Cyprus – Supreme Court, 25th November 2015, Matondo Adam, v. The Republic of Cyprus, 555/2015
| Country of Decision: | Cyprus |
| Country of applicant: | Congo (DRC) |
| Court name: | Supreme Court of The Republic of Cyprus (P. Panayi) |
| Date of decision: | 25-11-2015 |
| Citation: | Matondo Adam, v. The Republic of Cyprus (2015) SCC 555/2015 |
Keywords:
| Keywords |
|
Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
|
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. |
|
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.) |
|
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." |
|
Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
|
Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
|
Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
|
Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The Supreme Court quashed the detention and deportation warrants issued against a citizen from the Congo, following a number of prosedural failures by the Cypriot Government to comply with the Cap. 105 of the Alien and Migration Law and Directive 2008/115/EC, denying him the opportunity for voluntary departure.
Facts:
The Applicant arrived in Cyprus on 04.02.2005 and filed his asylum application, claiming that he could not return to his country of origin due to fear of prosecution for demonstration in relation to elections in the country.
His application was rejected on 23.04.2012 due to a lack of credibility.
The Applicant’s subsequent appeals against the rejection of his asylum claim to the Refugee Reviewing Authority have also been rejected, as well as his request of judical review of that decision.
Subsequently, the Applicant was requested to leave the country immediately and although he was appealing against the asylum decisions, a warrant for detention and deportation was issued against him, due to his alleged irregular stay in Cyprus.
The Applicant is seeking annulment of the detention and deportation orders against him.
Decision & reasoning:
The judge decided that the steps that led to the decision for deportation were in breach of the procedure followed under Articles 18OD up to 18PTH of the Alien and Migration Law Directive, provisions which implemented the Return Directive. Specifically, the detention was unjustified as it was both lengthy and it was not used in order to facilitate return.
It was held that the appropriate return procedure had not been complied with, as no voluntary departure period had been offered to the Applicant, prior to him being arrested as an irregular immigrant. Only if the correct procedures were complied with, would the deportation be justified.
Also, the deportation order was ill-founded as not enough reasons had been provided for such a decision to justify such a conclusion. To the contrary, the Applicant’s detention was repeatedly and unjustifiably extended, while the Applicant was appealing against the detention and deportation decision.
Outcome:
Appeal granted.
Observations/comments:
For a commentary on the case please see Kisa, The Supreme Court confirms the obligation to grant irregular migrants a time limit for voluntary departure.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Cyprus - Cap. 105 of the Alien and Migration Law |
Cited Cases:
| Cited Cases |
| CJEU - C-61/11, PPU El Dridi |
| CJEU - C‑554/13 Z. Zh. and O. V Staatssecretaris van Veiligheid en Justitie |