Ngassam v Republic of Cyprus [Cyprus, Supreme Court.]

• Jurisdiction: Chipre
• Judge: Constantinides J
• Court: Supreme Court (Cyprus)
• Docket Number: (Case No 493/2010)
• Date: 20 August 2010

Cyprus, Supreme Court.

(Constantinides J)

(Case No 493/2010)

Ngassam

and

Republic of Cyprus (Director General of Ministry of Interior and Attorney-General)1

Aliens Immigration and deportation Applicant entering Cyprus illegally Applicant HIV/AIDS carrier Applicant seeking asylum Applicant denied asylum Refugee Review Authority dismissing applicant's administrative appeal Applicant appealing decision of Refugee Review Authority Outcome of appeal awaited Applicant subject to decrees ordering her detention and deportation on basis of being illegal immigrant and HIV/AIDS carrier Article 6(1)(k) and 6(1)(c) of Aliens and Immigration Law (Chapter 105) Applicant seeking review of decrees Article 146 of Constitution of Cyprus Whether applicant could be deported pending outcome of constitutional appeal Whether applicant could be deported because HIV/AIDS carrier

Relationship of international law and municipal law European Council Directive 2005/85/EC, Article 39(b) Whether unconditional and sufficiently precise Whether having direct effectInternational Guidelines on HIV/AIDS and Human Rights 1996 (consolidated in 2006) 2006 Note on HIV/AIDS and the Protection of Refugees, Internally Displaced Persons and Other Persons of Concern Effect on municipal law Whether deportation on basis of Article 6(1)(k) and 6(1)(c) of Aliens and Immigration Law (Chapter 105) lawful

Human rights Right to an effective remedy Asylum seeker European Council Directive 2005/85/EC Article 39(3)(a) of Directive providing for Member State discretion whether applicant could remain pending appeal decision Article 39(3)(b) of Directive providing for possibility of legal remedy or protective measures if applicant not allowed to remain pending appeal decision Whether applicant being denied right to effective remedy Whether deportation on basis of Article 6(1)(k) of Aliens and Immigration Law (Chapter 105) lawful

Human rights Principle of equality Principle of non-discrimination Applicant asylum seeker Limitation of rights of freedom of movement and choice of residence on sole basis of HIV/AIDS Whether discriminatory International Guidelines on HIV/AIDS and Human Rights 1996 (consolidated in 2006) United Nations High Commissioner on Refugees 2006 Note on HIV/AIDS and the Protection of Refugees, Internally Displaced Persons and Other Persons of Concern Principle of non-refoulement Whether applicant could be deported to Cameroon where would face discrimination as HIV/AIDS carrier Whether deportation on basis of 6(1)(c) of Aliens and Immigration Law (Chapter 105) lawful The law of Cyprus

Summary:2The facts:The applicant, a Cameroonian national who was an HIV/AIDS carrier, entered Cyprus illegally and subsequently applied for asylum. Her application for asylum was rejected. The Refugee Review Authority (RRA) dismissed the applicant's administrative appeal; the applicant appealed that decision.

The Director General of the Ministry of Interior issued decrees ordering the deportation, and detention pending deportation, of the applicant on the grounds that she was an illegal immigrant and an HIV/AIDS carrier under Article 6(1)(k) and 6(1)(c)3 of the Aliens and Immigration Law (Chapter 105) respectively. Under Article 8 of the Refugee Law 2000 the applicant had no right of residence in Cyprus following the RRA's decision. This accorded with European Council Directive 2005/85/EC (the Directive),4 Article 39 of which, while conferring the right to appeal against a decision of such a tribunal as the RRA, allowed Member States to decide whether an applicant could remain pending the outcome of that appeal.

The applicant filed for constitutional recourse under Article 146 of the Constitution of Cyprus. She sought review of the decrees, claiming that the deportation order had no valid basis. The applicant relied on Article 39 of the Directive,5 arguing that the Directive was contradictory in providing a right to

an effective remedy but allowing in Article 39(3)(a) discretion as to whether an applicant could remain pending an appeal decision, and that no possibility of legal remedy or protective measures had been provided pursuant to Article 39(3)(b). She maintained that she remained an asylum seeker pending the outcome of her appeal of the RRA's decision, with the right of free movement within Cyprus under Article 9(1)(a) of the Refugee Law. The applicant also argued that the restrictions on her movement and choice of residence as an HIV/AIDS carrier constituted discrimination and that she could not be deported to Cameroon where she would face persecution on that basis

Held:The application was granted. The decrees were to be quashed. Since the deportation order had no valid basis, the detention order was also invalid.

(1) The issuing of a deportation order immediately after the decision of the RRA was unlawful. If an applicant was not allowed to remain in Cyprus, there was an obligation on Cyprus to put in place adequate protective measures as...