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 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 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”.[2] In practice, the PIO will detain those minors who come from countries where returns are being carried out and release the others with no other form of assessment.
NGOs reported that 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. [3] These practices continued throughout 2021, as the CoE Commissioner for Human Rights noted in October 2021.[4] The UNHCR also reiterated concerns in February 2021, stating that “children are (still) being held in closed centres”.[5]
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 is prohibited.
In 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.[6]
In A.D. v. Malta filed in February 2022, the applicant complains 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 claims that he had no effective remedies in this respect. The applicant arrived in Malta in November 2021 and claimed to be a minor upon arrival, he was later diagnosed with Tuberculosis. He was detained for 16 days under the Period of Quarantine Order and 62 days under the Prevention of Disease Ordinance, the Court of Magistrates of Malta confirmed his detention under the Prevention of Disease Ordinance. He was then issued a Detention Order and remained in Detention in complete isolation in a container in the Safi Detention Centre for 147 days, the Division II of the Immigration Appeals Board confirmed his detention on two occasions and rejected his age assessment appeal. The case was communicated on 24 May 2022 and is still pending.[7]
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 the HIRC, the so-called “China House”.[8]
In J.B. and Others v. Malta filed in February 2023, the six minors applicants complain that they have been detained with adults in the so-called 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[9]. 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 the Reception Regulations.[10]
The Immigration Appeals Board has ordered the released of several minor applicants pending their age assessment procedure,[11] however, this should not be interpreted as a set case law since the Board regularly confirms the detention of minor applicants (see Judicial review of detention).
[1] Regulation 14(3) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[2] Regulation 14(1) (b) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta
[3] 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.
[4] 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.
[5] The Times of Malta, Migrant detention numbers shrink, fears about child detainees remain, 7 February 2021, available at: https://bit.ly/3cP8Mwj.
[6] aditus foundation, Three Children Released from Illegal Detention Following Court Action, 25 January 2022, available at https://bit.ly/3wCsuXr.
[7] ECtHR, A.D. v. Malta, no 12427/22 (Communicated Case), 24 May 2022, available at https://bit.ly/3SO2uBJ
[8] Ayoubah Fona vs. L-Avukat tal-Istat, 375/2022.
[9] Aditus foundation, European Human Rights Court orders Malta to release children from detention, 12 January 2022, available at http://bit.ly/3j3aVeM
[10] ECtHR, J.B. and Others v. Malta, no. 1766/23.
[11] 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;