Between 2015 and 2018, the authorities implemented the policy envisioned in the “Strategy for the Reception of Asylum Seekers and Irregular Migrants”,[1] whereby all migrants were first taken to the Initial Reception Centre (IRC) for a pre-screening by the Police and Health authorities. They could be kept in the centre for up to seven days, unless health-related considerations dictated otherwise. Migrants were provided with information about their right to apply for international protection, assigned a caseworker, and interviewed by Immigration Police. An assessment of the need to detain the applicant was then carried out by the Principal Immigration Officer based on the list of detention grounds foreseen in the national legislation transposing the recast Reception Directive.[2]
This procedure changed in mid-2018, when the new Italian government withdrew from the informal agreement concluded between Italy and Malta in 2014.[3] Consequently, people rescued within Maltese territorial waters and its Search and Rescue (SAR) zone are now disembarked in Malta.
Therefore, the number of arrivals significantly increased and led the authorities to revise their 2015 reception policy, resorting once more to the systematic and automatic detention of all applicants entering Malta irregularly, as was the case pre-2015. This new detention regime was imposed in 2019 and was justified by indicating that “reasonable grounds” led to believe that arrivals carry contagious diseases and need to be medically screened (see Detention).
On 20 November 2020, Greece, Italy, Malta and Spain signed a joint declaration calling for more EU solidarity. The group also stressed the need to boost agreements with third countries to tackle irregular immigration.[4]
Arrivals by boat
In 2020, Malta toughened its stance on search and rescue, with multiple events where the Maltese authorities were accused of coordinating returns to Libya with the assistance of the Libyan Coast Guards.[5] In November 2020, fifty asylum seekers filed constitutional proceedings against the Maltese authorities, calling for an effective remedy for the alleged breach of rights they suffered in a pushback to Libya in April of the same year.[6]
In April 2020, Malta effectively shut its sea borders to those arriving by sea and in need of international protection. The government issued a statement indicating that, in light of COVID-19 and the logistical and structural problems for health services associated with the pandemic, Malta could no longer “guarantee the rescue of ‘prohibited immigrants’ on board of any boats, ships or other vessels, nor to ensure the availability of a ‘safe place’ on Maltese territory to any persons rescued at sea”.[7]
Malta then started to use private vessels just outside Malta’s territorial waters in order to detain people rescued at sea. The Prime Minister justified it by the need “to protect those migrants who were at the time in the open centres from the risk of contracting the infectious disease”.[8]
NGOs, and even UNHCR were prevented from accessing the people on said boats,[9] despite relentlessly calling on the government to disembark people and stop the de facto detention of asylum seekers in inhumane conditions.[10] On 6 June 2020, the Maltese government finally announced that the 425 persons detained were authorised to disembark. It is reported that the bad weather and rough conditions at sea, linked with the exasperation of the detained people, convinced the authorities to disembark them, even though the Prime Minister claimed that the disembarkation occurred because the quarantine elapsed.[11] Migrants disembarked were detained upon arrival.
In October 2021, a case was filed in front of the Constitutional Court by aditus foundation and JRS Malta on behalf of 32 asylum seekers that were detained on these boats. The applicants claim breaches of the Maltese Constitution, the ECHR and the EU Charter on Human Rights.[12]
Since May 2020 and throughout 2021, the AFM drastically decreased its rescues at sea. NGOs report that Malta is not conducting rescue operations in the Maltese SAR zone south of Lampedusa, and instead relies on merchant vessels and the Libyan coastguard to push boats back to Libya. The authorities are accused of doing their utmost to prevent boats entering the island’s SAR zone in line with the Malta-Libya deal concluded in May 2020 and foreseeing the creation of a coordination unit in each country to assist in operations against illegal migration.[13] The AFM’s definition of ‘distress’ is also a reason behind the decrease in rescues, as it considers that “any boat that is still moving is not in distress, despite it being overcrowded, and people not having life vests”.[14]
An OHCHR report published in May 2021, covering the period from January 2019 to December 2020, confirmed numerous incidents of pushbacks orchestrated by the AFM and the Malta’s failure to render prompt assistance to migrants in distress in the central Mediterranean.[15]
The Council of Europe Commissioner for Human Rights made the same observations following her visit to Malta in October 2021. In her report published in January 2022,[16] the Commissioner stresses the need to step up Malta’s capacities and ensure effective co-ordination of search and rescue operations, stating that “Disagreements with other member states about disembarkation responsibilities should never be allowed to put human rights – including the right to life – at risk or exempt the authorities from their non-refoulement obligations.”
In her report, the Commissioner once more underlined that Libya is not a safe place for disembarkation and called on the Maltese authorities to review their co-operation with the Libyan authorities to curb irregular migration, which is of grave concern in so far as it leads to returns of refugees and migrants to Libya or contributes to other human rights violations. On the topic, the Commissioner stated that “Such co-operation activities must be suspended until clear guarantees of their human rights compliance are in place. Moreover, accountability must be ensured for any returns to Libya occurring as a result of action by the Maltese authorities.”
In January 2022, three international organisations accused Libyan militias of committing war crimes against migrants in detention centres and included Malta and Italy in their complaint for their support to Tripoli’s coast guard. Denouncing a pocket of impunity “at the gates of Europe,” the three NGOs accused Malta and Italy of denying migrants their right to claim asylum in Europe.[17]
Between 1 January and 31 December 2021, UNHCR recorded 832 sea arrivals to Malta. This is a 63% decrease compared to the same period last year (2,281 sea arrivals to Malta from January to December 2020). Of the 832 persons that arrived in Malta, 63 landed on Malta spontaneously in February and 49 in November. The AFM rescued 14 persons in April, 68 persons in May, 164 persons in July, 48 persons in August, 143 persons in October, 42 in November and 117 in December. Following NGO rescue, 2 persons in February and 8 in August were brought to Malta for medical reasons. In June, 97 persons were rescued by a private boat, and later transboarded onto an AFM boat and brought to Malta. 17 persons were rescued by a merchant vessel and transboarded onto an AFM boat in December. There were no arrivals in January, March or September 2021. Most of the persons arriving by sea were adult men (65%), followed by unaccompanied and separated children (25%), adult women (5%) and accompanied children (5%). The main countries of origin for newly arrived individuals were Eritrea (26%), Syria (16%), Sudan (12%) and Egypt (10%).[18]
This section provides a chronological overview of the different arrivals and relevant developments in 2021.
In January 2021, Alarm Phone slammed the AFM for refusing to rescue 90 people in the Maltese SAR zone. The NGO reports that the RCC Malta either doesn’t pick up or hangs up their calls immediately.[19]
The same happened in February 2021, when Alarm Phone accused Malta of refusing to rescue 77 migrants at risk of drowning spotted on 20 February. The same had happened on the 19 February for a group of 173 people in two dinghies, which were in Maltese territorial waters.[20]
In March 2021, NGO Sea Watch reports that around 20 persons were intercepted by the Libyan Coast Guards in the Maltese SAR Zone and pulled back to Libya. The NGO reports that after it spotted around 20 persons in distress in the Maltese SAR zone, it overheard an unknown aircraft on the radio, naming itself “European aircraft in the area”, exchanging with the merchant vessel Saint George (flying the Liberian flag) which had been ordered by RCC Malta to change its course and monitor the people. An unknown source, allegedly the same unknown aircraft, relayed positions of the people in distress via radio to the Libyan Coast Guard, therefore coordinating a pushback to Libya, according to the NGO. [21].
In April 2021, after it was reported that a group of 110 people may be unaccounted for, the emergency hotline NGO Alarm Phone accused the Armed Forces of Malta of ordering a rescue vessel to leave the scene of the drifting boat the migrants were in. Following these developments, thirty-seven civil society organisations issued a statement over the fate of the 100 persons in distress. The 37 organisations noted that these people were “in distress in Malta’s search and rescue zone” in the past days and that a ship that was willing to rescue them “was prevented from doing so by Malta”. The AFM later issued a statement that all migrants reportedly stranded at sea had safely reached Italian territory. The AFM insisted that all allegations of boats sinking, left adrift or rescues being hindered were “false and unfounded”. The group of NGOs responded that the incident further underlined the lack of information sharing from Maltese authorities, which seemed to have known about the location of the boat since the start. Alarm Phone claimed that the AFM had already been caught in the past providing fuel to vessels in distress, for them to be able to reach the Italian territory.[22]
On 1 May 2021, rescuers retrieved 97 people who had been drifting on a wooden boat in Malta’s SAR zone without fuel and food, many crammed below decks. The rescue ship Sea Watch, which carried out the operation, said Maltese authorities had informed them they were keeping the boat under observation, but had not deemed it necessary to intervene and invited the NGO to carry the rescue in cooperation with their flag State.[23]
On 14 and 15 June 2021, six nautical miles off Malta’s search and rescue zone, some 270 migrants were rescued by the merchant vessel Vos Triton in international waters and handed over to the Libyan coastguard. IOM and UNHCR condemned the operation and reiterated that no one should be returned to Libya after being rescued at sea. They stressed that, under the international law of the sea, rescued individuals should be disembarked at a place of safety.[24]
On 16 June 2021, 97 migrants rescued by a Turkish cargo ship were disembarked in Malta following “intense” talks between the Maltese and Turkish foreign ministries. The migrants were rescued by the Marshall Islands-flagged cargo vessel, M/V Ugur Dadayli.[25]
On 17 June 2021, a group of 86 migrants narrowly avoided being taken back to Libya when the charity boat Nadir which picked them up in Malta’s SAR zone refused to hand them over to the Libyan coastguard. Malta’s Rescue Coordination Centre told the Nadir that a merchant vessel was in the vicinity and on its way to support it, but the vessel never arrived, and the Libyan Coastguard showed up instead. The Libyan Coastguard vessel eventually left, and the Maltese RCC instructed Nadir to take the migrants to the closest port. However, the 19-metre sailing boat could not handle 86 people, and it continued to request support from Maltese authorities. The migrants were later transferred to an Italian patrol vessel which took them to Italy.[26]
In July 2021, the Sea Watch identified 741 people in distress in the Maltese SAR Zone. 44 were rescued by the NGO vessel Ocean Viking and disembarked in Italy, 312 persons arrived to Europe independently or were rescued by Italian authorities and disembarked in Italy, 30 persons were intercepted within the Maltese SAR zone by the Libyan Coast Guard and pulled back to Libya and 1 boat of 81 persons was rescued by the Armed Forces of Malta and disembarked in Malta. The sort reserved to 13 other boats, carrying around 274 persons, remain unknown.
On 2 July 2021, authorities in Malta allegedly did not respond to a call to rescue a group of migrants in distress at sea, that included a child with a disability.[27]
On 14 July 2021, the Armed Forces of Malta rescued 81 migrants stranded in a boat in Malta’s search and rescue area, including three who were found dead, probably due to dehydration, exhaustion and a possible heatstroke. Sea-Watch says it first raised the alarm about the drifting migrant boat early on the day before. It said that although it had located three ships near the boat in distress, Malta ordered at least one of the ships not to intervene and to await further instructions.[28]
On 26 and 28 July 2021, two groups of 46 and 37 asylum seekers were rescued by the AFM and brought to Malta.[29]
In August 2021, Sea Watch identified 332 people in distress in the Maltese SAR Zone, 26 persons were rescued by the NGO vessel Sea-Watch 3 and disembarked in Italy, and 115 persons were rescued by the Italian authorities or arrived independently in Lampedusa, Italy. The outcome for 9 boats in distress, with around 191 persons, remains unknown. The AFM participated in one rescue operation in Libyan SAR zone, rescuing 43 people. 6 boats in distress, with around 302 persons, in the Libyan SAR zone were intercepted and pulled back to Libya by the Libyan Coast Guard.
On 2 August 2021, around 400 migrants, among which were women, children and people with medical conditions, drifting on three wooden boats in Malta’s SAR, were left out at sea for at least 24 hours. Alarm Phone reported having attempted to contact Malta’s Rescue and Coordination Centre to alert them of the distress cases since 1 August, without being answered.[30]
Eventually on 3 August 2021, one of the boats, with 41 asylum seekers on board, was rescued and brought to Malta along with two people in critical condition, evacuated from a charity boat during the night.[31] Sea Watch reported that for what concerned the rest of the 6 boats identified, carrying an estimated 537 people, one was rescued by the NGO vessel Sea-Watch 3 and disembarked in Italy, three were rescued by Italian authorities and disembarked in Italy and one was intercepted by the Libyan Coast Guard and pulled back to Libya.[32]
On 23 August 2021, Sea Watch reported having identified 28 people in distress in the Libyan SAR zone, the Libyan Coast Guard heading towards their position. The NGO vessel Nadir attended to the boat in distress, stabilizing the situation – and hence possibly managed to avoid an interception by the Libya Coast Guard. In the end, Italian authorities rescued the people on board.[33]
On 27 August 2021, Sea Watch identified a wooden boat that had capsized, with around 20 persons sitting on the hull and several persons with live vests in the water. A mayday relay was immediately sent out. The closest merchant vessels in the vicinity, Asso Venticinque and Asso Trenta, both flying the Italian flag, as well as the oil platform Sabratha, were unresponsive. A Turkish military aircraft notified via radio to the Sea Watch that the Maltese RCC was informed about the situation. One and a half hours after the first sighting, a Libyan Coast Guard patrol boat, with around 150 persons already on its deck, was heading to the position, and ordered the merchant vessel Asso Venticinque to proceed towards the people. While the Libyan Coast Guard started intercepting people involved in the shipwreck, the Asso Venticinque changed course towards people in distress in the water. The merchant vessel agreed to the transhipment of the 2 rescued people to the Libyan ships due to an alleged need for “medical assistance”. 34 persons brought back to Libya by the Libyan Coast Guard.[34]
Throughout the month of September, the NGO SeaWatch estimated that 311 persons happened to be in distress in the Maltese SAR zone. Four boats, around 240 persons were rescued by the Italian authorities or arrived independently and disembarked in Italy, two boats, with 71 persons, were rescued by NGOs and disembark in Italy. Maltese authorities did not participate in any rescue operation.
SeaWatch reported that, on 13 September 2021, Frontex likely coordinated an interception and pushback to Libya carried out by the Libyan Coast Guard. The NGO observed the track of Frontex’s drone and noticed that it was orbiting in the Libyan SAR zone near the Maltese SAR competence area. Around one hour later, SeaWatch found the Libyan Coast Guard’s patrol boat in the vicinity with around 200 persons on the deck, heading at full speed towards Tripoli. People on the boat were hence likely pushed back to Libya.[35]
In October 2021, SeaWatch reported that 87 people were rescued by the Italian Coast Guard in the Maltese SAR zone, while 137 others were intercepted and pulled back by the Libyan Coast Guard before reaching the Maltese SAR zone.[36] No rescues were carried out by the AFM.
On 2 November 2021, a group of 49 people was rescued after being stranded on rocks on Maltese shore. The AFM gave assistance to the group of 39 men, 4 women and 6 children and took a pregnant woman to hospital. The group appeared to have reached the shore without assistance and was waiting for help on the rocky coastline.[37]
On 3 November 2021, the Sea-Eye and Mission Lifeline aid organisations on their vessels Sea-Eye 4 and Rise Above rescued around 400 people from on a sinking boat in Malta’s SAR zone. Alarm Phone first raised the alarm and said the authorities in Malta had failed to respond to any of their calls for assistance.[38]
On 24 November 2021, a woman died after a group of 43 migrants were rescued at sea by the AFM. The group of 43 people reportedly were stranded at sea in the Maltese SAR zone for 10 days and suffered from ill health and exhaustion when they were rescued by the AFM. Twelve women and two children were among the group.[39] Survivors reported that 12 people died before the AFM arrived.
On 25 November 2021, a group of 430 people facing shipwreck off Tunisia, but in Malta’s search and rescue area, were taken in by Tunisia, at least 3 people died.[40] The same day, Alarm Phone reported the illegal pushback of a boat carrying 85 people to Libya from Malta’s SAR zone. After being shot by the Libyan Coastguard 20nm within Malta’s SAR zone, the boat was illegally forced back to Libya.[41]
On 21 December 2021, Alarm Phone alerted Maltese authorities about 25 migrants stranded at sea in Malta’s search and rescue zone. The NGO said Maltese authorities refused responsibility or were not reachable. The Church in Malta appealed to the government not to abandon these migrants, as well as 70 more who Alarm Phone reported to be stranded at sea on 20 December, and even offered them shelter in homes of its property. The AFM turned down the migrants’ request for assistance and declared: “Malta is not in a position to provide you with a place of safety.” On 23 December, 214 migrants were offered a port of safety in Sicily after they were denied access to Malta.[42]
The criminalisation of people rescuing migrants at sea by Maltese authorities has also been a source of concern in recent years. Two significant cases were reported in 2019:
The Police vs Claus Peter Reisch (2018)
Claus-Peter Reisch was the Captain of the MV Lifeline, the rescue vessel of the German NGO Mission Lifeline, when it rescued 234 migrants in the Mediterranean in June 2018, leading to an international dispute and days-long stand-off as EU Member States could not agree over who would be the responsible State to take in the migrants. After an agreement was reached, Malta accepted the disembarkation but immediately charged the captain by accusing him of entering Maltese waters with a ship that had not been appropriately registered and impounded the ship.
In May 2019, the Court of Magistrates in Malta concluded that the registration “was not to the satisfaction of the Dutch authorities” when the vessel entered Maltese waters and fined the Captain €10,000 for registration irregularities.[43] Nevertheless, the magistrate also strongly reiterated that saving the lives of migrants out at sea was not a crime. The Court turned down a request by the authorities for the boat to be confiscated, on the basis that the vessel was not the property of the accused.[44]
Claus Peter Reisch immediately appealed the decision and the Court of Criminal Appeal finally cleared him of all charges in January 2020.[45]
Amnesty International welcomed the final decision but stated that such “criminal prosecution against a human rights defender initiated in highly politicised circumstances was defeated, but not before having caused the lifesaving activities of a small NGO to stop for some 18 months and having put considerable financial strain on the accused and the NGO”.[46]
El Hiblu
The second case is still on-going. In March 2019, a group of 108 migrants escaping Libya were rescued by the merchant vessel “El Hiblu 1” within the Libya SAR zone, but outside its territorial waters. At first, the ship continued towards Libya but changed its course shortly before reaching the Libyan coast, and headed instead towards Europe. A Maltese special operation unit boarded the ship and disembarked the migrants in Malta. Upon arrival, the authorities arrested five asylum-seekers and subsequently charged three of them – all teenagers – on suspicion of having hijacked the ship which had rescued them, so as to prevent the captain from returning them to Libya. The three teenagers were immediately detained in the high-security section of prison for adults and charged with very serious offences, some falling under anti-terrorism legislation and punishable with life imprisonment.[47]
The three teenagers were released on bail in November 2019 and remain in Malta, pending their criminal proceedings. The case is still at pre-trial stage, with the three individuals still awaiting the final bill of indictment to be filed by Malta’s Attorney General, they could be charged with terrorism-related offences and face up to 30 years of imprisonment. The Platform of Human Rights Organisations in Malta stated that the treatment received by the three boys was disrespectful and undignified and that their vulnerability as minors and young men was never taken into account by the authorities.[48] Although two of them were unaccompanied minors, all steps of the criminal proceedings were taken without the issuing of the required Care Order and, hence, without the appointment of a legal guardian.
The case is followed closely by the Office of the UN High Commissioner for Human Rights which urged Malta to reconsider the severity of the charges, and by Amnesty International which publicly stated that “the severity of the nine charges currently laid against the three youths appears disproportionate to the acts imputed to the defendants and do not reflect the risks they and their fellow travellers would have faced if returned to Libya. The use of counter-terrorism legislation is especially problematic”.[49] This case was taken up by Amnesty International as part of their international campaigning,[50] as well as by several other Maltese and international NGOs.[51]
In March 2021, on the second anniversary of the of the three young migrants’ arrival in Malta, the coalition launched several advocacy initiatives, including a letter of 26 MEPs,[52] addressed to the Attorney General of Malta, demanding a termination of the proceedings. The campaign also counted statement by the European Democratic Lawyers,[53] signed by 21 international legal associations, a press release from the Migrants Commission, JRS Malta and the Justice and Peace Commission,[54] and a statement requesting the immediate termination of prosecuting the #ElHiblu3 signed by 29 international Human Rights Groups.[55] Several reports were written in Times of Malta, DER SPIEGEL, BBC, Aljazeera.[56]
A hearing was held on 21 May 2021, where two of the seven witnesses who were among the more than 100 people aboard the El Hiblu 1 at the time of the alleged offence presented their testimonies. According to the witnesses, the role of the three accused was to act as translators and – in coordination with the captain of the vessel – to calm down the hungry and cold people aboard, some of whom were panicking over their possible return to Libya and considering jumping overboard. The defence team requested the removal of the translator, Dr Anthony Licari, as the lawyers claimed he was not translating the version of events given by the witness in a faithful manner and the witnesses struggled to understand him.[57]
During a following hearing held on 24 June 2021, another witness told the court that the accused helped calm rescued migrants who were ‘screaming and crying’ and wanted to jump into the water when they realised that they were being returned to Libya. He denied claims that the youths had been carrying weapons when they went to speak to the captain. Translation remained an issue, as several witnesses who were appointed a francophone translator declared not being completely fluent in French their preference for speaking Bambara. Since the interpreter confirmed under oath that the witness was “fully understanding the interpreter’s French and was replying consistently in French, and was confirming with the interpreter repeatedly that he understands French, is duly convinced that the witness is capable of testifying in French” however, the court ordered that the witness continue to provide information in such language.[58]
During the hearing held on 13 October 2021, the wife of one of the accused told the court she did not hear any fighting between the three accused and the captain. At the same time, she was fined for contempt of Court as she was asked a question multiple times by the court but did not reply. One of the accused was also fined for contempt because he arrived late to the hearing.[59]
On 18 November 2021, the Court ordered officials to update the list of people rescued at sea by the tanker El Hiblu including their current whereabouts. This was after representatives of AWAS and the Ministry for Home Affairs, National Security and Law Enforcement testified that they were not able to provide comprehensive information relating to the list of those rescued, together with their contact details. The court is trying to hear the testimony of every migrant involved in the 2019 sea rescue, even if it involved more than 100 people in total.[60]
During another hearing held on 3 February 2022, a witness declared that it was the captain of the oil tanker El Hiblu who approached the three men accused of hijacking it, calling them into his cabin after seeing them calming down the panicking migrants it had rescued. A delegation from Amnesty International also attended. The delegation had reportedly asked for a meeting with the Attorney General, to push for dropping the terrorism charges against the men, but told the press that they had not yet received a reply.[61]
In October 2021, a new initiative called the “ElHiblu 3 Freedom Commission” was launched. It aims at strengthening the action demanding freedom for the ElHiblu3 which was started by a coalition of activists, legal practitioners, and human rights advocates, the “ Free the El Hiblu 3-Campaign”.[62]
Criminalisation of asylum seekers arriving by air
Concerns have been raised in recent years in Malta regarding the criminalisation by the authorities of the use of false documentation by asylum-seekers in their attempt to enter Malta. Asylum seekers entering Malta with fake 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[63] and the Immigration Act in its Article 32 (d),[64] 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. In the past years, several cases of applicants for international protection imprisoned and convicted for that reason have been reported, including cases of very young individuals. NGOs expressed their concern over the situation as this criminalisation goes against the provisions of the 1951 Geneva Convention and penalises persons opting not to risk their lives at sea.[65] Unless a lawyer or an NGO assists them, it is unlikely these individuals will be given the chance to lodge their international protection application before the end of their sentence.
In 2021, 34 migrants were convicted to prison sentences on the basis of these Articles. This number however does not include minors, as information on this regard is not made public.[66] People arrested are brought before the Court of Magistrates (Criminal Jurisdiction) to face charges. During this time, pending the case, the person would be remanded in custody at 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 proceedings. The accused will be entitled to request the appointment of a legal aid lawyer, or to avail him or herself of a private lawyer should he or she have access to one. If found guilty, the Court may sentence the asylum seeker 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.
On June 2021, thirteen Bangladeshi nationals were jailed for six months each after they were caught trying to enter Malta with fake passports they had purchased from Greece.[67]
On 28 July 2021, two Turkish mothers were sentenced to 6 months in jail after admitting to using forged travel documents. They were separated from their children who were put in the care of the State. This judgement quickly sparked the outrage of the public opinion,[68] which probably contributed in seeing the sentence overturned in appeal, where the judge upheld the 6 months sentence but suspended it for two years. The appeal Court refused to pronounce itself on the first argument raised by the defence attorney, based on article 31 of the 1951 Convention which prohibiting member States to impose penalties on a refugee entering a country without authorization as the Court “does not have jurisdiction to decide whether the two women are eligible for asylum or refugee status”. The judge followed the second argument raised, namely the presence of young children and the excessive punishment of their mothers and decided to suspend the sentence declaring that “true equal treatment does not always mean treating everyone in the same way”.[69]
On 7 October 2021, criminal sanctions against a Syrian man found in possession of forged travel documents were annulled on appeal after it was found by the Court that principal immigration officer had no power to prosecute even if in the rank of inspector,[70] thus shedding a new light on the requirements to prosecute such individuals but not stopping the practice. However, it appeared that many asylum seekers previously convicted of similar offences were prosecuted in the same manner and therefore should not have been jailed.
On 15 November 2021, an Afghan mother, hoping to join her family in Germany in search of a better future for herself and her 10-year old son, was spared jail after she was caught travelling with forged documents. The prosecution itself suggested a suspended sentence in view of the fact that the woman was the mother of a young child. The judge confirmed the woman’s guilt upon her own admission but handed her an eight-month jail term suspended for three years.[71]
It is difficult to assess how many asylum seekers are currently held in prison on the basis of such convictions. NGOs and lawyers reported that several individuals, mostly from countries of origin listed as safe in the IPA Act, are sent to detention in Hal Safi directly after they finish their prison sentence due to their asylum claim not being processed at all beforehand.
Relocation
Relocations from Malta happen on an ad hoc basis since 2019, involving non-binding, informal agreements with other EU Member States. This practice prevented many asylum seekers from having access to the asylum procedure and even to the territory of Malta for the time needed to secure the agreement of other EU Member States to take in a number of rescued persons on an ad hoc basis. Moreover, COVID-19 and applicable travel restrictions hindered the possibility to carry out relocations in 2020.
To illustrate, those to be relocated to other Member States were not allowed to lodge an asylum application in Malta and were not given any information on how to do so, even though some Member States’ authorities have deployed officers to interview them in the Initial Reception Centre Marsa (IRC).[72] This also meant that Dublin procedures could not be initiated. Moreover, having no access to the procedure, these potential asylum seekers were systematically (de facto) detained (at times for prolonged periods of time) in detention centres, without any individual assessment of the legality of their detention being conducted. They also had limited access to assisting NGOs and lawyers and lacked information regarding the rights and obligations of asylum seekers prescribed by Maltese and EU law. Instances were noted of some asylum seekers being left in a form of limbo and, despite being channelled into the relocation route, were never actually selected, or taken up by the Member States participating in the specific relocation exercise.
In 2020, IOM Malta supported the voluntary relocation of 270 people from Malta, including 28 children under the age of 12.[73] In 2021, 238 people were relocated from Malta to other European Countries.[74]
Legal access to the territory
No incoming relocation scheme, resettlement or humanitarian visa exist in the case of Malta. In practice, a significant number of migrants benefit from a Single Work Permit, which authorizes third-country nationals to legally reside and take up employment in Malta for a defined period, which may be further renewed. Applications for a residence permit have to be endorsed by the employer and the permit would cease to apply if the applicant was to leave the previously specified employment.
Family members of beneficiaries of refugee status can apply to family reunification (See section on Family reunification).
[1] Ministry for Home Affairs, National Security and Law Enforcement, Strategy for the reception of asylum seekers and irregular migrants (hereafter “Strategy Document”), November 2015, available at: http://bit.ly/2kPVl3A, 9-10.
[2] Regulation 6(1) Reception Regulations.
[3] Following an informal agreement between Italy and Malta in 2014, almost all persons rescued at sea, including persons rescued by the Armed Forces of Malta, and those rescued in Maltese territorial waters or Malta’s Search and Rescue Zone, were disembarked in Italy. Consequently, very few persons arrived in Malta by boat between 2014 and mid-2018, all of whom were medical evacuations.
[4] Euractiv, Mediterranean axis’ calls for EU solidarity on migration, 26 November 2020, available at: https://bit.ly/3rbbjIn.
[5] See for instance the Dar Es Salam pushback when Malta coordinated the return of 51 people rescued in the Maltese SAR zone and handed over to the so-called Libyan Coast Guards, UNHCR Libya on Twitter, 15 April 2020, available at: https://bit.ly/2P6nuXi.
[6] Times of Malta, Migrants claim breach of rights, demand damages after Libya pushback, 4 November 2020, available at https://bit.ly/34wGvtM.
[7] Statement by the Government of Malta, 9 April 2020, available in Maltese at: https://bit.ly/2VreEnP.
[8] Times of Malta, ‘128 migrant relocation pledges yet to materialise’, Malta tells EU in letter, 1 May 2020, available at: https://bit.ly/2OIilFd.
[9] See Aditus, ‘JRS and Integra submissions to the UN Special Rapporteur on the Human Rights of Migrants and to the UN Working Group on Arbitrary Detention’ at: https://bit.ly/3luk10X and https://bit.ly/3tvidHP.
[10] JRS, Integra, Aditus, Our open letter to EU Commissioner Johansson regarding the detention of rescued migrants on private vessels just outside our territorial waters, 16 May 2020, https://bit.ly/38QzseG.
[11] Malta Today, ‘Update 4: All four boats carrying 425 asylum seekers to dock in Malta’, 6 June 2020, available at: https://bit.ly/2QbpwWN.
[12] Times of Malta, Migrants claim rights breach when they were detained on boats for weeks, 14 October 2021, available at https://bit.ly/3zPUNRK.
[13] Government of Malta, Statement by the Office of the Prime Minister, 28 may 2020, available at https://bit.ly/34FOcy2.
[14] Times of Malta, Drastic drop in asylum seekers reaching Malta, 23 May 2021, available at https://bit.ly/3qPVN4s.
[15] OHCHR, Report: A call to safeguard migrants in central Mediterranean Sea, 25 May 2021, available at https://bit.ly/3KvOEPA.
[16] Commissioner’s report following her visit to Malta from 11 to 16 October 2021, available at https://bit.ly/3InhWhS.
[17] Newsbook, Malta accused of crimes against humanity in The Hague, 18 January 2022, available at: https://bit.ly/3Heamow.
[18] UNHCR, Malta Fact Sheet, December 2021, available at: https://bit.ly/3IZf2Ai
[19] Times of Malta, Editorial: Not in a position to respond, 9 January 2021, available at https://bit.ly/3G8UGDe.
[20] Times of Malta, AFM refusing to rescue drowning migrants – Alarm Phone, 21 February 2021, available at: https://bit.ly/3qUajbr.
[21] Sea Watch, Airborne Monthly Factsheet March 2021.
[22] Times of Malta, AFM says 110 migrants have reached Italian territory, 6 April 2021, available at: https://bit.ly/3zAba4U.
[23] Times of Malta, 97 rescued from wooden boat drifting in Malta’s SAR, 1 May 2021, available at: https://bit.ly/3G8wjWl.
[24] IOM, IOM and UNHCR Condemn the Return of Migrants and Refugees to Libya, 17 June 2021, available at: https://bit.ly/3r1juqo.
[25] Times of Malta, Malta accepts 97 migrants rescued by Turkish cargo ship, 16 June 2021, available at https://bit.ly/3HHrEeh.
[26] Times of Malta, Charity boat refuses to hand asylum seekers in Malta’s SAR to Libyan Coastguard, 17 June 2021, available at https://bit.ly/3n6GyTD.
[27] EU Observer, Malta refuses to help rescue involving disabled children, 2 July 2021, available at: https://bit.ly/3tpeRcu.
[28] Times of Malta, three people found dead as AFM rescues 81 migrants at sea, 14 July 2021, available at: https://bit.ly/3tlw9HR.
[29] Times of Malta, 37 migrants rescued and brought to Malta, 28 July 2021, available at: https://bit.ly/3n7bi6S.
[30] Times of Malta, ‘People can be heard screaming’ – AFM urged to save 400 in Malta’s rescue zone, 2 August 2021, available at: https://bit.ly/3F3P384.
[31] Times of Malta, Boat of asylum seekers, two seriously ill migrants, brought to Malta, 3 August 2021, available at: https://bit.ly/3q2DYzM.
[32] Sea Watch, Airborne Monthly Factsheet August 2021, available at: https://bit.ly/3t6MYpQ.
[33] Ibidem.
[34] Ibidem.
[35] Sea Watch, Airborne Monthly Factsheet September 2021, available at: https://bit.ly/3eWOXEO.
[36] Sea Watch, Airborne Monthly Factsheet October 2021, available at: https://bit.ly/3rxZNah.
[37] Times of Malta, 49 migrants, including pregnant woman, rescued from Għar Lapsi rocks, 2 November 2021, available at: https://bit.ly/3HJmTB3.
[38] Times of Malta, Rescue ship saves 400 people from leaking boat in Malta’s search area, 4 November 2021, available at: https://bit.ly/3JRu2kP.
[39] Times of Malta, Woman dies after army rescues 43 migrants at sea, 24 November 2021, available at: https://bit.ly/3qVExL7.
[40] Times of Malta, 430 people facing shipwreck being taken in by Tunisia, 25 November 2021, available at: https://bit.ly/3G9RsPZ.
[41] Information provided by alarm phone, 15 November 2021, available at: https://bit.ly/3KmNiql.
[42] Times of Malta, Silent Night: AFM tight-lipped as 25 people await rescue at sea, 24 December 2021, available at: https://bit.ly/3f1gCo4.
[43] Court of Magistrates, IL-PULIZIJA vs CLAUS PETER REISCH, 20/2019, 14 May 2019, available at: https://bit.ly/2VtrfWo.
[44] European Database of Asylum Law, Malta: Judgment in case against Captain of MV Lifeline, 14 May 2019, available at: https://bit.ly/2UxTVx3.
[45] Court of Criminal Appeal, IL-PULIZIJA vs REISCH CLAUS PETER, 150/2019, 07 January 2020, available at: https://bit.ly/3esqsOm.
[46] Amnesty International, Europe: Punishing compassion: solidarity on trial in fortress Europe, March 2020, available at: https://bit.ly/2JaUfMX. One aged 15 at the time from Ivory Coast, and two aged 16 and 19 at the time from Guinea.
[47] Pending a formal indictment, the three teenagers have been charged with: – Act of terrorism, involving the seizure of a ship (Art.328A(1)(b), (2)(e), Criminal Code). – Act of terrorism, involving the extensive destruction of private property (Art.328A(1)(b), (2)(d), (k) Criminal Code). – “terrorist activities”, involving the unlawful seizure or the control of a ship by force or threat (Art.328A(4)(i) Criminal Code). – Illegal arrest, detention or confinement of persons and threats (Artt.86 and 87(2) Criminal Code). – Illegal arrest, detention or confinement of persons for the purpose of forcing another person to do or omit an act which if voluntary done, would be a crime (Art. 87(1)(f) Criminal Code). – Unlawful removal of persons to a foreign country (Art.90 Criminal Code). – Private violence against persons (Art. 251(1) and (2) Criminal Code). – Private violence against property (Art.251(3) Criminal Code). – Causing others to fear that violence will be used against them or their property (Art.251B Criminal Code).
[48] Platform of Human Rights Organisations in Malta, Submissions to the Committee on the Rights of the Child, 81st session, 2019, available at: https://bit.ly/2JeiWIg.
[49] Amnesty International, Malta: The El Hiblu 1 Case: Three Teenagers in the Dock for Daring to Oppose Their Return to Suffering in Libya, 23 October 2019, available at: https://bit.ly/34T5dRi; UN High Commissioner for Human Rights, Press briefing note on Malta, 7 May 2019, available at: https://bit.ly/2XUEbY8.
[50] Amnesty International, ‘Demand justice for the El Hiblu 3’, available at: https://bit.ly/3lq3jQu.
[51] For more information see ‘The El Hiblu 3!’ at: https://bit.ly/3s02nVr.
[52] The letter from the MEPs is available at: https://bit.ly/3Hj9Ohk.
[53] AEUR, Justice for El Hiblu 3, 28 March 2021, available at https://bit.ly/3HYsHa4.
[54] Migrants Commission, Authorities asked to drop terrorism charges against the El Hiblu teenagers, 27 March 2021, available at https://bit.ly/3GkVchR
[55] Common Statement, Free the ElHiblu3! End the Trial!, available at: https://bit.ly/3BR7EEn.
[56] For more information, see: https://bit.ly/3shTXLN.
[57] Maltatoday, El Hiblu three: Court told accused were a calming influence on rescued migrants, 21 May 2021, available at https://bit.ly/3zObWeG.
[58] Maltatoday, El Hiblu hijack: rescued migrant tells court he saw no weapons, 24 June 2021, available at https://bit.ly/3FjrtVc.
[59] Maltatoday, El Hiblu 3: Witness and accused fined for contempt, 13 October 2021, available at https://bit.ly/3MM7Fia.
[60] Maltatoday, Court cannot locate all witnesses rescued in El Hiblu ‘hijack’ case, 19 November 2021, available at: https://bit.ly/3HZNNUW.
[61] Maltatoday, El Hiblu captain approached the accused, court told as controversial hijack case continues, 3 February 2022, available at: https://bit.ly/365IgPC.
[62] See: https://bit.ly/3qfYVaK.
[63] “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”.
[64] “Any person who […] forges any document or true copy of a document or an entry made in pursuance of this Act”.
[65] Aditus foundation, Blogpost: Prosecution and imprisonment of refugees entering Malta using false documents, 29 July 2021, available at: https://bit.ly/3rcqt00.
[66] Information available on Malta’s ‘ecourt’ online system at: https://bit.ly/3toni7J.
[67] Times of Malta, Fake passport holders get jail sentence, 26 June 2021, available at: https://bit.ly/33rZMfi.
[68] aditus foundation, This is not Justice! Statement on the prosecution and imprisonment of two Turkish women for use of false documents, 5 August 2021, available at: https://bit.ly/3zX9Ucj.
[69] Times of Malta, Appeal court frees Turkish mothers who were separated from their children, 28 July 2021, available at: https://bit.ly/3Fk1VXI.
[70] Times of Malta, Appeal sheds new light on prosecution of forged travel document charges, 7 October 2021, available at: https://bit.ly/3qhm6l3.
[71] Times of Malta, Afghan mother spared jail over fake passports, wants to join family in Germany, 15 November 2021, available at: https://bit.ly/3qffh3q.
[72] Le Monde, ‘Pour les 58 migrants débarqués de l’« Aquarius » à Malte, l’île est « comme une prison »’, 2 October 2018, available in French at: https://bit.ly/3v8ppuy.
[73] IOM, EU Voluntary Relocations from Malta Top 270 People in 2020 amid COVID-19, 22 December 2020, available at: https://bit.ly/3cIk9Gb.
[74] Information provided by the Policy Development and Programme Implementation Directorate, Ministry for Home Affairs, National Security and Law Enforcement, January 2022.