Subsection of Administrative Recourses Before the Administrative Court of International Protection

SUBSECTION OF ADMINISTRATIVE RECOURSES BEFORE THE ADMINISTRATIVE COURT OF INTERNATIONAL PROTECTION

Establishment of the Administrative Court of International Protection ( “ACIP”)

Article 146 of the Constitution initially assigned competence to try administrative recourses to the Supreme Constitutional Court, then this competence was transferred to the Supreme Court, which was established under the Administration of Justice Act (Various Provisions) Law of 1964 (Law no. 33 of 1964, as amended). Following, the jurisdiction was transferred to the Administrative Court, which was established by the Law on the Establishment and Functioning of an Administrative Court of 2015 (Law no. 131 (I) of 2015) regarding judicial review of the decisions or acts issued under the Refugee Law and by the Refugee Reviewing Authority.

The ACIP was established in 2018 and operates by virtue of Law on the Establishment and Operation of the Administrative Court of International Protection, as amended, (hereafter referred to as “Law 73(I)/2018”), has its seat in Nicosia and it has been awarded the jurisdiction, at first instance, to issue judgments in any recourse, submitted under Article 146 of the Constitution against any act or decision or omission issued under the Refugee Law, as amended (hereafter referred to as “Law 6 (I)/2000”).

The aim of the establishment of the ACIP was for the harmonization of the provisions of paragraph (4) of article 10, element (e) of paragraph (1) and, of paragraph (2) of article 12, of element (a) of the second section of paragraph (1) of article 23, of paragraphs (1), (2) and (3) of Article 46, of Article 48 and of the first section of article 52 of the act of European Union entitled “Directive 2013/32/EU of European Parliament and of the Council of the 26^th of June 2013 regarding the common procedures for granting and withdrawing international protection (recast)”, as well as for the harmonization with the provisions of paragraph (1) article 26 of the act of the European Union with the entitled “Directive 2013/33/EU European Parliament and of the Council of the 26^th of June 2013 on laying down standards for the reception of applicants for international protection (recast).”

Finally, the establishment of the ACIP aims at the effective application of the provisions of paragraph (1) of article 27 of the act of the European Union entitled “Regulation (EU) No 604/2013 of the European Parliament and of the Council of the 26^th of June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast)”.

Jurisdiction of the Administrative Court of International Protection (“ACIP”)

Article 11 of the Establishment and Functioning of the Administrative Court of International Protection Law (Law 73(I)/2018) defines the scope of the jurisdiction of this Court, indicating that each Judge exercises the powers conferred on the ACIP by the Constitution, the provisions of Law 73(I)/2018 and any other law in force. The ACIP has the power to decide on any recourse, submitted under Article 146 of the Constitution against any decision or act or omission of due action, which is issued under the Refugee Law.

In exercising its jurisdiction over a recourse against a decision or act, it shall carry out a full and ex nunc examination of both facts and points of law, examining:

(i) the facts and legal issues which govern it; and

(ii) the need to grant international protection in accordance with the provisions of the Refugee Law, in case a recourse challenges a decision resulting to the non-granting of such a protection or the withdrawal or termination of such a protection or the granting of supplementary protection status in lieu of refugee status.

The ACIP has also the jurisdiction to ratify a decision or an act in whole or in part, or to annul and amend it in whole or in part. The aforementioned jurisdiction over a decision or act may be exercised only if such a decision or act was issued following an application which was submitted to the competent administrative authority after the 20th July 2015, or at the initiative of the competent administrative authority, taken after the 20th July 2015.

The ACIP examines all the facts and allegations of the applicant which were not taken into consideration during the issuance of the contested decision or act, regardless of whether they precede or follow it. At the same time, it has the power to order the administrative authority to answer a question related to the disputed issue within a deadline set by the court, while it has access to the information mentioned in the Refugee Law and which are necessary for the fulfilment of its duties. In the event that a person files a recourse before the ACIP, under the provisions of Article 146 of the Constitution, the respondent shall provide the ACIP and the applicant with access to the information included in the administrative file, concerning the contested decision or act. The judgment of the ACIP must be issued within a reasonable time and must necessarily be notified to the applicant or to the lawyer legally representing him.

Deadline for filing a recourse

Article 146 (3) of the Constitution stipulates that the recourse shall be filed within 75 days from the day of the publication of the decision or act or, in case of non-publication or in case of omission, from the day on which the act or omission came to the knowledge of the applicant. The Fifteenth Amendment to the Constitution, Law 135(I)/2020, amends Article 146 (3) of the Constitution by adding the phrase "unless explicitly provided by law, a different deadline for appealing against a decision, act or omission."

Law 73(I)/2018, in its article 12A, sets the deadlines for filing a recourse against the decisions of the Asylum Service and the Reviewing Authority of Refugees. The said Law stipulates in article 12A, that any recourse against a decision of the Asylum Service is filed within thirty days (30) from the date of notification of the decision or act or in case of omission, from the day it came to the knowledge of the applicant.

In addition, for certain decisions or orders, which are explicitly defined in the second paragraph of Article 12A, the recourse is filed within fifteen (15) days from the date of notification of the decision and/or service of the detention order. Such decisions are, for example, the rejection of an application, which was examined on the basis of the accelerated procedure for examining applications under the provisions of Article 12D of the Refugee Law, the decision rejecting an application as manifestly unfounded, under the provisions of Article 12F of the Refugee Law, a decision declaring an application unfounded with regard to refugee status and/or supplementary protection status, a decision declaring an application inadmissible in accordance with the provisions of Article 12 of the Refugee Act, the decision referred to in Article 9 of the Refugee Law regarding the provision, revocation or restriction of the advantages provided for in any of the provisions of the said Law and the detention order under the provisions of article 9F of the Refugee Law.

Basic principles governing the requests for international protection

Law 6(I)/2000, as amended, and Law 73(I)/2018, define the legal framework for the granting of international protection and guarantee the enjoyment of the fundamental rights and freedoms of the applicant before the ACIP, as follows:

i. not to be deported to a country or sent to the borders of a country where, “on grounds of sex, race, religion, nationality, membership of a particular social group or political views, his life or liberty will be endangered or subjected to torture or inhuman or degrading treatment or punishment, degrading treatment or persecution” (article 4 of Law 6(I)/2000),

ii. to enter the Republic and to participate in fair and efficient procedures for the determination of his/her status and needs (see in particular, articles 7 et seq. and articles 11 et seq. of Law 6(I)/2000),

iii. to receive an individualized, fair, objective, independent and within a reasonable time examination of his application (see in particular, articles 12D, 13 et seq. and 18 of Law 6(I)/ 2000),

iv. to be hosted in a safe place and under appropriate and decent conditions (see in particular, articles 9ID et seq. of Law 6(I)/2000),

v. to receive special attention and care if he/she belongs to a vulnerable group (e.g. minor, unaccompanied minor, victim of torture - see in particular, article 9KC of Law 6(I)/2000) and

vi. to effectively appeal before the national competent authorities, both administrative and judicial, and to be recognized as a refugee or to be granted the status of supplementary protection as long as he/she meets the legal prerequisites (see in particular, articles 18A and 19 of Law 6(I))/2000 and article 11 of Law 73(I)/ 2018).

To ensure the above, the ACIP during the examination of any act or decision, carries out a full and ex nunc examination of both facts and points of law, as it examines the facts and legal issues which arise and takes into consideration the relevant facts and allegations of the applicant which were not taken into consideration while issuing the contested decision or act, whether they existed prior to the contested decision or appeared later. It therefore, has the power to exercise its discretion and annul the decision or act and at the same time to carry out an ex nunc examination. It does not merely ascertain whether the contested enforceable administrative decision, act or omission which adversely affects a particular applicant for international protection is lawful, but conducts a substantive examination as to whether an appropriate assessment of the actual facts of the case were taken into consideration, on which the administrative act or decision was based and whether the administration correctly and lawfully exercised its discretion.

During the examination of the legality and substance (“ex nunc”), it may affirm, in whole or in part, the contested decision or act or annul it and amend it in whole or in part.

Regarding the principles of law governing the review of legality, the ACIP is guided by the Law on the General Principles of Administrative Law (Law 158(I)/1999) and the relevant jurisprudence, given that the binding precedent of decisions applies, which also constitutes a source of law.

The ACIP, in the course of reviewing the substance, due to its interdependence with the EU law and international law on matters of international protection, refers to the case law of the European Court of Justice (ECJ) and the case law of the European Court of Human Rights (ECtHR).

On the basis of the case law of the ECJ and the ECHR, the following legal principles, which have been incorporated in the case law and on the basis of which the cases are judged, are noteworthy:

(a) The host country may not expel an alien from its territory if the eventual expulsion would expose him to a risk of death or torture or inhuman or degrading treatment or punishment. The principle of non-refoulement is enshrined in Article 33 of the Geneva Refugee Convention and it constitutes a rule of customary international law. It is a broader concept of asylum and it relates to persons who need protection from possible persecution or torture or inhuman or degrading treatment in their country of origin. It applies in any situation involving removal, deportation, return, extradition, refusal of entry into the country of asylum or host country.

(b) It is not taken into account whether the potential risk of death or the risk of torture comes from the state authorities of the country of return or from non-state actors or even whether it is due to the humanitarian situation in the country of return.

(c) The detention of an applicant for international protection constitutes a serious interference with his/her personal liberty and is, in principle, prohibited. Exceptionally, the detention is possible as long as (i) there is a significant risk of the person absconding, (ii) an individual assessment of the case has taken place, (iii) the detention is proportionate and (iv) it is impossible to apply a more lenient measure.

(d) Where the person concerned is an unaccompanied minor, namely a vulnerable person, the imposition of sanctions on him/her shall be decided only after examining his/her personal circumstances, his overriding interest and the principle of proportionality.

(e) Asylum seekers have access to the relevant procedures as well as to appropriate and adequate information. Impartial and independent national authorities thoroughly and within a reasonable time examine asylum applications and while the examination of the asylum application is pending, the expulsion and removal of the applicant in any other way is prohibited.

Procedural Law

The procedure and practice are governed by Procedural Regulations issued by the Supreme Court, by virtue of the provisions of Article 163 of the Constitution.

The Procedural Regulations of the Supreme Constitutional Court of 1962 and the Procedural Rules concerning the Operation of the Administrative Court (No. 1) Procedural Regulations of 2015 are applicable in all the recourses before the ACIP since the 18^th of June 2019, with the necessary amendments which are referred to in the Operation of the Administrative Court of International Protection Procedural Rules of 2019 (3/2019) and by the implementation, in analogy, of the procedural regulations and practice which is followed and implemented in the recourses before the Administrative Court unless otherwise provided by the ACIP.

In accordance with article 3 of the abovementioned procedural regulation, each recourse is filed before the competent Registrar by way of a written application, accompanied by the decision concerned, as well as any new relevant documentation. The recourse is also served within ten (10) days from the date of filing, with a penalty of rejection, unless otherwise specified by the court. Every objection is filed before the competent Registrar within 20 days from the day of the service of the recourse. The Registrar fixes the case before the Court for directions for its further examination, unless the Court decides to limit the deadlines if there are reasons for this.

Following the filing of the Objection and subject to the relevant instructions of the Court, the applicant files a written address within 30 days and the respondent within 30 days after being served the written address of the applicant. The applicant has the right to file 10 days afterwards a written response address. The court decides the procedure before it and gives instructions, regarding the lack of written or oral testimony or other evidence, interviews of the asylum seeker or beneficiary of international protection.

New documentation or further evidence or any further testimony has to be brought before the court as soon as possible, and in any case not during the clarifications or afterwards, unless it includes evidence that the applicant, was unable to submit during the primary examination of his/her case for reasons beyond his control. The Court can accept such an evidence only if it considers that the said evidence or findings significantly increase the chances of granting the applicant the status of international protection.

During the stage of clarifications, the applicant and the respondent, can have up to 15 minutes for oral arguments in support of their written addresses. In exceptional cases, the Court can increase the allotted time, if under the circumstances it considers this just and fair.

Appeals against judgments of the Administrative Court of International Protection

Each appeal filed against a decision of the ACIP is filed before the Supreme Court. It is filed before the competent Registrar of the Supreme Court and is being brought before the Supreme Court, in accordance with the provisions of article 13 of the Establishment and Functioning of the Administrative Court of International Protection Law (Law 73(I)2018), as defined by the Functioning of the Administrative Court of International Protection Regulations of 2019.

As per article 13 of the Law 73(I)2018 any judgment of the ACIP, can be appealed within fourteen (14) days from the date of the publication of the relevant judgment.

The appeal is brought before three (3) Judges or, analogously, before the enlarged board of the Supreme Court, only for points of law.

The Appeals (Review Procedure) Procedural Regulations of the Supreme Court of 1964, which sets out the procedure of the appeals before the Supreme Court applies. Also, the Procedural Regulation on Appeals (pretrial, written pleadings, limitation of time of oral speeches as well as Brief Procedure for the Rejection of Evidently unfounded Appeals) of 1996 (4/1996), is also relevant.

During the pretrial of the appeal, the Supreme Court usually issues directions for the submission of the written pleadings by the parties, within specified time limits, that are provided for by the relevant Procedural Regulations. Subsequently, the appeal and counter-appeals, if any, are scheduled for hearing according to chronological order.

The judgment which is issued by the Supreme Court is considered as the final judgement on the issue that has been tried.

Mrs Yianna Hadjihanna, Senior Counsel of the Republic is the Head of the Subsection of recourses before the Administrative Court of International Protection.