Access to the territory and push backs

Malta

Country Report: Access to the territory and push backs Last updated: 30/11/20

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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.[1]

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.”[2] 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, they were assigned a caseworker and were 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.[3] 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.[4] 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 detention of all applicants entering Malta irregularly, as was the case pre-2015. This new detention regime is imposed on the basis of “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 apprehended at the airport should be taken to the IRC. Although the reception policy introduced in 2015 refers to “all persons entering Malta irregularly”,[5] according to the Jesuit Refugee Service (JRS) Malta, all applicants who arrive irregularly by plane are also immediately detained, either in the closed area of the IRC or in detention centres.[6]

Arrivals by boat: Over the course of 2019, several NGO ships on SAR missions requested to disembark in Malta in a context of political controversy on the island and in the EU. In March 2019, the “El Hiblu1” rescued over 100 migrants. While it was making its way to Libya, the rescued migrants protested against this return and insisted to be taken to European safety, as had been promised at the moment of rescue. As the ship approached Malta, it was denied entry to Malta’s waters with the captain claiming he was not in control of the vessel. As the ship entered Malta’s territorial waters, it was boarded and secured by Maltese special operation teams and brought to port. Upon arrival, the 108 migrants were detained and three teenagers identified as the ‘hijackers’ were charged with terrorist activities (See below). 

On another occasion, in April 2019, the Sea Eye’s Alan Kurdi rescued 64 people and after 10 days stranded at sea, Malta accepted to receive the rescued migrants. In August 2019, the Alan Kurdi rescued 40 people and after four days stranded at sea it was authorised to disembark the rescued migrants in Malta following the intervention of Germany and as a gesture of goodwill. As with many similar incidents of migrant rescues by NGO ships, the agreement was that the rescued migrants would not remain in Malta but would be distributed to other EU Member States.[7]

In October 2019, 44 people rescued at sea by a charity vessel (Open Arms) were brought to Malta. The group was transferred from the Open Arms ship to an Armed Forces of Malta patrol boat and disembarked in Malta.[8]

Overall, in 2019, 3,405 people arrived in Malta by boat, which represents a significant increase compared to 2018 (1,500 arrivals).[9] The main countries of origin of arrivals were: Sudan, Eritrea and Nigeria.[10]

Relocations: Relocations from Malta continued to happen on an ad hoc basis throughout 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. To illustrate, those to be relocated to other Member States were not allowed to make an asylum application with the Maltese authorities 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).[11] 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 the IRC, 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. A majority of these people are still waiting in the IRC.

Criminalisation: 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 use of false or forged documents as invariably constituting a criminal offence, with no exception for refugees in law, practice or jurisprudence.[12] 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.[13]

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 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 in May 2019  that the registration "was not to the satisfaction of the Dutch authorities" when the vessel entered Maltese waters and fined the Captain 10,000 EUR for registration irregularities.[14]  Nevertheless, the magistrate also strongly reiterated that saving migrants’ lives 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.[15]

Claus Peter Reisch immediately appealed the decision and he was finally cleared of all charges by the Court of Criminal Appeal in January 2020.[16]

Amnesty International welcomed the final decision but stated that “such criminal prosecution against a human rights defender initiated in highly politicised circumstances (…) 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.” [17]

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[18]

The three teenagers were released on bail in November 2019 and remain in Malta pending the 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. 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.[19] 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.”[20]

 


[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] Ibid, 10.

[3] Regulation 6(1) Reception Regulations.

[4] 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.

[5] Strategy Document, November 2015, 7.

[6] Information provided by Dr Katrine Camilleri, Director of JRS Malta, January 2017. This practice remains valid as of the end of 2019.

[7] Malta Today, Migration: Where search and rescue NGOs are this week, 23 August 2019, available at:  https://bit.ly/3ecKnRf.

[8]  Times of Malta, 44 migrants brought to Malta after Open Arms sea rescue, October 2019, available at: https://bit.ly/3dpAXBm.

[9] Information provided by the Immigration Police, 2020.

[10] Information provided by UNHCR Malta 2019.

[11] Le Monde, ‘Pour les 58 migrants débarqués de l’« Aquarius » à Malte, l’îleest « commeune prison »’, 2 October 2018, available in French at: https://lemde.fr/2IaGFeZ.

[12] Article 32(1)(d) Immigration Act.

[13] 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.

[14] Court of Magistrates, IL-PULIZIJA vs CLAUS PETER REISCH , 20/2019, 14 May 2019, available at: https://bit.ly/2VtrfWo.

[15] European Database of Asylum Law, Malta: Judgment in case against Captain of MV Lifeline, 14 May 2019, https://bit.ly/2UxTVx3.

[16] Court of Criminal Appeal, IL-PULIZIJA vs REISCH CLAUS PETER, 150/2019, 07 January 2020, available at: https://bit.ly/3esqsOm.

[17] 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.

[18] 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).

[19] 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.

[20] 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.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation