Asylum law, policies and practices

in Cyprus Ð An Overview

based on asylum cases

 

 

 

June 20005

 

 

 

Funded by the

EUROPEAN COMMISSION

EUROPEAN REFUGEE FUND

 

 

 

 

 

P.O.Box  22113, 1517 Nicosia,  Tel: +35722878181,  Fax: +35722773039,
e-mail: 
kisa@cytanet.com.cy

Asylum is a relatively new, challenging phenomenon for Cyprus as a new Member State of the European Union. The present memorandum attempts to give an overview of the policies and practices followed by the Government of Cyprus in the field of asylum, through selected cases that KISA Ð Action for Equality, Support, Antiracism has dealt with, in the context of the provision of services offered to asylum seekers through its Migrant Support Centres.

 

CyprusÕs recent membership of the European Union, the continuing delay of the government to develop and adopt an integrated migration policy and to harmonise the latter to the acquis communautaire, the continuing deadlock in the Ôcyprus problemÕ and the ensuing inability of the government to effectively control its borders, the inability of the government to effectively combat the exploitation and corruption networks, even in the police ranks, as well as the continuing lack of structures for the reception of asylum seekers and examination of asylum applications, all these constitute the major factors for the increase of asylum applications to some 12.000. This makes Cyprus the largest receiver of asylum seekers compared to its population among all member states of the European Union.

 

   

1.     The legal and administrative context

 

Cyprus, although a signatory state to the Geneva Convention from the times it was a British colony, it only started implementing the Convention in 1998. As  there were no implementing asylum  and  administrative structures in 1998, when the first asylum seekers came to Cyprus, the UNHCR  offices in Cyprus started handling the cases. In 2000, mainly because of its obligations to the E.U. as a candidate country, Cyprus passed its first Refugee Law, which was amended several times since then, while the necessary asylum structures were set up much later and only started examining asylum applications in 2002.

 

Even though the law provides for at least the minimum standards on asylum procedures that the UNHCR expects signatory members to fulfil, the practices of the authorities are still very far from adhering to these standards.

 

 

2.     Access to the Procedure

 

There have been constant violations of the right of the asylum seekers to access the asylum procedures. More specifically:

 

á      National law provides that applications can be submitted at any entry point of the Republic and at any police station. In practice, applications may be submitted only in one police station in every city, with the exception of Nicosia where there are two. No asylum applications have been submitted at the borders as yet. At the police stations designated to receive asylum applications there is rarely any professional translator present. Consequently, asylum seekers are never informed of their rights and obligations and of the required procedures even though this is a right recognised to asylum seekers also by European Community law.

 

á      Asylum seekers who do not have travel documents or any kind of identity papers can submit their applications only at the Paphos Gate police station in Nicosia.. They are systematically denied access to the procedures and, in the majority of cases, they have been instructed to secure those documents as a condition for submitting an application. In some cases, asylum seekers were holders of national passports that had been considered false by the police and thus access was denied. Assumed nationality is, in many occasions, a factor for discriminatory treatment in relation to access to the procedure in the absence of documentation. Recent information from asylum seekers reveals that everybody, even undocumented asylum seekers are sent to Paphos Gate police station in Nicosia to apply, where access is denied unless asylum seekers present themselves with a lawyer. Submission of application through certain specific lawyers is always accepted by the police.

 

 

 

 

 

Case

 

Ÿ     A Congolese national visited KISA«s Migrant Support Centre in Nicosia seeking advice on how to apply for asylum. We directed him to the police station in Nicosia where he could submit his application. The man did not have any identity documents and the policeman on duty told him that unless he showed him a passport or any other identity paper proving his nationality he would not accept his application. The man tried unsuccessfully to submit an application on several occasions, so he came back to our Centre for further advice. KISA intervened with the police by sending them a letter complaining about the treatment of asylum seekers and to inform them of their legal obligation to accept any application even in the absence of documentation. The submission of the application occurred approximately 1 1/2 months after he first visited the police station and only when one of the CentreÕs legal advisers accompanied him to the police station. Todate there is no official response to KISAÕs complaint with regard to the police unlawful practices.

 

Problems arising out of denial of access: The aforementioned man also suffered from diabetes but the medical authorities refused to provide him with medical treatment unless he possessed a Ôconfirmation letter of submission of asylum applicationÕ. It was only after the case went public that the authorities accepted to provide him with insulin on an ad hoc basis. Even though the man was practically dying without insulin, he was not even accepted in Casualties as an emergency incident. He was accepted by the hospital as a ÔnormalÕ patient only after he had been issued with a medical card (much later after he submitted his asylum application).

 

 

 

 

 

3.     Closed Files

 

National Refugee legislation regulates the circumstances under which the authorities have the right to close the file of an asylum seeker. In practice, there have been a number of violations of the powers and discretion of the competent authorities, such as:

 

á      Asylum seekers are obliged by law to inform the authorities of their residential details and to report any change of address, otherwise their file may be closed and the procedure discontinued. Many asylum seekers attempt to report to the local immigration offices their new address but they are repeatedly told to return on another day or to provide further documentation proving their residential status (contract, etc), requirements that are not provided for in the law. This policy leads to extreme delays in complying with the above-mentioned obligation and it exposes asylum seekers to the risk of being detained, their application being rejected on procedural grounds and finally of deportation.

 

á      In several cases, files have been closed because asylum seekers have not presented themselves at the scheduled interview with the asylum authorities because they had not received the notification letters sent to their previous addresses. The administration has a legal obligation under the national refugee law as well as under the general principles of administrative law to make an overall examination of the decision to close the file and to make sure that the asylum seeker is to be blamed for not fulfilling his/her obligations. The administration is also legally obliged to use its discretionary power not to discontinue the procedure in case the asylum seeker provides the authorities with reasonable explanations why he/she does not fulfil his/her obligations under the law. This discretion, however, is never exercised in favour of asylum seekers.  Decisions for closing files are taken in cases where the authorities simply fail to notify the asylum seeker about his/her appointment with the authorities or to send a letter to the wrong address or they call a friend of the asylum seeker and delegate the responsibility to notify him/her about the interview details.

 

á      As a consequence, asylum seekers are being deported without having the opportunity to have the substance of their claim examined by the competent authorities, which constitutes a clear breach of the principle of non-refoulement. KISA has in several occasions received information that asylum seekers were detained illegally upon their return to their countries or are missing.

 

Case

 

Ÿ     An asylum seeker visited the immigration office in Nicosia to inform the police of his change of address as required by law. The police told him that he could not register his new address in his Ôalien bookÕ unless he produced a contract proving that he the tenant of the residence. The asylum seeker informed his landlord about this but the landlord refused to co-operate. The asylum seeker reported this to the immigration offices but their answer remained the same. A month later he was informed that his file had been closed because he failed to appear for his interview with the Asylum Service. The asylum seeker came to KISA«s Migrant Support Centre in Nicosia to seek advice. We informed the Asylum Service of the events that took place and also submitted an appeal to the Review Authority for the decision of the Asylum Service to close his file. Todate we have received no reply.

 

 

4.     Illegal Detention and Degrading Treatment by the Police

 

According to the Geneva Convention and the national legislation, asylum seekers cannot be punished for illegal entry. In practice, however, a great number of asylum seekers are being detained on the basis of detention and deportation orders by the Immigration Officer due to the strict interpretation of the provision that Ôasylum seekers need to communicate to the authorities their intention to apply for asylum in due time. This practice has worsened after a decision of the Supreme Court, according to which asylum seekers may not be detained for illegal entry with a Court decision under the refugee law but they may be detained on detention and deportation orders of the Immigration Officer on other grounds under the aliens and immigration law, particularly if they are ÔillegalÕ (undocumented) migrants. ÔIllegalÕ migrants are also considered those who enter or reside illegally in the Republic of Cyprus. Sometimes, a month or even a few days are considered a long enough period for asylum seekers to be branded as Ôillegal« migrants, which leads either to their long-term detention until their claim is examined at a final stage (by the Refugee Review Authority) or to their deportation (for illegal deportation see below). Both measures are used without court orders and on the basis only of a decision of the Immigration Officer.

 

In cases where asylum seekers have committed a crime under either the criminal code or any other law and have been sentenced by the court, on completing their sentences they are not released. They are removed from Central Prison but they remain in custody in detention centres on detention and deportation orders of the Immigration Officer, which are normally suspended until their asylum claim is examined at a last stage. These practices could lead up to 8 - 10 months« detention without a court order. According to the Aliens and Immigration Law, the state has the right to deport any alien residing in Cyprus if they are considered to be a threat to public order or public security. Every asylum seeker falling in the above category, even if the ÔcrimeÕ committed is a minor offence or it falls within the scope of immigration rules, is considered as a threat to public order and thus detained and, in most cases, deported. Their extended detention is not supported by any court order.

 

An order is always required if a detention is to be considered legal. Depending on the circumstances, the order could be issued either by the court or by the Immigration Officer. In the latter case, the Immigration Officer issues a detention and deportation order based on information provided by the police. In the majority of cases, the information relayed is either false or is not verified. The fact that there is no system to verify the information provided by the police and also the fact that the Immigration Officer is not willing to conduct any further examination of the case leads to a large number of illegal detentions which more often than not result in refoulement.

 

There have also been complaints on the conditions of detention of asylum seekers either in the prison or, particularly, in detention centres, that have been branded as inhuman by international and European organisations, NGOs and other institutions both in Cyprus and abroad. A recent opinion of the Ombudswoman in Cyprus has caused the same concerns to NGOs and it has also underlined the illegal character of the extended periods of detention mentioned above. There have also been a number of complaints about torture and inhuman and degrading treatment against asylum seekers in detention or when trying to submit their applications to the police stations. These cases have been reported by KISA to all the competent authorities and some have also been examined by independent criminal investigators appointed by the Attorney General. Due to the lack of knowledge and will on the part of the authorities, these complaints have never reached the national courts and the perpetrators have never been punished.

 

 

Cases

 

Ÿ     An asylum seeker from Iran was convicted by the court for aiding an ÔillegalÕ migrant to remain in the country because he gave him a lift in his car. The ÒillegalÓ migrant was an asylum seeker and the convicted asylum seeker was only trying to help him by giving him a lift to the police station to file an asylum application. He was sentenced to 3 monthsÕ imprisonment, after which he was taken to a detention centre in Larnaca on detention and deportation orders of the Immigration Officer. As he was never informed that he would not be released from prison as he had expected, he tried to commit suicide, after which the police handcuffed and severely battered him to the extent that he required hospitalisation for one night. After he was released from the hospital he was sent to another detention centre in Nicosia. He remained there for 3 weeks, after which he was transferred to another detention centre in Limassol, where he stayed for 2 days only to be moved as yet again to another detention centre in the Limassol District. The continuous transfers from one detention centre to another caused a lot of problems of communication of the asylum seeker with his family as well with KISAÕs legal advisers. During his period he detention (about two months) he was hospitalised 3 times because of medical problems, the beatings and a hunger strike. He was finally considered by the court to be mentally unstable and was sent to a mental hospital in Nicosia. He remained there for 1 month, after which the doctors decided that he had recovered so they called the police to return him to prison. Gripped by despair, when he saw the police he pushed himself through a glass window and cut his hand completely. He was hospitalised for 5 days. He now needs to have further operations as his hand is now paralysed. On leaving the hospital, the doctors told him he was free to go home. After he informed KISA about his release, we asked the Immigration Office to explain to us the legal status of the asylum seeker and whether the detention and deportation orders against him had been cancelled. The immigration police informed us that he was considered to be a fugitive since he left hospital without informing the authorities that he was ready to go, a situation that caused additional stress to the asylum seeker and his family. Todate, the authorities have neither arrested him nor replied to our letters asking for the grounds the police have for arresting him again. KISA has informally received the information that the detention order has been cancelled. His case is currently being reviewed by the Review Authority. The asylum seeker is still taking anti-depressants and his son is visiting a child-psychiatrist on a weekly basis.

 

Ÿ      A number of Congolese asylum seekers with nowhere to live, slept for a few nights at a mosque in Nicosia, as many homeless asylum seekers very often do. After getting desperate because the person responsible at the mosque told them that they had to leave, homeless and moneyless, because they were not allowed to work and did not receive any welfare benefits either, they went to the Asylum Service to complain about their situation. Distressed as they were, they raised the tone of their voice to the officer at the Asylum Service. The police were immediately called in and the asylum seekers were arrested and detained. The Immigration Officer then considered them as ÔillegalÕ migrants under the Aliens and Immigration Law because they were obstructing public order and public peace and detention and deportation orders were issued against all of them. They remained in detention centres until their asylum applications were examined, some were deported and some are still in detention pending the examination of their applications.

 

 

5.     Illegal Deportation Ð Refoulement

 

According to the Refugee Law, deportation orders are supposed to be issued by the Immigration Officer when the file of an asylum seeker is considered to be closed either because the case is finally examined and rejected or because the procedure is discontinued. However, there have been cases when -