General

Malta

Country Report: General Last updated: 23/05/22

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Detention of asylum seekers is regulated by national law following the reform of the reception system in 2015. Since these changes, detention is now no longer mandatory or an automatic consequence of the decision to issue a Removal Order. The Reception Regulations provide for the possibility to detain asylum seekers on six limited grounds, which are the ones listed in the recast Reception Conditions Directive.

At the end of 2018, the number of arrivals by sea rose significantly. Because of the unpreparedness of the authorities to deal with the high numbers of arrivals, the reception system was quickly incapacitated. In reaction to the new context, from summer 2018 onwards, all migrants rescued at sea – including asylum applicants to be relocated to other Member States – were de facto detained, either in the closed area of the IRC in Marsa, in the Safi Detention Centre, Lyster Barracks, or China House.

The policy of detaining asylum seekers automatically upon arrival continued in 2021, with the use of de facto detention for the first months, first as a measure of quarantine against COVID-19 and then on the basis of the Prevention of Disease Ordinance.[1] During this period of detention, all asylum seekers except families and young children are detained, including individuals claiming to be minors.

Upon disembarkation and following immigration registration, asylum seekers that arrived by boat are all automatically detained. NGOs reported that, although the authorities stated that this detention is related to COVID-19 measures, no  information or documentation on said measures is provided to detained persons. This de facto detention often continues way beyond acceptable quarantine time-frames, and the practice is not in conformity with established quarantine protocols.

In 2021, 838 migrants were held under such measures, with 134 migrants still detained at the end of year, amounting to the total number of arrivals by boat in 2021.[2] NGOs reported that the duration of this detention is variable, with most people being detained between 1 to 3 months.

Following COVID-19 quarantine, applicants undergo a health screening consisting of a chest X-ray seeking to identify persons infected by tuberculosis. The testing and processing of results often takes several days or weeks. Following medical clearance by the Health authorities, the PIO will proceed to an assessment of the legal basis and need to detain and issue a Detention Order accordingly.

Detention will usually be ordered on the following grounds: “in order to determine or verify his identity or nationality[3] and “in order  to  determine  those  elements  on  which the application is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding on the part of the applicant”.[4]

Lawyers report meeting applicants in detention with no documentation confirming their detention, including applicants who had been medically cleared for release yet never actually released.

In practice, only asylum seekers from countries of origin where return is feasible were found to be officially detained by the Principal Immigration Officer, without any individual assessment. Hence, the detention coupled with the accelerated procedure (which does not provide for the possibility to file an appeal) ensures that the individual will be issued with a removal order and a return decision in a matter of months.

Officially, minors and vulnerable applicants are not supposed to be detained. However, since all applicants arriving irregularly were automatically detained without any form of assessment, vulnerable applicants and minors were detained for months before a proper assessment was conducted.  As a result, hundreds of vulnerable applicants and minors were left in detention for months.

Malta has three official detention centres: Safi Barracks, (which include several facilities), Lyster (Hermes) Barracks, and China House. In 2021, Lyster Barracks was closed for refurbishment; the current progress of the renovations is unknown. The Marsa Initial Reception Centre 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.

In 2021, detention conditions remained an issue, with substandard living arrangements in most blocks of the two major detention centres of the country.

In March 2021, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report following its visit to Malta in September 2020.[5] The report highlights the serious failures of the Maltese detention system in 2020, stressing that migrants are deprived of their liberty without any legal basis for arbitrarily long periods in conditions, which appear “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 Dunja Mijatović 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.[6]

NGOs and other actors are unable to assess whether the situation within the living quarters has improved since the previous report was issued. However, they reported that telephones are not operational in most of the living area at Safi. Persons that to call their lawyers 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 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.[7] This was again underlined in her report published in January 2022.[8]

Challenging the detention of asylum seekers remains particularly difficult as the main remedy foreseen by the law, i.e. appeals to the Immigration Appeals Board, is considered by lawyers and NGOs assisting migrants to be mostly ineffective due to the lack of independence of its members and their lack of knowledge as to the relevant legal framework.

Applications under Article 409A of the Criminal Procedure Code remain the only possible remedy for people being de facto detained under the Prevention of Disease Ordinance or without any document. NGOs bringing such cases in front of the Court of Magistrates are usually successful, except for a recent case (See Judicial Review of Detention). The Court of Magistrate usually declares the detention to be unlawful and already condemned the policy of systematic detention due to the lack of reception space as “abusive and farcical”.[9]

Parallel to applications to the Court of Magistrates, NGOs try as much as possible to flag these individuals to the PIO by email requests. Such requests are generally successful for those asylum seekers that have been detained beyond the 9 months required by law.

Legal assistance is mainly provided by the two major NGOs in the field, aditus foundation and JRS Malta. State sponsored legal aid is available only for the first 7 days review of detention, which leaves most asylum seekers without any means to challenge their detention past this initial review.

 

 

 

[1] Chapter 36 of the laws of Malta, Prevention of Disease Ordinance, 10 August 1908.

[2] Information provided by the Infectious Disease Prevention and Control Unit, January 2022.

[3] Reception Regulations, Article 6(1)(a).

[4] Reception Regulations, Article 6(1)(b).

[5] 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.

[6] CoE, 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.

[7] Ibidem.

[8] Commissioner’s report following her visit to Malta from 11 to 16 October 2021, available at: https://bit.ly/3InhWhS.

[9] Malta Today, ‘Magistrate blasts ‘abusive and farcical’ migrant detention practice’, 30 November 2020, available at: https://bit.ly/3r9hjiz

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