Author
According to the law, an application for legal aid can be submitted for the judicial review of detention (see Recourse) before the IPAC only when detention is ordered under the provisions of the Refugee Law.[1] Legal aid is not provided when detention is ordered under the Aliens and Immigration Law. However, an application for legal aid can be submitted for judicial review of deportation/removal/return decision subject to a “means and merits” test.[2] Since almost always, a person against whom a deportation order is issued, will also have a detention order against them, when appealing a deportation order, the appeal can include the detention order as well.
As mentioned above, for detention orders under the Refugee Law, a detainee has a 15-day deadline to challenge detention and legal aid applications must be submitted and examined within this time. If a recourse challenging detention is submitted beyond the 15-day deadline, it will be rejected even if the examination of the legal aid application is pending and the delay is due to the Court’s proceedings. When the deadline to submit a recourse to challenge detention was reduced in 2020 from 75 to 15 days, it was initially noted that many legal aid applications were being examined and decided after the deadline to submit a recourse to challenge detention.[3] From 2021 onwards and continuing in 2023, these issues seem to have been resolved, as long as detainees are transferred from detention to court in time by the AIU. Such delays are instead often noted for detainees who are detained in holding cells.
For Habeas Corpus applications before the Supreme Court, an application for legal aid can be submitted only if detention has been ordered under the Refugee Law,[4] but not in cases in which detention is ordered under the Aliens and Immigration Law.[5]
Legal aid is not provided to challenge or request a review of detention before the authorities through administrative procedures e.g., request for review, challenge of purpose, length, and lawfulness, regardless on the legal basis.
When detention has been ordered under the Refugee Law, applications for legal aid either for the judicial review of detention (see Recourse) before the IPAC or the length of detention with a Habeas Corpus application are subject only to a “means” test. According to the means test, the detainee applying for legal aid must show that they do not have the means to pay for the services of a lawyer and this will be examined by a Welfare Officer who will submit a report to the Court. In most cases of detention, this limb of the test will be met.
In 2022, according to the IPAC, 18 applications for legal aid to challenge detention were successful. In 2023, 13 applications for legal aid to challenge detention were successful.
Overall, the main obstacles to accessing legal assistance in detention is the short deadline for challenging a detention order, during which legal aid must be applied for; the lack of resources on behalf of the detainee to contract the services of a lawyer; the lack of access to legal aid if detained under provisions of the Aliens and Immigration Law and the lack of information and counselling to access legal aid. The court fees to submit a judicial review are €96 if the applicant submits it without a lawyer, whereas if the appeal is submitted by a lawyer the court fees are €137. The submission of a Habeas Corpus application requires €800, which often an NGO or the detainee are not in a position to provide. NGO lawyers may provide assistance to prepare legal aid applications,[6] but they are not permitted to appear before the court.
Contacting a lawyer is not a significant issue, and detainees do receive a list of lawyers and their telephone numbers as compiled by the Cyprus Bar Association and as required by law.[7] However, detainees rarely use the list, as they usually contact lawyers recommended by other detainees or friends, or lawyers that visit the detention centre to meet another detainee/client. Meetings with lawyers in detention are confidential and held in a specialised room which has been designated as the lawyer’s room. The lawyer can be escorted by an interpreter. The clients are contacted mainly through their mobile phones.
Asylum seekers in detention reach NGOs providing legal assistance primarily through word of mouth, especially since the information available to asylum seekers is often not available or outdated (see section on Information for Asylum Seekers and Access to UNHCR and NGOs), or by NGOs carrying out monitoring visits to the detention centre.[8] If an NGO visiting the detention centre cannot offer legal assistance, it often refers asylum seekers to NGOs that do offer such services. If an asylum seeker was represented prior to their detention, there may be a slightly better chance of challenging the detention. However, similar issues will arise, as an asylum seeker who was represented by a private lawyer prior to detention may not have the funds to continue contracting the lawyer’s services.
Besides judicial review of detention, a legal representative can challenge the detention of an asylum seeker or request their release through administrative procedures that do not carry expenses. However, the lack of free legal assistance is again an obstacle for detainees to utilise this option.
Free legal assistance is available to asylum seekers in detention, as to all asylum seekers, and is provided by NGOs. However, the capacity is limited and services might not be consistent in time and may be terminated at any moment, as such services depend on project funding.
[1] Article 9ΣΤ(2) Refugee Law.
[2] Article 6Γ(2) Legal Aid Law.
[3] Based on cases brought before the Court by the Cyprus Refugee Council. The time required to examine legal aid cases can also be derived from the date of application and date of issuance of legal aid decisions as seen on the database of cases published by the Court available at: https://bit.ly/3lbnaCX
[4] Article 6B(7)(b) Legal Aid Law.
[5] Article 6B and 6Γ Legal Aid Law.
[6] Administrative Court, Alashkham, Legal Aid Application 15/2018, 17 July 2018, available in Greek at: https://bit.ly/2UTZUuT.
[7] Article 8(3)(b) Rights of Persons who are Arrested and Detained Law.
[8] Information based on monitoring visits carried out by the Cyprus Refugee Council.