Author
Detention based on the Refugee Law or the Aliens and Immigration Law as a “prohibited immigrant” has no time limit or automatic review and can only be challenged judicially. Detention based on the Aliens and Immigration Law, under the articles that transpose the Returns Directive, has a maximum limit of 18 months and provides for periodic reviews of the lawfulness of detention or review of this upon request of the detainees but in practice, this does not take place. Instead, the initial motivation is repeated, usually stating a lack of cooperation by the detainee for the issuance of travel documents, regardless of whether the detainee is an asylum seeker and without stating any reasoning or facts to support the claim of lack of cooperation. Even when the applicant (or his or her legal representative) requests a review, in most cases the administration does not even respond to the request. This was again confirmed in 2020.[1] The 2016 ruling by the Supreme Court that an order prolonging detention must be issued in writing and provide reasons for such prolongation, even if the maximum time limit of 18 months permitted by Article 18ΠΣΤ of the Aliens and Immigration Law has not yet been reached has had an impact on the practice.[2]
Regarding access to detention orders, asylum seekers in detention will often not have the detention order on them or the latest detention order in case of renewal. If they request the detention order, which may be kept in individual files in the offices of the centre, they will be provided with it, however in 2021 and 2022 cases were identified in Police Holding Cells where the detention order was issued or communicated to detainees with delays reaching 2-3 weeks.[3] There have also been instances, where NGOs request to review the detention orders of their beneficiaries and the police refuse to provide these to the NGOs or even to the detainees themselves.[4]
Until 2021, 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 are applied or justified in the individual case. This raised concerns from the IPAC, and Judges would often comment that the detention orders did not have adequate justification even if detention was not considered illegal and instructed the CRMD to review them.[5] As a result, since late 2021 detention orders list the reasons for which detention has been ordered (e.g. 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 in 2022 remained the same.[6]
Detention orders also include a brief description of the right to challenge the order by recourse before the Administrative Court or the IPAC, as well as the right to apply for legal aid but do not mention the right to submit a Habeas Corpus application to challenge the duration of detention. Moreover, there is no information on the procedure to be followed to access these remedies, including legal aid. The administrative order is usually issued in English and/or in Greek, and it is never provided in a language the applicant is known to understand.
In Menogia, detainees are given a list of lawyers and a general leaflet available in many languages informing them of their rights and obligations in detention but this does not include information on the right to legal challenges and the right to legal aid and how to access this. However, from discussions with detainees it is evident that they do not have knowledge of the reasons for their detention or the legal challenges and legal options available and how to go about these.[7] In spite of claims by the CRMD that detainees are always provided written information regarding the grounds of their detention and their rights to challenge the detention orders, and that every reasonable effort is made to ensure that detainees receive the information in a language they understand,[8] little improvement has been made and the situation, as reflected in older reports, remains.[9]
In late 2019, in an effort to address the issue of lack of information, the Cyprus Refugee Council, within the scope of the ATD project, issued an information leaflet that provided basic information on detention, access to asylum procedures, available remedies to challenge detention and access to legal aid. The leaflet was made available in Menogia. It was also disseminated in 2020 but has since has not been updated or disseminated due to unavailable resources to publish.
Regarding access to Court, detainees in Menogia usually have access to courts with no delays. In 2020 as part of the measures taken to address COVID-19, any exit from all detention/reception centres had to be authorised by the Minister of Interior. This led to delays in accessing courts, which at times required NGO interventions.[10] Combined with the shorter deadline to challenge detention, the measure had a direct impact on effective access to legal remedies. From March 2021 onwards such authorisation was no longer required.
For detainees in holding cells, access to court is problematic without a lawyer, including when trying to access legal aid. Contrary to Menogia, there are no clear procedures on how to request access to judicial procedures and no clear guidelines for the police officers to respond to such requests. The police officers stationed in holding cells are responsible only for guarding detainees whereas access to asylum procedures and access to Court for asylum seekers is the responsibility of the AIU. In the absence of clear procedures, police officers in holding cells often ignore the requests from detainees to access legal remedies or are late in notifying the AIU who will transfer detainees to court. Furthermore, there are also practical difficulties in transferring detainees from the various holding cells spread out across the country to the relevant courts that are only in Nicosia as it is more time consuming and requires more resources in comparison with transferring detainees from Menogia. This leads to practices varying widely between police stations and undue delays in granting access to legal remedies, or to applicants being left with no access to remedies due to deadlines elapsing.
Throughout 2021 and 2022 interventions were made by the Cyprus Refugee Council toward the CRMD, the AIU, the Office of the Ombudsperson and the Asylum Service advocating for clear procedures to be put in place to ensure access to legal remedies. However, no progress was noted and individual cases required repeated interventions to ensure detainees in holding cell were transferred to court. On the contrary, the Cyprus Refugee Council has monitored instances where detainees were taken to Court to apply for legal aid, one day before the deadline of their appeal. The judge would grant the legal aid on the same day and the detainees had to find a lawyer to submit an appeal for them the next day. In another instance, the detainee in a holding cell was not given access to Court and therefore missed his deadline to appeal his detention. He was given access to Court several days after he was transferred to Menogia.
Regarding legal remedies, according to national legislation, there are two legal remedies available to challenge detention for immigration purposes, whether detained under the Refugee Law or under the Aliens and Immigration Law for immigration/return purposes a recourse before the IPAC or Administrative Court depending on the legal basis of detention and a Habeas Corpus application before the Supreme Court.
Recourse
In recent years, the majority of asylum seekers are detained based on the Refugee Law. In such cases, according to the law, the detention order can be challenged before the IPAC (see section on Grounds for Detention).[11] The deadline to submit an appeal was reduced from 75 days to 15 days in 2020.[12] The IPAC is obliged to issue a decision within four weeks and in order to do so may instruct legal representatives to submit oral arguments instead of written arguments as the procedure usually requires.[13] Throughout 2019, the majority of applicants who applied for legal aid were released before reaching the Court, however the four-week deadline seems to be observed.[14] In 2020 however, this practice did not continue and detainees were not released upon submitting legal aid applications leading to a rise in the number of asylum seekers in detention as well as the length of detention. Regarding the length of the examination of cases, these often passed the 4-week time limit and were examined on average within 8 weeks.[15] In 2021 and 2022, the duration of examination improved; however, in cases that required interim procedures to the main judicial procedure, either to adduce evidence or modify a legal point, the 4-week time limit was almost always exceeded. Such requests are usually submitted by the lawyer representing the asylum seeker, however, lawyers representing the Attorney General might also make such a request. In such cases, the IPAC asks for consent from both lawyers to consent for the proceedings to go over the 4-week time limit.
If the detention order is based on the Aliens and Immigration Law, the order can be challenged by recourse under Article 146 of the Constitution before the Administrative Court. Although this is not provided for in the Aliens and Immigration Law, it is derived from the wording of Article 146 of the Constitution, as is the case with all executive decisions issued by the administration.[16] The deadline to submit an appeal is 75 days upon receiving notification of the decision.[17]
Until 2021, the Administrative Court was under no time limit to examine a recourse regarding detention ordered under the Aliens and Immigration Law, even if priority was supposed to be given to detention cases. The decision on whether to expedite judicial examination remained at the Court’s discretion, with many cases taking more than 3 months to be examined. With the amendment of the Law, in compliance with the ECtHR decision against Cyprus, [18] a time limit of 30 days was introduced during which the Administrative Court is obliged to issue a decision, but only for recourses that challenge both return and detention and must include a claim that return would violate the principle of non-refoulement. [19] The only exception to this is force majeure. In practice there is no clear indication if the time-limit is respected. For other recourses concerning detention the Administrative Court follows a fast-track process, however the duration varies depending on the judge and is on average 6-8 weeks.
It should also be noted that examination of detention based on the Aliens and Immigration Law does not examine the substance of the case but only the legality of the decision.
Until 2021, the submission of recourse by a person held under the Aliens and Migration Law would not have suspensive effect on the return/deportation decision, meaning that the detainee could be returned to the country of origin within that time period. With the amendment of the Law, in compliance with the ECtHR decision against Cyprus, [20] the submission of a recourse against a deportation or return order before the Administrative Court can have suspensive effect if the claimant alleges that the return/deportation decision is in violation of Articles 2 and/or 3 of the European Convention of Human rights or/and is in violation of the principle of non-refoulement.[21] Nevertheless, the suspensive effect is activated if, and only when the applicant challenges the deportation order. Therefore, applicants remain unprotected for the period of time between the issuing of the decision and the submission of the recourse against the decision. Having in mind the lack of information provided to detainees, the delays in accessing the legal aid procedure, the time it takes for a legal aid procedure to be concluded, there are concerns that the absence of suspensive effect during this time frame, leaves persons with deportation orders against them, unprotected from refoulement. Indeed, there has been information and cases of third country nationals being deported before they submit a challenge against their deportation order, including the case of a trans-person who was deported shortly after she was released from the Central Prison, regardless of the fact that she was married to a Cypriot citizen.[22]
In the case of asylum seekers, the deportation order is suspended for the duration of the examination of the first instance administrative examination of the asylum application. For the judicial examination of the asylum application, the deportation order is suspended for asylum applications examined under the regular procedures. However, the deportation order is not suspended for asylum applications examined under the accelerated procedures, as well as for unfounded and inadmissible decisions; subsequent applications; and implicit and explicit withdrawals. A separate application requesting the right to remain must be submitted before the IPAC. If the recourse is successful, the detention order will be annulled.
In November 2019, the IPAC issued two positive decisions on appeals challenging the detention based on article 9ΣΤ (2)(δ) of the Refugee Law.[23] 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 a reference to the need to take the proportionality and necessity principle into consideration for every detention order issued by the CRMD.
In early 2021, in B.F. v. The Republic case,[24] regarding an asylum seeker who had recently entered the country and was detained under the Refugee Law, the IPAC took into account that the applicant had applied for asylum before he was never notified of any deportation orders against him and therefore the justification that he had applied just to frustrate the return procedures was unfounded. The Court also rejected the Attorney General’s position that the applicant had enough time to apply for asylum before he was apprehended by the police, since the applicant had entered the Republic and immediately attempted to travel to the U.K on forged travel documents in order to apply for asylum there. Furthermore, the Court took into consideration that the authorities did not initiate the examination of his asylum application while he was serving a prison sentence for using forged documents, but only 10 months later, while in removal detention. The Court also found that the assessment of whether to detain the applicant was problematic and that disproportionate weight was given to certain facts of the case, therefore the necessity and proportionality element was not satisfied. Finally, the Court found that instead of examining any alternatives to detention, the authorities decided to impose detention as a first instead of a last resort.
In early 2022 however, the Supreme Court rejected an appeal against a negative IPAC decision on detention on the basis of article 9F(2)(d) of the Refugee Law.[25] In the specific case, the asylum seeker had entered RoC and attempted to travel towards another EU country with fake documents. He was arrested and convicted. After serving his prison sentence, he was subject to deportation as a “prohibited migrant”, and he lodged an application for asylum shortly thereafter. The authorities issued a detention order under article 9F(2)(d) and the IPAC deemed the detention order to be legal because, inter alia, the asylum seeker’s behaviour justified the conclusion that his asylum application was not ‘authentic’ and was lodged with the sole purpose of obstructing his return to DRC. The Supreme Court agreed with the IPAC and found its judgment to be ‘reasonable and desirable’. The Supreme Court did not find that the fact that the applicant’s country was not listed as safe created any presumption of an ‘authentic asylum application’ and considered that the examination of alternative measure to detention conducted by the first-instance court was sufficient and correct.
In 2022, according to the IPAC, 49 decisions were issued in recourses against detention orders, of which 17 succeeded, 23 rejected and 9 explicitly withdrawn.
Habeas Corpus application
The second remedy, which is only available before the Supreme Court, is a Habeas Corpus application provided for under Article 155(4) of the Constitution, which challenges the lawfulness of detention, but only on grounds relating to length of detention. This remedy is not mentioned in the Aliens and Immigration Law when detention is ordered as a “prohibited immigrant”, but is derived from the Constitution, whereas there are specific provisions referring to this remedy in the articles transposing the Returns Directive and in the Refugee Law.[26]
A Habeas Corpus application can be submitted at any time. When detention is ordered under the Refugee Law, a detained asylum seeker is entitled to submit more than one Habeas Corpus application if the detention is prolonged, or relevant circumstances arise, or when new elements arise which may affect the legality of the duration of detention.[27]
In early 2019, the Supreme Court delivered a positive decision on a Habeas Corpus application ordering the immediate release of an asylum seeker who was detained for nearly one year. The Supreme Court held that the absence of a maximum detention time limit in Article 9ΣΤ of the Refugee Law does not preclude the duration of return proceedings from affecting the legality of detention. That is because detention is not an end in itself but a means to enforce removal, which in this case includes the processing and rejection of an asylum application made solely to delay or frustrate the enforcement of the return decision. The Court found that delays in the asylum procedure which cannot be imputed to the applicant, i.e., delays due to the workload of the Asylum Service, do not justify the continuation of detention. It also held that the principle of proportionality is also relevant to the assessment of legality and 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.[28]
In early 2020, the Supreme Court delivered a positive decision on a Habeas Corpus application.[29] The applicant also challenged the legality of the detention order in a separate procedure by way of recourse before the Administrative Court, which was rejected and an appeal against the rejection was currently pending before the Supreme Court. The applicant, an asylum seeker, was detained for over a year because his detention was considered by the CRMD as necessary for the protection of national security. It was the second time that the applicant appealed before the Supreme Court asking for the ordering of a Habeas Corpus writ. It was held by the Supreme Court that in assessing the legality of the length of detention and in order to ensure the protection of the applicant’s right to effective judicial protection, the Court must be presented with the necessary evidence so as to perform its judicial duty and be able to issue a justified and informed decision. Since the CRMD had not provided any material evidence with regard to the legality of detention and, furthermore, since it was shown that there were delays (on the Attorney General’s part) in the Court procedures regarding the exclusion of the applicant from the asylum procedure, the Court decided to release the detainee.
There are no time limits within which the Supreme Court is obliged to examine the Habeas Corpus application, and the examination may take one to three months. For cases which fall under the Refugee Law, the Supreme Court is obliged to issue a decision within three weeks and may give necessary instructions to speed up the process.[30] The number of Habeas Corpus applications submitted is extremely low, but from those submitted it seems that the Court adheres to the prescribed deadline.[31]
The submission of a Habeas Corpus application does not have suspensive effect on the return/deportation decision, meaning the detainee can be returned to the country of origin within this time period. In the case of asylum seekers, however, the deportation order is suspended for the duration of the examination of the first instance administrative examination of the asylum application. For the judicial examination of the asylum application the deportation order is suspended for asylum applications examined under the regular procedures. The deportation order is not suspended for asylum applications examined under the accelerated procedures, as well as for unfounded and inadmissible decisions; subsequent applications; implicit and explicit withdrawals and a separate application requesting the right to remain must be submitted before the IPAC.
If a Habeas Corpus application is successful, the detainee should be immediately released.
Effectiveness of legal review
The judicial review of detention is not considered effective due to the lack of automatic suspensive effect as well as the length of time to issue a decision. This was confirmed by the ECtHR in M.A. v. Cyprus where the Court held that the applicant did not have an effective remedy with automatic suspensive effect to challenge his deportation.[32] The applicant was not deported to Syria only because of an interim measure issued by the Court under Rule 39 of its Rules of Court. The Court concluded that there was a lack of effective remedy to challenge the lawfulness of detention, as the only recourse in domestic law that would have allowed the applicant to have had the lawfulness of his detention examined would have been one brought under Article 146 of the Constitution. The Court held that the average length of such proceedings, standing at eight months, was undoubtedly too long for the purposes of Article 5(4) ECHR, and rejected the argument of the Government that it was possible for individuals to speed up their actions by reaching an agreement with the Government. The Court ruled Cyprus had violated Article 5(4) ECHR (relating to lawfulness of detention) and that domestic remedies must be “certain”, and speediness, as an indispensable aspect of Article 5(4) ECHR, should not depend on the parties reaching an agreement. As of 2020, the Republic is still under review by the Committee of Ministers of the CoE with regard to the general measures required to satisfy compliance with the judgment.[33] The Court has already ruled that Cyprus violated the Convention under article 5(1) in 2015.[34]
Furthermore, the 2020 amendments significantly reduced the deadline to challenge a detention order under the Refugee Law from 75 days to 15 days, during which time legal aid must be requested and approved. This has rendered access to an effective remedy against detention problematic. Since the amendments, detainees have reported that they have missed the 15-day deadline which raises questions on access to adequate information and facilitation of access to remedies in time. As previously mentioned, for detainees in Police holding cells, access to court is particularly problematic, as they experience difficulties in accessing legal aid, and police officers do not receive clear instructions on how to respond to such requests. There is no evidence that any training takes place, for police officers guarding administrative detainees in police holding cells. Throughout 2021 and continuing in 2022, interventions were made by the Cyprus Refugee Council toward relevant stakeholders such as the CRMD, the Ombudsperson’s office, the Police Immigration Unit and the Asylum Service, advocating for clear procedures to be put in place to ensure access to legal remedies however no progress was noted and individual cases required repeated interventions to ensure detainees in holding cell were transferred to court. As the vast majority of asylum seekers are now detained under the Refugee Law, which carries no limitation in duration, the number of cases in need of an effective remedy has also increased.
These issues were noted in the latest report on Cyprus from the UN Committee against Torture (CAT) issued in December 2019 in which the Committee expressed its concern regarding the lack of protection against refoulement stating that ‘(…) the Committee remains concerned at reports that individuals are still being returned to countries where they might be subjected to torture. It is also concerned about the effectiveness of the appeals process relating to re-examination of decisions of cessation of subsidiary protection status. The Committee is further concerned that the granting of subsidiary protection is approximately five times more frequent than the recognition of refugee status’.
It was also noted that ‘The Committee remains concerned, however, about the effectiveness of the two courts to adjudicate challenges to the deportation of asylum applicants and irregular migrants, about the relation of these courts with the Supreme Court with regard to the accessibility of appeals, and about the backlog of asylum claims. It recommended that ‘The State party should continue to abide by its commitment to provide for an effective judicial remedy with automatic suspensive effect in the context of the deportation of asylum seekers and irregular migrants’.[35]
[1] Based on information from cases represented by CYRC as well as other cases communicated by lawyers to CYRC.
[2] Supreme Court, Nessim v. Republic of Cyprus, Case No 66/2016, 24 August 2016, EDAL summary available at: http://bit.ly/2ka8UwE.
[3] Information based on cases represented by the Cyprus Refugee Council.
[4] Information based on cases represented by the Cyprus Refugee Council.
[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] Information based on monitoring visits carried out by the Cyprus Refugee Council.
[7] Ibid.
[8] Ibid.
[9] Ombudsman, Report on the visits to Menogia on 14 February, 3 April, and 19 April 2013, 16 May 2013; KISA, Comments and Observations for the forthcoming 52nd session of the UN Committee against Torture, April 2014, 10.
[10] Information based on cases represented by the Cyprus Refugee Council.
[11] Article 9ΣΤ(2) & Article 9ΣΤ(6)(α) Refugee Law.
[12] Article 12A(2)(θ) IPAC Law.
[13] Article 9ΣΤ(6)(b)(i) Refugee Law.
[14] Information provided by the Cyprus Refugee Council.
[15] Based in review of cases on CyLaw database (date the case was registered and the date the decision was issued), available at: http://www.cylaw.org/.
[16] Article 18ΟΓ& Article 18ΠΣΤ(3) Aliens and Immigration Law.
[17] Article 146, Cyprus Constitution
[18] ECtHR, M.A. v. Cyprus, Application No 41872/10, 23 July 2013
[19] Article 11A, Administrative Court Law.
[20] ECtHR, M.A. v. Cyprus, Application No 41872/10, 23 July 2013
[21] Article 11(A) -(1) Aliens and Immigration Law.
[22] The third country national was not transferred to the designated Migrant Detention Center to await her deportation, but was instead transferred to Police Holding Cells. The Office of the Ombudsperson has published a report condemning the government for this action. The report can be found in Greek at: https://bit.ly/3lnQkTP.
[23] G.N. v. The Republic, ΔΔΠ 155/2019 (5/11/2019), T.E.V. v the Republic, ΔΔΠ 270/2019 (8/11/2019).
[24] B.F. v. The Republic, DK25/20 (22/2/2021) not available online.
[25] Mondeke v. RoC (MONDEKE v. ΚΥΠΡΙΑΚΗΣ ΔΗΜΟΚΡΑΤΙΑΣ ΜΕΣΩ, ΑΝ.ΔΙΕΥΘΥΝΤΗ ΤΜΗΜΑΤΟΣ ΑΡΧΕΙΟΥ ΠΛΗΘΥΣΜΟΥ ΚΑΙ ΜΕΤΑΝΑΣΤΕΥΣΗΣ, ΄Εφεση κατά απόφασης Διοικητικού Δικαστηρίου Διεθνούς Προστασίας αρ.43/2021, 20/1/2022) available at https://bit.ly/3ZGUlka.
[26] Article 18ΠΣΤ(5) Aliens and Immigration Law; Article 9ΣΤ(7)(a)(i) Refugee Law.
[27] Article 9ΣΤ(7)(a)(ii) Refugee Law.
[28] 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.
[29] Khalid Alaoui Mhammedi v. Chief of Police and Minister of Interior, 4/2020 (24/2/2020).
[30] Article 9ΣΤ(7)(b)(i) Refugee Law.
[31] Supreme Court, Application 1/2019, 24 January 2019.
[32] ECtHR, M.A. v. Cyprus, no. 41872/10, paras 169-170.
[33] ECtHR, M.A. v. Cyprus Status of execution, available at: https://bit.ly/3Zx3hZz.
[34] ECtHR, HS and Others v Cyrpus and KF v Cyprus.
[35] CAT, Concluding Observations on the Fifth Report of Cyprus, December 2019. See further: https://bit.ly/2UQ75pw.