Author
Prior to 2024, the Reception Regulations prohibited the detention of vulnerable applicants, stating 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] This legal norm was not reflected in practice as vulnerable persons were regularly detained in various contexts: immediately following disembarkation; whenever the PIO disagreed with AWAS regarding a vulnerability assessment; unaccompanied children pending age assessment. In 2024 the legal situation was brought in line with practice through amendments to the Reception Regulations, largely enshrining in law the possibility to detain vulnerable persons, accompanied and unaccompanied children and families.[2]
Regulation 6B, entitled ‘Detention of vulnerable persons’ requires the authorities to monitor and provide for the situation of detained vulnerable persons, also referring to their health situation. In relation to detained families, the Regulations require the authorities to provide ‘separate accommodation’ and to ensure that women are only detained with male family members, and only with their consent.
The Regulations treat children differently, depending on whether they are accompanied or unaccompanied. Accompanied children are only to be detained as a measure of last resort and only where other less coercive measures cannot be effectively applied. The child’s best interests are to be the primary consideration. During their detention, children should have access to leisure and play activities. Unaccompanied children may only be detained exceptionally and never in ‘restrictive accommodation’.
These provisions are to be read in conjunction with Regulation 14(1)(c) as the latter relates to persons claiming to be children and these should only be detained as a measure of last resort unless their age claim is ‘evidently and manifestly unfounded’.
Upon arrival at disembarkation, all persons are detained. This includes vulnerable persons. Families, single women and children whose age is undisputed are detained at HOC whilst adult men are detained at China House. No formal vulnerability screening is conducted at disembarkation other than what is readily visible to the AWAS representatives.
After this initial detention period, persons who are visibly vulnerable are accommodated in open reception centres, whilst others are detained under the Reception Regulations as described above.
Unless they are, in the eyes of the authorities, visibly children, unaccompanied minors are detained pending age assessments and there is no evidence of any assessment being done by the PIO to determine whether their age claims are ‘evidently and manifestly unfounded’. The CPT confirmed in its 2021 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]
The PIO confirmed that throughout 2024 11 children were detained, of whom nine were alleged unaccompanied children subsequently confirmed to be children, and two accompanied. However, as with the above figures relating to the total number of detained applicants, these figures do not take into account the children – accompanied and unaccompanied – detained immediately upon arrival. The figures also confirm that Malta fails to implement the presumption of minor age, as also highlighted by the ECtHR in A.D. vs. Malta.[6]
Data regarding the detention of persons with special reception needs is not available, but NGOs confirm that vulnerable persons were in fact detained throughout 2025. In particular, NGOs confirm the continuation of the practice observed throughout 2024 whereby AWAS’ vulnerability assessments were not considered final or conclusive by the PIO in determining whether persons ought to remain in detention or be released, on the basis of their vulnerability. NGOs report that, whereas pre-2024 the PIO relied almost exclusively on AWAS’ determinations of a person’s vulnerability and released them almost automatically, in 2024 and 2025 the PIO requested or was provided with additional information by the DS, often stating that either the person was not in fact vulnerable or that, if vulnerable, adequate support services were being provided in detention by the enhanced medical services. The communicated application M.S. v. Malta[7], brought to the ECtHR by a person unequivocally determined to be highly vulnerable by AWAS yet kept in detention, focuses on this observation.
In early 2022, a specific area in Safi Detention Centre 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, 2024 and 2025.
In 2023, a dedicated Female Section was opened in the Safi Detention Centre. However, it has never been 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 including victims of trafficking. 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 2024 and 2025 NGOs learnt of the presence of women in Safi in the course of their regular calls to the various zones in the centre. In view of the above-mentioned policy introduced in 2024, implemented also throughout 2025, whereby several asylum applicants were detained at the moment of their lodging, it is highly likely that several women were detained and removed without NGOs or other practitioners being made aware of their presence.
In A.D. v. Malta,[8] the ECtHR found violations of Articles 3, 5 and 13 in conjunction with Article 3, noting that:
In the present judgment the Court also found a violation of Article 3 in respect of the conditions of detention of the applicant (a vulnerable individual due to his presumed minority and health situation), as well as of Article 5 § 1, inter alia, in relation to his prolonged immigration detention in those conditions. Having regard to those findings, the Court recommends that the respondent State envisage taking the necessary general measures to ensure that the relevant law is effectively applied in practice and that vulnerable individuals are not detained, as well as to limit any necessary detention periods so that they remain connected to the ground of detention applicable in an immigration context, and that they are undertaken in places and conditions which are appropriate, bearing in mind that the measure is applicable not to those who have committed criminal offences but to aliens in an immigration context.
In J.B. and Others v. Malta[9] filed in February 2023, the six applicants (five of whom were minors) complained that they were detained with adults in China House since their arrival on 18 November 2022. 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 ECtHR examined the conditions of detention experienced by the six applicants, five of whom were minors, under Article 3 of the Convention. It emphasised that Malta bore full responsibility for the applicants’ welfare throughout their detention, regardless of whether their initial confinement constituted a deprivation of liberty under Article 5. The minors were dependent on the authorities for basic needs and under their complete control. Although the Maltese authorities eventually recognised the minor status of five applicants, this acknowledgment did not lead to immediate or meaningful changes in their detention conditions. For approximately two months, they were held with adults in the Initial Reception Centre (HIRC), which the Court deemed inappropriate for minors. The Court scrutinised the conditions at HIRC, relying in part on the 2021 CPT report, which described bathrooms without doors, blocked plumbing, and detainees being locked inside units 24 hours a day without activities, television, telephone access, or access to an exercise yard. The Court noted that the Government had failed to rebut these findings with concrete evidence, such as photographs or records of refurbishments.
Importantly, the Court underscored that these conditions were not adapted to children, creating ”a situation of stress and anxiety, with particularly traumatic consequences.“ No measures were implemented to provide the applicants with psychological or educational support, despite their age and vulnerability.
The Court found that this prolonged detention, despite such medical evidence, and reports of harassment and deceptive conduct by authorities, “must have exacerbated their fears.” In light of the applicants’ young age, the duration and quality of detention, the lack of tailored care, and the psychological impact, the Court concluded that the conditions amounted to inhuman and degrading treatment. Accordingly, it found a violation of Article 3 in respect of the five minor applicants.
The Court also found violations of Article 13 taken in conjunction with Article 3 and of Articles 5(1) and 5(4). Importantly, the ECtHR accepted the applicant’s arguments that the IAB cannot be considered an effective remedy due to several shortcomings in its structure and operations, drawing on observations made by the EU Commission and the CoE Venice Commission:
In other words, the members’ initial mandates, their reappointment to that body as well as to other government bodies – which, considering the multiple appointments for each member, certainly constituted a substantial financial interest – depended on the satisfaction of the executive. Indeed, and in the absence of any rebuttal by the Government as to its veracity, the practice of resigning at each general election supported the idea that this was a mere political appointment. At this juncture it is important to note that the present case does not concern determinations of disputes between private parties, but rather an individual’s challenges to actions or inactions of State authorities falling under the direction of the Government of the day.
Lastly, the Court cannot but note that both the European Commission and the Venice Commission expressed serious concerns about the functioning of tribunals similar to the one at issue in the present case (see paragraph 133 in fine above). Bearing in mind all the above, and in the absence of any relevant safeguards, the Court considers that the applicants’ doubts as to the independence of the IAB were legitimate.
The Civil Court (Constitutional Jurisdiction) quoted extensively from A.D. and J.B. in its 13 January judgement, where if found the Malta had ignored the applicant’s young age, medical condition and trauma when it detained him in China House and Safi[10].
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. Since 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 these years, whether they presented any vulnerability, whether they were provided with information on asylum or other elements or how they were treated whilst being detained.
In 2024, UNHCR noted that AWAS’ continued advocacy for the use of alternatives to detention resulted in 40% of sea arrivals having specific needs, including UASC, accommodated in open reception centres.
[1] Regulation 14(3), Reception Regulations.
[2] Reception of Asylum-Seekers (Amendment) Regulations, L.N. 87 of 2024, available at: https://tinyurl.com/ywd7rxkd.
[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] ECtHR, A.D. v. Malta, no 12427/22, 17 January 2024, available here.
[7] M.S. v. Malta, 30737/24, communicated on 19 March 2025, available at: https://tinyurl.com/mrx26tda.
[8] ECtHR, A.D. v. Malta, no 12427/22, 17 January 2024, available at: https://hudoc.echr.coe.int/eng?i=001-228153.
[9] ECtHR, J.B. and Others v. Malta, no. 1766/23, 22 January 2025, available at: https://tinyurl.com/mr2h83rs.
[10] Ayoubah Fona vs. The Minister for Home Affairs, Security, Reforms and Equality et., 375/2022, 13 January 2026, at: https://tinyurl.com/33yp3ayk.