Cyprus - Supreme Court, Application 1/2019, 24 January 2019
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
Headnote:
Delays in the asylum procedure which cannot be imputed to the asylum seeker, and failure to consider less coercive alternatives when detention exceeds reasonable time limits, render detention unlawful.
Facts:
The applicant, a Georgian national, arrived in Georgia in 2003 at the age of six. After his family’s asylum application was rejected, he remained in irregular situation in Cyprus, was arrested on 6 June 2017 for trespassing and theft and was convicted on 30 June 2017 to a 7-month sentence of imprisonment. Prior to his conviction, on 14 June 2017, he had submitted an asylum application.
Following his sentence he was declared a “prohibited immigrant” pursuant to the Aliens and Immigration Law. The Civil Registry and Migration Department (CRMD) considered, given his delay in making an asylum application, that the claim was made for the sole purpose of delaying or frustrating removal, and on 30 January 2018 issued a detention order under Article 9ΣΤ(2)(d) of the Refugee Law and a removal order under Article 6(1)(d) of the Aliens and Immigration Law.
The outcome of the asylum application was still pending at the time the applicant challenged the duration of his detention, reaching almost one year. The CRMD attributed the delay to the exceptionally high workload of the Asylum Service.
Decision & reasoning:
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.
According to Article 9ΣΤ(4)(a) of the Refugee Law, detention shall be imposed for the shortest period possible and shall be carried out without undue delay. Therefore delays in the asylum procedure which cannot be imputed to the applicant do not justify the continuation of detention.
The principle of proportionality is also relevant to the assessment of legality. 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.
The Supreme Court concluded that the continuation of detention would infringe the Cypriot Constitution, the ECHR and the Refugee Law.
Outcome:
Immediate release ordered.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Cyprus - Article 11 Cypriot Constitution |
| Cyprus - Article 9ΣΤ Refugee Law |
| Cyprus - Articles 6 and 7 Aliens and Immigration Law |
Cited Cases:
| Cited Cases |
| Mikolenko v. Estonia , no. 16944/03, 5 January 2006 |
| ECtHR - Abdi v United Kingdom, Application No 37289/12, 9 April 2013 |
| ECtHR – J.N. v. United Kingdom, Application No. 37289/12, 19 May 2016 |
| Cyprus - Fasel, Application 236/2015, 31 March 2016 |
| United Kingdom - R. (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12 |