Cyprus / Administrative Court of International Protection / DK12/2024

M.Y.A. v Republic of Cyprus via the Director of the Department of Archive Population and Immigration
Deciding body type
National Court/Tribunal
Deciding body
Administrative Court of International Protection
Type
Decision
Decision date
19/06/2024
  • Cyprus / Administrative Court of International Protection / DK12/2024

    Key facts of the case:

    The applicant was a Somali national who had applied for asylum in Cyprus. He was invited to his interview via a letter sent to his last known address. As he did not show up for the interview, his application was considered as having been tacitly withdrawn and his file was closed. The decision to close his file was mailed to his last known address and was returned to the Asylum Service undelivered. He was subsequently arrested for unlawful stay and a deportation order was issued against him. He applied for the reopening of his asylum file, following which his asylum application was examined and rejected. He sought judicial review challenging the legality of the detention order, whilst the deadline for appealing the decision had still not passed. The authorities argued that he had applied for the reopening of his asylum file for the sole purpose of impeding his deportation but failed to present any objective evidence to support this allegation. The applicant argued that, at the time of his arrest, he was under the impression that his asylum application was pending. The web tracking record secured by the Court showed that the letter notifying him of the closure of his file never reached him as he had already been in detention at the time. The Court dismissed the testimony delivered by the respondents’ witnesses regarding the receipt of the notification for the closure of the file as it relied on hearsay evidence of second or third degree that was inconsistent with the track and trace data. The Court concluded that the detention order was not the result of due investigation and was not based on an individual assessment.

    Key legal question raised by the Court: 

    The applicant and the respondents disagreed on whether the applicant had received the letter informing him of the closure of his asylum file. Actual or constructive knowledge of the closure of the applicant’s asylum file would arguably lead to the conclusion that the re-opening request was a mere effort to impede his deportation. If that was the case, this would have justified his detention. From evidence before it, the Court concluded that the applicant had not received notice of his file having been closed. An additional factor undermining the presumption of due investigation and good faith on the part of the respondents was the fact that, although the respondents had information that the appeal deadline had not passed, they placed a record on file that he had not filed an appeal within the deadline. The Court concluded that as the deadline for filing an appeal against the administrative decision had not passed, the applicant’s deportation could not lawfully be carried out without his consent, as that would infringe articles 18, 19(2) and 47 of the EU Charter. Relying on the principle that asylum seekers must not be detained solely because they applied for asylum, detention must be the exception rather than the rule. It must result from individual assessment of each case and only where less restrictive measures cannot be imposed. It must be ordered in good faith and have a sound legal basis.

    Outcome of the case: 

    The Court concluded that the respondents’ allegation, that he filed for reopening of his file with the sole purpose of impeding his deportation was unjustified and could not be used as justification for his detention. The fact that the applicant changed his address without informing the authorities does not remedy the omissions of the authorities. The court ordered the applicant’s release and the payment of his legal expenses. The Court ordered the applicant’s immediate release and awarded him costs.  

  • Paragraphs referring to EU Charter

    Furthermore, it cannot be argued that on 18 April2024 the applicant failed to comply with the deportation order, which was issued against him on 28 March2024 and while at the time of this judgment, i.e. on 18 April2024, the applicant was considered to be an asylum seeker, and further, the 75-day period for submitting an appeal against that decision had not expired and therefore the return decision could not be executed without the applicant's consent, considering his right to an effective remedy as guaranteed by Article 18, Article 19(2) and Article 47 of the Charter. He had, moreover, filed an appeal against the deportation order on that same date, on 18 April 2024. 

  • Paragraphs referring to EU Charter (original language)

    Περαιτέρω, δεν μπορεί να γίνεται λόγος στις 18.04.2024 για παράλειψη συμμόρφωσης του Αιτητή με το διάταγμα απέλασης, το οποίο εκδόθηκε εναντίον του στις 28.03.2024 και ενόσω κατά τον χρόνο αυτής της κρίσης, ήτοι στις 18.04.2024, ο Αιτητής θεωρείτο αιτητής ασύλου, ενώ περαιτέρω ο χρόνος των 75 ημερών για καταχώριση προσφυγής εναντίον της απόφασης αυτής δεν είχε λήξει και συνεπώς η απόφαση επιστροφής δεν μπορούσε να εκτελεστεί χωρίς την συναίνεση του Αιτητή, λαμβάνοντας υπόψη το δικαίωμα του για πραγματική προσφυγή, ως αυτό κατοχυρώνεται με το άρθρο 18, το άρθρο 19, παράγραφος 2, και το άρθρο 47 του Χάρτη. Ο ίδιος είχε άλλωστε καταχωρίσει προσφυγή εναντίον του διατάγματος απέλασης την ίδια εκείνη ημερομηνία 18.04.2024.