Last Updated on May 19, 2019 by LawEuro
Communicated on 4 October 2018
THIRD SECTION
Applications nos. 7177/15 and 7180/15
Deepa THANNAPULI HEWAGE and Others against Cyprus and Nimal JAYAWEERA against Cyprus
STATEMENT OF FACTS
The present applications have been lodged by a family of Sri Lankan nationals. The applicant in application no. 7180/15 is Mr Nimal Jayaweera (“first applicant) born in 1955. The second application no. 7177/15 has been lodged by his wife, Mrs Deepa Thannapuli Hewage (“second applicant”) and their daughters Madushanie Jayaweera (“third applicant”) and Dilini Rangika Jayaweera (“fourth applicant”). They were born in 1963, 1989 and 2002 respectively. The first, second and fourth applicants live in Limassol, in Cyprus, and the third applicant lives in London, in the United Kingdom.
The applicants are represented before the Court by Ms N. Charalambidou, a lawyer practising in Nicosia.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The second applicant went to Cyprus on 27 August 1993 to work as a domestic worker.
The first applicant joined her in 23 June 1995 on a temporary employment entry and residence permit to be employed by a company. He was granted a residence permit until 22 June 1996.
Their residence permits were extended until 1997. In the meantime, in September 1996 the third applicant joined them in Cyprus.
Upon requests by the first applicant’s employer each year the residence permits of the first and second applicants were renewed on a yearly basis until 7 July 2001.
Requests for the renewal of their permits submitted on 2 July 2001 by the first applicant and 15 of September 2001 by the second applicant were rejected and they were requested to leave the country.
On 2 November 2001 deportation and detention orders were issued against the applicants pursuant to section 14 of the Aliens and Immigration law Law, Cap. 105, on the grounds that they were “prohibited immigrant” within the meaning of section 6 (1)(k) of that law (unlawful residence in the Republic). The orders were not enforced by the authorities.
Eventually, the family was granted residence permits until 30 June 2002, namely, the end of the school year for the third applicant and the above orders were annulled by the Minister of the Interior.
In the meantime, the fourth applicant was born on 6 January 2002.
On 25 June 2002, before the expiry of her residence permit, the second applicant filed an application for naturalisation.
This was dismissed by the Minister of Interior on 14 August 2002 on the ground that the Government, exercising their sovereign rights, considered that there was no substantial ground to justify her naturalisation as a Cypriot. Pursuant to the administrative file and recommendations therein, although the second applicant did appear to have the formal requirements which were required, essentially naturalisation was not justified because she did not have links with Cyprus and there was no other ground to grant her naturalisation. The applicants were also requested to leave Cyprus on the ground that their residence permit had expired on 30 June 2002.
On 23 September 2002 the second applicant brought a recourse (no. 869/2002) against that decision before the Supreme Court (first instance revisional jurisdiction).
Following a request by the applicants’ lawyer, the authorities agreed to grant them the right to reside in Cyprus until the recourse was decided.
In the meantime, the company employing the applicants ceased its activities.
On 31 March 2004 the Supreme Court gave judgment in recourse no. 869/2002 in favour of the second applicant and annulled the authorities’ decision rejecting her naturalisation application. In sum, the Supreme Court held that the decision had not been reasoned; the grounds of rejection of the application had been vague and unjustified in particular as regards the finding concerning the second applicant’s links with Cyprus. The court noted in this respect that the second applicant had been working for a company which had vouched for her hardworking nature and honesty, and her child, the third applicant, went to a school in Cyprus and spoke fluent Greek.
On 8 April 2004 the first applicant filed an application for naturalisation.
Following a request by the applicants, an extension was granted to their residence permit until 31 March 2005 pending the examination of the first applicant’s naturalisation application and the re-examination of the second applicant’s naturalisation application. Following a request by the applicants, a further extension was granted until 30 June 2006 subject to the condition that they had contracts which were certified by the Ministry of Labour. They were informed that the permit was “final and not renewable” and that the applicants would have to leave before or upon its expiry.
In the meantime, on 26 September 2005 the first applicant brought a recourse (no. 1162/2005) challenging the term “final and not renewable”. As during the proceedings the authorities undertook to remove this condition from the permit, the first applicant withdrew the recourse.
On 29 October 2007 the Ministry of the Interior informed the first applicant that it had dismissed his application on the ground that he did not fulfil the seven year residence condition for naturalisation. The first applicant brought a recourse (no. 27/2008) against that decision.
On the same date the second applicant was informed that her naturalisation application had been reviewed and had been rejected on the ground that she did not meet the residence requirement under the Civil Registry Law 141(I)/2000 according to which she had to, in the seven preceding years, accumulate at least seven years legal residence of which the one year prior to the date of the application had to be continuous residence in the Republic.
The second applicant brought a recourse (no. 26/2008) before the Supreme Court against that decision.
By letter dated 20 August 2008 the Ministry sent a letter informing the applicants that an extension of their residence permits had been approved until 30 June 2009. A temporary permit was issued only in respect of the second applicant.
The applicants submitted that from then onwards he applicants the authorities did not reply to their requests for renewal/extension of their residence permits.
On 23 February 2010 the Supreme Court upheld the first applicant’s recourse (no. 27/2008) and annulled the authorities’ decision of 29 October 2007 dismissing his naturalisation application. It held that there had been misconception on the part of the authorities, as to the facts and the law, in their assessment of whether the residence criteria had been fulfilled and in their assessment of the periods when the first applicant had resided unlawfully in Cyprus. It also concluded that the authorities’ decision lacked adequate reasoning.
On 23 March 2010 the Government brought an appeal against the abovementioned judgment (appeal no. 37/2010).
On 18 October 2010 the Supreme Court upheld the second applicant’s recourse (no. 26/2008) and annulled the authorities’ decision of 29 October 2007. The court noted that in its previous ruling in recourse no. 869/2002 the Supreme Court had annulled the decision for lack of reasoning but had also noted that the applicant had met the formal requirements for residence. The authorities’ conduct had been in violation of the principle of good faith. It was not possible when a decision was annulled by the Supreme Court that the authorities would rake through the facts of the case in order to create new grounds for refusal and base their new decision on a new factual background which they had themselves created. In view of this conclusion, the court did not find it necessary to go into the calculation of the time the second applicant had been residing lawfully in the Republic.
In the meantime the third applicant finished school but was not able to study abroad due to the lack of a residence permit.
On 29 August 2011 the third applicant lodged a complaint with the Commissioner for Administration of the Republic of Cyprus (“the Ombudsman”) about the authorities’ omission to grant the family a residence permit.
On 31 August 2011 a second complaint was lodged with the Ombudsman by the first and second applicants concerning the delay in the examination of their naturalisation applications but also their applications for a renewal of their residence permits.
On 11 January 2012 the second applicant was put on the authorities’ stop-list.
On 10 February 2012 the applicants’ lawyer wrote a letter to the Migration Department requesting a residence permit for the family pending the examination of the naturalisation applications of the first and second applicants. The authorities did not reply.
On 20 July 2013 the applicant was arrested by immigration police and was arrested for not having a residence permit. It also transpired that he had been put on the stop-list for the purpose of deportation in 2002 and had remained on it.
On the next day detention and deportation orders were issued pursuant to section 14 of the Aliens and Immigration Law on the ground that he was a “prohibited immigrant” within the meaning of section 6 (1)(k) of that law (unlawful residence in the Republic).
On 31 July 2013 the second applicant brought a recourse (no.5825/2013) challenging the omission of the authorities to re-examine her naturalisation application in view of the Supreme Court’s judgments in her favour.
On 31 July 2013 the Ombudsman issued a report concerning the family (report no. 1564/2011). In this she noted the extensive delays by the authorities in examining the applicants’ naturalisation applications but also their omission or refusal to reexamine the applications following the annulling decisions of the Supreme Court in their respective recourses. She pointed to the omissions and failures of the authority to reply to the applicants’ requests for extension of their residence permits but also to her own requests for information and explanations concerning their case. Furthermore, despite the fact that the Supreme Court had annulled the decision of the authorities rejecting the first applicant’s naturalisation application and that the appeal of the Government was still pending, the first applicant had been detained for the purposes of detention and was thus not able to support his family. The Ombudsman highlighted the serious problems in the handling by the authorities of the applicants who had established their home in Cyprus. She recommended the first applicant’s release, the reexamination of the second applicant’s naturalisation application and the regularisation of the legal status of the family pending the various proceedings.
On 7 August 2013 the applicants’ lawyer sent a letter to the Director of the Civil Registry and Migration Department requesting the first applicant’s release and the regularisation of his family’s status.
On 12 August 2013 the first applicant brought a recourse (no. 5868/13) before the Supreme Court (first instance revisions jurisdiction) challenging these orders and on 13 August 2013 he filed an application seeking a provisional order to suspend the enforcement of the orders.
On 26 August 2013 the authorities agreed to suspend the deportation order. They did not, however, agree to the first applicant’s release on conditions.
On 6 September 2013 upon the Supreme Court’s suggestion and following the authorities’ undertaking to refrain from deporting the first applicant until the determination of his recourse, the first applicant withdrew his application for a provisional order. The parties also agreed that the examination of the recourse would be expedited in view of the first applicant’s continued detention.
On 28 November 2013 the Supreme Court set aside the deportation and detention orders and the first applicant was released on that date. It held that the authorities had failed to conduct a proper enquiry before they issued the orders. The first applicant’s appeal against his naturalisation application was still pending before the Supreme Court and his wife’s application had not yet been re-examined by the authorities. The authorities had considered that the first applicant had remained illegally in the country since 2001 when the first deportation and detention orders had been issued although these had in fact been cancelled and the first applicant’s residence permit had been renewed and extended several times thereafter.
The first applicant was released on the same day.
On 9 December 2013 the applicants’ lawyer requested the Ministry of Interior to grant a residence permit to the applicants as they had found employers who were willing to employ them. This letter remained unanswered. A follow-up letter was sent on 24 March 2014.
On 7 January 2014 the Government lodged an appeal against the judgment of 28 November 2013 (no. 4/14) which is still pending.
On 14 April 2014 the authorities informed the second applicant that after a third review, her naturalisation application had been rejected: she did not fulfil the residence requirements and on the day she had submitted her application she had been residing in the Republic illegally.
On 15 March 2014 the second applicant lodged a recourse against that decision (recourse no. 682/2014). These proceedings are still pending. In view of the decision she withdrew recourse no. 5825/2013.
On 13 May 2014 the applicants complained to the Ombudsman of the failure of the authorities to reply to their repeated requests for renewals of their residence permits leaving the family in a prolonged state of uncertainty. They also lodged a complaint with the Commissioner for Children’s Rights (“the Commissioner”) invoking, inter alia, the detrimental effects the authorities’ stance and actions were causing the family, and in particular, the fourth applicant.
By a letter dated 9 July 2014 the Ombudsman expressed her regret to the Director General of the Minister of Interior over the authorities’ handling of the case which had resulted in the family having an irregular status, living in uncertainty and without access to work. She referred to the recommendations made to the authorities in her report of 31 July 2013 concerning the regularisation of the family’s residence. The Ombudsman, inter alia, recommended that the authorities reconsidered their decision of 14 April 2014 rejecting the second applicant’s naturalisation application in order to ensure compliance with the various judicial decisions that had been taken on the matter. She also invited the authorities to consider and examine the family’s requests and applications in a positive light bearing in mind that the first and second applicants had been in Cyprus for nearly twenty-one years and that their children had grown up there and were completely integrated in Cypriot society.
On 10 July 2014 the Supreme Court upheld appeal no. 37/2010 and thus the authorities’ decision to dismiss the first applicant’s naturalisation application. It found that there had been periods of illegal stay and the fact that the authorities would subsequently approve the residence permits did not take away the element of illegality in his stay during those relevant periods. It also considered that the decision was sufficiently reasoned.
As the applicants’ requests for renewal of their residence permits remained unanswered, on 5 August 2014 the applicants requested a residence permit to work as self-employed. The applicants wished to run their own family business with the help of a friend abroad.
By a letter dated 29 October 2014 the Ombudsman requested the Director of the Civil Registry and Migration Department to provide information on the family’s status. She referred to her report of 31 July 2013 and her letters to the authorities which had remained unanswered.
On 11 November 2014 the applicants submitted a second complaint with the Ombudsman concerning their treatment by the authorities. They requested her intervention as the fourth applicant wished to participate in a school trip abroad but could not do so without a residence permit.
B. Developments following the lodging of the application
By a letter dated 30 October 2017 the applicants informed the Court that after sending a number of letters to the Minister of Interior, on 5 May 2015 the latter approved the grant of a student permit to the fourth applicant and residence and employment permits to the first and second applicants. The lodging of the application for the residence and employment permits was subject to the condition that the applicants found employers who were approved by the Labour Office. It was also stated that the applications for the permits had to be lodged simultaneously.
Following a letter dated 29 August 2015 by the applicants concerning the conditions attached to the granting of the permits, they were informed by a letter dated 29 October 2015 that they would all be provided with visitors’ permits until they were able to find employers. The second and fourth applicants were granted permits on 23 February 2016 until 3 September 2016. They applied for their renewal on 26 July 2016 and the residence permits were issued one year later, namely, on 12 July 2017. The second applicant’s permit was granted until 3 September 2018. The fourth applicant’s permit was only valid for two months so she reapplied for its renewal on 10 August 2017 but by 30 October 2017 had not received a reply. The second applicant’s permit was granted until 3 September 2018.
The first applicant was granted an employment permit on 11 July 2016 which was valid until 2 February 2017. Following another application he received a permit until 2 February 2018.
C. Relevant domestic law and practice
The Ombudsman issued a report on 10 October 2013 (no. 7/2013) concerning the need for regulation of the legal status of immigrants with long and established stay in Cyprus, following complaints by long-term immigrants. The complaints concerned, inter alia, the lengthy procedures and delays in the issuance of permits leaving families in a precarious situation plus the high fees involved.
In her conclusions the Ombudsman pointed to the failure of the procedures followed for providing long-term residence status to third-country nationals. In her report she made reference to a number of problems within the current immigration system, including, the bureaucratic and time consuming procedure for determining the legal status of third country nationals, the absence of voluntary repatriation proceedings, the lack of compliance with the required European Union obligations and the fact that the system adopted a case-by-case approach which lacked coherence and transparency due to the wide discretion afforded to the authorities. The immigration authorities treated immigrants, who had lived in the country for more than a decade or even two decades and had established their family life there, as temporary residents, underestimating the reality of their situation and the Government’s legal obligations towards them. Such families were forced to live illegally in Cyprus and in continued uncertainty. This increased the danger of financial exploitation and could give rise to behaviour as well as xenophobia and racism. In many cases they were force to leave the country or were subjected to humiliating deportation procedures.
In the Ombudsman’s view it was imperative to create a new plan to deal with immigrants. The regulation of the legal status of immigrants was very important because the State had a responsibility to socially integrate these people for reasons of social cohesion and security, instead of excluding and marginalising them. She also stressed that before the implementation of a new plan it was important that the State dealt with illegal immigrants with utmost lenience in order to prevent negative irreversible consequences. Additionally, the report pointed out that the relevant domestic law imposed that the best interest of the child and the family life of the person concerned were taken into consideration by the authorities.
COMPLAINTS
1. The applicants complain under Article 8 of the Convention about the overall handling of their case by the domestic authorities and the treatment they have received pending the examination of their naturalisation applications as well as the authorities’ decisions. They complain, inter alia, about the authorities’ alleged failure to deal with their residence permit applications since 2009, resulting in periods of illegal stay and a life of continued uncertainty and precariousness; the significant delays in the reexamination of their naturalisation applications and the authorities’ decisions taken in this respect; the authorities’ alleged failure to take into account all the rights and interest of the children; and the alleged absence of domestic legislation providing legal protection against the arbitrary interference by public authorities with their rights as long term immigrants.
2. The applicants also complain under Article 13 of the Convention of a lack of an effective remedy in relation to their complaints under Article 8. They complain, inter alia, that there is no effective domestic remedy in respect of the authorities’ failure to deal with their residence permit applications and that domestic law does not provide for an enforcement mechanism for the Supreme Court’s judgments and also for the protection of Article 8 rights by the Government. Therefore, although the authorities are obliged to re-examine a case once an act or decision is annulled by the Supreme Court and do so in compliance with that court’s judgments, no measures can be taken to ensure that they actually do so and that it is also done in a timely manner. The second applicant complains in this respect that despite two Supreme Court judgments in her favour the authorities continue to dismiss her application for naturalisation on the same grounds.
QUESTIONS
1. In view of the applicants’ complaints, has there been an interference with the applicants’ right to respect for their private and/or family life within the meaning of Article 8 § 1 of the Convention?
If so, would that interference be in accordance with the law, necessary in a democratic society and proportionate to the aims pursued in terms of Article 8 § 2?
2. Did the applicants have an effective domestic remedy at their disposal for their complaint under Article 8 of the Convention, as required by Article 13 of the Convention? In particular, the Government are invited to comment on the applicants’ allegations, as set out in their complaint, that there is no effective domestic remedy in respect of the authorities’ failure to deal with their residence permit applications and to ensure compliance with the Supreme Court’s judgments.
Leave a Reply