Asylum law,
policies and practices
in Cyprus Ð An
Overview
based on asylum
cases
EUROPEAN COMMISSION
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.
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.
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.
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.
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 -
Amongst the asylum seekers deported
without examining their applications or prohibiting access to the asylum
procedure there were Iranians, Kurds from Turkey and Syria, Palestinians,
Congolese, as well as unaccompanied minors.
Ÿ An asylum seeker from Pakistan was arrested on the charge of
Ôillegal stay in the RepublicÕ as the immigration authorities claimed that
his file had been closed. He was detained in the detention centre in Paphos
based on a detention and a deportation order of the Immigration
Officer. The Asylum Service
confirmed to KISA that his file was indeed closed due to the fact that he
had not informed the authorities of his change of address, which meant he
did not receive the invitation letter for his interview and eventually he
missed the appointment. KISA«s legal advisers reviewed his documents and found out that not only had he informed the
authorities for his new address but that they had been sending all
correspondence to his new address. The lawyers informed the Immigration the Asylum Service and the Immigration Officer immediately in writing. All attempts to
communicate with the competent authorities by phone, because of the urgency
of the situation, failed. The Asylum Service was eventually reached and the
responsible officer agreed with KISA«s lawyers that the Service was at
fault but the decision to withdraw the orders had to be made by the
Immigration Officer. The latter was reached 1 hour before the execution of
the deportation order and was informed in detail by the lawyers of KISA and
by the administrative officers of her department about the case. Eventually
she informed the lawyers during a telephone conversation half an hour
before the execution of deportation that there was no negligence of any
kind by the authorities since the old flat mate of the asylum seeker
received the interview letter and should have informed him. The asylum
seeker was deported and he has been missing since then despite the attempts
to locate him. The Ombudswoman is now examining the above case. This
example illustrates both a clear breach of the asylum seekerÕs right to be
informed personally and in writing of any decision relating to his claim
but also the authorities« unwillingness to rectify their mistakes.
In all cases of interviews by the
Asylum Service, an asylum seeker is obliged to submit his/her passport and
any other personal documents so that their authenticity can be verified by
the police. These documents are returned to asylum seekers only if they are
granted the refugee status or if they are deported.
The authorities base this policy on a
provision in the law, which states that Ôasylum seekers shall assist the
authorities in examining their claim and shall submit any relevant
documents to themÕ. Notwithstanding the reasoning of such a provision, it
is certain that in no circumstances does it does legalize the confiscation
of personal documents for an indefinite period of time without informing
the holder as to when and if they will be returned to his/her possession
and without giving the asylum seeker a written notice about the fate of
his/her travel or other documents.
Applications
are examined in the first instance by the Asylum Service and in case of
rejection by the Refugee Review Authority. The large number of asylum
seekers in Cyprus and the inadequate, if any, training of the staff
responsible for examining applications, most of whom have no legal
background, results in negligence which breaches the rights of asylum
seekers as the examples cited concerning the closure of files above clearly
indicate. It is important to
note that, for the last two years, which in essence is its whole lifespan,
the Refugee Review Authority has failed to repeal any negative decision
issued by the Asylum Service and thus there has been no recognition of any
asylum seeker in the second stage of the procedure. With a measly 1.4% for
all protection status provided in the Refugee Law (refugee status,
subsidiary protection, temporary leave to remain on humanitarian grounds),
Cyprus has the lowest rate of recognition amongst the member states of the
E.U.
It is
further noted that there are no internal regulations or any specific
legislative measures regulating the procedures to be observed by the
Refugee Review Authority. More often than not, this leads to misconceptions
and breaches of the rights of asylum seekers. For example, when an asylum seeker contacts the said
Authority requesting information about his/her rights after a negative
decision by the Asylum Service, the staff will put a stamp on his rejection
letter, signifying that the date of the inquiry is the date of the
submission of an appeal. This clearly breaches the right of an asylum
seeker to be represented by a lawyer at the appeal stage and his/her right
to be informed in a language understandable to the asylum seeker on the
procedures regarding his/her case.
In
addition, the justification of decisions by either of the two bodies is, in
most cases, insufficient, unfounded and with very clear indications of
total absence of research in relation to the country of origin, which they
are legally obligated to do.
In Cyprus, there is only a handful of
lawyers that are adequately trained in refugee and asylum law, and even
less actually engaged in the field. Currently, there are only 4 lawyers
working in NGOs providing legal advise to asylum seekers. As a consequence,
these lawyers are often stigmatised and confronted with harassment,
especially by the police. On several occasions, KISA«s lawyers have been
told by the police that they could be incriminated for aiding and abetting
asylum seekers to make up false cases so they could remain in Cyprus and
there were cases where lawyers were arrested and detained under such
charges.
The harassment of lawyers is becoming
an issue of even greater concern in view of the fact that there are no state
provisions for effective legal aid to asylum seekers and refugees and the
only alternative that asylum seekers have is to seek means of legal
representation that are too costly and thus non-accessible to them.
Asylum
seekers and refugees have several social rights safeguarded by the Refugee
Law. Even though the EU Directive regarding the minimum guarantees on
asylum reception conditions has not yet been transposed into the national
legislation, the administration claims that in practice it is implemented
in practice. Reality is, however, very different. These social rights are
either granted after long delays or severely limited and sometimes not
granted at all.
á One of
the biggest problems relating to social rights is the requirement of the
possession of a Ôpink slipÕ (residence permit) prior to applying for a
medical card, social welfare, basic education for the children of asylum
seekers and, in some cases, for registering with the labour office.. The
issue of the pink slip may take anything from 4 months to 2 years, during
which time asylum seekers are denied access to one or more of these crucial
social rights.
á The
authorities have recently taken a decision to alter the format of the pink
slip and have required all asylum seekers to re-apply for the new one. This
creates a huge gap as asylum seekers that have managed to receive their
pink slip after months and/or years of waiting are now obliged to apply for
another one and wait for perhaps another year before they can have access
to their rights.
á
The decision of the Ministry of the Interior to
facilitate the access of asylum seekers to social rights only with the
confirmation letter given by the police upon submission of application has
improved the situation; however, not all relevant authorities (such as
hospitals and sometimes Welfare Offices) accept that as official
documentation, which complicates the procedure and access to these
services.
10. , Access to the labour market
and welfare benefits
According
to the law, asylum seekers have the right to apply for employment permit
during their stay in Cyprus as well as the right to welfare benefit under
the same conditions as Cypriots if they are not employed.
According
to a decision of the Ministerial Committee on Employment, asylum seekers
have limited access to the labour market and are only entitled to work in
animal farming and agriculture as seasonal workers.
The
government is well aware and so are the trade unions, who have negotiated
the last collective agreement for the animal farming and agriculture, that
the conditions of employment in these sectors of the economy are very poor
and below the standards provided for in the Community law on social policy
and in the International Labour Organisation Conventions that Cyprus has
ratified. The majority, if not all, of the workers in these sectors are
migrants and asylum seekers. The terms of employment provide for a minimum
salary that is lower than the minimum wage determined by the Minister of
Labour and the trade unions in other sectors of the economy and also
provide for the obligation of the employer to provide housing and food.
Housing and provision of food is very poor in most of the cases. People are
sometimes literally expected to live in sheds together with pigs and other
animals or in makeshift barns next to the farms. They are also obliged to
have health insurance (which is paid by both the worker and the employer),
as they cannot make use of the state national health system.
KISA
has received a lot of complaints from migrants in general, for severe
exploitation in these sectors of the economy. Some of these cases amounted
to trafficking in human beings.
This
policy is implemented for all asylum seekers, irrespective of their
situation and/or vulnerability. For example, persons with families are sent
to work in farms without taking into consideration that the rest of the
family would have either no housing or be obliged to live under the same
conditions as the working member of the family. Minors and women with young
children are sent to work under those conditions and children have to
abandon school because of this policy to be with their families. This
policy forces asylum seekers and their families to complete isolation and
social exclusion.
If an
asylum seeker refuses to be employed under these conditions, he/she is
considered to be voluntarily unemployed and is not, therefore, entitled to
welfare benefit.
Asylum
seekers, who do take on jobs in animal farming and agriculture, under these
conditions and with wages well below the national minimum standard and
apply for supplementary welfare benefit in order to survive, are in most
cases denied supplementary
welfare benefit.
Asylum
seekers that have not been able to find a job in those sectors of the
economy are entitled to welfare benefits. The level of support must be
evaluated in relation to the independent circumstances of the living
conditions of the asylum seeker. This evaluation is conducted several
months after the application and thus access to basic social rights is once
more delayed.
Although
the law providing for emergency welfare benefits to cover a personÕs
immediate needs, prior to the final evaluation of their application, this
is very rarely implemented with regard to asylum seekers, contrary to what
is happening with Cypriots.
Ÿ An
asylum seeker from Iran, living in Cyprus with his family, underwent an
emergency operation and was hospitalised for several days at the General
Hospital in Nicosia. When he was released from hospital he was asked to pay
CYP 600. KISA«s social adviser was told by the Ministry of Health that,
although he was an asylum seeker and thus entitled to a medical card, the
Ministry was unable to issue the card because he was not a holder of the
new pink slip, even though he had applied for it and had the competent
authorityÕs stamp to prove it.
Ÿ An
asylum seeker applied for welfare benefit and for a period of 3 months he
was given only the sum of CYP 50, while he was entitled to approximately
the sum of CYP 300. The Welfare Office never responded to the intervention
of KISA in order to restore his rights, therefore KISA submitted a
complaint to the Ombudswoman. The Ombudswoman concluded that the rights of
the asylum seeker had been violated and that the Welfare Office was obliged
to provide him with the full amount of the welfare benefit he was entitled
to according to the law.
Ÿ
An asylum seeker suffering from diabetes was denied
access to medical care by the General Hospital in Nicosia, despite the
provisions of the law for the right to free medical care for asylum seekers.
The Hospital based its refusal to submit him on the lack of a medical card,
issued by the Ministry of Health. The Ministry refused to issue the medical
card because the asylum seeker was not a holder of an Alien Registration
Number. The Ministry of the Interior, responsible for issuing the Alien
Registration Numbers, declared itself unable to issue these documents
immediately, due to its workload, which resulted in long delays in issuing
the necessary documentation for asylum seekers. The competent authorities
finally provided access to medical care to the said asylum seeker, whose
life was at great risk, after the intervention of KISA to the Minister of
Health and the case was made public in the Media.
Ÿ
An Iranian family of asylum seekers submitted an
application to the Welfare Services for supplementary welfare benefit, as
the family income from the work of the parents was not enough to cover the
needs of the family. Even though the income of the family was much lower
than the one provided for in the relevant legislation for a family in the
same situation, the application of the family was rejected and a lot of
pressure was put on the mother of the family from the Welfare Services to secure
full time employment in order to increase their income, knowing however that
this was impossible as the mother had also to take care of her very young
children. The mother, left without a choice, finally secured a full time job
and as a result, the children remained unsupervised from their parents..
Unfortunately, one day, one of the children died of electric shock while at
home with one of his brothers and with the parents away at work.
Ÿ
An asylum seeker was taken to hospital with head
injuries after his employer had hit because he had asked to be paid the
salaries owed to him. After his treatment was concluded, the Hospital
confiscated his documents in order to oblige him to pay the medical
expenses, which contravenes the law, which provides for free medical care
for asylum seekers. Finally, after persisting efforts from KISA, his
documents were returned without him having to pay for the medical expenses.
Nicosia, June 2005