Author
According to the Reception Regulations, when a Detention Order of an asylum-seeker is not taken, alternatives to detention may be applied for non-vulnerable applicants when the risk of absconding still exists.[1] These alternatives to detention foreseen in the Regulations are the same as the ones listed in the Directive, namely the possibility to report to a police station, to reside at an assigned place, to deposit or surrender documents or to place a one-time guarantee or surety. These measures would not exceed nine months.[2]
Following the transposition of the recast Reception Conditions Directive, concerns were expressed by NGOs that alternatives to detention could be imposed when no ground for detention is found to exist.[3] The wording of the legislation seem to imply that alternatives to detention may apply in all those cases where detention is not resorted to, including those cases where there are no grounds for the detention of the asylum-seeker. This goes against the letter and the spirit of the Directive where alternatives to detention should only be applied in those cases where there are grounds for detention.
Practice shows most asylum-seekers released from detention are imposed alternatives to detention arrangements, even though there was never any ground to detain them in the first place. They are usually provided with a document in English stating the obligations and the grounds at law for ordering the alternatives to detention. According to this document, the alternatives to detention can be imposed for a maximum period of 9 months. This means that in practice asylum-seekers could be detained for the maximum period of 9 months prescribed in the law and then issued with alternatives to detention for 9 more months. It is unclear whether legal challenges on the nature and duration of alternatives to detention actually exist in law or in practice.
NGOs reported that there is no clear pattern on the reason, when and why alternatives to detention are applied to asylum-seekers. However, it transpires very clearly from practice that alternatives to detention are often seen by the authorities not as actual alternatives, but as a natural continuation of the status post-detention, including where the detention itself has no legal basis.
Following release from detention, applicants often face difficulties in retrieving their possessions that are confiscated by the Immigration Police following their arrival. These possessions may include money, jewellery, and mobile phones. Applicants are often required to rely on the intervention of NGOs to reclaim their possessions, at time months after their release from detention. The Police will inform that an investigation is conducted following every boat arrival, and that possessions can only be retrieved at the end of the said investigation, which can take more than a year.
Asylum-seekers are never informed or requested to consent that their phones and personal belongings will be searched and investigated and are never informed when items are ready for collection.
At the end of its 2023 visit to Malta, the UN Working Group on discrimination against women and girls underlined the limited possibility of detained women to successfully challenge their detention and urged Malta to actively consider alternatives to detention for asylum-seeking women.[4]
According to information provided by the PIO, during 2023 alternatives to detention were applied in the cases of 83 applicants. To further clarify, a table provided bellow will demonstrate by type of alternative to detention:
| Released with alternative to detention | Condition A: To report at regular intervals | Condition B: To reside at a specific address/ Place | Condition C: Notify the PIO of change of address |
| 33 | X | X | X |
| 12 | X | X | |
| 1 | X | ||
| 36 | X | X | |
| 1 | X | ||
| Total: 83 |
[1] Strategy Document, November 2015, 26.
[2] Regulation 6(8) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[3] aditus foundation, et al., NGO Input on the Draft Strategy Document: Strategy for the Reception of Asylum-Seekers and Irregular Migrants, November 2015; available at: http://bit.ly/2kX6K4j.
[4] UN Working Group on discrimination and against women and girls, End of mission statement (Malta), 7 July 2023, available at: https://bit.ly/3UPBrr2.