Author
The Immigration Act[1] states that, unless enjoying a right of entry and/or residence, any person requires leave from the PIO in order to enter Malta. Anyone without such permission is considered a ‘prohibited immigrant’. The Act also specifies that a person will also be considered a prohibited immigrant where other conditions are met, such as: inability to sustain themselves; persons suffering from mental health problems; criminal conviction punishable with imprisonment for over one year; violations of the Immigration Act; failure to comply with entry and residence conditions; the person is involved in sex work. The PIO will also deny entry to any person “who must be in possession of a visa and who is not in possession of such a visa.”
Per Article 10, when a person is refused entry following arrival at the air border, the person may be detained pending their return on the same flight with which they arrived, or on the next available flight. Persons denied entry after arriving by sea may request to disembark and be detained pending their return. Persons detained under these provisions are deemed not to have landed in terms of Article 10(3). NGOs confirm that these provisions are relied upon in practice, although there are no publicly available statistics on the number of persons detained under these provisions. Details on this detention regime are provided below under the section ‘Detention under the Immigration Act’.
Complementing the Act, the Immigration Regulations[2] provides for the logistical aspect of border checks and other related matters, with Part III regulating the rights of TCNs and Part IV travel documents, visas and border checks, in terms of the Schengen Acquis. They underline that, generally, no border checks are to be carried out on Maltese and EU nationals, whilst regular border checks are to be carried out on TCNs to establish identity and to ensure they are in possession of visas, where required.
Border checks are conducted by border officers, being public officers assigned by the PIO to conduct such checks. They may, in terms of Regulation 16A, detain a person in order to bring them before a police officer. Border officers may also detain a person if the latter refuses to cooperate with requests to provide information or in order to prevent unauthorised entry into Malta. Failure to cooperate with information requests in the context of border checks is a punishable offence. According to the PIO, border checks presently only require security checks and document checks.
Lastly, the Regulations stipulate that persons aggrieved by PIO decisions relating to residence permits, visas or carrier liability have the right to appeal these before the IAB. As mentioned below, persons detained under Article 10 of the Act are denied even the most basic procedural guarantees.
An asylum application or a declaration of the intention to seek asylum does not in itself entail additional checks, but if checks are uncompleted prior to the asylum application, these would need to be finalised.
Criminalisation of asylum-seekers arriving by air
Since 2016, concerns have been raised regarding the criminalisation by the authorities of the use of false documentation by asylum-seekers in their attempt to enter Malta.[3] Asylum seekers entering Malta with false documents are brought before the Magistrates Court (Criminal Judicature) and in most cases condemned to serve a prison sentence. The prosecutions are based on the Maltese Criminal Code in its Article 189[4] and the Immigration Act in its Article 32 (d),[5] which foresee the use of false or forged documents as invariably constituting a criminal offence, with no exception for refugees in law, practice or jurisprudence.
The person is generally remanded in custody at the Corradino Correctional Facility for the entire duration of the criminal proceedings, which generally last for about one to two months from the date of institution of the proceedings. The accused are entitled to request the appointment of a legal aid lawyer, or to hire a private lawyer should they have access to one. If found guilty, the Court may sentence the accused to either a fine of not more than around €12,000 or a maximum imprisonment term of two years, or for both the fine and imprisonment. It is noted that decisions are largely unpredictable, as some individuals have also been sentenced to imprisonment yet with a suspended sentence for a number of years. The provisions are applied in practice.
Although the prison authorities would generally refer to IPA anyone expressing a wish to seek asylum, this has no bearing on the criminal procedure.
Whilst a ‘not guilty’ verdict is difficult to secure due to the legal situation created by local legislation, in certain cases, the court has decided to implement suspended sentences rather than effective imprisonment convictions. However, the provision of suspended sentences is not the norm, and highly depends on the accused’s circumstances, quality of legal assistance, vulnerabilities and motivations in the past. Furthermore, suspended sentences are nonetheless added to the person’s criminal conduct certificate, potentially affecting future employment possibilities.
[1] Immigration Act, CAP. 217 of the Laws of Malta, available at https://tinyurl.com/3un9ah4b.
[2] Immigration Regulations, S.L. 217.04, 2004, available at https://tinyurl.com/3p2br48c.
[3] Times of Malta, Refugees should not be prosecuted for using false documents, say NGOS, 1 July 2016, available at: http://bit.ly/3Hfr7mx; MaltaToday, Man fled Iran on fake passport to escape death sentence for renouncing Islam, court told, 26 March 2019, available at: http://bit.ly/3wnzLsN; MaltaToday, Man fled Iran on fake passport to escape death sentence for renouncing Islam, court told, 26 March 2019, available at: http://bit.ly/3wnzLsN
[4] “Whosoever shall commit any other kind of forgery, or shall knowingly make use of any other forged document, not provided for in the preceding articles of this Title, shall be liable to imprisonment for a term not exceeding six months”.
[5] “Any person who […] forges any document or true copy of a document or an entry made in pursuance of this Act”.