With regard to vulnerable applicants, including minors and alleged unaccompanied minors, the amended legislation, along with the new policy, prohibit their detention. The Reception Regulations state 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”.
On 22 November 2016, the European Court of Human Rights (ECtHR) delivered its judgment in Abdullahi Elmi and Aweys Abubakar v. Malta concerning the eight-month detention of two asylum-seeking children pending the outcome of their asylum procedure and, in particular, the age assessment procedure employed. The ECtHR found a violation of Article 3 of the Convention as the conditions complained of amounted to degrading treatment. The Court also found a violation of Article 5(4) of the Convention as the applicants did not have an effective and speedy remedy under Maltese law by which to challenge the lawfulness of their detention.
Upon arrival at the border, families and children whose age is undisputed are taken to the closed section of the IRC for necessary checks before being accommodated in reception centres.
However, alleged unaccompanied minors and other vulnerable persons are immediately detained waiting for assessments to be conducted, despite the Reception Regulations providing that applicants identified as minors or shall not be detained, except as a measure of last resort. The same goes for applicants who claim to be minors unless their claim is evidently and manifestly unfounded. In practice, the PIO will detain those minors who come from countries where returns are being carried out and release the other with no other form of assessment.
According to the Regulations, whenever the vulnerability becomes apparent at a later stage, assistance and support is provided from that point onwards.
In order to give effect to this policy, two procedures are in place to assess ‘vulnerability’ in individual cases: the Age Assessment Procedure and the VAAP (see section on Identification). Both procedures are officially implemented by AWAS.
UNHCR and NGOs regularly visiting detention facilities have the possibility to refer people for a vulnerability assessment. However, the restrictions implemented in 2021 significantly limit NGOs’ possibilities to identify and refer vulnerable people.
As already mentioned, EASO deployed staff in 2021 to support AWAS with the vulnerability screening. The “vulnerability assessment response team” assesses potentially vulnerable applicants. The team consists of 20 assessors, all deployed by EASO, and translators are also available. The team operated both in the reception centres and the reception centres, under the supervision of AWAS. Assessors use new and updated tools created by EASO.
Vulnerability is assessed on 4 levels:
- 1 being a very urgent support needed;
- 2 being in need of medical support;
- 3 being in need of medical but not urgent;
- 4 being a need in terms of housing and education.
Following an assessment, a report is drawn up and a recommendation is made. If the assessment concludes the person is vulnerable, he/she is automatically released from detention in case she/he is detained and transferred to the IRC where he/she is seen by the Therapeutic Unit. They are eventually transferred to an open centre. AWAS usually accommodates them close to the Administration Block so that they can receive better support.
However, NGOs and lawyers reported that individuals assessed as vulnerable are not always automatically released and can remain in detention against the team’s recommendations.
This team started to operate in September 2020 and conducted 136 assessments in detention: 84 assessments were conducted at the end of the year in the reception centres. No data was provided for 2021.
In practice, asylum seekers entering Malta irregularly by plane are also immediately detained and not sent to the open section of the IRC. There is, thus, the possibility that vulnerability will not be identified. Those that arrived with false documents are usually prosecuted and sentenced to prison for a minimum duration of 6 months in the CCF.
NGOs reported that unaccompanied minors are detained pending age assessments and, in many cases, following on from confirmation of their minor status where space for their accommodation is not available in any of the open centre spaces.
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.
UNHCR Malta and NGOs firmly condemned the detention of children. Furthermore, the University of Malta expressed its concerns that children waiting to have their age assessed are kept in detention with adults, reminding the authorities that “any decision to place children aged 16 and 17 with adults violates the legal obligation to consider children as persons under the age of 18.
Moreover, at Marsa IRC, the CPT noticed that other vulnerable groups, including breast-feeding mothers and pregnant women, were also deprived of their liberty along with their other young children. They were being held in the same space as unrelated male adults, with no privacy, and had not seen a midwife or doctor for their pregnancies. According to the delegation, such persons were held at Marsa IRC for many months (for periods ranging from 3 to 7 months).
These practices continued throughout 2021, as the CoE Commissioner for Human Rights noted in October 2021.
This was confirmed by a recent Habeas Corpus case filed by aditus foundation in January 2022 for 7 young men, including 3 confirmed minors, one at an age assessment appeal stage and 2 other that were confirmed to be minors at a later stage. All of them had been detained for more than 2 months in Safi Detention Centre.
Another case filed in March 2022 before the Immigration Appeals Board confirmed again that Malta still detains children with adults pending age assessment.
The Immigration Police officially reports that no minor or vulnerable people are detained in Malta and indicated that, in 2020 and 2021, no vulnerable or minor asylum-seekers were detained.
 Regulation 14(3) Reception Regulations.
 ECtHR, Abdullahi Elmi and Aweys Abubakar v. Malta, Application Nos 25794/13 and 28151/13, Judgment of 22 November 2016.
 Reception Regulations, Regulation 14(1) (b).
 Strategy Document, November 2015, 15.
 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.