Author
The Reception Regulations provide for the possibility for detainees to receive visits from family members and friends up to once per week. The Detention Service administration shall determine dates and times once the Principal Immigration Officer (PIO) approves such visits.[1]
The Detention Services Regulations provide that detained persons are entitled to visits from, or communications with, authorised persons and representatives of non-governmental organizations, save to the extent necessary in the interests of security or safety.[2] Representatives of international organisations and non-governmental organisations have access to detained persons after obtaining the authorisation of the Head Detention Services or the Principal Immigration Officer acting on the advice of the Minister.[3]
The legal adviser or representative of any detained person in any legal proceedings shall be afforded reasonable facilities for interviewing him in confidence, save that any such interview maybe in the sight of an officer.[4]
Religious organisations may request access to detention centres to the Head Detention Service who may grant such access on a case-by-case basis in consultation with the Principal Immigration Officer.[5]
The Regulations also provide that all detained persons shall have access to public telephones at the detention centres and that he Head Detention Services may bear the expense of any telephone calls, within reasonable limits, by providing phone cards to all detained persons.[6]
The 2023 Visitors Policy
NGOs and other entities’ limitations in accessing detention centres was one of the major issues throughout 2023, after several obstacles to access being introduced in previous years.
In August 2023, the Detention Services Agency published a new Visit Policy, essentially incorporating what had been until then standard practice. The new policy limited access to centres – and therefore to applicants – to qualified and warranted lawyers and required applicants to sign their consent to be visited. Visits were limited to no more than 6 persons at a time, to be held in a designated area, and all visitors were required to leave all belongings – including phones – in locked cabinets. Frisk searches were made compulsory. Control over the visit, including the visit, was entirely at the discretion of the Detention Services. This new policy was shared with entities usually visiting detention centres and was immediately not well-received.
NGOs complained about the excessive burdens imposed on practitioners trying to access detention centres, finally impinging on the right of all detained persons to receive impartial information. In particular, they expressed disagreement with the DS’ self-imposed role of approving individual lawyers for applicants, a practice that had seen DS refuse NGO access to applicants on the basis that the applicant was being provided services by other legal practitioners. This practice reinforced informal information received by NGOs that government officials were being barred from referring applicants to NGO legal services.
The new policy was rejected by aditus, JRS, UNHCR, Malta Red Cross and IOM, albeit for different reasons. Effectively this meant that, from the date of introduction of this new visitors’ policy, only a few visits were organised to detention, and this situation continued until January 2024.
Following months of disagreement on the policy, difficult negotiations between NGOs and the Ministry led to the publication of a revised policy in December 2023. NGOs agreed to sign the new policy, with reservations, whilst UNHCR continued its discussion with the Government towards the signing of an MoU. As of January 2024, NGO lawyers started visiting the detention centres once again, under the conditions of the new policy.
In terms of the new Detention Services Agency Visitors Policy,[7] all visits must be requested in advance indicating the details of the applicants to be visited and each visit will only permit a maximum of 6 persons. Applicants detained under public health grounds are only permitted video-conference meetings. All meetings with detained persons are to be conducted in a room equipped with a CCTV camera and no personal equipment is permitted inside the room. These must be left in cabinets, and all visitors are to be frisked before entry.
The policy does not make any distinction between legal visits and other visits, possibly implying that other organisations and persons should also abide by the policy’s rules in order to visit any detained person.
Access to Journalists
Up until 2021, Times of Malta and independent journalists reported that its journalists were repeatedly denied access to the Safi detention centre.[8]
In 2020, a prominent blogger and activist filed a court application claiming that the Government’s refusal to grant him access to prison and to detention centres amounted to a violation of his fundamental rights. Judgement was delivered in 2023, when Malta’s Civil Court (Constitutional Jurisdiction) upheld the journalist claims that the ban had violated his right to freedom of expression. The judgment, later appealed by the Government, ordered the head of the Detention Services “to grant the applicant access in order for him to visit the above-mentioned facilities and to allow him to take necessary photos, always in respect of the detainees’ privacy.”[9] The case is currently pending at the appeal stage.
In 2021, a journalist went on a controlled visit for the tour of a detention centre, for the first time in 8 years.[10] Lawyers visiting the centre however reported that the journalist’s somewhat positive account of the situation inside contradicted greatly their own experience and the detainees’ testimonies.[11] The journalist reported that detainees had access to health services, that minors were kept apart from adults and that all detainees had access to an outdoor area and telephones to call their relatives. All of these statements were confirmed to be untrue by detainees and lawyers.
In 2023, as part of its reform of the detention regime, the Detention Services Agency published a protocol on media access.[12] Written requests for a visit to a detention centre should be made to the CEO of the Detention Services Agency. If approved, a date will be set for the visit, during which the following rules are to be respected:
- No recording, filming, photography or voice recordings;
- Interviews with the DS CEO are permitted, subject to prior approval;
- Mobile phones and all means of communication will be temporarily confiscated;
- Security screening will be implemented, including personal searches;
- All visits will be along a set route and accompanied by DS officials;
- Random access to areas not related to the visit’s purpose are prohibited;
- Visits may be suspended at any time.
Access to the UNHCR
UNHCR’s access to detention centres and to applicants has also been affected by the recent move towards stringent rules. On the one hand, according to the Government, the UNHCR’s presence in detention is sufficient to ensure that relevant information on asylum is provided, and that NGO access is not required. Regarding the need for legal assistance, the Government considers that the UNHCR is able to refer applicants to NGOs when necessary and there is no need for NGOs to be present to provide information sessions.
However, UNHCR staff visiting the detention centres reported facing issues in accessing detention during the second half of 2021 where they did not have access to the list of detainees and were not granted access to them. During the first half of 2022, the UNHCR carried only one visit to detention in February due to limited staffing capacity. It only resumed its visits in August and September where it carried out 3 visits. Overall, in 2022 UNHCR met approximately 91 persons for information counselling sessions in detention centres.
In 2023, UNHCR conducted five visits to detention facilities and provided information and counselling to 103 asylum-seekers. According to UNHCR, the visits focused on information-provision to ensure newly arrived persons make an informed decision on exercising the right to seek asylum. The visits were also intended to provide information on access to asylum procedures, rights and obligations. People with specific needs were identified and referred to state available services. UNHCR Malta also reported the development of a Memorandum of Understanding on access to detention facilities, an information leaflet with the Ministry for Home Affairs to strengthen information provision to new arrivals, improved reception conditions, enhanced capacity to process asylum applications and a decreased backlog. Furthermore, UNHCR facilitated several capacity building activities and has been discussing with the authorities through various bilateral channels to offer its expertise and technical assistance on areas that require further improvements.[13]
However, in 2023 a new rule was introduced barring UNHCR from accessing persons unless they had formally lodged an asylum application.
aditus and JRS Malta commented that, coupled with a more aggressive approach urging voluntary return on persons from particular countries of origin and the effective impossibility of newly-arrived persons from accessing independent and impartial information, this has at times resulted in persons returning to their countries of origin without ever having received any information om the right to seek asylum.
UNHCR Malta was also affected by the 2023 DSA visitors policy. When this was published and notified to entities wishing to access detention centres, UNHCR was one of the organisations that refused to accept and sign the new policy. This meant that for the second half of 2023, UNHCR enjoyed limited access to detention centres.
Access to NGOs and Lawyers
Throughout 2022 and 2023, only persons providing legal services were granted access to applicants, and with several practical obstacles. As such, access is only viewed within the scope of the lawyer-client relationship and not within the broader aim of information or service provision to detainees irrespectively of whether they are represented by the lawyer of the NGO. JRS Malta reported that its psychologists and social workers are not allowed to provide their services to detainees. Practice shows that the EUAA or the UNHCR does not refer cases to NGOs and the contact details of the NGOs were generally not provided to the detainees, who in any case are likely to be unable to access a working phone.
Before and also after the new visitors policy, lawyers are only allowed to visit named clients. They are not able to access newly-arrived groups of persons or lists of names they could use to identify clients. This means that, in practice, for applicants to have access to legal information and services, NGOs must call regularly each block of the detention centres and request personal information of groups of people over the phone, also since personal phones are confiscated upon entering the detention centre, police numbers, exact names, detention grounds, and countries of origins have to be continuously registered and updated for the lawyers to be able to specify which individual applicants they would like to visit as clients.
With this information, often lacking detail and clarity since only obtained over the phone, NGO lawyers are required to submit a visit request to the Detention Services in order to reserve a slot in the centre board room. NGOs are usually allocated up to four hours, during which the lawyers (accompanied by an interpreter, as needed) are able to talk to a maximum of six persons. There are weeks when NGOs visit a detention centre twice, whilst there are times when weeks pass without any slot being allocated. NGOs also noted that they received informal information that Government officials were instructed not to refer applicants to their services, including vulnerable persons, further distancing them from impartial information and services.
NGOs flagged that, throughout 2023, each block of the Detention Centres was equipped with a phone and detainees were provided with telephone vouchers to use with these phones. According to the Home Affairs Ministry, in 2023 the DSA distributed 4,510 vouchers.[14] NGOs commented that the available credit on these phones was merely sufficient to call family members, and that since no contact details were distributed regarding NGOs or other service-providers, detainees had no way of reaching out to them. Some blocks allowed applicants to ask the guards to access a mobile phone, but this required the ability and capacity to communicate with the guards. NGOs noted that language difficulties and also individual vulnerabilities often prevented detained persons from relying on this method of communication, commenting that they rarely received calls through this means. NGOs also noted difficulties – at times the impossibility – of reaching new arrivals by phone for the first days or weeks following their arrivals.
This lack of access is particularly problematic due to the fact that deadlines stipulated in Maltese legislation for the filing of appeals against Detention Orders (3 days), Removal Orders (3 days), age assessment decisions (3 days), and negative asylum decisions (15 days) are extremely stringent and template application forms are not regularly provided in detention. The actual deadlines amount more or less to the actual time needed to get the approval for a visit the following week.
This policy of heavily restricted access results in the absence of provision of basic information on the asylum procedure, identification of vulnerable persons including persons requiring specialised legal advice/information relating to their asylum claims such as LGBTIQ+ applicants and victims of sexual or other forms of violence, information on the available legal support for detainees, or the possibility to appeal decisions within the legal deadlines. Applicants can therefore go through their entire asylum procedure without ever being given any legal advice or information.
Most detainees are channelled through the accelerated procedure and are issued with the IPAT review, a removal order and return decision along with their rejection. As stated above, they cannot appeal their first instance decision and they usually would miss the short deadline (3 days) to appeal the removal order, which necessarily needs the intervention of an NGO lawyer or a private lawyer. This lack of procedural safeguards coupled with the lack of communication from Immigration Police regarding removal arrangements means that individuals are at an increased risk of refoulement.
[1] Regulation 6A Reception Regulations.
[2] Regulation 30 of the Detention Service Regulations, Subsidiary Legislation 217.19 of the Laws of Malta.
[3] Regulation 49(2) of the Detention Service Regulations, Subsidiary Legislation 217.19 of the Laws of Malta.
[4] Regulation 34 of the Detention Service Regulations, Subsidiary Legislation 217.19 of the Laws of Malta.
[5] Regulation 29 of the Detention Service Regulations, Subsidiary Legislation 217.19 of the Laws of Malta.
[6] Regulation 35 of the Detention Service Regulations, Subsidiary Legislation 217.19 of the Laws of Malta.
[7] Detention Services Agency, Detention Services Agency Visitors Policy, December 2023, available at: https://bit.ly/3WZAu2c.
[8] Times of Malta, UN slams “shocking” conditions for migrants in Malta, 2 October 2020, available at: https://bit.ly/2NHS4qb; Malta Today, Manuel Delia demands access to detention centres, prison’, 21 February 2020, available at: https://bit.ly/2NHSeOj.
[9] Emanuel Delia vs. Hon. Byron Camilleri et, Civil Court First Hall (Constitutional Jurisdiction), 201/2020, 11 December 2023, at: https://bit.ly/4awOjs1.
[10] Times of Malta, Inside the Safi migrant detention centre, 5 July 2021, available at: https://bit.ly/3qdeCPk.
[11] Information provided by aditus foundation and JRS Malta, January 2022.
[12] Detention Services Agency, Media Protocol, 2023 at: https://bit.ly/3ViXcRD.
[13] Information provided by UNHCR Malta on 8 March 2024.
[14] Information provided by Home Affairs Ministry in January 2024.