Access to detention facilities

Malta

Country Report: Access to detention facilities Last updated: 23/05/22

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Legislation provides 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]

In practice, no formal procedures exist for friends and family members to visit detained persons and practice is erratic and largely discretionary. People need to request permission to the Detention Service administration which does not always reply and grant appointments. When such visits are allowed, logistical modalities are also extremely erratic and discretionary with no clear procedures and rules. In 2020, such visits were not allowed. No information was provided on the matter for 2021.

Representatives of the media may be given access to Detention Centres subject to authorisation by the Minister for Home Affairs, National Security and Law Enforcement. However, no journalist was allowed to enter the premises in 2020. Times of Malta and independent journalists reported that its journalists have been repeatedly denied access to Safi detention centre.[2]

In 2021, a journalist went on a controlled visit for the tour of a detention centre, for the first time in 8 years.[3] 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.[4] 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.

There is no published policy position regarding visits by politicians, but politicians have visited the detention centres on occasion.

In the past, UNHCR, legal advisers and NGOs were usually allowed access at any time in order for them to provide their services to detained persons. No specific criteria applied, except possibly the provision of services or support to detained asylum seekers.  Persons in detention centres encounter difficulties communicating with legal advisers, UNHCR, and NGOs primarily due to the fact that little or no information is provided on the existence and means of contacting these entities, and actual contact is only possible to a limited extent and due to the limited means available to NGOs and UNHCR.

However, following the change in the detention policy and the tensions within the detention centre, access to detention was limited at times during 2019 and 2020.

For instance, access was revoked after NGOs filed Habeas Corpus cases leading to the release of several applicants in October 2019. Access was denied to NGOs for several weeks without any explanation before being resumed. Access was suspended in March 2020, when the pandemic first reached Malta. It was then authorised in July for a very limited 3 hours a week.[5] In September 2020, access was denied again for several weeks without any explanation. It was restored again in October 2020.

Due to COVID-19, access by NGOs and legal practitioners was strictly limited from March 2020 on, resulting in a lack of basic information on the asylum procedure as well on available legal support provided to applicants. Asylum-seekers were often left in detention for several months without any information on the reason for their detention, and without any access to the outside world.[6]

Despite the fact that the new Detention Services Director committed to granting full access to NGOs in early 2021, the limitation on access was later institutionalized and is now a policy.

Since June 2021, NGOs are permanently refused access to the living quarters in detention centres and are not permitted to organise group sessions with detained persons. Only UNHCR enjoys such access. NGOs are only permitted to visit clients and by appointment. According to the government, since the UNHCR is present inside and can refer people in need of legal assistance to NGOs, these is no need for them to go in the living quarters.[7] However, NGOs and lawyers reported that UNHCR rarely refers people to them and that they rely on detained people to establish contact with them.

In practice, NGOs receive daily calls from detained persons requesting legal aid. Police numbers, exact names and countries of origins of these individuals have to be registered in order to be granted a visit by the Detention Services and reserve a slot for the only available 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 between six to eight persons. There are weeks when NGOs visit a detention centre twice, whilst there are times when weeks pass without any slot being allocated.

NGOs repeatedly flagged a number of limitations with the current system. Presently, detained persons rely on the availability of a functioning telephone in order to call them and this is not always available. For the second half of the year, no telephone has been operational in any living area at Safi. Persons who need to call NGOs or other persons/organisations, are required to request this from the on-duty Detention Service personnel in order for them to use the office phone.

The authorities seem to assume that detained persons – including newly-arrived asylum-seekers – are aware of the existence of NGOs, the nature of their services and how to get in touch with them. Invariably, the most vulnerable persons and often those most in need to be identified as such and be provided with information, assistance and referrals are not the ones calling.

This lack of access is particularly problematic due to the 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 provided. The actual deadlines amount more or less to actual time needed to get the approval for a visit the following week.

NGOs also report that legal aid lawyers provided by the State do not visit the detention centres on a regular basis.

This policy of heavily restricted access results in the absence of provision of basic information on the asylum procedure, information on the available legal support for detainees, or the possibility to appeal decisions within the legal deadlines. Individuals 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 increasingly at risk of refoulement.

 

 

 

[1] Regulation 6A Reception Regulations.

[2] 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.

[3] Times of Malta, Inside the Safi migrant detention centre, 5 July 2021, available at: https://bit.ly/3qdeCPk.

[4] Information provided by aditus foundation and JRS Malta, January 2022.

[5] Times of Malta, ‘NGOs denied access to Safi migrant centre since August’, 11 September 2020, available at: https://bit.ly/3tFmgBm.

[6] FRA, ‘Migration: Key fundamental rights concerns, Quarterly Bulletin, Nov 2020’, available at: https://bit.ly/3cblrdC.

[7] Information provided by the UNHCR, September 2022.

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