The applicant contested a return decision issued on 21 December 2022 where the authorities ordered deportation to an unspecified country and requested also protection against refoulement based on Articles 2 and 3 of the ECtHR.

The applicant, a Palestinian national arrived in Cyprus via the occupied territories and was detained pursuant to the Aliens and Immigration Law, also a deportation order was issued. He applied for asylum but was granted a supplementary protection status and the detention and return orders were revoked. His status was extended but because he committed some crimes and was sentenced to a one-year imprisonment, new detention and deportation orders were issued. Following other criminal sentences, the applicant was added to the list of people who constitute a threat to national security and order.

The Aliens and Immigration Service proposed on 23 September 2022 that deportation and detention orders be issued based on Refugee Law. The applicant’s lawyer filled appeals against deportation and detention orders and argued that the principle of non-refoulement was violated, that the principle of proportionality was violated since the deportation order constitutes an unjustified and disproportionate interference with the rights of the applicant as a holder of supplementary protection status in violation of articles 6 and 18 of the EU Charter and the general principles of EU law and claimed that other procedural deficiencies arose, including the lack of an oral hearing.

The Administrative Court of International Protection ruled that when a judge finds a violation of Article 29 (2) (a) of the Refugee Law, due to the failure to summon the applicant to make oral or written representations before the issuance of the contested decree, then the judge can proceed to examine whether that violation may lead to the annulment of the contested act.

The court stated that the violation of the right to a prior hearing is considered a violation of an essential form of the procedure and leads to the annulment of the disputed act and although the court can conduct a review of substance, it nevertheless cannot fully replace the conduct of the administration, especially in cases where the administration exercised its discretion when issuing the administrative act. The court referred to previous jurisprudence on the matter and also referred to the CJEU judgement, Bundesamt für Fremdenwesen und Asyl v AA, C‑663/21, 6 July 2023 and [CJEU], XXX v Commissaire général aux réfugiés et aux apatrides (CGRS), C-8/22, ECLI:EU:C:2023:542, 06 July 2023. 

The court considered that it resulted from what the applicant’s lawyer presented and also from legislative provisions and jurisprudential developments on the right to a hearing that there were essential elements that the applicant could usefully present and that could have led to a different outcome before the administration. Namely, the applicant could have presented those elements in order for the competent authority to judge and evaluate whether the applicant constitutes a "danger to the security of the Republic "(article 29 paragraph 1) a) of the Law on Refugees) as well as to establish whether there is a criminal conviction for a "particularly serious crime" in order for the applicant to constitute a "danger to Cypriot society " (article 29 paragraph 1 b) of the Law on Refugees), facts that would have justified the contested deportation order in accordance with article 29 of the Law on Refugees. The court noted that the contested decision did not mention which of the above-mentioned paragraphs of article 29 of the Refugee Law was relied upon to issue the contested deportation order, but only refers to the criminal conviction of the applicant to a prison sentence due to specific criminal offences. 

The court relied on the CJEU, , Bundesamt für Fremdenwesen und Asyl v AA, C‑663/21, 6 July 2023, where the facts of the case concerned the revocation of refugee status due to the applicant's criminal conviction while at the same time a return decision had been issued against the applicant. It noted that the CJEU defined the concept of 'particularly serious crime' and the criterion to be taken into account in order to judge the seriousness of the crime for which the applicant was convicted. In addition, this judgment clarified that an applicant is considered a 'danger to society' if the said risk is real, present and sufficiently serious, directed against a fundamental interest of society in the state in which the applicant is located. 

The court noted the CJEU judgment,  Staatssecretaris van Justitie en Veiligheid v M.A., C‑402/22,6 July 2023, where the criteria was clarified on how to establish what constitutes a 'particularly serious crime' as well as whether it can be considered that someone constitutes a danger to society simply because of the final criminal conviction for a particularly serious crime. A similar approach was followed in the recently CJEU judgment  XXX v Commissaire général aux réfugiés et aux apatrides (CGRS), C-8/22, 6 July 2023, where it was determined that the existence of a risk to the society of the member state in which the third-country national is located cannot be considered as proven by the mere fact that there was an irrevocable criminal conviction for a particularly serious crime.

The court also noted that the deportation order did not mention a specific country where the applicant would be returned. It had a general mention in the notification letter that "In view of the fact that you have been granted subsidiary protection, you will not be deported to your country of origin, but a safe country which will accept you and measures are being taken to this effect.” As such, the court could not examine the risk of refoulement as no country was identified as safe third country in the file.

It reiterated that according to the CJEU judgment, Bundesamt für Fremdenwesen und Asyl v AA, C‑663/21, 6 July 2023, the return decision must specify the third country of destination and that the principle of non-refoulement must be respected at all stages of the return process by the competent national authority. Since compliance with the principle of non-refoulement is always evaluated in relation to the country to which the applicant is to be deported, therefore, this evaluation cannot be carried out vaguely, without specifying the country of destination to which the return decision is executed. The court stated that the aforementioned elements are missing from the contested decision, thus the court cannot carry out any other review, since there is no host country for the applicant and it is impossible to examine any risk the applicant may suffer on the basis of the principle of non- refoulement, in violation of Article 29, paragraphs 4) and 5) of the Law on Refugees.

Based on the above, the court allowed the appeal, annulled the contested decision and referred the case back for re-examination.