Author
Detention of asylum-seekers is regulated by national law and currently includes de facto detention under health grounds in terms of the Prevention of Disease Ordinance[1] and detention under the Reception Regulations[2] which transpose the recast Reception Conditions Directive.
Persons found to be entering Malta irregularly via the airport are detained at the airport’s holding space pending their immediate return. If they express an intention to seek asylum, they are referred to the IPA and no longer detained.
Detention under the Immigration Act
Immigration legislation authorises the detention of any person who, arriving by plane, is not granted permission to land in Malta. In such situation, Article 10 of the Immigration Act specifies that the purpose of detention is to ensure the person’s removal either on the same flight on which they arrived, or on the next available flight. The same article specifies that persons arriving by any other means and not granted leave to land may also be detained by the PIO. Article 10 states that all persons detained under this article are in legal custody and are deemed not to have landed. No appeal or review is mentioned in Article 10, and it is not clear whether the provisions regulating challenges and reviews of detention under other provisions apply to Article 10. Given the speed with which these proceedings are carried out, including the possible immediate return, it is not clear what information is given to detained persons in terms of their right to seek asylum and other related rights.
NGOs confirm that, in the cases known to them, persons requesting asylum at the airport are immediately referred to the IPA. The PIO was unable to provide data on the number of persons kept in custody under these provisions.
In 2023, amendments to the Immigration Regulations introduced new detention possibilities. The amendments allow border officers to detain any person whilst conducting border checks In such cases, the detention must be for the purpose of taking the person before a police officer or until the police officer arrives. Furthermore, anyone may be also detained if they refuse to stop in order to provide information requested or in order to prevent their entry to Malta where they do not meet entry requirements.
‘De Facto’ Detention under the Prevention of Disease Ordinance
Article 13 of the Prevention of Disease Ordinance[3] provides that that “[w]here the Superintendent has reason to suspect that a person may spread disease he may, by order, restrict the movements of such person or suspend him from attending to his work for a period not exceeding four weeks, which period may be extended up to ten weeks for the purpose of finalising such microbiological tests as may be necessary”.
No form of assessment is conducted, and the called Restriction of Movement Order issued to applicants is a template document which lacks any individualised information and does not provide for any remedies by which applicants could challenge the lawfulness and length of their continuing detention under the Ordinance. According to the Government, this situation does not amount to a situation of detention but merely to a restriction on the freedom of movement. However, the ECtHR, the CPT and the Court of Magistrates of Malta confirmed that this qualifies as a situation of deprivation of liberty in the sense of Article 5 ECHR.[4]
In Frank Kouadioané v. the Detention Services,[5] decided on 29 October 2020, the Court of Magistrates went as far as to state that it is extremely worrying that, although there is a significant number of illegally detained asylum applicants in Malta, only seven similar requests for release have been lodged before the court over the last year, and that in a democratic society based on the rule of law, persons such as the present applicant remain illegally detained without a legal basis.
The Prevention of Disease Ordinance does not empower the Superintendent of Public Health to detain individuals. The wording of the law is clear and unambiguous: the Superintendent, being a public officer, is not authorised to detain a person but merely to restrict his/her movements, which is in essence what Article 13 of the Ordinance states. This is confirmed by other Articles contained in the Public Health Act and the Ordinance: all rest the decision to detain persons in order to protect public health on the authority of the Courts.[6] Various sources, including the CPT, confirm that the Ordinance has been consistently and exclusively applied to asylum-seekers reaching Malta by sea which suggests that the Ordinance has been relied upon as a tool of migration management rather than an instrument to protect public health, in breach of Article 5 ECHR.
NGOs emphasised that the suspicion that a disease may be spread is not a valid ground for detaining asylum-seekers under international, EU and national law. They further noted that the place of detention in no way conforms to the intended purpose of a public health regime and that the government has not provided any evidence that the health authorities explored less severe alternatives in order to protect public health. They further observed that no effective legal remedy is available to challenge the Restriction of Movement Order and that applicants do not have access to legal assistance.
In its report published in March 2021, the CPT called on the Maltese authorities to urgently review the legal basis for detention on public health grounds as its current application “may well amount to hundreds of migrants being de facto deprived of their liberty on unlawful grounds”. The CPT noted that over 90% of the persons held in detention were detained on public health grounds and that this was the case despite the fact that the Maltese courts had declared this form of detention unlawful on account of, inter alia, the vagueness of the legislation relied on by the authorities, the lack of assessment of the concerned persons’ specific situations and of individualised detention orders issued to them, and the lack of clear remedies.[7]
The UNHCR condemned this policy, describing the reintroduction of automatic detention as a big “setback”, commenting on the very poor conditions of the detention centres and underlining the fact that UAMs were being unlawfully detained with adults.[8]
The Superintendent of Public Health confirmed that all asylum-seekers who arrived by boat to Malta in the past years were issued the Restriction of Movement Order in terms of the Ordinance.
On 17 October 2023, the Second Section of the European Court of Human Rights (ECtHR) delivered its judgment in the case of A.D. v. Malta, no. 12427/22.[9] The case concerns an Ivorian national (then a minor) who arrived irregularly to Malta from Libya by boat in late 2021. Although he claimed to be seventeen on arrival, an age assessment conducted by the Maltese authorities in the absence of legal assistance and his legal guardian deemed him to be nineteen years old. He was immediately detained and held in various detention facilities, with the authorities citing “health reasons”.
The applicant was held in detention for 225 days, during which he had limited access to water, medical care, and psychological support, and absence of any communication in his native (and only) language – French. He complained of gruelling conditions in the winter months, extremely limited clothing and hygiene possibilities, and no outdoor or prayer spaces. He was also placed in a 120-day isolation in a cargo container, during which his mental health plummeted and thought frequently of suicide. The applicant complained of a violation of Article 3 ECHR in respect of his treatment in Malta, of Article 5(1) ECHR in that his stay amounted to a de facto deprivation of liberty, and of Article 13 ECHR, due to the lack of an effective remedy to challenge the former.
The Court noted the “incredible state of affairs” by way of which the Maltese authorities consistently failed to keep accurate records of who was being detained and by whom, as well as the vulnerable, underage status of the applicant at the time. It criticized his detention in isolation, as well as with unrelated adults, and the living conditions in Malta’s detention centres in general.
The Court held that the detention of individuals at centres such as ‘China House’ for health reasons is not in conformity with human rights standards and must cease. Followingly, the Court upheld the complaints of the applicant, finding that Malta had violated Article 3 ECHR, Article 13 and Article 5(1) ECHR on two occasions.
Importantly, the Court also recommended that Malta takes 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.
Following this judgement, detention practice changed slightly towards the end of 2023, as the duration of health-based detention reduced to a couple of days. It also led to a new practice whereby the vast majority of applicants were automatically detained under the Detention Order for a minimum period of around two months.
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 Malta in November 2021 and remained in detention for 58 days, with a substantial amount of time spent with adults in the HIRC.[10] At the time of writing, the case is pending.
Detention under the Reception Regulations
According to the Reception Regulations,[11] the Principal Immigration Officer may order the detention of an applicant for the same grounds foreseen in the Reception Conditions Directive, namely:
- In order to determine or verify his or her identity or nationality;
- In order to determine those elements on which the application is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding on the part of the applicant;
- In order to decide, in the context of a procedure, in terms of the Immigration Act, on the applicant’s right to enter Maltese territory;
- When the applicant is subject to a return procedure, in order to prepare the return or carry out the removal process, and the Principal Officer can substantiate that there are reasonable grounds to believe that the applicant is making the application merely in order to delay or frustrate the enforcement of the return decision;
- When protection of national security or public order so require; or
- In accordance with the Dublin III Regulation.
In Rana Ghulam Akbar,[12] the Court of Magistrates of Malta examined Regulation 6(1)(b) in an application filed in terms of Article 409A of the Criminal Code (Habeas Corpus). It assessed that, since “the guiding principles are that detention is only a measure of last resort and that less coercive measures should always be sought before going for detention” and concluded that his detention was in breach of Maltese law, as the “declaration that the applicant’s “risk of absconding” is one that is not sustainable within the strict parameters of Regulation 6(1)(b)”. The Court ordered the applicant’s immediate release from detention.
In Jovica Kolakovic v. Avukat Generali, the Constitutional Court of Malta held that it “subscribes to the view held recently by the Strasbourg Court to the effect that it is hard to conceive that in a small island like Malta, where escape by sea without endangering one’s life is unlikely and fleeing by air is subject to strict control, the authorities could not have at their disposal measures other than the applicant’s protracted detention (vide Louled Massoud v. Malta, ECHR 27th July 2010). Nor should the authorities’ inability to adequately monitor movements into and out of Malta be shifted as a burden of denial of release from detention on a person accused of an offence, particularly if such a person is of foreign nationality.”[13]
According to law, the individual detention order shall be issued in writing, in a language that the applicant is reasonably supposed to understand, and it shall state the reasons of the detention decision. Information about the procedures to challenge detention and obtain free legal assistance shall also be provided. Detention Orders may be appeal within 3 working days. Furthermore, a review by the Immigration Appeals Board shall be automatically conducted after seven days and every two months in case the individual is still detained.[14] After a period of nine months, any person detained, if they are still an applicant for international protection, shall be released.[15]
Legal Notice 487 of 2021 amended the Reception Regulations and introduced the requirement to carry out an individual assessment and only order detention if it proves necessary and if other less coercive measures cannot be applied effectively.[16] It also introduced a provision which states that administrative procedures relevant to the grounds for detention set out in the Regulations shall be executed with due diligence.
Despite the requirement for individual assessments, the vast majority of applicants were in practice detained following their detention on public health grounds with detention duration largely depending on the person’s nationality. Practitioners noted that applicants from countries of origin with generally low protection rates and high return rates, such as Bangladesh, Egypt, Morocco, Ghana, Ivory Coast and Nigeria were automatically detained under the Reception Regulations for the entirety of their asylum procedures or for the maximum duration whilst others – particularly from Syria and Libya – were either not detained at all or detained for a very short period of time.
This changed at the end of 2023 when, following the A.D. vs. Malta judgement, persons who previously were not being automatically detained, started being detained for a minimum of around two months. Although no formal change in policy was announced by the authorities, NGOs and practitioners report a change in detention practice just after the A.D. judgement. Whereas before the judgement the initial detention period was generally limited to the two weeks ‘required’ for public health reasons, following the judgement this initial period was extended to two months for almost all newly-arrived persons. This new period also applied to persons who, under the pre-judgement regime, would have been released following the public health detention such as Syrians and Libyans.
Practitioners also confirmed that challenges before the IAB proved to have limited impact. The creation of a third Chamber in 2023 did not affect the overall approach of the IAB towards detention challenges, with the Board almost invariably confirming legality. Furthermore, in 2023 the IAB developed a practice whereby persons detained under the first above-mentioned ground – relating to identity – were only released if they were able to present an official document with their personal details, such as a passport. Despite the fact that lawyers challenge this approach on the basis of CJEU jurisprudence, the practice continued and is now a consolidated procedure. Lawyers also noted that applicants reaching Malta with personal documents were effectively being penalised by the PIO since further detention was deemed necessary to verify the authenticity of the documents.
It was reported further by NGOs that applicants are not always provided with a copy of their Detention Order, which is moreover only available in English and often issued as a standard template to all persons.
Information about the asylum procedure is provided by the EUAA and IPA, but only during the registration of asylum applications, often several weeks after arrival (see Information on the procedure). Access to NGOs which provide information on the detention procedure remained severely limited throughout 2023(see Access to detention). UNHCR visits the detention centres to also provide information, but in 2023 these visits were limited due to challenges accessing the detention centres and due to a new access rule restricting UNHCR’s access to persons who had actually lodged an asylum application. UNHCR visited detention centres five times in 2023, providing information to 103 applicants.
Over the course of 2019 and 2020, detainees held a number of demonstrations at Safi to protest against their indefinite incarceration (see Conditions of detention), the absence of information, and the conditions in which they were being kept.[17] No such demonstrations occurred in 2023, although NGOs also commented that due to the impossibility to regularly access detention centres, it was difficult for them to keep updated on goings-on within the centres.
[1] Prevention of Disease Ordinance, Chapter 36 of the laws of Malta.
[2] Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[3] Prevention of Disease Ordinance, Chapter 36 of the Laws of Malta.
[4] 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/3mPtelf.
[5] Court of Magistrates of Malta, Frank Kouadioané (Ivory Coast) v Detention Services, 29 October 2020 available at: https://bit.ly/3Jckpii
[6] Article 29(3) of the Public Health Act, Chapter 465 of the Laws of Malta; Articles 25 and 26 of the Prevention of Disease Ordinance, Chapter 36 of the Laws of Malta.
[7] 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, para. 34, 47-50, available at: https://bit.ly/3mPtelf.
[8] The Times of Malta, 1400 migrants detained illegally at Marsa and Safi – UNHCR, January 2020, available at: https://bit.ly/2JbWIXp.
[9] ECtHR, A.D. v. Malta, no 12427/22, 17 January 2024, available at: https://hudoc.echr.coe.int/eng?i=001-228153.
[10] Civil Court (First Hall), Ayoubah Fona vs. L-Avukat tal-Istat, 375/2022.
[11] Regulation 6 of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta
[12] Court of Magistrates of Malta, Rana Ghulam Akbar v Kummissarju tal-Pulizija, 26 February 2018.
[13] Constitutional Court, Jovica Kolakovic v. Avukat Generali, 26/2010/1, 14 February 2011.
[14] Regulation 6(3) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[15] Regulation 6(7) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[16] Regulation 6 (1) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[17] ECRE, Malta Charges Five Rescued Migrants with ‘Terrorist Activities’ while Facts Remain Unclear, 5 April 2019, available at: https://bit.ly/33HDTVD.