A Somali national entered the European Union in Cyprus and subsequently applied for asylum in the Netherlands.

Because under the Dublin III Regulation Cyprus was considered responsible for processing the asylum application, by decision of 18 April 2024, the State Secretary for Justice and Security decided not to examine the application in the Netherlands and to transfer the applicant back to Cyprus. The applicant challenged the decision on the Dublin transfer, arguing that there are structural shortcomings in the asylum procedure and in particular in the reception facilities in Cyprus.

By judgment of 29 May 2024, the first instance court declared the appeal well-founded, annulled that decision and ruled that the Minister must take a new decision on the application in accordance with the judgment. The Minister appealed against this judgment before the Council of State. The Minister referred, among others, to the 'Thematic Fact Sheet on Reception in Cyprus' of the United Nations High Commissioner for Refugees of 8 February 2024, to the report of the United States Department of State, 'Country Report on Human Rights Practices: Cyprus', of 23 April 2024, to the report of the EUAA, 'Information on procedural elements and rights of applicants subject to a Dublin transfer to Cyprus' of 26 April 2024 and to parts of the report of the Asylum Information Database (AIDA), 'Country Report: Cyprus (2023 update)' of 10 May 2024. Furthermore, the Minister submitted a letter dated 9 August 2024 from the Cypriot authorities, in which the Cypriot authorities answered questions from the Minister about the situation in Cyprus.

Before the Council of State, the applicant also referred to parts of the AIDA report and submitted an email dated 19 July 2024 from an employee of the Cyprus Refugee Council and referred to the report on Cyprus of the European Committee for the Prevention of Torture (CPT) of 17 May 2024.

The Council declared the Minister’s appeal well-founded, ruling that, based on the available information, there were no indications that the conditions in the reception centres in Cyprus were in violation of human rights.

The Council of State first recalled the principle of mutual trust between Member States, based on which a Member State may assume that all EU Member States offer effective and equal protection to the fundamental rights provided in the EU Charter, the Refugee Convention and the European Convention on Human Rights, and that an exception can only be made if it appears that in practice there is a real risk of violation of fundamental rights.

The Council of State held that the CPT report of 17 May 2024, drafted after a visit by the CPT to the Pournara centre in May 2023, showed that residents in Pournara lived in very poor conditions, that the centre was severely overcrowded and that residents often had only one or two square metres of personal living space, in a tent or plastic shelter without electricity, air conditioning or hot water. The report also stated that some residents were forced to sleep on worn-out mattresses or only sheets, right next to each other on the floor. According to the report, the showers and toilets leaked in almost the entire centre, causing some residents to refuse to use the toilets and relying on the outdoor area as a sanitary facility. The CPT concluded that this situation poses a clear risk to health.

Although the Council considered that the situation described in the CPT report was particularly worrying, it did not conclude on the basis of this report that the applicant would be subjected, upon return to Cyprus, to ill-treatment contrary to Article 4 of the EU Charter and Article 3 of the ECHR, nor that the principle of mutual trust could no longer be relied upon. The Council stated that the situation described in that report was not confirmed in the AIDA report of 10 May 2024, which noted that the conditions in Pournara had improved in 2023 compared to 2022, and that in 2023 the vast majority of residents were housed in prefabricated houses with electricity and beds. The reports therefore do not clearly paint the picture that the situation in the Pournara centre is contrary to Article 4 of the EU Charter and Article 3 of the ECHR.

The Council of State noted that Cyprus had a low number of places in reception centres compared to the number of asylum applicants staying there and that asylum applicants for whom there is no place in the reception centres must find accommodation themselves and can apply for a monthly financial contribution for accommodation. The Council observed that the vast majority of asylum applicants were dependent on the private sector.

The Council further noted that although asylum applicants in Cyprus sometimes experience problems finding accommodation and live in very poor conditions, the available information does not provide insight into the nature of the conditions in which asylum applicants are generally housed.

The Council added that it is also unclear how large is the group of asylum seekers who live in very poor conditions, so it does not follow from the information submitted by the parties that asylum seekers who are dependent on housing in the private sector often fail to find housing despite the financial contribution provided by the Cypriot authorities.

Moreover, the Council added that, based on the information submitted by the Minister, it appeared that the Cypriot authorities were not indifferent and they had been carrying out work to expand reception places to a total of 4,200.

The Council addressed the applicant’s argument that he would not have access to an effective remedy in Cyprus if the asylum application would be rejected, as the right to legal aid on appeal is subject to a 'means and merits' test, meaning that legal aid is limited to those who do not have sufficient resources and who submit an appeal that has a real chance of success. On this aspect, the Council held that this system is in line with the requirements of the recast Asylum Procedures Directive.

At the hearing before the Council, the applicant further argued that Cyprus exceeds the maximum time limit of 21 months for taking a decision on an asylum application. On this argument, the Council held that longer time limits do not in themselves lead to an impossibility for the Minister to rely on the principle of interstate trust concerning Cyprus, and also that the applicant may use legal remedies against the excessive length of proceedings since it did not follow from the information submitted by the applicant that this was not possible.

Lastly, the applicant argued at the hearing before the Council that he would be placed in detention if he were transferred to Cyprus. The Council took into account the AIDA report of 10 May 2024 which stated that most persons transferred to Cyprus were not placed in detention, but that in 2023 and early 2024 there were a few known cases in which this did happen.

Thus, considering all of the above aspects, the Council held that it cannot conclude that there are structural shortcomings in the reception facilities in Cyprus that would amount to a real risk of ill-treatment contrary to Article 3 of the ECHR and Article 4 of the EU Charter.