Author
The law prohibits the detention of vulnerable applicants. The Reception Regulations provide that “whenever the vulnerability of an applicant is ascertained, no detention order shall be issued or, if such an order has already been issued, it shall be revoked with immediate effect”.[1] However, in practice, detention of vulnerable persons continues.
Upon arrival at disembarkation, all persons are detained under public health grounds. This includes vulnerable persons. Families, single women and children whose age is undisputed are detained at the IRC whilst adult men are detained at China House. No vulnerability screening is conducted at disembarkation other than what is readily visible to the AWAS representatives. This often results in vulnerable adults being detained for prolonged periods due to lack of identification.
After this initial detention period, allegedly on public health grounds and considered a human rights violation by the ECtHR, persons who are visibly vulnerable are accommodated in open reception centres, whilst others are generally detained under the Reception Regulations.
Unless visibly children, unaccompanied minors are detained pending age assessments. The CPT confirmed in its report that, “in practice, many children, including those awaiting age-assessment results, are being deprived of their liberty both in Marsa IRC and in Safi and Lyster”. The report highlights that “due to space constrictions, children were held in the same cramped space together with related and non-related adults. In Marsa IRC, children of all ages – including infants – were locked on all of the units in very poor conditions together with unrelated single male adults”. The delegation mentioned that children have no access to any activities, education, or even the exercise yard to play games, and notes the lack of any psychosocial support or tailored programmes for children and other vulnerable groups. [2] These practices continued throughout 2021, as the CoE Commissioner for Human Rights noted in October 2021.[3] The UNHCR also reiterated concerns in February 2021, stating that “children are (still) being held in closed centres”.[4]
In early 2022, a specific area in Safi Barracks was designated as a space for detaining children pending their age assessments. No information is available on the layout of this space or on activities/services organised therein (if at all), as access to UNHCR and NGOs remained prohibited throughout 2023.
In 2023, a dedicated Female Section was opened in the Safi Detention Centre. However, it was never accessed or seen by NGOs or lawyers visiting the Centre. NGOs visiting detention noted that they were mostly unaware of the presence of women in detention. Newly-arrived single women were hardly ever detained in Safi Barracks, the detained women generally being those arrested on the territory with a view to their removal. No information of their presence in Safi was formally provided to NGOs, and they were not referred to NGOs for the provision of services.
In the case Ali Camarra filed in January 2022, five children were released following an Habeas Corpus application before the Court of Magistrates of Malta in terms of Article 409A of the Criminal Code. They had been detained with adults for approximately 58 days and three of them were confirmed as minors by AWAS the day before the hearing, 57 days after their arrival.[5]
In A.D. v. Malta, the applicant complained about the lawfulness and arbitrariness, as well as about the dismal conditions, of his different periods of detention under both the Prevention of Disease Ordinance and the Reception Regulations and claimed that he had no effective remedies in this respect. The applicant had arrived in Malta in November 2021 and had claimed to be a minor upon arrival. He was later diagnosed with Tuberculosis. He had been detained for 16 days under the Period of Quarantine Order and 62 days under the Prevention of Disease Ordinance. He had then been issued a Detention Order and remained in detention in complete isolation in a container in the Safi Detention Centre for 147 days.[6]
In Ayoubah Fona vs. L-Avukat tal-Istat filed on 12 July 2022 before the Civil Court of Malta (First Hall), the applicant complains of his conditions of detention and the unlawfulness of his detention under the Prevention of Disease Ordinance. The minor applicant arrived in November 2021 and remained in detention for 58 days, with a substantial amount of time spent with adults in China House. The case remains pending at the time of writing.[7]
In J.B. and Others v. Malta filed in February 2023, the six minor applicants complain that they were detained with adults in China House since their arrival on 18 November 2022. AWAS was not aware of their existence before they were referred by aditus foundation in January 2023, despite a decision of the Immigration Appeals Board, dated 6 December 2022, confirming the detention of the minors but ordering the PIO to refer these applicants to AWAS[8]. On 12 January 2023, the ECtHR issued an interim measure ordering Malta to ensure that the six applicants are provided “with conditions that are compatible with Article 3 of the Convention and with their status as unaccompanied minors”. The case is still pending at the time of writing. The applicants complain of their detention conditions, their age assessment procedure and the unlawfulness of their detention under both the Prevention of Disease Ordinance and the Reception Regulations.[9]
In 2022 and 2023, the Immigration Appeals Board has ordered the release of several minor applicants pending their age assessment procedure.[10] Full statistics are however not available. (see Judicial review of detention).
PIO provided information stating that in 2023 seven persons claiming to be unaccompanied minors were detained, but no accompanied minors and that no vulnerable migrants are put into detention. However, as with the above figures relating to the total number of detained applicants, these figures do not appear accurate, as they fail to take into account the children – accompanied and unaccompanied – detained immediately upon arrival, and also underline that Malta fails to implement the presumption of minor age as also highlighted by the ECtHR in A.D. vs. Malta. Furthermore, those appealing a negative age assessment decision are kept in detention pending the appeal procedure, often for months.
The figures also seem to indicate that other vulnerable persons are not detained, yet NGOs note a different scenario. Vulnerable adults are also immediately detained upon arrival. If visibly vulnerable, they could be accommodated in the open reception centres at the end of their public health detention whilst if not visibly vulnerable or if not noticed by the AWAS representatives at disembarkation, they will be subsequently detained in Safi Detention Centre. They will remain here until they are referred to the AWAS assessment team, which could take days or weeks. JRS reported a case where a man with chronic health issues was detained and subsequently removed, supposedly voluntarily.[11]
Limitations on UNHCR and NGO access have exacerbated this situation, further preventing vulnerable persons from being identified, assessed and provided for. In order for them to be released, AWAS would need to confirm their vulnerability and confirm that this conclusion has an implication on reception conditions. NGOs note meeting several applicants who, despite being deemed vulnerable, remained in detention since the authorities felt that appropriate care could be adequately provided in detention. These included persons with serious mental health issues, LGBTIQ+ applicants and persons who faced harassment and/or violence in detention. NGOs also noted that, since 2023, the AWAS vulnerability assessments and conclusions were not necessarily conclusive with further reports and inquiries being sought for by the PIO.
NGOs also commented on the fact that, due to their lack of regular access and contact with detained persons, they were effectively kept in the dark about the presence of particular persons in the detention centres. Specifically, they noted how they would only be made aware of women being detained by sheer chance or if family members contacted them for assistance. In 2023, women detained in Safi Barracks were detained in single containers with little or no access to the outside world. With no information on their detention being made available by the authorities or by the detained men – as they were generally unaware of the women’s presence – NGOs are unable to say how many women were detained at Safi throughout 2023 and how they were treated whilst being detained.
[1] Regulation 14(3) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[2] 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/3uXeCD1.
[3] 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.
[4] The Times of Malta, Migrant detention numbers shrink, fears about child detainees remain, 7 February 2021, available at: https://bit.ly/3cP8Mwj.
[5] aditus foundation, Three Children Released from Illegal Detention Following Court Action, 25 January 2022, available at https://bit.ly/3wCsuXr.
[6] ECtHR, A.D. v. Malta, no 12427/22, 17 January 2024, available at: https://hudoc.echr.coe.int/eng?i=001-228153.
[7] Ayoubah Fona vs. L-Avukat tal-Istat, 375/2022.
[8] aditus foundation, European Human Rights Court orders Malta to release children from detention, 12 January 2022, available at http://bit.ly/3j3aVeM.
[9] ECtHR, J.B. and Others v. Malta, no. 1766/23.
[10] See IAB, Div. II, R.M. (Bangladesh) v. The PIO, (DO/35/2022), 24 March 2022, available at: http://bit.ly/3V5vPHU; IAB, Div. II, F.B. (Ghana) v. The PIO (DO/2021), 4 October 2021 available at: http://bit.ly/3gzB83w; IAB, Div. II, W.K.A. (Ghana) vs. The PIO (DO/2021), 4 October 2021, available at: http://bit.ly/3gzB83w; IAB, Div. II., R.M. (Bangladesh) v. The PIO (DO/35/2022), 24 March 2022, available at: http://bit.ly/3V5vPHU.
[11] Information provided by JRS Malta in June 2024.