With regard to vulnerable applicants, including minors and alleged unaccompanied minors, the amended legislation along with the new policy prohibit their detention. 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, alleged unaccompanied minors, family groups with children and other manifestly vulnerable persons were prioritised during the preliminary screening. When an asylum seeker was deemed vulnerable, following a vulnerability assessment conducted during their stay at the IRC, he or she was not detained and was accommodated immediately in a reception centre and assisted according to his or her vulnerability. Minors had access to leisure and open-air activities. 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 were in place to assess ‘vulnerability’ in individual cases: the Age Assessment Procedure and the VAAP (see section on Identification). Both of these procedures are officially implemented by AWAS.
Since mid-2018, all asylum-seekers entering Malta irregularly are immediately detained in application of the Health Regulations without any form of individual assessment being conducted, leading to the detention of women, children and other vulnerable applicants.
UNHCR and NGOs regularly visiting detention facilities have the possibility to refer people for a vulnerability assessment but no information is available on how and when assessments are conducted, and on the actual impact of such an assessment. However, applicants presenting obvious vulnerabilities, such as children, are usually detained in IRC Marsa rather than in Safi barracks.
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 a vulnerability will not be identified.
NGOs reported that unaccompanied minors are detained pending age assessments and, in many cases, following on from confrmation of their minor age where space for their accommocation is not avaialble in any of the open centre spaces.
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 obligation at law to regard children as persons under the age of 18.
 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.