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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, 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. Throughout 2019, the majority of asylum seekers in detention, regardless of the initial basis for detention, once they had applied for asylum were issued a detention order under the Refugee Law, including persons with criminal convictions. This led to a higher number of detainees applying for legal aid and in the majority of cases they were released before the legal aid application was examined.[6] Since 2020, and onwards, detainees are not released upon submitting legal aid applications.
The IPAC did not release statistics in 2019 and 2020. However, all decisions published on the Leginet Portal[7] and CyLaw Database[8] concerning legal aid applications for the purpose of challenging detention under the Refugee Law in 2019 and 2020 were successful. In 2021, as part of the support provided by EUAA, the Court collected statistics. With regards to legal aid applications, the Court stated that in 2021, 82 applications to challenge detention orders were submitted.[9] Although the statistics provided do not indicate the number of successful legal aid applications to challenge detention, it is expected that, as in previous years, the majority – if not all – were successful, as the Court only examines whether the applicant has no means to contract the services of a lawyer. The statistics also indicated 126 legal aid applications that were submitted but were not connected to a legal remedy to either challenge an asylum application or detention; it is not clear if this is due to the applicant not completing the application according to established rules or not attending the hearing for the legal aid application. In view of the lack of adequate information and overall access to legal assistance, this raises questions on whether applicants have sufficient knowledge and information on the procedure and details that must be included in the application.
In 2022, according to the IPAC, 18 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. Judicial review requires court expenses of approximately €100 and €800 for a Habeas Corpus application, which often an NGO or the detainee are not in a position to provide. NGO lawyers may provide assistance to prepare legal aid applications,[10] 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.[11] 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 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.[12] 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] Information based on monitoring visits carried out by the Cyprus Refugee Council.
[7] Leginet is a subscription-based database for legislation, caselaw and secondary legislation, available at: https://bit.ly/3dBpMFV.
[8] CyLaw Database, IPAC decisions available at https://bit.ly/3wu2nzp.
[9] Information provided by the IPAC following a request by the Cyprus Refugee Council.
[10] Administrative Court, Alashkham, Legal Aid Application 15/2018, 17 July 2018, available in Greek at: https://bit.ly/2UTZUuT.
[11] Article 8(3)(b) Rights of Persons who are Arrested and Detained Law.
[12] Information based on monitoring visits carried out by the Cyprus Refugee Council.