Detention of asylum seekers is regulated by national law following the reform of the reception system in 2015. 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.
With the 2015 changes, the main feature of the reception system was that detention was now no longer either mandatory or an automatic consequence of the decision to issue a Removal Order.
Between 2002 and 2015, the majority of the asylum-seeking population in Malta arrived by boat, having travelled in an irregular manner from Libya. Most were brought ashore after they were rescued from vessels in distress; upon arrival all were issued with a Return Decision and Removal Order in terms of the Immigration Act and placed in detention. Submission of an application for international protection did not imply release from detention. As the majority of asylum seekers reached Malta after travelling irregularly by boat from Libya, most asylum seekers were detained.
For a limited period of time, between 2015 and mid-2018, the situation changed and the majority of asylum seekers arrived regularly by plane, thereby avoiding the mandatory detention policy. However, with the establishment of the new Italian government and the end of an informal agreement between Malta and Italy – on the basis of which all migrants rescued in Maltese territorial or search and rescue waters were being disembarked in Italy – the situation changed again and asylum seekers reached Malta after travelling irregularly by boat, generally from Libya.
Applicants arriving irregularly by plane or by boat were referred to the IRC where they were detained for a period of between some days and a couple of weeks. In the IRC, the need to detain was assessed by the Principal Immigration Officer. They were then either detained, placed under an alternative to detention or sent to reception centres. Furthermore, as mentioned above, if the irregular entry involved use of false documentation, criminal action is taken and the asylum seeker risks a sentence of up to two years’ imprisonment (see Access to the Territory).
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 – are de facto detained, either in the closed area of the IRC in Marsa or in the Safi Detention Centre, part of which is now considered an extension of the IRC.