Grounds for detention

Cyprus

Country Report: Grounds for detention Last updated: 30/11/20

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The Aliens and Immigration Law regulates detention in accordance with the provisions of the Return Directive, while the Refugee Law provides for the detention of asylum seekers in accordance with the recast Reception Conditions Directive.

 

Detention under the Refugee Law

 

The Refugee Law prohibits detention of asylum applicants for the sole reason that “he” is an applicant,[1] and also 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 Reception Conditions Directive.

 

According to the law, unless it is possible to effectively apply other 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:

(a)   to establish his identity or nationality;

(b)   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;

(c)   to decide, in the context of a procedure, on the applicant’s right to enter the territory;

(d)   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;

(e)   where necessary to protect national security or public order;

(f)     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 it is considered that a significant risk of absconding is present, 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; provision of false or misleading information; previous expulsion or return; false statements on the person’s address of usual residence; previous absconding; abandonment of a reception centre; unfounded statements in the course of the Dublin interview; deliberate destruction of identity or travel documents and failure to cooperate with the Cypriot authorities with a view to establishing identity or nationality.[4]

 

However, 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.

 

In late 2017, the first detention orders were published under the Refugee Law since the article was introduced in October 2016. Throughout 2018 there was an increase in the issuance of detention orders under the Refugee Law, however the practice was not uniform as some asylum seekers were detained under the Refugee Law and others under the Aliens and Immigration Law. Throughout 2019 and onwards, a new policy was initiated according to which all detainees, regardless of the initial basis for detention, once applying for asylum are issued a detention order under the Refugee Law, including persons with criminal convictions.[5] The detention order is issued automatically without reviewing less coercive measures as was raised in two recent decisions issued by the IPAC. [6] In both decisions, the Court mentioned the lack of assessment of any objective criteria that would justify the applicant’s detention. The Court 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 Court 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 conditions 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 also made reference to the need to take the proportionality and necessity principle into consideration for every detention order issued by the CRMD.

 

All detention orders reviewed include only the wording of the article and, although it is stated that an individual assessment has been carried out, there are no individual facts or reasons for detention or any other reference, justification or findings of an individual assessment. Furthermore, the detention order refers to “objective criteria” but there is no mention or analysis on what those objective criteria are and how they are applied or justified in the individual case.

 

Detention as “prohibited immigrant”

 

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”. Of the 13 instances, the ones that were most commonly applied to asylum seekers were the following:

(a)   When a person is deported from the RoC;[7]

(b)   When a person enters or remains in the RoC in breach of any prohibition, terms, restrictions or reservations included in the Aliens and Immigration Law, or any Regulations issued based on that Law, or any permit issued based on that Law or Regulations;[8]

(c)   Where a person is considered a prohibited immigrant based on the provisions of the Aliens and Immigration Law.[9]

 

According to the Aliens and Immigration Law, a “prohibited immigrant” found in the RoC is guilty of a criminal offence and is subject to imprisonment for A period that does not exceed three years or to a fine which does not exceed 5,000 Cypriot pounds (approx. €8,500), or to both imprisonment and a fine.[10] The Law also foresees the offences of entering the RoC on a temporary permit and remaining beyond the expiration of that permit;[11] remaining in the RoC on a permit and violating any conditions of that permit or taking on any form of work without the necessary permit;[12] and violating a condition or restriction imposed by the Aliens and Immigration Law or the Refugee Law.[13]

 

In the past, asylum seekers were mostly detained as a “prohibited immigrant” however from late 2017 onward, the practice changed and 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. [14] The change in practice was also noted in the recent CAT report on Cyprus. [15]

 

Detention for the purpose of removal

 

Asylum seekers have also been detained under separate provisions of the Aliens and Immigration Law that transpose the Returns Directive,[16] for the purpose of return, although the return order is suspended until the asylum application has been decided on. From late 2017 onward, the practice changed and 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 and detention is thereby justified. These provisions do not apply to persons subject to a return decision as a criminal law sanction or as a consequence of a criminal sanction; in such cases they will be detained as a “prohibited immigrant”, as described above.

 

All administrative orders issued for detention, including for the detention of asylum seekers, are issued by the Civil Registry and Migration Department (CRMD), which is under the Ministry of Interior and is responsible for the removal of persons with irregular status. The Asylum Service does not issue such orders and can only recommend an asylum seeker is released.[17]

 

Asylum seekers are mainly detained on the territory and are rarely detained 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 to date, this does not apply to Syrian nationals who will not be arrested even if they have not regularised their stay, with the exception of a number of Syrians who entered the RoC by boat and were arrested, convicted and sentenced to prison for irregular entry due to previously being in Cyprus and still listed as “prohibited immigrants.”[18]

 

Throughout 2016, in a number of boat arrivals, Syrian nationals were arrested and charged with illegal stay due to prior entry bans. However, for some, the case was withdrawn upon intervention, whereas in other boat arrivals they were convicted and given four-month prison sentences. From April 2017 onwards, the practice of arresting and prosecuting Syrian refugees arriving on boats for illegal entry due to their irregular stay in the past has ceased.

 

Around the same time, in another case, an Iranian applicant who had spent many years in Cyprus throughout his childhood and had then been returned to Iran with his family, was arrested for violating a re-entry ban when he returned to Cyprus and presented himself to the authorities to submit an application for international protection. The Court accepted that the reason of entry was to submit an application for international protection and therefore acquitted him on the charges of illegal entry.[19]

 

The vast majority of asylum seekers enter Cyprus through the territories in the north (see section on Access to the Territory). But as the “green line” between them is not considered a border, there are no 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.[20] In practice, if a person arrives in Cyprus and there is a possibility that another Member State is the responsible state then they are considered an asylum seeker and enjoy all such rights and will not be detained for this reason alone. Although the 2014 detention policy has no reference or information on this, in practice Dublin returnees whose final decision has not been issued yet 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.[21]

 


[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 based on monitoring visits carried out to Menogia Detention Centre by the Cyprus Refugee Council.

[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] Article 6(1)(θ) Aliens and Immigration Law.

[8]Article 6(1)(κ) Aliens and Immigration Law.

[9] Articles 6(1) and 14(1)(μ) Aliens and Immigration Law.

[10]Article 19(2) Aliens and Immigration Law.

[11]Article 19(λ) Aliens and Immigration Law.

[12]Article 19(κ) Aliens and Immigration Law.

[13]Article 19(ν) Aliens and Immigration Law.

[14]Article 9ΣΤ (2)(δ) Refugee Law.

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

[16]Article 18ΠΣΤ Aliens and Immigration Law.

[17]Based on information from cases represented by the Cyprus Refugee Council.

[18]See KISA, ‘The imprisonment of refugees is a crime’, 15 November 2016, available at: http://bit.ly/2kABSTr.

[19]District Court of Ammochostos, Seyed Ramtin Salehi, Case No 2073/2016, 14 November 2016, available in Greek at: http://bit.ly/2kATouV. See also KISA, ‘The imprisonment of refugees is a crime’, 15 November 2016.

[20]Article 9(1)(b) Refugee Law.

[21]Information based on monitoring visits carried out by the Cyprus Refugee Council to the Kofinou Reception Centre.

 

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