Author
The Minor Protection (Alternative Care) Act came into force in July 2021, replacing earlier legislation on the protection of children in need of care and support, including unaccompanied minors and/or separated children. The Act establishes the position of the Director (Protection of Minors) within the Foundation for Social Welfare Services (FSWS), Malta’s welfare entity, who is responsible for protecting minors. It introduces the duty for all persons to report any minor who is at risk of suffering or being exposed to significant harm and establishes various forms of protection orders the Juvenile Court may impose, including care orders.
In terms of Article 21 of the Act, “any person who comes in contact with any person who claims to be an unaccompanied minor shall refer that minor to the Principal Immigration Officer who shall thereupon notify the Director (Child Protection) so that the latter registers such minor and issues an identification document for such minor within seventy-two (72) hours”.
The Act provides that immediately after the registration of the minor and the issuing of appropriate identification documents, the Director (of Child Protection) shall request the Court to provide any provisional measure relating to the care and custody of the minor according to the circumstances of the case and in the best interests of the minor and shall appoint a representative to assist the minor in the procedures undertaken in terms of the International Protection Act. AWAS is identified by the Act as being the entity responsible for the care of unaccompanied minors and will act as the legal guardian.
The amendments to the Reception Regulation of December 2021 also reflect these changes. The Regulations now provide that “entity for the welfare of asylum-seekers shall as soon as possible take measures to ensure that the unaccompanied minor is represented and assisted by a representative”.[1]
After receiving the conclusions of the investigations and evaluations from the competent authority (AWAS) that establish that the applicant is in fact an unaccompanied minor, the Director (Child Protection) shall, by application, request the Court to issue a Protection Order according to this Act and shall prepare a Care Plan. In practice, the Court will entrust the UMAS to the care of AWAS.
The Procedural Regulations provide that, as soon as possible and no later than 30 days from the issue of the Care Order, unaccompanied minors shall be represented and assisted by a representative during all the phases of the asylum procedure.[2] The assigned legal guardian is an AWAS social worker from the UMAS Protection Team who must have the necessary knowledge of the special needs of minors.
On the contrary, if the investigations and evaluations from the competent authority establish that the applicant is not an unaccompanied minor, the Director (Child Protection) shall request the Court to revoke its first decree and to provide according to the circumstances of the case.
In practice, AWAS is the entity responsible for referring the minor to the Child Protection Services which would then request the issuance the temporary care order to the Court. Upon confirmation by AWAS that the individual was assessed as an UAM, then it would inform the Child Protection Services of its conclusions for it to request the Court to issue a Care Order and confirm a care plan.
2023 saw major improvements in the procedures relating to UAMs. The referrals to Child Protection Services were conducted within days of arrival, promptly followed by the necessary applications to the Courts for the issuing of Care Orders. The above-mentioned division within AWAS now ensure that children are indeed provided with a legal guardian.
Yet structural problems that are now almost endemic to the Maltese system remained throughout 2023. Upon disembarkation, a visual assessment is made by AWAS of all persons. Persons deemed by AWAS, following this scan, to be UAMs are immediately channelled to the above procedure involving Child Protection Services. They are nonetheless detained for public health reasons for, as a minimum, a number of days. UAMs who AWAS believe are not UAMS or in respect of whom AWAS has doubts as to their UAM status are referred to the age assessment procedure and kept in detention throughout the procedure, including the appeal stage.
In 2023, NGOs visiting detention centres met UAMs appealing their negative age assessment decision who had been in detention for several months.
The ECtHR ruled against Malta in a significant case involving the illegal detention of a UAM.[3] AD was a minor who had reached Malta by boat in 2021. He was immediately detained with adults and, throughout his detention and pending his age assessment procedure, treated as an adult. Overall, he was detained by Malta for 225 days. The Court found violations of Articles 3, 5 and 13. In relation to his situation as a child in Malta’s asylum system, the Court consolidated its jurisprudence on the rights of children, noting the following:
- the presumption of minor age must be applied to persons claiming to be children, stressing that they should therefore be treated as children in all procedures;
- the Juvenile Court’s decision had not been communicated to the applicant, he had not known that he had a guardian, nor was the guardian present during his age assessment;
- it expressed “serious doubts as to the compatibility with Article 3 of a situation where a presumed minor, even if close to adulthood, was left to spend more than a month alone (in total isolation since neither the guards nor the doctors could speak French) in such premises within the confines of a detention centre. Those concerns are exacerbated in the situation of the applicant where no measures appear to have been taken by the authorities to ensure that the applicant’s physical and psychological condition allowed him to remain in isolation – quite the contrary… – nor does it appear that in the specific circumstances of this case, any other alternatives to this isolation had been envisaged”;
- “age determination is a prerequisite for the assessment of an asylum claim and that the applicant’s appeal against his age assessment decision was still pending four and a half months after his detention was ordered. The Court, however, reiterates that the necessity of detaining children in an immigration context must be very carefully considered by the national authorities. An issue may arise, inter alia, in respect of a State’s good faith, in so far as the determination of age may take an unreasonable length of time – indeed, a lapse of various months may also result in an individual reaching his or her majority pending an official determination”;
On 12 January 2023, following an application filed by aditus foundation, the ECtHR issued an interim measure ordering Malta to ensure that six applicants claiming to be minors are provided “with conditions that are compatible with Article 3 of the Convention and with their status as unaccompanied minors”. The six minors had been detained with adults in the so-called China house since their arrival on 18 November 2022, some 50 days after their arrival and AWAS was not aware of their existence before they were referred by aditus foundation in January 2023 and despite a disconcerting decision of the Immigration Appeals Board, dated 6 December 2022, confirming the detention of the minors but ordering the PIO to refer these applicants to AWAS.[4]
In another case, AWAS’ failure to act in a timely manner resulted in a minor LGBTI applicant being physically abused and humiliated by his co-detainees. On another occasion, an applicant suffering from Tuberculosis claiming to be minor was kept in detention despite a vulnerability report mentioning that he was exhibiting clear signs of mental distress, and that detention was detrimental to his mental health. The report was only shared with his lawyers following his release, some 4 months after the initial assessment, despite the lawyers numerous requests to be provided with it.[5] In yet another case concerning a LGBTI applicant, the PIO claimed that AWAS failed to inform them that a report had concluded that the applicant should be transferred to an open centre on account of his vulnerability as an LGBTI individual.[6]
NGOs expressed their disagreement with a system whereby AWAS is entrusted with the guardianship of unaccompanied minors, stating that “the multiple roles and responsibilities of persons currently working as representatives for UAMs coupled with limited capacity and resources may result in conflict of interest issues to the detriment of the minors”, adding that “It is clear that it’s involvement in so many aspects of the child’s life do not only pose a huge strain on the Agency’s capacity but, in particular, positions it in several situations of conflict of interest. We have encountered several such instances in our work with UAMs and, inevitably, the burden of these short-comings is borne by the children themselves.” NGOs exhorted the Government to commit to exploring alternative guardianship options that will ensure a quality and independent service with the child’s best interests in mind, including with the support of entities such as the European Guardianship Network.[7]
AWAS is the assessor, the legal guardian and the entity responsible to accommodate and provide protection and care to the UMAS, which raises concerns regarding the agency’s ability to ensure that no interference exist between these activities and with the Ministry for Home Affairs, under which AWAS falls.
Despite recent improvements in the age assessment procedure (see Identification), the legal representative’s position as an employee of AWAS and the Leader of the UMAS Protection Unit raises serious concerns as to the level of independence enjoyed from other State Entities. JRS and aditus reported that the legal representative is not present at any stage of the age assessment procedure and has already acted against the best interest of the child on several instances, including refusing to facilitate the release of unaccompanied minors pending age assessment appeal procedures.[8]
[1] Regulation 14(1)(b) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[2] Regulation 18 Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[3] European Court of Human Rights, A.D. v. Malta, 12427/22, 17 January 2024, https://hudoc.echr.coe.int/eng?i=001-228153.
[4] aditus foundation, European Human Rights Court orders Malta to release children from detention, 12 January 2022, available at http://bit.ly/3j3aVeM
[5] See A.D. v. Malta, no 12427/22 (Communicated Case), 24 May 2022, available at https://bit.ly/3ZCq86j
[6] Immigration Appeals Board (Div. II), Reagan Jagri v. the Principal Immigration Officer, 7 April 2022 (unpublished).
[7] aditus foundation, Technical Comments on Bill No. 2 of 2022, June 2022, available at: https://bit.ly/3EVTSTM, 11.
[8] Immigration Appeals Board (Div. I), A.M. v. The Principal Immigration Officer, 5 November 2021, available at: https://bit.ly/3jba8bL; Immigration Appeals Board (Div. I), Y.M.O. v. The Principal Immigration Officer, available at: https://bit.ly/3j070zE.