Author
Official data regarding the number of detained applicants throughout 2023 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.
According to the Principal Immigration Officer, 376 persons were detained during 2023 for migration-related purposes. However, no data is publicly available, and the authorities are unable to say how many of these were asylum applicants and also on what grounds they were detained. Furthermore, on the basis of the policy whereby all applicants reaching Malta by sea are automatically detained for at least two weeks on public health grounds, it can be said that 380 persons were detained upon disembarkation this being the total number of sea arrivals for 2023.
The total number is however likely higher, as this figure does not include applicants who did not reach Malta by sea and who were nonetheless detained, and Dublin returnees who were detained upon their return to the country. Although these cases are relatively uncommon, NGOs noticed an increased use of these practices in 2023.
This is confirmed by the 2023 Annual Report of the Monitoring Board for Detained Persons, which states that 1,705 persons spent time at the detention centres throughout the year[1].
Detention of asylum-seekers is regulated by national law and currently includes de facto detention under health grounds in terms of the Prevention of Disease Ordinance[2] and detention under the Reception Regulations.[3]
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.
According to the Ordinance, the Superintendent for Public Health may issue a Restriction of Movement Order to any person whom they believe may carry a contagious disease. The restriction of movement can be enforced for 4 weeks which can be extended to 10 weeks, for the purpose of finalising such microbiological tests as may be necessary.[4] The called Restriction of Movement Order issued in terms of this legislation is in fact a document briefly mentioning the reasons for and basis at law for the measure in a single paragraph with the immigration number of the applicant and the date of issuance at the top of it. No individual assessments are conducted prior to issuing this document, and it is issued to all arrivals by sea. Furthermore, it is only issued to arrivals by sea, and to no other person entering Malta, including if from the same country of origin or from the same country of departure.
The Government claims that detention under the Ordinance does not amount to a situation of deprivation of liberty but merely to a restriction on the freedom of movement of the applicant.[5] Nevertheless, all applicants reaching Malta by sea are systematically detained, either in the Ħal Far Initial Reception Centre or at the Marsa IRC, the former being a designated detention facility in national legislation.[6] In both situations, applicants are not permitted to exit the premises or to receive any visitors, including service-providers, save for medical emergencies. The CPT considers that this situation amounts to a situation of deprivation of liberty likely to be in violation of Article 5 ECHR[7], a position also reflected by the Court of Magistrates of Malta, whose decisions repeatedly emphasized that this was unlawful detention, save for one controversial case decided in January 2022.[8] Finally, the ECtHR confirmed that the situation of persons kept in China House under the Ordinance does in fact amount to deprivation of liberty.[9]
The Home Affairs Ministry shared information on these procedures, stating that the health screening process has been speeded up to a one-week duration. According to the Ministry, each person is individually notified about this process through an individualised form in a language they understand on the day of arrival. In cases where an infectious disease is diagnosed, the issued decision is also individualised.
The Ministry also underlined that health screening applies to all third country nationals seeking a job in Malta and, if found to have an infectious disease, they are also be issued with a restriction of movement order. [10] Lawyers working with third-country nationals seeking employment in Malta confirmed that their clients were never detained during the health screening process.
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.[11] Legal practitioners and NGOs noted that, according to their assessment, despite detention being ordered on one of the grounds set out in the Reception Regulations throughout 2023, in practice one of the underlying reasons for the detention of many persons was the fact that the person comes from a country for which returns are systematically carried out.
2022 and 2023 saw both the duration of detention under health grounds and under the Reception Regulations substantially decreasing and applicants were generally not detained beyond the prescribed limits. This positive improvement is likely to be linked to the decrease in arrivals, consequential to the increase in pushbacks or failures to intervene. Overall, the Government’s reception policy remains unchanged and no particular change to the modus operandi has been observed. According to the PIO, the average detention duration in 2023 was of 47 days. However, as explained above, this does not include any period detained under health grounds and refers to all detained persons.
However, since all applicants arriving irregularly are automatically detained in terms of the Prevention of Disease Ordinance without any form of assessment, vulnerable applicants and minors can be detained for weeks or months before an assessment is conducted.
For the purposes of immigration detention, Malta operates three official and one unofficial detention centres: Safi Barracks, (which include several blocks), Lyster Barracks (Hermes Block), and the HIRC – commonly referred to as ‘China House’ – are officially designated as such, while the Marsa Initial Reception Centre constitutes a de facto detention centre. Furthermore, persons may also be detained in Police custody at the Malta International Airport, particularly for those situations where a person is immediately returned on the same flight used to reach Malta.
The Lyster Barracks have been closed for refurbishment since 2021 and the current progress of the renovations is unknown. The Detention Centres are managed by the Detention Services (DS), until 2023 a public entity established and regulated by the Detention Services Regulations[12] and formalised into a public Agency in 2023.[13]
The Marsa Initial Reception Centre (MIRC), operated by AWAS, is not formally categorised as a detention centre, since a section within the centre is open and allows the residents’ free entry and exit. However, there is also a closed component to the IRC where persons are effectively deprived of their liberty under the above-described public health legislation. In 2023, it was used for health clearance before accommodation in the open reception centres. This was for new arrivals deemed vulnerable, asylum-seekers in the community that needed accommodation and Dublin returnees.
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, access to the centres and to asylum-seekers remained the most pressing concern for NGOs, culminating in a boycott of access requirements by all entities, including IOM and UNHCR. This meant that, for the second half of the year, only few visits were made to the detention centres, and detained asylum-seekers were only able to contact UNHCR, lawyers or NGOs via telephone. Visits resumed with the adoption of the new visitors policy, in 2024.
In March 2021, the CPT published a report following its visit to Malta in September 2020.[14] 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”.
The CPT visited Malta again from 26 September to 5 October 2023. The report on the visit was not yet published by the time of publication of the 2023 Update of the AIDA Country Report.
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.[15]
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.[16] This was again underlined in her report published in January 2022.[17] The Government nonetheless noted that by December 2023 refurbishment works of the centres was well under-way. [18]
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). 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. Applicants generally rely on NGOs to provide legal assistance to challenge their detention under the Prevention of Disease Ordinance, although the Ordinance contains no procedural safeguards for applicants placed under a Restriction of Movement Order.
In April 2023, the Detention Services Agency (DSA) was established by law,[19] 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.
[1] The Monitoring Board for Detained Persons, Annual Report 2023, available at: https://tinyurl.com/r5ux6ysr.
[2] Prevention of Disease Ordinance, Chapter 36 of the laws of Malta, 10 August 1908.
[3] Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[4] Article 13 of the Prevention of Disease Ordinance, Chapter 36 of the Laws of Malta.
[5] ECtHR, A.D. v. Malta, no 12427/22 (Communicated Case), 24 May 2022, available at https://bit.ly/3SP3l4Y
[6] Places of Detention Regulations, Subsidiary Legislation 217.03 of the Laws of Malta, available at: https://tinyurl.com/3jewzxf4.
[7] 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.
[8] Cases are not published online but several cases filed by aditus foundations are available at https://bit.ly/3ybWXLx
[9] ECtHR, A.D. v. Malta, no 12427/22 (Communicated Case), 24 May 2022, available at https://bit.ly/3SP3l4Y.
[10] Information provided by JRS Malta in June 2024.
[11] Regulation 6(1) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[12] Detention Services Regulations, Subsidiary Legislation 217.19 of the Laws of Malta.
[13] Detention Services Agency (Establishment) Order, S.L. 595.45, 2023, available at: https://tinyurl.com/3t4txnu7.
[14] 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.
[15] 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.
[16] Ibid.
[17] Commissioner’s report following her visit to Malta from 11 to 16 October 2021, available at: https://bit.ly/3InhWhS.
[18] Information provided by JRS Malta in June 2024.
[19] Detention Services Agency (Establishment) Order, S.L. 594.45, 8 April 2023, available at: https://tinyurl.com/3t4txnu7.