A Nigerian national applied for international protection in Cyprus on 21 September 2022. His application was rejected on 31 July 2023. He appealed the decision to the International Protection Administrative Court (IPAC) - which is currently under consideration.

After this, the applicant was charged with drug possession for supply and money laundering. He was sentenced to 7 months imprisonment. He was transferred to prison and served his sentence, expiring on 7 August 2024. Just before finishing his sentence, by letter dated 29 July 2024, the YAM Limassol submitted a proposal to issue a detention and deportation order against the applicant, and to execute it after his release. The proposal for detention and deportation was based on Article 9 Refugee Laws, arguing that the offenses committed are against public security. Such letter was followed by an information note recommended to declare the applicant ‘undesirable person’ and ‘prohibited immigrant’ under Aliens and Immigration Laws. Both the letter and note were approved five days before completing his sentence.

The applicant appealed the detention and deportation order before the IPAC. He argued, first, that his detention was adopted violating Article 8 of the recast Reception Conditions Directive and Article 9F of Refugee Laws as the authority did not undertake an individual assessment of the applicant’s circumstances thus breaching the criteria of necessity and proportionality of the detention. Secondly, he stated that Article 9(2) of the recast Reception Conditions Directive as well as paragraphs (4) and (5) of Article 9(F) are violated as the detention does not have the least possible duration and the applicant was not given the factual and legal reasons for his detention. He added at the hearing stage that the decision to detain him did not have a reasoned argumentation on how he constituted a ‘present and sufficiently serious threat to a fundamental interest of society’. Thus, he submitted that the decision was arbitrary with reference to Article 5 of the ECHR.

The authority defended the legality of the detention decision.

The court started by considering whether the detention order was in line with Article 9F(2)(e) of the Refugee Laws. It first noted that as per its wording, a basic condition for the issuance of the detention order under subsection (e) is that it is required for the protection of national security or (alternatively) public order. Subsequently, the court noted that Article 9F transposes Articles 8 and 9 of the recast Reception Conditions Directive 2013/33/EU so it is paramount to observe first the case law of the CJEU.

Referring to J.N. (C-601/15), it noted first that detention is an exceptional measure which can only be justified for a legitimate purpose and that it may, in a specific case, be necessary based on three objectives [...], i.e. public order, public health and national security. On the other hand, detention can be chosen only, when necessary, reasonable in all circumstances, and proportionate to a legitimate aim. According to the J.N., the concept of 'public order' implies, that there must be, in addition to the disturbance of the social order entailed by any infringement of the law, 'a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society' represented by the individual conduct of a person. The court then referred to C-554/13, Z. Zh. And O v Staatssecretaris voor Veiligheid en Justitie which offers guidance to evaluate the personal circumstances of the applicant in the context of a return decision due to risk to ‘public order’. It noted that that according to such judgment:

‘Where a Member State relies on general practice or any presumption to establish such a risk without taking due account of the personal conduct of the national and the risk to public order which that conduct poses, the Member State fails to fulfill its obligation to carry out an individual examination of the case in question and infringes the principle of proportionality. It follows from the foregoing that the fact that a third-country national is suspected or has been convicted of having committed an act which under national law constitutes a criminal offense cannot, in itself, justify the assessment that that national constitutes a danger to public order within the meaning of Article 7(4) of Directive 2008/115’.

The court continued noting that the risk to public order must be interpreted strictly, with the result that the existence of a criminal conviction can justify expulsion - in this case detention - only if the circumstances giving rise to that conviction reveal the existence of individual conduct constituting a present threat to public order.

In the case of the applicant, the court noted that following an individual assessment it was deemed that no alternative measure to detention was feasible since there was a risk of absconding. However, the court noted, the content of the detention order does not mention which elements of the individual conduct of the applicant reveal a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or to the internal or external security of the Member State concerned.

Citing general principles of administrative law and national case law, the court stated that the incomplete justification may be supplemented or replaced by the data of the administrative file.

Looking at the administrative file, the court noted that there was no information as to what mitigating factors were considered in limiting the applicant's prison sentence to seven months and what was the role of the applicant in relation to drug trafficking, nor whether he was a drug user. Also, there was no information as to the full facts that led to the conviction of the applicant, so that his conduct can be outlined and assessed if it constitutes a danger to public order. A danger that could be classified as 'present and sufficiently serious threat to public order'.

The court concluded that the authority did not provide a sufficient investigation of the facts, failing to seek evidence absolutely necessary to form its final decision. Notably, the facts that led to the conviction of the applicant and those elements that may have been considered as mitigating factors.

The court emphasized that the authority did not take care, even at the stage of the judicial proceedings to bring such information to the attention of the court. Citing C-924/19 PPU and C-925/19 FMS, FNZ the court stated that in cases where the factual context of the facts is not certain, it must be possible for the court to substitute the decision of an administrative authority ordering the detention of an applicant by its own decision. To do so, the court should have before it the necessary evidence to reach solid conclusions in an impartial and independent manner.

In the case at hand, the court noted that the personal conduct of the applicant was considered to constitute a present and sufficiently serious threat to public order and security. However, apart from the conviction of the applicant there were no other elements which constitute his conduct, and which were considered when deciding to issue the detention order. On the contrary, looking at the computerized system of the Police, no other criminal record was found for the applicant.

In the absence of any other evidence or data, the court concluded that it was only the conviction of the applicant alone that led to the adoption of the contested decision.The court stressed that such conclusion is supported by the fact that the decision was issued while the applicant was still serving his prison sentence, with a view to its execution 'immediately after his release'.

The remaining question for the court was whether in the present case from the mere commission of that offense it can be inferred that he remains today a genuine and sufficiently serious threat affecting one of the fundamental interests of society.

In this respect, the court noted that there is no doubt that the offenses committed by the applicant are serious since the legislature attaches to them the maximum penalty prescribed by law. Despite the seriousness of the offenses, the court noted that from a maximum sentence of 8 years, the applicant was sentenced to seven months for possessing cannabis. It also noted that he was convicted to 1 month for supplying it to other persons whilst the sentence in these cases is life imprisonment. Equally, money laundering foresees a maximum sentence of 14 years or a fine or 500,000€ and the applicant was sentenced to 1 month. The court concluded that the given penalties must be intertwined with the individual conduct of the applicant

Looking at national case law, the court outlined the elements that are relevant when determining the penalty. Indicatively, the type, quantity and purpose for which drugs are possessed, as well as the role of the offender. It noted that particularly severe penalties are appropriate in cases where the quantity is large, and possession is accompanied by intent to trade in drugs. The court further noted that the division of types of substances by the legislature in ‘A, B or C’ categories, has relevance as a potential aggravating factor. It is the hard drugs and most dangerous that are classified as A, whilst B and C are the least harmful.

The court concluded that based on all the evidence, the detention decision had been taken based on reasons of general prevention without considering either the individual behavior of the applicant or the consequent danger to public order.

The court concluded that it could not be established that the applicant constituted a real, present and sufficiently serious threat to a fundamental interest of society. It noted that neither could a danger to public order be inferred from the conviction imposed on the applicant.

The court stated that the decision to detain the applicant was arbitrary and in violation of the principle of efficiency. It stated that the authority did not interpret and apply narrowly and restrictively the provision of subsection (e) of article 9(F)(2), on the contrary, the authority broadened its scope, without there being a sufficiently close relationship between the detention of the applicant and the stated purpose of protecting public order. Therefore, the detention of the applicant was arbitrary and incompatible with Article 5 of the ECHR. Moreover, the authority, failed to evaluate whether it was possible to effectively apply other, less restrictive, alternative measures of detention and generally stated that the applicant’s behaviour made it impossible to implement other less restrictive alternative measures.

Lastly, the court noted that considering that the file lacked important elements and/or additional testimony that would justify the detention the impugned detention order could not be validated.

The court annulled the detention order and granted the applicant 1200 EUR in damages.