Author
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[1] and detention under the Reception Regulations.[2]
In 2018 Malta reintroduced automatic and mandatory detention, relying on public health legisaltion that does not, in fact, offer public authorities a legal basis to detain migrants or asylum-seekers.
Throughout 2022, All applicants arriving by boat 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. In terms of this Ordinance, 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.[3] The so-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 assessmens were 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.
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.[4] Nevertheless, all applicants reaching Malta by sea are systematically detained, either in the Ħal Far Initial Reception Centre (‘China House’) or at the Marsa IRC, the former being a designated detention facility in national legislation.[5] In both situations, applicants are not permitted to exit the premises or to recieve 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[6], 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.[7]
Once applicants are “medically cleared”, the Public Health authorities inform the Principal Immigration Officer (PIO) who carry out an assessment as to whether grounds exist to detain in terms of the Reception Regulations[8]. The PIO invariably and systematically concludes that all applicants coming from countries where removals are regularly carried out should be detained under any (or all) of the grounds listed in the Reception Regulations, save for the one related to the Dublin Regulation. There have been reported cases of persons being released by the health authorities, yet nonetheless kept in detention.
2022 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. However this positive improvement is likely to be linked only to the decrease in arrivals, consequential to the increase in pushbacks or failures fo intervene. Overall, the Government’s reception policy remains unchanged and no particular change to the modus operandi has been observed.
The PIO claims that minors and other vulnerable applicants are not detained. 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 detained for weeks or months before an assessment is conducted.
Malta operates three official detention centres: Safi Barracks, (which include several blocks), Lyster (Hermes) Barracks, and the HIRC, commonly referred to as “China House”. The Lyster Barracks are closed for refurbishment since 2021 and the current progress of the renovations is unknown. The Detention Centres are managed by the Detention Services (DS), which is a governmental agency established and regulared by the Detention Services Regulations[9] in accordance with the immigration Act.[10]
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.
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.
In March 2021, the CPT published a report following its visit to Malta in September 2020.[11] 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”. The CPT is set to visit Malta again in 2023.[12]
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.[13]
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.[14] This was again underlined in her report published in January 2022.[15]
Access to effective remedies to challenge detention is reported to be limited to non existent with serious concerns over the level of indepence and impartiality enjoyed by the Immigration Appeals Board (IAB). State sponsored legal assistance is provided only for the initial review of detention under the Reception Regulations before the IAB, and subsequent reviews are rarely carried out. Applicants entirely rely on NGOs to provide legal assistance to challenge their detention under the Prevention of Disease Ordinance.
In 2021, 838 migrants, that is all those who arrived by sea, were held under the Prevention of Disease Ordinance.[16] In 2022, all sea arrivals were held under the Prevention of Disease Ordinance. 124 applicants (all adults) were issued with Detention Orders in terms of the Reception Regulations, with the top 5 countries of origin of which nationals were issued such an Order being Egypt (48), Morocco (21), Bangladesh (18), Ghana (11) and Ivory Coast (11). In the first 6 months of 2022, the immigration authorities issued Detention Orders to 65 applicants: Bangladeshis (20), Egyptians (18), Nigerians (11), Ivorians (6).[17]
[1] Prevention of Disease Ordinance, Chapter 36 of the laws of Malta, 10 August 1908.
[2] Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[3] Article 13 of the Prevention of Disease Ordinance, Chapter 36 of the Laws of Malta.
[4] ECtHR, A.D. v. Malta, no 12427/22 (Communicated Case), 24 May 2022, available at https://bit.ly/3SP3l4Y
[5] Places of Detention Regulations, Subsidiary Legislation 217.03 of the Laws of Malta.
[6] 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.
[7] Cases are not published online but several cases filed by aditus foundations are available at https://bit.ly/3ybWXLx
[8] Regulation 6(1) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[9] Detention Services Regulations, Subsidiary Legislation 217.19 of the Laws of Malta.
[10] Article 34(3) of the Immigration Act, Chapter 217 of the Laws of Malta.
[11] 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.
[12] See CoE Council of Europe anti-torture committee announced periodic visits to eight countries in 2023, at: http://bit.ly/3kMx6Xk
[13] 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.
[14] Ibid.
[15] Commissioner’s report following her visit to Malta from 11 to 16 October 2021, available at: https://bit.ly/3InhWhS.
[16] Information provided by the Infectious Disease Prevention and Control Unit, January 2022.
[17] Information provided by the Malta Police Force by way of reply to a Freedom of Information request, FOI Request Reference 274220413144.