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 mandatory or an automatic consequence of the decision to issue a Removal Order.
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, in the Safi Detention Centre, Lyster Barracks, or China House.
Depending on their nationalities, applicants are either detained under the Reception Conditions Directive, or the Health Regulations. In 2020, the vast majority of applicants were detained, without any legal ground, on the basis that there was no space available in reception centres.
Due to Covid-19, access by NGOs and legal practitioners was strictly limited since March 2020, 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.
Officially, minors and vulnerable applicants are not supposed to be detained. However, in 2020, 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. In 2020, hundreds of vulnerable applicants and minors were left in detention for months.
NGOs have called relentlessly all year for the immediate release of persons held in detention without justification, reminding the authorities that arbitrary detention is unlawful.
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. 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”.
 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.