In November 2015, following the transposition of the recast Reception Conditions Directive and the recast Asylum Procedures Directive into national legislation, the authorities launched a policy document entitled “Strategy for the Reception of Asylum Seekers and Irregular Migrants” (Strategy Document) detailing a new system to be put in place in respect of procedures and reception for asylum seekers.
According to this new system, all migrants entering Malta irregularly by boat were first pre-screened upon arrival by the Police and Health authorities. They were then taken to an Initial Reception Centre (IRC) Marsa in order “to be medically screened and processed by the pertinent authorities”. According to the authorities, migrants could be kept in this centre for a time limited of up to seven days, unless health-related considerations so dictate. This IRC is administrated by the Agency of the Welfare of Asylum Seekers (AWAS) within the Ministry for Home Affairs, National Security and Law Enforcement.
During their stay, 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 limited list of detention grounds foreseen in the amended legislation. Following this assessment, the applicant was either put in detention or offered accommodation in an open centre.
This procedure changed in mid-2018 when the new Italian government withdrew from the informal agreement concluded between Italy and Malta in 2014. As a consequence, people rescued within Maltese territorial waters and its Search and Rescue (SAR) zone are now disembarked in Malta.
Therefore, the number of arrivals increased significantly leading the authorities to revise their 2015 reception policy and to again resort 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 on “reasonable grounds” to believe that arrivals carry contagious diseases and need to be medically screened (see Detention).
According to the Strategy Document, migrants entering Malta irregularly by plane and subsequently apprehended at the airport should be taken to the IRC. They are now directly placed in detention.
Arrivals by boat
From January to December 2020, 2,281 people were rescued at sea and disembarked in Malta. This is a significant decrease compared to 2019 sea arrivals (3,406 sea arrivals in total). Out of the 2,281 migrants, 67% were men, 6% were women and 27% were children (24% were unaccompanied children). The main countries of origin were Sudan (28%), Bangladesh (12%), and Eritrea (12%).Except for women and obvious minors, all asylum-seekers disembarked in Malta were automatically and systematically detained upon arrival, very often for several months. Search and rescue events and disembarkation continued to occur throughout the year and the media and NGOs reported multiple failures from the authorities to respect Malta’s obligation under international law. This section provides a chronological overview of the different arrivals and relevant developments in 2020.
On 27 January 2020, 142 migrants were rescued at sea and disembarked in less than 24 hours. A first group consisted of 47 people located in the Maltese SAR zone, Alarm Phone informed the Armed Forces of Malta which intervened several hours later. Another group of 95 people were disembarked the day after.
Two days later, on 29 January 2020, Malta finally agreed to disembark 77 persons after negotiations on relocation agreements for 27 persons. These migrants were rescued by the Alan Kurdi operating for Sea Eye and eventually transferred to the Armed Forces of Malta AFM. The Maltese authorities immediately stated that “Malta is already doing more than its fair share of solidarity and it is currently experiencing disproportionate pressure with its reception facilities under stress”.
In February 2020, a group of 47 migrants were disembarked after being rescued in the Maltese SAR zone and transferred immediately to detention.
In March 2020, 48 hours after the alarm sent by Alarm Phone, AFM rescued a distress boat of 112 people. The ONG publicly blamed the Maltese authorities for leaving the migrants out at sea for a long time. They also reported that the day before, they were informed that the Maltese authorities had pushed back 49 people to Libya aboard a fiberglass boat, located in the Maltese SAR zone and eventually by the Libyan Coast Guard. Alarm Phone claimed that FRONTEX was involved in the said push-back.
On 21 March 2020, in order to contain the COVID-19 pandemic, Malta officially closed their borders for travel purposes through Legal Notice 92 of 2020, Travel Ban (Extension to all Countries) Order.
On 9 April 2020, the AFM rescued a large group of migrants within the Maltese SAR Zone. Immediately after, the Government announced that Malta “is not in a position to guarantee the rescue of prohibited immigrants on board of any boats, ships or other vessels, not to ensure the availability of a “safe place” on the Maltese territory to any persons rescued at sea.
Promptly after, the AFM was accused by the NGO Alarm Phone of having organised the sabotage of the boat located within the Maltese SAR zone by cutting the electrical cord of their engine and by leaving the boat drifting for several days. This was evidenced by an audio recording made by a migrant present on the boat and was reported in The New York Times.
The authorities did not address such accusations simply stating that a boat was rescued, but announced that from now on, Malta’s port was closed for any further disembarkation. The authorities then issued a statement that in light of Covid-19 and the logistical and structural problems for health services associated therewith, 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”. With this statement, Malta has effectively shut its sea borders to those who arrive by sea and are in need of international protection.
On 15 April 2020, a group of 51 people, including seven women and three children, were unlawfully returned to Tripoli after having been rescued in Malta’s SAR region by the fishing boat Dar Al Salam, a Libyan-flagged vessel routinely docked in Malta. Five bodies were recovered whilst migrants also reported seven missing to the IOM. Even though the boat sent alarm messages on 10 April 2020, no rescue operation seems to have happened before 13 April when Italy and Malta sent out air reconnaissance flights. Eventually, Maltese authorities coordinated their return to Libya. Upon arrival, the 51 survivors were placed in detention. IOM confirmed that “[t]he migrants were rescued by a commercial ship from the Maltese search and rescue zone and handed over to the Libyan Coast Guard. We reiterate that people rescued at sea should not be returned to unsafe ports”. UNHCR also expressed criticism about their transfer to Libya, describing the survivors as “traumatized and weakened by days adrift at sea” and reiterating that “Libya is a country at war and not a safe port for refugees and asylum-seekers to be returned to”.
After the rescue, Malta issued a press release explaining their actions and confirming having coordinated the operation but contesting the fact that the boat was left floating in the Maltese SAR zone. The same day, a Maltese civil society organisation Reppublika filed a police report against AFM and the Prime Minister for their inaction endangering the lives of the people on the boat. A magisterial inquiry was opened, and the appointed magistrate eventually dismissed the accusations. Several days later, the Times of Malta, a local newspaper, published an expose accusing the authorities of orchestrating the return of the migrants to Libya through a fishing vessel registered in Libya, but owned by a Maltese national. The news sparked outrage among the NGO community which expressed their anger over the deaths of migrants and the illegal push-back of the survivors to Libya. Healthcare professionals also reacted pointing out that allowing people to die in the name of public health was contradictory.The Government reiterated and justified its decision to close its port and claimed that Malta followed the established coordination procedure when the boat entered Malta’s SAR zone.
On 29 April 2020, Malta rescued a group of 60 migrants in their SAR zone. The Maltese government issued a statement that these migrants would not be allowed to disembark in Malta as a consequence of the closure of the ports because of the Covid-19 pandemic. During April and May 2020, Malta refused all disembarkation of people rescued at sea, including the rescued carried out by the Maltese authorities themselves.
The Government then started to use private vessels, small ferry boats generally used for tourist cruises, along Malta’s coast to host people rescued at sea. By the end of May 2020, 425 persons were kept aboard four vessels, allegedly for quarantine purposes. The Prime Minister stated indeed that the use of such ferries was justified by the need “to protect those migrants who were at the time in the open centres, from the risk of contracting the infectious disease”. NGOs, including Amnesty International, reacted that this was not consistent with the duration of this de facto detention since some people were kept more than a month.
For several weeks, lawyers, NGOs, and even UNHCR were prevented from accessing the people on these boats. Maltese NGOs relentlessly called on the government to disembark people in order to stop this de facto detention, in inhumane conditions, on tourists boats not equipped to host so many people for such a long time.
As late as 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 exasperation of people detained convinced the authorities to disembark people even though the Prime Minister claimed that the disembarkation occurred because the quarantine elapsed. Migrants disembarked were detained upon arrival.
Several Member States pledged to relocate some of the migrants detained on board, France, Germany, Luxembourg, and Portugal were mentioned as countries having offered to take some of the migrants.
On 7 July 2020, a group of 50 migrants stuck for three days on board a Syrian livestock transport ship, inadequate for transport of human beings, were finally disembarked in Malta after being rescued within the Maltese SAR zone. At the end of the month, the NGO Alarm Phone and IOM further reported that a boat with 95 people, including a baby, were left in the Maltese SAR zone for more than a day before being rescued by the AFM.
Several boats arrived again in August 2020. After concerns were raised about a group being pushed back after a patrol boat was spotted in their vicinity but held off on rescuing them for several hours, 71 persons were disembarked on 2 August. On 20 August, the AFM announced it had rescued 118 persons who were drowning in the Maltese SAR zone. The authorities also stated that the Government “was committed to continue to cooperate with the Libyan authorities to prevent more arrivals and deaths in the Mediterranean”.
In September 2020, migrants rescued by the cargo ship Maersk Etienne were finally disembarked in Italy after being stranded at sea for nearly six weeks, after one of the longest standoffs in the Mediterranean between a boat and EU governments. The migrants were rescued in Tunisian waters. Malta refused to disembark despite numerous attempts by the cargo crew, arguing that the migrants on board the Maersk Etienne were not “the country’s responsibility as the vessel sails under the Danish flag”. The Danish government also declined responsibility.
In October 2020, 38 persons were rescued and disembarked. As most people rescued were from Morocco, the authorities immediately stated they considered Morocco as a safe country of origin and that their claims will be processed as “quickly as possible”.
Relocations from Malta continued to happen on an ad hoc basis throughout 2019 and 2020, 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). 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. The first relocation in 2020 took place in May, when 17 people were relocated to France despite travel restrictions.
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 and the Immigration Act, 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 two years, several cases of applicants for international protection imprisoned and convicted for that reason have been reported. Several Maltese 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.
More concerning is the recent criminalisation by the Maltese authorities of people rescuing migrants at sea. Two significant cases were reported in 2019:
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 a distribution agreement was reached, Malta accepted the disembarkation but immediately charged the captain, accusing him of entering Maltese waters with a ship that had not been appropriately registered. They also 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. 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.
Claus Peter Reisch immediately appealed the decision and he was finally cleared of all charges by the Court of Criminal Appeal in January 2020.
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”.
The second case is still on-going. As mentioned above, 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.
The three teenagers were released on bail in November 2019 and remain in Malta pending criminal proceedings. A magisterial inquiry is currently ongoing to gather the evidence, and the Office of the Attorney General should issue a bill indictment with the final charges against the accused. After almost one year and a half, the case remains at pre-trial stage, with the three individuals still awaiting the final bill of indictment to be filed by Malta’s Attorney General. 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. 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”. This case was taken up by Amnesty International as part of their international campaigning, as well as by several other Maltese and international NGOs.
 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.
 Ibid, 10.
 Regulation 6(1) Reception Regulations.
 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. As a consequence, very few persons arrived in Malta by boat between 2014 and mid-2018, all of whom were medical evacuations.
 A previous ban taken on 12th March already prohibited travel from France, Germany, Italy, Switzerland, Japan, Spain, South Korea, China, Singapore, and Iran.
 FRA, via The Malta Independent, ‘Malta accepts group of rescued migrants, but says it will not allow more disembarkations’, 9 April 2020, available at https://bit.ly/2P0I8Zd; The Associated Press, ‘Malta rescues 70 migrants, suspends rescues due to virus’, 10 April 2020, available at https://bit.ly/3vCcsdq; The New York Times, ‘Malta Accused of Sabotaging Migrant Boat’, 9 April 2020, available at https://nyti.ms/38QUTMS.
 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.
 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.
 Article 32(1)(d) Immigration Act.
 JRS Malta et al., ‘Journeys of Hope: We urge Malta to grant safe and legal access to refugees’, 28-29 June 2016; available at: http://bit.ly/2lwccYu; Times of Malta, ‘Refugees should not be prosecuted for using false documents’, 1 July 2016; available at: http://bit.ly/2kcquMZ.
 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.
 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).
 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.