JHM v Deputy Director of the Department of Population and Migration
CY: Administrative Court confirmed detention order issued to ensure implementation of return decision
The applicant received a negative decision for his application of 21 September 2018. He has neither received the letter of call for an interview and the telephone calls nor the subsequent letter informing him of the rejection of the application under Article 16B of the Law was received, because he left the place indicated in his application. On 12 March 2020 the applicant was detained and further requested the reopening of his asylum application, request rejected on 5 August 2020. The applicant contested the detention order, invoking legality issues and an alleged lack of individual assessment of the case.
The Administrative Court of International Protection stated that according to national legal provisions, each applicant has the obligation to inform the competent authority of any change in his place of residence, his contact details and the determining authority is allowed to consider that the applicant withdraw his application in the event of not informing the competent authority of the abovementioned changes. Based on case law from the CJEU (case Achughbabian, 6 December 2011 , C-329/11), the Court noted that events and the conduct of the applicant before and when submitting the application for asylum - here reopening - can reasonably be considered as to whether 'there are reasonable grounds to believe that the person is applying for international protection in order to merely delay or impede the execution of a return decision' [9F(2)(d)].
The applicant worked on the non-controlled areas and came in the controlled areas only when he encountered issues with his employer there and decided to apply for asylum here. The application for international protection was rejected in 5 August 2020. In the light of these circumstances, the Court considered that no alternative measures to detention are appropriate and that based on the necessity and proportionality principles, the detention has the role to prevent a risk of escape of the applicant, pending return. The Court stated that there may be a reluctance on the part of the applicant to comply with the order for his removal under the suspended expulsion order and it considered that no alternative to detention measure could safeguard the objective pursued by the detention decision, precisely to ensure the implementation of the decision to return him.
The Administrative Court of International Protection also based its judgement on analysis of cases FMS and Others vs Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság, 14/05/2020 and K. vs State Secretary for Security and Justice Netherlands (Staatssecretaris Van Veiligheid en Justitie), 14/09/2017.
Asylum Procedures/Special Procedures; Detention/ Alternatives to Detention; Return/Removal/Deportation;
Cyprus, Administrative Court for International Protection [Διοικητικό Δικαστήριο Διεθνούς Προστασίας], JHM v Deputy Director of the Department of Population and Migration, 22 October 2020. Link redirects to the English summary in the EASO Case Law Database.