Moves to speed up deporting failed asylum seekers are fraught with legal hurdles
By Elias Hazou
On the Friday before last, parliament voted to amend the constitution, empowering lawmakers from now on to decide the deadline for challenging administrative decisions, a move tailor-made to drastically cut the time for appealing decisions of the Asylum Service. But observers forecast a slew of legal problems in its wake, not least of which is a failure to address the stated goal of expediting the processing of asylum seekers.
Parliamentarians amended article 146 of the constitution, which states that recourse against decisions by executive or administrative bodies “shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse”.
To date, the constitution regulated the deadline for such recourse, setting it at 75 days. Now, with the amendment, these deadlines can be regulated by the legislature.
The government has already tabled to parliament a separate bill, cutting the time for filing appeals against rejected asylum applications from the current 75 days – as hitherto defined in the constitution – to 15 days when it comes to cases before the administrative court, and 30 days for cases heard before the International Protection Administrative Court (Ipac).
Officially launched in June 2019, the Ipac deals exclusively with asylum cases, whereas the administrative court handles migration issues related, for instance migrants found to be illegally on the island – such as housemaids whose permit has expired.
Once the Asylum Service denies an application, the applicant may appeal with the court.
Should an applicant’s appeal be denied by the court, he or she can appeal again with the supreme court. The new policy aims to reduce the maximum time of filing to the supreme court from 42 days to 10 days.
Once the Asylum Service denies an application, a deportation order will be issued but it will be put on hold, should the applicant appeal with the administrative court within the designated timeframe. If he or she does not appeal, the deportation order is activated and the deportation executed.
In the event recourse is made to the administrative court, and the latter finds against the asylum seeker, the deportation order is executed immediately, irrespective of whether the applicant plans to take the case to the supreme court.
This is perfectly in line with EU law, an interior ministry source had previously the Sunday Mail. The Republic has no legal obligation to keep a denied asylum seeker here even if he or she plans to appeal with the supreme court.
However, should the supreme court subsequently uphold the appeal, then arrangements would be made to bring back the deported applicant.
The whole thrust seems to be to expedite the processing of asylum applications. Cyprus has a heavy backlog, with more than 2,000 pending cases for every 100,000 inhabitants. Recent data showed that 18,795 cases were pending at the end of last year, an 85 per cent increase compared with 2018.
But Doros Polycarpou, director of the migrant support NGO Kisa, has serious doubts on how the 15-day rule will play out in the real world.
“If there’s anyone out there who genuinely thinks a rejected asylum applicant can get hold of a lawyer and file the paperwork within 15 days…please point them out to me,” he said.
Another salient point: in other countries, asylum seekers get legal aid from day one. Not so in Cyprus.
According to Polycarpou, relevant EU directives speak of the need to expedite the entire process for asylum seekers, from the moment they are first processed by authorities. This is intended to benefit both the applicants and also the government by weeding out ‘laggards’ who might want to cheat the system and stay somewhere indefinitely without a firm status.
But what the upcoming 15-day rule will end up doing, Polycarpou explains, is merely shorten the deadline for appeals once the administrative body (in this case the Asylum Service) issues a decision.
“That’s like the tail-end of the whole process. So in practice what’s going to happen is that you’ll shorten the overall time by, say, 60 days (75 days minus 15 days). But in the real world, on average it takes about five years to resolve an asylum seeker’s status from start to finish.
“So what you got here, is a damp squib.”
Aristos Damianou, an MP with main opposition Akel, used the exact same expression.
“Fifteen days to file an appeal for someone who doesn’t speak Greek, has little or no money, needs to find a lawyer…that’s just unfeasible,” he offered.
Damianou, a lawyer by profession, says his party intends to submit an amendment to the government bill, increasing the appeal time after an asylum application has been denied.
But the MP anticipates other problems down the line after the constitutional amendment.
“Once the power to determine the appeal time allowed against administrative decisions has gone to the lawmakers, and is no longer set in stone as until now, there’s no telling where this will end.
“MPs may come along and tinker with the time afforded to appeal decisions by the land registry, promotions in the civil service – sky’s the limit.”
What’s more, the politician stresses that the major problem with illegal migrants – fake students – is still not being dealt with in a meaningful way.
The relevant regulations the government promised to bring to parliament are still pending.
“Ok, people coming in through the buffer zone, we don’t have much control over that. But at least with the students, we can do something, but we’re not.”
Back to Polycarpou, who predicts the European Commission will have something to say about these “Cypriot shenanigans”, as he puts it.
“In my view, the government is introducing provisions that will make it next to impossible for asylum applicants to appeal administrative decisions. This will open up Cyprus to infringement proceedings by the EU, while lawyers here can easily make the case that their client lacked effective access to the justice system.”
For this reason, Polycarpou foresees a great deal many of these cases ending up at the European Court of Human Rights.
Asked about the 15 or 30 days, a government source who preferred not to be named, conceded that this change on its own would reduce only the last stretch of the whole process.
But, the source added, it should not be seen as a standalone measure – for instance, the Asylum Service is also hiring more staff in order to speed up the asylum processing procedure.