Asylum
law, policies and practices
in
Cyprus – 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 – 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.
Cyprus’s 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 ‘cyprus problem’ 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:
·
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.
·
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
ü 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 Centre’s legal
advisers accompanied him to the police station. Todate there is no official
response to KISA’s 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
‘confirmation letter of submission of asylum application’. 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
‘normal’ 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:
·
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.
·
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.
·
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
ü
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 ‘alien book’ 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 ‘asylum 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 ‘illegal’ (undocumented) migrants. ‘Illegal’
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 ‘illegal´ 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 ‘crime’ 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
ü
An asylum seeker from Iran was
convicted by the court for aiding an ‘illegal’ migrant to remain in the country
because he gave him a lift in his car. The “illegal” 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 months’ 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
KISA’s 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.
ü
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 ‘illegal’ 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 – 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 -
·
the decision to close a file was
taken because of negligence and the applicant was deported without being given the
opportunity to have the substance of his claim examined by the competent
authorities at all stages provided for in the law;
·
deportation orders were issued for
asylum seekers whose files were still open and whose applications were either
pending first stage examination by the Ásylum Service or second stage examination by the Refugee Review Authority. Although the
authorities were informed by KISA of these cases and had all the relevant documents proving the asylum status prior to deportation, they were
nevertheless deported. The authorities claimed that the deportation was a
‘mistake’ due to the ‘work load’ and the ‘huge number of asylum cases’. It is
important to stress that there was no attempt to rectify the mistake by
bringing the asylum seeker back to Cyprus;
·
asylum seekers had an additional
ground for remaining in Cyprus (for example, because they got married to
Cypriot citizens or EU nationals). When visiting the immigration police to ask
what to do about this, immigration police advised them to withdraw their asylum
application because they could still remain in Cyprus anyway and there was no
point for their asylum application to be examined. Immediately after the
withdrawal of their applications they were arrested, detained and deported
without any consideration of the other grounds to remain in Cyprus, without any
consideration that their asylum claim had not been examined and, most
importantly, with no regard to the fact that the applications had been
withdrawn because of false information given by the authorities themselves;
·
asylum seekers under detention for a
long time were “convinced” by the police to withdraw their asylum applications
or asylum seekers detained under deportation orders were told by the police
that they would remain in detention for three or four years and thus it would
be better to withdraw their applications and they were “convinced” to do
that.
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.
Cases
ü
An asylum seeker from Pakistan was
arrested on the charge of ‘illegal stay in the Republic’ 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 seeker’s right to be informed personally and in writing of any
decision relating to his claim but also the authorities´ unwillingness to
rectify their mistakes.
ü An unaccompanied
Kurdish minor from Turkey was detained 24 hours after his entry to Cyprus and
although he had clearly indicated his wish to seek asylum he was denied access
to the procedure. Two days later he was deported as an ´illegal immigrant
and without prior notice to the Welfare Office, a legal obligation of the
police and the Asylum Service in cases of minor asylum seekers. When KISA
contacted the Immigration Office in Limassol, they informed us that the minor
never requested for asylum. To our questions on whether he spoke English and if
not whether arrangements were made for a translator, the reply was negative on
both counts.
6.
Confiscation of
Personal Documents
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 ‘asylum seekers shall assist the
authorities in examining their claim and shall submit any relevant documents to
them’. 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.
7. Authorities Responsible for Examining Applications
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.
8. Harassment of Lawyers involved in Asylum Law Cases
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.
9. Access to Social Rights
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.
·
One of the biggest problems relating to social rights is the requirement
of the possession of a ‘pink slip’ (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.
·
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.
·
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 person’s 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.
Cases
ü 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 authority’s stamp to prove it.
ü 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.