Cyprus – Supreme Court, Fasel v Republic Of Cyprus, 31 March 2016, No 236/15

Facts:

The Appellant, an Iranian national was sentenced to two months in jail for impersonation and illegal entry in Cyprus. Orders of detention and deportation were issued, as well as a 5 year entry ban. After serving his sentence, the Appellant was transferred to a Migrants Detention Centre and subsequently applied for asylum as a political refugee, which was dismissed. Mr. Fasel, appealed against the decision before the Refugee Reviewing Authority, which also rejected his claim, and he also appealed against the Authority’s second instance decision.

The Appellant, further filed a petition of Habeas Corpus before the competent court, which was dismissed and the case was brought to the Supreme Court following Mr. Fasel’s new appeal. He claimed that the duration of the detention period as per the detention and deportation orders is illegal and violates Article 18ΠΣΤ of the Cypriot Aliens & Immigration Law, Article 15 2008/115/EC and Article 5(1)(f) of the ECHR, because it exceeds 5 months and he cannot be deported to Iran due to his asylum seeker status under the Cypriot Refugee Law along with the fact that there is no reasonable perspective of removal.

Decision & reasoning:

The Supreme Court held that the detention period is lawful as the Appellant failed to prove that the former was not necessary or reasonable. Furthermore it ascertained that the appeal against the decision of the Refugee Reviewing Authority regarding Mr. Fasel’s asylum claim is still pending and the suspension of execution of the deportation order, which has led to the prolongation of the detention, has been caused by the Appellant’s actions and should be viewed as beneficial. The Court explained that his status as ‘banned migrant’ due to the criminal sanction imposed, absolved the State’s responsibility to apply 2008/115/EC and that him being subject to return precludes the applicability of Article 18 ΠΣΤ of the Cypriot Aliens & Immigration Law. As per Article 5(1)(f) ECHR, no maximum time limit is prescribed and the examination of the particular circumstances make it lawful. Regarding Cypriot Refugee Law, the Court held  it is not applicable since the Appellant is not being detained under his asylum-seeker status.

However, the dissenting opinion held that the Appellant’s asylum seeker status, even if acquired after the issuance of the detention and deportation decrees, renders detention unlawful under Cypriot Refugee Law and only particular circumstances and a subsequent judicial decree could have made the Appellant’s detention lawful which is not the case.

Outcome:

Appeal not granted. Order that costs are to be paid by the Appellant.

Subsequent proceedings:

The Court of first instance held that the Applicant was not entitled to a Habeas Corpus petition because at the time of the petition his detention was not exceeding 6 months and no objection regarding the lawfulness of the detention and deportation orders was raised.

Observations/comments:

This case summary was written by Odyssefs Platonas, LLM student at Queen Mary University. 

Other sources:

Green v. Home Secretary [1941] 3 All E.R 388

Cyprus – Δημητράκης Χ’Σάββας (1993) 1 Α.Α.Δ 102.

Cyprus –Καρφοπούλου (1998) Α.Α.Δ 55.

Cyprus – Esa Morad Khlaief v. Κυπριακή Δημοκρατία κ.α. (2003) 1 Α.Α.Δ 1402.

Cyprus – Asad Mohammed Rahal v. Κυπριακή Δημοκρατία και Άλλων (2004) 3 Α.Α.Δ 741.

Cyprus – Jamil Ahmed (2004) 1 A.A.Δ 1752.

Cyprus – Bondar (Αρ. 2) 2004 1 Α.Α.Δ 2075.

Cyprus – Guo Shuying v. Δημοκρατίας κ.α. (2012) 1 Α.Α.Δ 2725.

Cyprus – Khorak Paz Fouman Farhad v. Υπουργού Εσωτερικών κ.α. Πολ. Αίτ. Αρ. 15/13 15.2.2013.

ECtHR – Mefaalani v Cyprus, Appl. Nos 3473/11 and 75381/11 3.2.2016.