What can an alien do in case he has been sent a decision by the Immigration authorities and/or the Ministry of Interior that he has been declared an illegal immigrant and that he must leave the Republic.
In this case the immigrant should be in a state of alert. He must immediately conduct a lawyer who will take prompt action by filing a judicial recourse or an application for judicial review of the decision of the authority to declare the alien an illegal immigrant. The alien at this stage may be legally deported at any given time by the authorities if he does not take the relevant counter measures against the immigration official’s decision which are also the filing of interim orders for the stay of the removal and/ or deportation proceedings against him, so that he is not deported while his judicial resource is pending.
Does a judicial resource stay a deportation order?
The filling of a judicial resource does not automatically stay the alien’s removal and/or deportation from the Republic. He or his attorney must also file an application for a stay of the removal or deportation proceedings since it is well known through judicial precedents, that the filing of an application for judicial review does not put a hold on deportation and/or remand orders. The application is separate and stays the order meaning it prevents the authorities from deporting the immigrant until the final judgment concerning his judicial resource.
Does a stay temporarily release the detainee ?
No the effect of the stay is only temporary, if the application for a stay is successful he cannot be deported, however a stay is of a temporary nature until the final decision on the resource is reached. The detainee will still be held in detention until the decision comes out because the deportation order is stayed, it is not cancelled. Releasing the detainee could frustrate the deportation order if his judicial resource is unsuccessful since he can turn into a wanted person by the authorities with a view to deporting him.
Can an application for an order of a stay of the deportation order alone be filed without a judicial resource?
An application for the removal and/or deportation order of an alien cannot stand if the deadline for the judicial resource of the decision declaring him an illegal immigrant has expired Κedoum v. Δημοκρατίας (2005) 3 Α.Α.Δ. 505 και Joudine ν. Δημοκρατίας (2006) 3 Α.Α.Δ. 500. . This is because the deportation order is incidental to the decision.
On what basis can a deportation or removal order be contested by the alien declared illegal?
The deportation order may be contested through a provisional order suspending the effect of the administrative at or decision subject matter of the resource on the basis of flagrant illegality, or irreparable damage see Sofocleous Sofocles v The Republic of Cyprus through the Ministry of Education (1971) 3 CLR 345.
What Constitutes flagrant illegality or irreparable damage?
In Frangos and Others v. Minister of Interior and Others(1982) 3 C.L.R. 53 page 27 it is defined by the court as follows
“Although what amounts to flagrant illegality is nowhere exhaustively defined, it appears to me to involve a clear violation of the procedure envisaged by the law or unquestionable disregard of the fundamental precepts of administrative law …”
It has been ruled in cases such NALANI RANASIGNHE RUPASSARAGE, -ΚΑΙ ΚΥΠΡΙΑΚΗ ΔΗΜΟΚΡΑΤΙΑ, ΜΕΣΩ ΔΙΕΥΘΥΝΤΡΙΑΣ ΤΜΗΜΑΤΟΣ ΑΡΧΕΙΟΥ ΠΛΗΘΥΣΜΟΥ ΚΑΙ ΜΕΤΑΝΑΣΤΕΥΣΗΣ,
that when the authorities d not communicate their decision declare the alien ” illegal ” they are commiting a flagrant illegality which allows for the deportation order to be suspended. It is flagrant in the sense that had the decision been communicated to the real to the alien he could have taken measures such as filing a judicial resource while he was still in the Republic. As far as irrepairable damage goes it cannot be attributed in monetary figures because if the immigrant wins his case he can the purse a claim in damages through a civil suit.
