Cyprus - Supreme Court, Azar v Republic of Cyprus, Application No 54/2016, 22 August 2016

Facts:

The applicant, an Iranian national, arrived in Cyprus in 2004 and applied for asylum. His case was closed in April 2006 due to his failure to appear before the authorities for registration. He was returned to Cyprus on 30 April 2008 from the United Kingdom under the Dublin II Regulation. A detention order was enforced, resulting in his detention until 20 January 2009 (for a period of almost 9 months).

The applicant’s asylum claim was rejected at first instance on 8 January 2009, on appeal before the Refugee Reviewing Authority on 13 January 2011, and before the Supreme Court on 4 March 2013.  He was arrested on 3 May 2011 on charges of irregular stay and was convicted to a term of imprisonment of 45 days.

Following his release, the applicant was arrested again on 23 June 2011 and placed in detention as a prohibited immigrant for the purposes of return. On 28 July 2011, the authorities ordered the applicant to depart from Cyprus, without success. On 24 February 2012, the Ministry of Interior issued instructions for his release subject to alternatives to detention, which the applicant did not accept. On 9 March 2012, new detention and removal orders were issued against him. As the applicant reached 18 months in detention on 22 December 2012, he was released again following instructions on alternatives to detention by the Ministry of Interior, which included an obligation to communicate with the Embassy of Iran and take all necessary steps to obtain a passport, which the applicant did not accept. On 20 June 2013, following the final rejection of his asylum claim by the Supreme Court, the applicant was requested by the Ministry of Interior to cooperate with a view to his removal. On the same day, he was placed in detention until his removal was made possible. The detention order held that detention did not fall within the remit of the Returns Directive, as it was a consequence of a criminal sentence falling outside the scope of the Directive.

The applicant was released on 25 June 2014, after a detention period of 2 years and 11 months. New detention and deportation orders were issued against him on 13 June 2015, and he remained in detention at the time of proceedings. The total length of detention was 58 months.

The applicant claimed that, despite his lack of cooperation for the purpose of his removal, his prolonged detention was arbitrary as there was no prospect of return, contrary to Article 11(2)(f) of the Cypriot Constitution and Article 5(1)(f) ECHR.

Decision & reasoning:

The Supreme Court held that non-collaboration on behalf of the applicant could not be used as a basis for his indefinite detention and that the Ministry of Interior erroneously considered that detention orders that do not fall within the scope of Article 18 ΠΣΤ of the Cypriot Aliens Law, transposing the Returns Directive, can entail indefinite detention without complying with the non-arbitrariness requirement of Article 5(1)(f) ECHR. Given that there was no reasonable prospect of removal of the applicant, as conceded by the Police to the Ministry of Interior in a letter dated 26 April 2016 for a number of detainees,  the applicant’s prolonged detention was arbitrary and in violation of the ECHR and the Cypriot Constitution.

Outcome:

Application granted. Immediate release ordered.

Observations/comments:

[Future Worlds Center] “This decision is important for the discussion on alternatives to detention and especially regarding the case of non-removable persons. The Supreme Court’s concession that the administration will most probably not be able to remove the applicant, and thus has no grounds for prolonging detention, leaves open the question of the status and rights available to the individual in such cases.” 

Other sources:

Council of Europe Resolution 1707 (2010): Detention of asylum seekers and irregular migrants in Europe