Judicial review of the detention order

Cyprus

Country Report: Judicial review of the detention order Last updated: 16/04/21

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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 is kept in individual files in the offices of the centre, they will be provided with it.

The detention orders include a summary of the articles of the law upon which the detention is based but does not include the facts and/or reasons for detention.[1] They also include a brief description of the right to challenge the order by recourse before the Administrative Court or the International Protection Administrative Court but not 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. 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 which is 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. Furthermore, 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.[2] 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,[3] little improvement has been made and the situation, as reflected in older reports, remains.[4]

In late 2019, in an effort to address the issue of lack of information, the Cyprus Refugee Council within the scope of the alternatives to detention project, issued an information leaflet that provides basic information on detention, access to asylum procedures, available remedies to challenge detention and access to legal aid. The leaflet has been made available in Menogia, however since the copies were exhausted it has not been reprinted by the authorities.

Detainees in Menogia 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 has led to delays in accessing courts, which at times required interventions to ensure timely access to court.[5] Combined with the shorter deadline to challenge detention (reduced from 75 days to 15 days), the measure has had a direct impact on effective access to legal remedies.

Regarding detainees in holding cells, access to court is problematic, as there are no clear procedures on how to request access to judicial procedures and no instructions for the police officers to respond to such requests. Practice varies widely between police stations.

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.[6]

Recourse

First, if the detention order is based on the asylum seeker being declared a “prohibited immigrant” (see section on Grounds for Detention),[7] 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. If the detention order is issued based on the articles of the Aliens and Immigration Law that transpose the Returns Directive, then according to the law the order can be challenged under Article 146 of the Constitution before the Administrative Court.[8] If the detention order is based on the Refugee Law, then according to the law the order can be challenged before the IPAC.[9]

If detained under the Aliens and Immigration Law, the deadline to submit an appeal is 75 days upon receiving notification of the decision. If detained under the Refugee Law, the deadline to submit an appeal was reduced from 75 days to 15 days in 2020. [10]

When detention is ordered under the Aliens and Immigration Law, there are no time limits within which the Administrative Court is obliged to examine a recourse, however priority is supposed to be given to detention cases. The decision whether to expedite judicial examination, remains at the Court’s discretion, with many cases taking more than 3 months to be examined. 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.[11]

For cases where detention is ordered under the Refugee Law, 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.[12] Throughout 2019, the majority of cases where the applicant applied for legal aid were released before the applicant reached the Court, however the four-week deadline seems to be observed.[13] In 2020, 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.

The submission of recourse 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. As of 2020, 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.[14] 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,[15] 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. The Court also 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 detention. Furthermore, 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.

Habeas Corpus application

The second remedy, which is 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.[16]

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.[17]

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 since 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.[18]

In early 2020, the Supreme Court delivered a positive decision on a Habeas Corpus application.[19] 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 is 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.

While the maximum Duration of Detention of 18 months does not apply if detention is ordered based on the asylum seeker being declared a “prohibited immigrant”, a Habeas Corpus application may be submitted if it is possible to establish that the length of detention is excessive. Although this is more difficult to substantiate, the Supreme Court delivered a relevant ruling on 22 August 2016 in a Habeas Corpus application.[20] The applicant, a failed asylum seeker, had been detained for a total of four years in this case. The Supreme Court held that non-collaboration on behalf of the applicant could not be used as a basis for his indefinite detention and that the Ministry of Interior erroneously considered that detention orders that do not fall within the scope of Article 18 ΠΣΤ of the Aliens and Immigration Law, transposing the Returns Directive, can entail indefinite detention without complying with the non-arbitrariness requirement of Article 5(1)(f) ECHR. Given that there was no reasonable prospect of removal of the applicant, as conceded by the Police to the Ministry of Interior, the applicant’s prolonged detention was arbitrary and in violation of the ECHR and the Cypriot Constitution.

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.[21] The number of Habeas Corpus applications submitted is extremely low, but from those submitted it seems that the Court adheres to the prescribed deadline.[22]

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. As of 2020, 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.

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, which was again confirmed in 2020.[23]

In a ruling of 24 August 2016 concerning detention for the purpose of removal, the Supreme Court recalled 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.[24] However, this has not had an impact on the practice.

The judicial review of detention is not considered effective due to the lack of 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.[25] 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 to the Cypriot Government indicating that he should not be removed until further notice. 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. In 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.

The above position was confirmed in July 2015 in the ECtHR cases concerning the detention and deportation of 17 Syrian Kurdish asylum seekers from Cyprus to Syria, HS and Others v Cyprus and KF v Cyprus, where the Court held Cyprus responsible for the inadequate mechanisms and ineffective remedies that are in place to challenge the lawfulness of detention, and which violate Article 5 (1) ECHR.[26] In the context of the duration of detention, the Court concluded that the lack of a ‘speedy’ procedure of judicial review of the lawfulness of the applicants’ detention, amounted to a violation of Article 5(4) of the Convention.

There had been improvements in recent years regarding the detention of asylum seekers who had the right to remain on the territory throughout the first instance judicial examination of the asylum application and the majority will not be placed in detention (see Access to the Territory). However, the 2020 amendments to the Law limited the right to remain as the deportation order in 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. In such cases a separate application requesting the right to remain must be submitted before the IPAC.

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 reported that they had missed the 15-day deadline which raises questions on access to adequate information and facilitation to access remedies in time. Moreover, the number of asylum seekers detained under the Refugee Law, which carries no limitation in duration, has increased and therefore the number of cases in need of an effective remedy.

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 concerning 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’.[27]

 

 

[1]           Information based on monitoring visits carried out by the Cyprus Refugee Council.

[2]           Ibid.

[3]           Ibid.

[4]           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.

[5]           Information based on cases represented by the Cyprus Refugee Council.

[6]           Article 9ΣΤ(6)(a) Refugee Law.

[7]           Article 14 Aliens and Immigration Law.

[8]           Article 18ΟΓ  & Article 18ΠΣΤ(3) Aliens and Immigration Law.

[9]           Article 9ΣΤ(2) & Article 9ΣΤ(6)(α) Refugee Law.

[10]          Article 12A(2)(θ) IPAC Law.

[11]          ECtHR, M.A. v. Cyprus, Application No 41872/10, 23 July 2013, para 167.

[12]          Article 9ΣΤ(6)(b)(i) Refugee Law.

[13]          Information provided by the Cyprus Refugee Council.

[14]          G.N. v. The Republic, ΔΔΠ 155/2019 (5/11/2019), T.E.V. v the Republic, ΔΔΠ 270/2019 (8/11/2019).

[15]          B.F. v. The Republic, DK25/20 (22/2/2021) not available online.

[16]          Article 18ΠΣΤ(5) Aliens and Immigration Law; Article 9ΣΤ(7)(a)(i) Refugee Law.

[17]          Article 9ΣΤ(7)(a)(ii) Refugee Law.

[18]          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.

[19]          Khalid Alaoui Mhammedi v. Chief of Police and Minister of Interior, 4/2020 (24/2/2020).

[20]          Supreme Court, Azar v Republic of Cyprus, Case No 54/2016, 22 August 2016, EDAL summary available at: http://bit.ly/2jmoP73.

[21]          Article 9ΣΤ(7)(b)(i) Refugee Law.

[22]          Supreme Court, Application 1/2019, 24 January 2019.

[23]          Based on information from cases represented by CYRC as well as other cases communicated by lawyers to CYRC.

[24]          Supreme Court, Nessim v. Republic of Cyprus, Case No 66/2016, 24 August 2016, EDAL summary available at: http://bit.ly/2ka8UwE.

[25]          ECtHR, M.A. v. Cyprus, paras 169-170.

[26]          ECtHR, H.S. and Others v. Cyprus, Application No 41753/10, Judgment of 21 July 2015; K.F. v. Cyprus, Application No 41858/10, Judgment of 21 July 2015. For an analysis, see Mary Zalokosta, ‘Analysis of the Strasbourg case-law on Kurdish asylum seekers in Cyprus and the controversial practice of detention’, 28 August 2015, EDAL, available at: http://bit.ly/1IxXR0Y.

[27]          CAT, Concluding Observations on the Fifth Report of Cyprus, December 2019. See further: https://bit.ly/2UQ75pw.

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