact that there was no criminal investigation.[13]
Asylum seekers are mainly detained on the territory and rarely at entry points (ports, airports). Cyprus, being an island, has no external borders. People apprehended by the police within RoC territory before applying for asylum are often arrested for irregular entry and/or stay, regardless of whether they were intending to apply for asylum, even if they were on their way to apply for asylum and have only been in the country for a few days. Since 2014 and up to now, this would not apply to Syrian nationals who will not be arrested even if they have not regularised their stay.
The vast majority of asylum seekers enter Cyprus through the territories that are not under the effective control of the RoC (see section on Access to the Territory) and then cross the “green line” into the areas under the effective control of the RoC in an irregular manner. The “green line” is not considered a border, and even the crossing points are not considered official “entry points”. There are no detention facilities near the green line.
During the determination procedure to identify the Member State responsible under the Dublin Regulation, the applicant has the right to remain and enjoys the rights afforded to applicants for international protection.[14] In practice, if a person arrives in Cyprus and there is a possibility that another Member State is the responsible for examining their request, they are considered an asylum seeker and enjoy all such rights and will not be detained for this reason alone. Furthermore, Dublin returnees whose final decision has not been issued are not detained. For Dublin returnees who have a final decision there is the possibility to be detained upon return, although there have been no cases to indicate the policy.[15]
[1] The female gender has not been included in the Refugee Law, although this was requested by UNHCR and NGOs during consultations carried out prior to the amendment of the Law.
[2] Article 9ΣΤ Refugee Law.
[3] Ibid.
[4] Article 9ΣΤ-bis Refugee Law, inserted by Law No 80(I)/2018 of 12 July 2018.
[5] Information provided from the Cyprus Refugee Council and derived from reviewing IPAC decisions, e.g. A.H Κυπριακής Δημοκρατίας, μέσω Διευθυντή Τμήματος Αρχείου Πληθυσμού και Μετανάστευσης, available at: https://bit.ly/3MElm2E.
[6] Article 6(1) Aliens and Immigration Law.
[7] Article 18ΠΣΤ Aliens and Immigration Law.
[8] Article 9ΣΤ (2)(δ) Refugee Law.
[9] UNCAT, Concluding Observations on the Fifth Report of Cyprus, Committee against Torture, December 2019.
[10] Based on information from cases represented by the Cyprus Refugee Council.
[11] The Reporter, First seen epeisodes in Pournara, women and children were running for cover, available at: https://bit.ly/3FCwzP4.
[12] Article 9ΣΤ (2)(ε) Refugee Law.
[13] Based on information from cases represented by the Cyprus Refugee Council.
[14] Article 9(1)(b) Refugee Law.
[15] Information based on monitoring visits carried out by the Cyprus Refugee Council to the Kofinou Reception Centre.