Author
Review of asylum detention under the Reception Regulations
The Reception Regulations provide for an ex officio review of the lawfulness of the detention to be automatically conducted by the Immigration Appeals Board (IAB) after seven working days from the issuance of the detention order, which may be extended by another seven working days.[1] If the applicant is still detained, a new review would be conducted after periods of two months thereafter. If the IAB rules the detention is unlawful, the applicant should be released immediately. Free legal assistance is provided for the first review.
The Immigration Act provides that the Board shall consist of “a lawyer who shall preside, a person versed in immigration matters and another person, each of whom shall be appointed by the President acting on the advice of the Minister. Provided that the Minister may by regulations prescribe that the Board shall consist of more than one division each composed of a Chairman and two other members as aforesaid”.[2]
The image of the Board and its ability to act and appear as an independent entity has been seriously undermined by various independent commentators who pointed out that all members of the Board are directly connected to the executive[3] and cumulatively sit on a dozen other specialised tribunals, including the Chair who sits on at least others.[4] All members who are lawyers are also practising as private lawyers in diverse civil and criminal matters.
Stakeholders, including the Chamber of Advocates, have expressed concerns regarding specialised tribunals such as the Board.[5] In their feedback to DG Justice on the Malta Country Chapter for the Rule of Law Report, aditus foundation highlighted the following shortcomings regarding the Board:
- Although the basic principles of natural justice apply to the Board, the Board members are not members of the judiciary and are not bound by any code of ethics, differently from members of the judiciary. The only requisite for the Board to be validly constituted is for the Chairperson to be a lawyer and one member to be a “person versed in immigration matters”. The appointment of persons who lack any specific qualification and experience on a Board that examine particularly sensitive issues such as the detention of migrants and asylum seekers might deprive individuals of the right to an effective remedy.
- Members of the Board are part-time members. This means that they often have regular day jobs, usually in the private sector, and perform their Board functions for some hours during the week. This can raise serious conflict of interest issues, besides effecting the efficiencies of the Board.
- Members of the Board are appointed by the Prime Minister. Whilst not automatically assuming that such an appointment would lead to political interference, it is clear that the system could have an impact on independence and impartiality and could strengthen Government’s agenda on any particular issue as the Board examine decisions taken by Government bodies.
- The manner in which the Board conducts its proceedings is not publicly available through published guidelines. There is a lack of procedural transparency: proceedings are not appropriately recorded, the minutes of the hearing are poorly done (if done at all), and the method of receiving submissions from parties is not formalised. The decisions are not published and are not publicly available.
- The Board’s decision is final, and no further appeal is possible on substantive issues. Whilst judicial review on administrative action might be possible, as also a Constitutional case alleging human rights violations, there is rarely the possibility to bring substantive elements before the Courts of law.
These concerns were shared by the Venice Commission which considered that specialised tribunals such as the Board do not enjoy the same level of independence as that of the ordinary judiciary and reiterated in October 2020 its recommendations in that respect.[6]
In its 2022 Rule of Law Report, the European Commission expressed concerns over the independence of specialised tribunals like the Board and indicated that the Government has committed in the Maltese Recovery and Resilience Plan to carry out a review of their independence in communication with the Venice Commission. This review will include a study, to be completed by end 2024, as well as legislative amendments to enter into force by 31 March 2026.[7]
In their submissions for the 2023 Rule of Law Report, aditus foundation and the Daphne Caruana Galizia Foundation stated that although aware of the review of the system, they expressed their concerns at the deadline of the implementation, 3 years from now, highlighting that in the meantime, the boards are deciding on crucial issues relating to detention, refoulement and asylum, which have clear implication on fundamental rights in the implementation of European Union law. They further reported that the independence of the tribunals, specifically of the IPAT was also raised in pending Commission Complaint CHAP(2021)02127 – Systematic breach of EU law in accelerated procedures, breach of Charter (Asylum Unit).[8]
While the review of detention is usually carried out after the first seven days, NGOs report that hearings with the IAB are extremely short, lasting between 5 and 15 minutes and that the several detainees are often seen at the same time. The Board has no written or published procedural rules, particularly on oral or written submissions. This means applicants are rarely heard.
The Board rarely questions detention legality in terms of the Directive’s and Regualtions’ requirements. Decisions generally take the form of unsigned hearing transcripts, standardized and rarely motivated by any principle or law. Some decisions run contrary to well established jurisprudence, including national case law from the Court of Magistrates and the Constitutional Court. The following policies have been reported by lawyers as being consistently applied by the Board:
- If less coercive measures were not requested to the PIO prior to the hearing, the Board will require the applicant to first make a formal request to the PIO before it decides on the legality of the detention, thus prolonging the stay of the applicant in detention;
- Despite the above, the Board considers that ordering less coercive measures are outside of its remit and therefore offers full discretion to the PIO to implement these when it decides the detention to be lawful.
- The Board will not challenge the PIO’s declarations with regard to the detention on grounds of threat to public order and always confirm detention to be legal without any assessment of the actual threat posed by the applicant. The Board will generally not order the release of an individual detained because their identity, including their nationality, has yet to be verified and will agree with the PIO that, since the identity cannot be verified, the individual is potentially a threat to the public order despite no evidence of such;
- The Board will generally not grant release of an individual who tried to abscond in the past, and was condemned to a prison sentence for such. This no matter the personal circumstances of the asylum seeker, the risk of absconding is therefore taken as a self-standing ground for detention, despite what higher Maltese Courts have said;
- Despite some positive decisions on the matter, the Board will generally not order the release of an individual pending age assessment, at the first stage or at appeal stage, and rather will confirm the detention order.
In M. A. R. (Lebanon) vs. the PIO decided on 3 November 2022, the Board considered that the minority claim of the appellant was not manifestly unfounded despite the fact that he declared being an adult upon arrival. The Board ordered the release of the appellant in the care of AWAS and instructed the Agency to carry out an age assessment as soon as possible and to appoint a legal guardian and ensure that the appellant is kept in appropriate accommodation given his declaration of minority. The appellant was then declared to be a minor by AWAS on 15 November 2022.[9]
In R.M. (Bangladesh) vs. the PIO,[10] the Board noted that the case was initially to be heard before Immigration Appeals Board, Division I, but that a conflict of interest was registered by Division I due to the role of one of its members in the Minors Care Review Board. The appellant’s representative questioned whether there was a similar conflict of interest before Division II given that the same Division also decides the Age Assessment Appeals. The Board advised the appellant that an objection should be registered if the appellant’s representative felt that Division II had a conflict of interest to hear both cases. The appellant declared that he wished to proceed with the hearing as this would delay his detention. The Board relied on the fact that the appellant rectified his date of birth during the asylum procedure to deem the detention to be lawful. However, the Board decided that until the Age Assessment Appeal is decided, the appellant is to be transferred to the Buffer Zone within the AWAS Open Centre under those conditions that are considered appropriate and necessary by AWAS.
In the cases of K.J. and K.B.D. (Bangladesh) vs. AWAS and the PIO[11], the challenged AWAS decision reversed a previous decision of the Agency to declare the appellants as minors, following the submission of a “photo of documentation” by the PIO which allegedly showed that the appellants were adults. The Board declared both appeals closed noting that the Principal Immigration Officer has no locus standi in age assessment procedures and that AWAS has no competence to review its own decisions on age assessment. The Board concluded that the appellants are minors, as originally concluded by the AWAS and that they must be released and returned to the Dar Il-Liedna open shelter for unaccompanied children. Following this decision, the PIO systematically submits pictures of passports which are found in the confiscated phone of the applicants before AWAS decides on the age assessment procedure and AWAS appears to give significant weight to this evidence.
While the above decisions indicate that Division II tends to show awareness to minority claims, Division II does not appear to consider itself to be bound by its own precedents and has shown itself to be able to ignore the minority claim of some applicants despite their case being similar to the above-cited cases.
In A.D. (Ivory Coast) vs. the PIO,[12] the appellant was rescued and disembarked in Malta in November 2021. He declared that he is a minor upon arrival and was directly detained by the health authorities after disembarkation. The appellant was initially rejected following an age assessment procedure in January 2022 but filed an appeal in front of the Immigration Appeals Board, Division II. He then appealed the detention order issued to him in February 2022 and appeared in front of the Immigration Appeals Board, Division II, for a first hearing on 17 February 2022. The appellant complained that despite being an asylum seeker, he was being detained solely on the basis of his nationality since he is from a country where Malta carries out forced returns. He further complained that there was no individual assessment of the need to detain him and that alternatives to detention were never considered. Finally, he complained that as a minor he should be detained as a measure of last resort which was not the case in his situation.
Division II considered detention to be lawful and ordered that the appellant is kept in a lodging adequate for minors. The Board decided that it would review the detention of the appellant two months after unless a decision on his age assessment is given before such date or unless the PIO offered an alternative to detention. The PIO later refused to implement alternatives to detention and the appellant was kept in detention until he was released in July 2022.
Division II held 3 other hearings during which it concluded that the detention was lawful. This case is currently before ECtHR where the applicant complains, inter alia, that the Board does not satisfy the definition of a “tribunal” in the sense of the Convention due to its lack of independence and impartiality and that the Board failed to provide carry out an assessment of the legality of his detention and provide reasons for its decisions, in breach of Article 5 ECHR.[13]
In J.B. and others decided on 6 December 2022, concerned the legality of the detention of 47 applicants assisted by legal aid lawyers, including 6 applicants claiming to be minors. Division II decided that the detention of the 47 applicants was lawful with no apparent assessment, issuing a single decision for all applicants. On 12 January 2023, following an application filed by aditus foundation, the ECtHR issued an interim measure ordering Malta to ensure that the 6 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 6 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.[14]
With regard to LGBTI applicants, in K.K. (Ghana) vs. the PIO decided on 24 September 2021, the appellant, detained on a removal order, had filed a subsequent application with IPA on the basis of his LGBTIQ+ identity, and therefore at risk of persecution if returned. The PIO issued a Detention Order based on Regulation 6(1)(b) and 6(1)(d) of the Reception Regulations, which the appellant appealed before the Immigration Appeals Board with the assistance of aditus foundation lawyers. The UNHCR was present at the hearing. The Board noted that the mere fact that the appellant was found guilty by the Court of Magistrates for trying to leave Malta with forged documents in the past was already a basis to consider there is a risk of absconding and that from the evidence produced, the Board did not believe that the second ground had been rebutted substantially. Notwithstanding this, the PIO was directed to assess the possibility of alternatives to detention after the appellant provides the details for an alternative accommodation. Furthermore, the Board directed the IPA to decide the appellant’s subsequent asylum application as expediently as possible. The appellant was released under alternatives to detention.
The Immigration Appeals Board failed to provide any statistics in 2021 and 2022 and the Government rejected a Freedom of Information Request filed by aditus foundation in mid-2022. However, NGOs and lawyers confirmed that nearly all reviews carried out in 2021 and 2022 confirmed the detention to be lawful.
The decisions of the Board are not published. Some decisions are available online on the EUAA case law database, the International Commissions of Jurist “CADRE” database and aditus foundation’s website.[15]
Lawyers reported that the reviews that are required by the Regulations to be carried out two months after the first one is generally not automatically done and will only happen if requested by a lawyer. This is in part due to the fact that free legal aid is only provided for the first review. This results in large numbers of asylum seekers being detained without appropriate judicial oversight. This is confirmed by the numerous cases of asylum seekers being detained beyond the 9 months deadline, as will be discussed further below. According to the Malta Police Force, in the first 6 months of 2022, no applicants issued with a Detention Order were detained for longer than 9 months.[16]
Parallel to this automatic review, the new Reception Regulations provide for the possibility to challenge the detention order before the IAB within three working days from the order.[17] In practice, it is nearly impossible to challenge the detention order itself as asylum seekers do not have the capacity to submit such an appeal on such short notice as there is not enough time to seek the assistance of a lawyer. In 2020, due to lack of access to detention for NGOs for several months, detainees did not receive legal support and were never able to challenge their detention orders. The restrictions on access put in place since June 2021 still seriously hinder information provision and the lawyers’ possibility to file appeals (see Access to Detention).
A significant number of migrants are detained under the Prevention of Disease Ordinance. This is not a formal detention regime where applicants are issued with a detention order. Therefore, they do not benefit from effective remedies and are not entitled to appeal against the decision, in contravention of the Reception Conditions Directive. They may, however, challenge the lawfulness of their detention before the Criminal Courts, provided they have access to a lawyer, which is rarely the case (see below).
Other remedies
Although there are a number of remedies available to detainees to challenge their detention. Yet some do not meet the ECHR requirements of being “speedy, judicial remedies” in terms of Article 5(4) ECHR.[18]
Human rights complaints before the Civil Court (First Hall)
This remedy, which allows detainees to challenge the lawfulness of their detention in terms of the ECHR and the Constitution of Malta, has failed the Article 5(4) ECHR test as, although it is clearly judicial, it is far from speedy.
In addition to the length of time for the delivery of judgments, Constitutional proceedings are virtually inaccessible to detainees as in practice most asylum seekers do not have access to a lawyer who could file a court case on their behalf. In fact, to date most cases have been filed by lawyers working in collaboration with NGOs assisting asylum seekers. In such cases there is no waiver of court fees, as there would be if the applicant had been granted the benefit of legal aid.
In Ayoubah Fona vs. L-Avukat tal-Istat filed on 12 July 2022 before the Civil Court of Malta (First Hall), the applicant complains of his conditions of detention and the unlawfulness of his detention under the Prevention of Disease Ordinance. The minor applicant arrived in November 2021 and remained in detention for 58 days, with a substantial amount of time spent with adults in the HIRC, the so-called “China House”.[19]
Application under Article 409A of the Criminal Code (Habeas Corpus)
This remedy also allows a detainee to challenge the lawfulness of on-going detention before the Court of Magistrates (Criminal Jurisdiction) and is based on an assessment of the legality of the person’s detention. Several successful applications were brought before the Courts since 2019, resulting in the immediate release of the applicants. All the cases challenging the de facto detention of applicants under the Prevention of Disease Ordinance filed before the Court of Magistrates were successful except for one case decided in January 2022.[20]
In this case, A.D. v. the Superintendent for Public Health[21] decided on 21 January 2022, the Court rejected the petition by findign that he was not actually being detained. The Court decided that “it cannot be said that any public authority ordered the applicant’s detention (…) because he is presently not under any detention order but limitedly under an order that restricts his movement in relation to which Article 409A of the Criminal Code does not apply.” Aditus foundation reacted to the judgement by pointing out that it was incongruent to hear that the teenager was not being detained when he was actually accommodated in a place described by Maltese law as “a place of detention for the purposes of the Immigration Act”, a structure administered by a public entity called ‘Detention Services’, with the impossibility to leave the centre, limited communication with the outside world, and being under the constant supervision of a Government entity.[22] The decision of the Court of Magistrate will be scrutinized by the ECtHR in A.D. v. Malta, filed in February 2022.[23]
In June 2021, 5 asylum seekers were released after a Judge found their detention illegal since the legal limit of 9 months under the Reception Directive had elapsed months earlier. It transpired that their release had been green-lighted by the immigration authorities in September and October 2020 for three of them and in January for the others. While ordering the men’s immediate release, the Magistrate flagged the matter to local authorities to ensure that similar incidents “are not repeated”. A sixth migrant, possibly a minor, had apparently lied about his age upon arrival in Malta. He was served with a removal order and return decision earlier. The Magistrate ruled that the applicant’s detention was lawful but, taking note of the physical appearance of the migrant which posed significant doubts as to whether he was an adult at all, ordered an age assessment to be carried out. This had never been done in his 16 months of uninterrupted detention.[24]
Review of pre-removal detention under the Returns Regulations
Since the transposition of the Returns Directive, the law provides for the possibility to institute proceedings to challenge the lawfulness of detention before the Immigration Appeals Board.
The law provides that reviews should be carried ex-officio by the PIO at regular intervals of 3 months and supervised by the Board for people detained after 6 months.[25] However, lawyers and NGOs reported that the PIO reviews do not follow any formal procedures.
Parallel to these reviews, the detained migrant can appeal the removal order in terms of Article 25A of the Immigration Act within 3 days of the notification of the removal order.
According to lawyers assisting migrants served with a removal and detention order, the IAB never questions the lawfulness of detention or its validity, as it considers the detention always necessary when a removal order is taken. The Board will take the police statements regarding the removal as sufficient to conclude that it is being executed with due diligence and that there is a prospect of removal despite a significant number of individuals being detained for more than 10 months.
Regarding the application of the principle of non-refoulement, the Board never questions the decisions of the IPA and will not carry its own risk assessment, even if the matter is raised during proceedings. Detention and removal will only be questioned when a subsequent application is filed.
Unless successfully challenged, Malta applies the maximum permitted detention duration for persons detained pending removal. Furthermore, NGOs report cases where this maximum period is exceeded either due to delays in the required medical clearance or in situations where the detained person is unable to provide a verifiable address.
Most people coming from countries designated as safe were detained in the last years and have seen their asylum applications rejected as manifestly unfounded, denied appeal, and automatically served with a removal and detention order. These individuals have been detained for sometimes more than two years while awaiting a potential return.
In Feilazoo v. Malta decided in March 2021, the ECtHR found a violation of article 5(1) of the Convention (right to liberty and security).[26] The case was about a Nigerian national detained pending removal. The Court considered that the entire period of detention, fourteen months in total, cannot be justified for the purpose of deportation since the authorities insufficiently pursued concrete arrangements for his return. Therefore, the Court concluded that the ground for his detention could not be considered valid for the full duration of his detention.
[1] Regulation 6(3) Reception Regulations.
[2] Article 25A of the Immigration Act, Chapter 217 of the Laws of Malta.
[3] The Shift Team, ‘Foreign Minister Evarist Bartolo picks individuals from his district to serve as ambassadors’ The Shift News (Malta, 6 December 2021) https://bit.ly/41OTbFK ; The Shift Team, ‘Labour-linked lawyer Maria Cardona chairs four government boards at the same time’ The Shift News (Malta, 20 November 2021) https://bit.ly/3KZPVkW ; Julian Bonnici, ‘Prison Lawyer Defending Wardens In Inmate’s Negligent Death Is An Army Officer, Magistrate’s Brother, And Represents Controversial Blogger’ Lovin Malta (Malta, 21 September 2021) https://bit.ly/3yakT29 ; Manuel Delia, ‘UPDATED: More iced buns’ (Truth be Told, 3 November 2017) https://bit.ly/3kJZZDZ ; ‘The Rule of Law in Malta: An overview of rule of law failings in Malta’ (4 February 2018) https://bit.ly/3BWci4v ; Manuel Delia, ‘What she would have written’ (Truth be told, 3 November 2017) https://bit.ly/3IVOQb0 .
[4] This includes the Corradino Correctional Facility Monitoring Board, http://bit.ly/3XrZKM7 ; the Minor Care Review Board, http://bit.ly/3ibfCSU ; the ad-hoc Review Board of Community Malta Agency, http://bit.ly/3XpYF7B ; the Grant Review Board, http://bit.ly/3F5rsr7 ; the Sentencing Advisory Policy Board, http://bit.ly/3U6uz61; the Arbiters on the Consumer Claims Tribunal, http://bit.ly/3i6qzW5 ; the Commissioner for Justice, https://bit.ly/3E3U9V2 ; and, the Building and Construction Agency, https://bit.ly/3ZjzPqu.
[5] Venice Commission, CDL-AD (2020)019-e, para. 98; see also CDL-AD(2020)006 paras. 97-98; and CDL-AD(2018)028 paras. 80-83.
[6] Ibid.
[7] EC, Rule of Law Report, Country Chapter on the rule of law situation in Malta, 13 July 2022, pp. 5-6, available at https://bit.ly/3XRYS2D
[8] Information provided by aditus foundation and Daphne Caruana Galizia Foundation, January 2023.
[9] Immigration Appeals Board (Division II), M. A. R. (Lebanon) vs. the PIO, (DO/134/22), 3 November 2022; See also IAB, Div. II, R.M. (Bangladesh) v. The PIO, (DO/35/2022), 24 March 2022, available at http://bit.ly/3V5vPHU; IAB, Div. II, F.B. (Ghana) v. The PIO (DO/2021), 4 October 2021 available at http://bit.ly/3gzB83w; IAB, Div. II, W.K.A. (Ghana) vs. The PIO (DO/2021), 4 October 2021, available at http://bit.ly/3gzB83w;
[10] Immigration Appeals Board (Division II), R.M. (Bangladesh) v. The PIO (DO/35/2022), 24 March 2022, available at http://bit.ly/3V5vPHU
[11] Immigration Appeals Board (Division II), Div. II., K.J. and K.B.D. (Bangladesh) vs. the PIO and AWAS (AA/11/22/DO), 14 July 2022, available at http://bit.ly/3U2UVGf and the press release from aditus foundation at http://bit.ly/3Ess4Fm
[12] Immigration Appeals Board (Division II), A.D. v. the Principal Immigration Officer (DO/37/2022), 17 February 2022, available at https://bit.ly/3kS5d0n
[13] ECtHR, A.D. v. Malta, no 12427/22 (Communicated Case), 24 May 2022, available at https://bit.ly/3ZuqlsM
[14] Immigration Appeals Board (Division II), J.B. and others (DO/174-220/2022), 6 December 2022, available at aditus foundation, European Human Rights Court orders Malta to release children from detention, 12 Janaury 2022, available at http://bit.ly/3j3aVeM
[15] EUAA Case Law Database, https://bit.ly/3XQZJ4c; CADRE Database, http://bit.ly/3HaA932; aditus foundation, Our Cases, https://aditus.org.mt/publications/
[16] Information provided by the Malta Police Force by way of reply to a Freedom of Information request, FOI Request Reference 274220413144.
[17] Article 16 of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta and Article 25A of the Immigration Act, Chapter 217 of the Laws of Malta
[18] ECtHR, Louled Massoud v. Malta, Application No 24340/08, Judgment of 27 July 2010; ECtHR, Suso Musa v. Malta, Application No 42337/12, Judgment of 9 December 2013 and ECtHR, Abdullahi Elmi and Aweys Abubakar v. Malta, Application Nos 25794/13 and 28151/13, Judgment of 22 November 2016.
[19] Civil Court (First Hall), Ayoubah Fona vs. L-Avukat tal-Istat, 375/2022.
[20] See aditus foundation, our cases, https://bit.ly/3kP38Ch
[21] Court of Magistrates of Malta, A.D. v. the Superintendent for Public Health, 21 January 2022, summary available at https://bit.ly/3yxemyN
[22] aditus foundation, Three Children Released from Illegal Detention Following Court Action, 25 January 2022, available at https://bit.ly/3wCsuXr.
[23] ECtHR, A.D. v. Malta, no 12427/22 (Communicated Case), 24 May 2022, available at https://bit.ly/3ygf7fc
[24] Times of Malta, ‘Six asylum seekers successfully challenge unlawful detention’, 8 June 2021, available at: https://bit.ly/33ZQacp.
[25] Regulation 11(8) of the Return Regulations, Subsidiary Legislation 217.12 of the Laws of Malta.
[26] ECtHR, Feilazoo v. Malta, Application No. 6865/19, 11 March 2021.