Cyprus - Supreme Court, Application 1/2019, 24 January 2019

Country of Decision:
Country of Applicant:
Date of Decision:
24-01-2019
Citation:
Application 1/2019
Court Name:
Supreme Court
National / Other Legislative Provisions:
Cyprus - Article 11 Cypriot Constitution
Cyprus - Article 9ΣΤ Refugee Law
Cyprus - Articles 6 and 7 Aliens and Immigration Law
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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.