Author
Official data regarding the number of detained applicants throughout 2024 is elusive, due to the lack of available disaggregated data and to the instances in which measures that can be considered as amounting to detention are implemented without being registered as cases of detention by the authorities.
Detention of asylum applicants is regulated by national law and currently includes de facto detention under health grounds in terms of the Prevention of Disease Ordinance[1] and detention under the Reception Regulations.[2]
In 2018, Malta reintroduced automatic and mandatory detention, relying on public health legislation that does not, in fact, offer public authorities a legal basis to detain migrants or asylum seekers.
Throughout 2022 and 2023, all applicants arriving by sea were held for at least two weeks in the Ħal Far Initial Reception Centre (HIRC), the so-called ‘China House’, on the basis of the above-mentioned Prevention of Disease Ordinance for several weeks, pending a medical clearance by the Public Health authorities. Persons identified upon disembarkation by AWAS as being vulnerable were detained at the Marsa Initial Reception Centre.
This period was reduced throughout 2024, as a consequence of the A.D. v. Malta ECtHR judgement where the Court confirmed the illegality of detaining any person on the basis of an order from the Superintendent for Public Health.
Once applicants are “medically cleared”, the Public Health authorities inform the Principal Immigration Officer (PIO) who carries out an assessment as to whether grounds exist to detain under the Reception Regulations.[3] Following the A.D. v. Malta judgement, the PIO introduced a new policy of mandatory detention for a minimum of around two months for all persons, exempting those flagged as vulnerable by AWAS at the point of disembarkation. This 2-month detention applies to all persons. At the end of the 2-month period, the PIO undertakes another assessment to determine whether to release or continue detaining applicants. Generally, applicants having prima facie protection claims (e.g. Syrians during 2024) would be released, whereas other applicants would be kept in detention on the basis of the same Detention Order.
As explained below, in recent years the health service within Safi Barracks has seen considerable improvement with the installation of primary healthcare service providers offering general and specialised medical services. Whilst NGOs welcomed this significant improvement, they nonetheless lamented the fact of their inability to provide independent services to detained clients. They underlined that, in view of the fact that detention-related decisions were often being made on the basis of reports and assessments compiled by State entities, the need for independent reports was key to ensuring the effective exercise of the right to liberty. Furthermore, they also expressed disagreement with the State’s approach that, if a service is being provided by a State entity, NGO services would not be permitted.
Despite some efforts to refurbish some blocks of Safi Detention Centre, detention conditions still have a carceral setting offering substandard living arrangements. Access to legal assistance remains a long-standing issue, with no proper means of communication and restricted access to lawyers, NGOs and UNHCR. Interferences from the Ministry or the PIO are reported to be frequent and private and privileged information is reported to be freely shared between governmental entities.
Throughout 2023 and 2024, access to the centres and to detained applicants remained the most pressing concern for NGO, together with living conditions and treatment of vulnerable persons.
In March 2021, the CPT published a report following its visit to Malta in September 2020.[4] The report highlighted the serious failures of the Maltese detention system in 2020, stressing that migrants were deprived of their liberty without any legal basis for arbitrarily long periods in conditions, which appeared “to be bordering on inhuman and degrading treatment as a consequence of the institutional neglect”. The CPT considered that “certain of the living conditions, regimes, lack of due process safeguards, treatment of vulnerable groups and some specific COVID-19 measures undertaken are so problematic that they may well amount to inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights”.
During her visit to Malta in October 2021, Council of Europe Commissioner for Human Rights noted that, “although the number of those detained, including children, was significantly reduced recently, the Commissioner observed that uncertainties remain about the legal grounds and the safeguards related to some detention measures”. She called on the authorities “to focus on investing in alternatives to detention and to ensure that no children or vulnerable persons are detained”. The Commissioner also stressed the need to ensure independent monitoring of places of detention as well as unhindered access for NGOs to provide support and assistance to those detained.[5]
The CoE Commissioner for Human Rights noted that some efforts were made to improve living conditions in the centres, however she was struck by the deplorable situation in Block A in the Safi Detention Centre and urged the authorities to take immediate action to ensure dignified conditions for all those currently held there.[6] This was again underlined in her report published in January 2022.[7]
Access to effective remedies to challenge detention is reported to be limited and, at times, inexistent due serious concerns by legal practitioners and NGOs over independence and impartiality of the Immigration Appeals Board (IAB). In J.B. and Others v. Malta, the ECtHR issued interim measures to Malta regarding the IAB’s operations, underlining that it does not fulfil Convention criteria to review detention legality:
The Court notes that it has found that the applicants did not have an effective remedy for the purposes of Article 5 § 4, considering, inter alia, that in the absence of any safeguards the applicants had legitimate doubts as to the independence of the IAB. Bearing in mind that both independence and impartiality are important constituent elements of the notion of a “court” within the meaning of Article 5 § 4 of the Convention and that the general principles concerning the independence and impartiality of a tribunal, for the purposes of Article 6 of the Convention apply equally to Article 5 § 4 (see 143 above) the Court calls on the Government to ensure that legislation is put in place in order for the IAB to conform with those requirements, having regard to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressure and the necessity for the body to present an appearance of independence.[8]
State sponsored legal assistance is provided for the initial review of detention under the Reception Regulations before the IAB. For the second review, legal practitioners noted that these are not regularly held but, if and when held, legal aid is provided. Legal practitioners noted that throughout 2024 unaccompanied children in the age assessment procedure did not have their detention reviewed by the IAB, but it is not clear why.
In April 2023, the Detention Services Agency (DSA) was established by law,[9] giving it a distinct legal personality. The DSA is a body corporate with the capacity to execute contracts, engage personnel, manage property, and litigate. In terms of formal structure, the DSA is established under the authority of the Home Affairs Ministry and, although it operates autonomously, it remains subject to directives issued by the Ministry. The Order states that the Agency has the obligation to submit an annual report to the Minister within six weeks following the conclusion of each financial year. This report is expected to encompass a comprehensive overview of the Agency’s activities throughout the year, accompanied by an audited statement of accounts. Additionally, the report should include pertinent information regarding the Agency’s proceedings, operations, and future plans aimed at fulfilling its functions. Furthermore, it stipulates that the Minister is responsible for presenting this report to Parliament, within six weeks of receiving it. At the time of writing of this update (April 2025), no DSA report had been submitted to Parliament.
The possibility to detain vulnerable persons, including children, was strengthened in 2024 with the adoption of Legal Notice 87, whereby specific provisions on their detention were incorporated in the Reception Regulations, summarised below.[10]
Throughout 2024, UNHCR held three training sessions covering 44 DSA staff on the UNHCR mandate, refugee law and human rights standards in administrative detention, identification of persons with specific needs, and cultural sensitivities including trauma and conflict resolution.[11]
[1] Prevention of Disease Ordinance, Chapter 36, 10 August 1908.
[2] Reception Regulations, S.L. 420.06.
[3] Regulation 6(1) of the Reception Regulations, S.L. 420.06.
[4] CPT, Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 17 to 22 September 2020, March 2021, available at: https://bit.ly/3mPtelf.
[5] Council of Europe, Reforms needed to better protect journalists’ safety and the rights of migrants and women in Malta, 18 October 2021, available at: https://bit.ly/3IevJqA.
[6] Ibid.
[7] Commissioner’s report following her visit to Malta from 11 to 16 October 2021, available at: https://bit.ly/3InhWhS.
[8] ECtHR, Case of J.B. and Others v. Malta, Application 1766/23, 22 October 2024, available here, para. 167.
[9] Detention Services Agency (Establishment) Order, S.L. 594.45, 8 April 2023, available at: https://tinyurl.com/3t4txnu7.
[10] Reception of Asylum-Seekers (Amendment) Regulations, L.N. 87 of 2024, available at: https://tinyurl.com/ywd7rxkd.
[11] Information provided by UNHCR in February 2025.