F.A. v. CYPRUS
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant lodged his application under the name M.I. In his application form, he stated that he was an Ajanib (registered stateless) Kurd born in 1977 in Syria. He is currently living in Istanbul. 2. The applicant, who had been granted legal aid, was represented before the Court by Ms N. Charalambidou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent at the time, Mr P. Clerides, Attorney-General of the Republic of Cyprus. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. According to the applicant, he left Syria illegally on 15 April 2008 and entered Cyprus illegally on 18 July 2008 after travelling from Turkey. He applied for asylum on 23 July 2008 under the name M.I. 5. In his application for asylum, the applicant claimed that he had fled Syria for three reasons. Firstly, he alleged that his human rights had been violated as he was an Ajanib Kurd. He furnished the authorities with a document from the Syrian Ministry of Foreign Affairs under the name M.I. stating that he was registered in the Al-Hasakah governorate’s register of foreigners. The applicant claimed that as an Ajanib Kurd, he could not open his own business, continue his studies or get married. Secondly, he was an active member of the Azadi Kurdish Party (which opposed the Syrian government) and the Syrian authorities had sought to make him their informer. Thirdly, he claimed that he would be imprisoned if he returned to Syria, as he had left the country illegally. 6. The Asylum Service held an interview with him on 9 January 2009. 7. His asylum application was dismissed on 27 January 2009 on the grounds that he did not fulfil the requirements of the Refugee Law of 20002007, in that he had not shown that he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion or a well-founded fear of serious and unjustified harm for other reasons. The Asylum Service held that the applicant had not established that he was in danger of persecution as a member of the Azadi Kurdish Party or by reason of being an Ajanib Kurd. Furthermore, it considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It therefore held that his asylum application had not been substantiated. 8. On 25 February 2009 the applicant lodged an appeal with the Reviewing Authority for Refugees (hereinafter “the Reviewing Authority”) against the Asylum Service’s decision. On 12 January 2010 the decision was upheld and the appeal dismissed. 9. The Reviewing Authority pointed to contradictions in the applicant’s claims and held, having regard to all the information and evidence available, that they were unsubstantiated. It stressed, inter alia, that Ajanib Kurds were not persecuted on the basis of their ethnicity when they were not involved in anti-regime activities. The applicant had neither alleged that he had been harassed by the Syrian authorities nor that he had been persecuted because of his participation in the Azadi Kurdish Party’s activities. Furthermore, the Reviewing Authority observed that unless a person was an opponent of the regime, there was no real risk that leaving Syria illegally would result in persecution on their return. It also noted that according to its own research, Ajanib Kurds were entitled to, among other things, work in the public and private sector, receive an education and register their marriages and property. 10. The Reviewing Authority concluded by observing that the applicant had not established that he was at risk of persecution and, if he returned to Syria, that his life would be in danger or he would be imprisoned. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 11. In February or March 2010 the applicant applied for legal aid for the purpose of bringing a “recourse” (judicial review proceedings) under Article 146 of the Constitution to challenge the Reviewing Authority’s decision (for the relevant domestic law see M.A. v. Cyprus, no. 41872/10, § 76, ECHR 2013). The respondent Government argued that the application for legal aid should fail as the recourse did not have a reasonable chance of success. 12. On 26 March 2010 the Supreme Court granted the applicant legal aid. It held that the case raised issues concerning the status of Ajanib Kurds and the consequences that this entailed, which had not been examined by it before. It considered that it should not dismiss, in advance, the possibility that the applicant could be successful in his recourse without giving him the opportunity, in view of the particularity of his case and after considering the lengthy documents submitted, to develop his arguments. It also observed that his refusal to be an informer for the Syrian authorities had obvious consequences and therefore it could not say that the recourse did not have a reasonable chance of success. 13. On 29 March 2010 the applicant brought a recourse before the Supreme Court (first-instance revisional jurisdiction) challenging the Reviewing Authority’s decision of 12 January 2010. 14. On 12 April 2012 it was dismissed. 15. On 22 May 2012 the applicant lodged an appeal with the Supreme Court (appellate revisional jurisdiction), which appears to be still pending. 16. On 17 May 2010 the Yekiti Party and other Kurds from Syria organised a demonstration in Nicosia. The applicant took part and was arrested on 11 June 2010 when the authorities conducted an operation to remove the protesters. A detailed description of the relevant events can be found in the case of M.A. (cited above, §§ 29-43). 17. Deportation and detention orders were issued against the applicant on 11 June 2010 pursuant to section 14(6) of the Aliens and Immigration Law (Cap. 105, as amended) on the grounds that he was an illegal immigrant by virtue of section 6(1)(k) of the Law (see M.A., cited above, § 62). Subsequently, on the same date, a letter was prepared in English by the Civil Registry and Migration Department informing the applicant of the decision to detain and deport him (ibid., § 42). 18. In the meantime, a letter dated 1 June 2010 was sent to the applicant requesting him, in view of the Reviewing Authority’s dismissal of his appeal on 12 January 2010, to start making the necessary arrangements for his departure from Cyprus. 19. On 12 June 2010 the applicant, along with forty-three other individuals of Kurdish origin, submitted a Rule 39 request in order to prevent their imminent deportation to Syria. 20. On 14 June 2010 the President of the First Section decided to apply Rule 39, indicating to the respondent Government that the detainees should not be deported to Syria until the Court had received and examined all the documents relating to their claim. The parties were requested under Rule 54 § 2 (a) of the Rules of Court to submit information and documents concerning the asylum applications and the deportation. The applications were granted priority on the same date (Rule 41). 21. On 21 September 2010 the President of the First Section reconsidered the application of Rule 39 in the light of information provided by the parties. He decided to maintain the interim measure in respect of five of the applications, including that of the applicant. 22. On 19 January 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 23. The applicant was released on 20 May 2011. 24. In the meantime, on 24 January 2011 the applicant lodged a habeas corpus application with the Supreme Court (first-instance jurisdiction). 25. On 23 February 2011 it was dismissed (for the relevant details of the proceedings, see M.A., cited above, §§ 50-55). 26. The applicant lodged an appeal with the Supreme Court (appellate jurisdiction) on 17 March 2011. 27. It was dismissed on 15 October 2012 on the grounds that the application was without object as the applicant had in the meantime been released. 28. In a fax dated 1 August 2012 the applicant’s representative notified the Court that she had been informed by members of the Kurdish Syrian community in Cyprus that the applicant had been deported. 29. The Government replied in a fax dated 6 August 2012 that the authorities did not hold any records showing that the applicant had been deported or that he had even left Cyprus. 30. The applicant’s representative eventually managed to establish contact with the applicant with the aim of clarifying the circumstances of his departure from Cyprus. The applicant informed her that he had tried, in mid-July 2012, to leave Cyprus from Larnaca airport with a false European passport. He alleged that he had been apprehended by the police, to whom he had presented a Syrian passport under the name F.A., apparently his real passport. He had been detained for one night at the airport and during his detention had made an arrangement with the immigration authorities/police to be sent to Egypt with his Syrian passport, as Egypt did not require a visa for Syrian nationals. He had wanted to leave Cyprus as soon as possible to avoid being prosecuted for attempting to travel with false documents. He alleged that he had then made his way from Egypt to Turkey. 31. Following receipt of this information, the Government informed the Court that the authorities did not hold any records indicating the departure or deportation of anyone named F.A from Cyprus. They therefore suggested that the applicant might have left Cyprus from the occupied areas. 32. On 9 January 2013 the President of the Fourth Section, in the light of the information provided by the parties and the circumstances of the applicant’s departure from Cyprus, decided to lift the measure indicated under Rule 39. She also decided on the same date to change the name of the application to reflect what the applicant now claimed to be his true name.