«first published in 2012 by amnesty international ltd Peter Benenson house 1 easton street london wc1X 0dw united kingdom © amnesty international ...»
without a crime
dEtEntIon of MIgRants and
asylUM-sEEkERs In CypRUs
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first published in 2012 by amnesty international ltd Peter Benenson house 1 easton street london wc1X 0dw united kingdom © amnesty international 2012 index: eur 17/001/2012 english original language: english Printed by amnesty international, international secretariat, united kingdom all rights reserved. this publication is copyright, but may be reproduced by any method without fee for advocacy, campaigning and teaching purposes, but not for resale.
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to request permission, or for any other inquiries, please contact firstname.lastname@example.org Cover photo: the menogia detention facility near the southern city of larnaca, cyprus, expected to become operational in 2012.
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About this report
2. Detention of asylum-seekers
3. Detention of irregular migrants
3.1 Failure to examine less coercive measures
3.2 Unaccompanied children migrants and families with children in irregular status.......16
3.3 Prolonged and repeated detention
4. Safeguards against detention inadequate and ignored
4.1 Safeguards against unlawful detention
4.2 Limited access to free legal assistance
4.3 Remedies against detention
4.4 Effectiveness of remedies challenging detention
5. Poor detention conditions
6. Conclusions and recommendations
To the Cypriot authorities:
To EU institutions
1. INTRODUCTION “They said… they will detain me for another six months and then let me go again for another three months. They think this is OK but it is not.” S, an Iranian asylum-seeker and mother of three children and whose asylum claim has been dismissed, speaking to Amnesty International in November 2011 in Nicosia Central Prison, where she had already been detained for five months Every year, hundreds of people who flee to Cyprus to escape persecution, war or simply grinding poverty are put behind bars and detained as if they were criminals, even though they have committed no crime. Most are detained for months, often in poor conditions without access to adequate medical care and usually unable to challenge the lawfulness of their detention due to the paucity of free legal aid. In some cases, the Cypriot authorities refuse to free people even when the Supreme Court has ordered their release.
Some of those detained have made the difficult decision to flee their homes to find safety and are exercising their right to apply for asylum and be free from persecution. Pending a decision on their asylum application, they are in an extremely vulnerable position and should not be subject to immigration detention except in the most exceptional circumstances as prescribed by international and regional law and standards.
Irregular migrants1 too should not be subject to immigration detention and should only be detained if the detaining authorities can demonstrate hat other measures short of detention – including reporting requirements or a surety/guarantor system2 – would not be sufficient, consistent with the right to liberty under international human rights law and standards. When the Cypriot authorities detain irregular migrants for immigration purposes without demonstrating that their detention is indeed necessary and that less restrictive measures are insufficient, they are also violating European Union (EU) law.
In the past, many Cypriots were migrants themselves and thousands rebuilt their lives abroad after becoming displaced during the war of 1974.3 More recently, their country has become a destination for migrants and refugees, particularly after Cyprus joined the EU in 2004, many of whom end up in tough and low-paid jobs, including as agricultural and construction labourers and domestic workers. Cyprus is also a destination for trafficking of women for sexual exploitation and of men and women for economic exploitation.
Amnesty International recognizes that the Cypriot authorities4 face tough challenges because of the division of the island. However, whatever the immigration legislation, policies and practices the Cypriot government chooses to adopt, it must ensure that they comply strictly
with Cyprus’ international legal obligations under human rights and refugee law and standards, including by promoting and protecting the rights of refugees and migrants.
In particular, detaining people when they have committed no crime is a serious breach of their fundamental right to liberty. Detention of irregular migrants and asylum-seekers for immigration purposes is a severe measure that should be used only in exceptional circumstances, after careful consideration of the individual case and in full compliance with relevant international law and standards. The human rights impact of detention is felt not only by those detained, but also in many cases by their children, spouses and other relatives who rely on them.
Foreign nationals detained in Cyprus for immigration purposes include the following:
Irregular migrants or asylum-seekers whose claims have been dismissed and who are held until their removal/deportation is arranged;
Irregular migrants or asylum-seekers whose claims have been dismissed who are detained for longer periods because their removal cannot be enforced, for example, because they have no travel documents and there are difficulties associated in re-documenting them, including instances where the authorities of their country of origin refuse to co-operate with the re-documentation process; and Asylum-seekers who are detained pending determination of their claim.
Moreover, most of those detained languish in detention for long periods, some for over three years.
Cypriot law does not allow for asylum-seekers to be detained simply for entering the country irregularly, as long as they apply for asylum without “undue delay” after their arrival and explain the reasons for their “irregular” entry. However, the Refugee Law provides for
detention ordered by a court on the grounds that:
It is necessary to establish the identity or nationality of the person concerned;
It is necessary pending the examination of new elements in the application for asylum filed by an applicant whose initial asylum claim was dismissed and whose deportation has been ordered.5 In practice, however, these provisions of the Refugee Law are rarely used and asylum-seekers are much more likely to be detained under the Aliens and Immigration Law provisions (see Chapter 2).
Irregular entry and/or stay in Cyprus remain criminal offences. In November 2011, Law 153(I)/2011 removed the punishment of imprisonment for the irregular entry into and staying in the Republic of Cyprus,6 but retained the criminal nature of these offences and their punishment with a fine (Chapter 2).7 However, because the vast majority of irregular migrants are indigent, Amnesty International is concerned that Law 153(I)/2011 will have a limited impact in reducing the number of those imprisoned in connection with irregular entry and/or stay, as most irregular migrants will be unable to pay the fine and will therefore
remain liable to imprisonment. Amnesty International believes that the mere fact of irregularly entering the Republic of Cyprus and the simple act of remaining in the country irregularly should not attract criminal sanctions and should be treated purely as administrative offence, if at all.
Law 153(I)/2011 was passed with the aim of transposing “Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures for returning illegally staying third-country nationals” (the EU Returns Directive).8 Amnesty international is concerned over the failure of Law 153(I)/2011to adequately transpose the provisions of EU Returns Directive especially with regards to the required automatic judicial review of the decisions to prolong the detention beyond the six months (see chapter 4).
Among other things, Law 153(I)/2011 established that a “prohibited immigrant”9 whose deportation has been ordered can only be detained if other less coercive measures do not suffice and only when detention is necessary for the preparation of the removal and/or to carry out the removal itself. Those grounds are relevant, in particular, when the individual concerned presents a risk of absconding or is avoiding or obstructing removal.In addition, the above-mentioned amendments also set limits to the detention periods allowed, providing for a detention of six months which may be prolonged for another twelve months in cases where the individual refuses to cooperate or there the reception of the necessary documents by the third countries are delayed (see Chapter 3).
In practice, the authorities issue detention and deportation orders simultaneously without considering less restrictive alternatives to immigration detention, and the individuals concerned are then transferred to the county’s numerous facilities used for immigration detention purposes. There are at least nine such facilities – the police stations in Aradippou, Lakatamia, Larnaca, Limassol, Oroklini, and Paphos; Blocks 9 and 10 of Nicosia Central Prison; and detention facilities at Larnaca International Airport.
In all the facilities visited by Amnesty International delegates, asylum-seekers and irregular migrants are detained in conditions that fall short of international standards. For example, Block 10 of Nicosia Central Prison is a dark and unhealthy facility, with poor natural light, where detainees are forced to spend months in small and often overcrowded cells. In Lakatamia and Limassol police stations, detainees have no access to fresh air. In Limassol, immigration detainees have been held in the same wing as people charged with criminal offences.
Everyone – including people whose application for asylum has been dismissed and irregular migrants – has the right to liberty and security of person, including being free from arbitrary arrest and detention. All states should establish in law a presumption against detention solely for immigration control reasons.
This report describes how deficiencies in Cypriot law and practice result in the violation of the human rights of irregular migrants and asylum-seekers, and includes testimony and experiences of several people who have suffered as a result.
Among other things, Amnesty International is calling on the Cypriot authorities to:
Repeal legislation imposing criminal sanctions for irregular entry or stay, which, should be dealt with, if at all, administratively;
End the immigration detention of asylum-seekers;
Ensure that other less restrictive alternatives to immigration detention are always considered first and given preference before resorting to detention;
Ensure that Supreme Court orders to release immigration detainees when their detention is found to be unlawful are complied with promptly;
Ensure that migrants and asylum-seekers are granted effective access to remedies to challenge detention and deportation orders, including through the assistance of free legal aid and adequate interpretation where necessary.
ABOUT THIS REPORTThis report is based on a research visit to the Republic of Cyprus by Amnesty International delegates between 28 November and 2 December 2011, as well as other research before and after that visit. The delegates went to Blocks 9 and 10 of Nicosia Central Prison, as well as Lakatamia and Limassol police stations, and interviewed over 100 detainees and staff at these places as well as people who have been detained there in the recent past. Amnesty International is grateful to the Cypriot authorities for facilitating these visits.
During the visit the delegates spoke to many people whose asylum claims had been dismissed. While any analysis of asylum determination procedures is beyond the scope of this report, Amnesty International has received persistent complaints over the asylum system, including, in particular, about the poor quality of asylum interviews. In this context, Amnesty International is also aware of the fact that in 2004 Cyprus was facing a backlog of more than 9,000 asylum applications. The organization was made aware that in early 2012 this backlog had been reduced to about 200 cases. The speed with which the Cypriot authorities appear to have dealt with the inordinate backlog, together with the numerous complaints from individuals whose claims were dismissed in the course of the clearance exercise, as well as the exceptionally low recognition rates10, give rise to concerns over the quality of the asylum system in Cyprus.