Author
Detention of asylum applicants is regulated by national law through the Reception Regulations[1] which transpose the recast Reception Conditions Directive.
Persons found to be entering Malta irregularly via the airport are usually detained at the airport’s holding space pending their immediate return on the same or next flight to the country they had travelled from to reach Malta, on the basis of the Immigration Act. If they express an intention to seek asylum, they are referred to the IPA.
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 they are hardly ever made aware of the presence of these persons during their time at the airport holding space.
However, NGOs also 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
Between 2018 and 2004 Malta detained newly-arrived applicants under Article 13 of the Prevention of Disease Ordinance[2]: “[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”.
Despite being only empowered to limit free movement, the Superintendent’s orders were implemented in a manner that resulted in de facto detention, as also confirmed by the CPT.[3] Throughout the years of its implementation several successful legal challenges were brought by detained applicants before several fora: habeas corpus applications before Malta’s criminal courts;[4] human rights challenges before the Civil Court (Constitutional Jurisdiction) and also Articles 3 and 5 applications before the ECtHR.
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.[5], brought by an Ivorian national (then a minor) who had 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’.
A.D. 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. He 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 criticised 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. This practice continued throughout 2024 and 2025, with all newly arrived applicants detained for public health only for a number of days and were anyway issued with Detention Orders in terms of the Reception Regulations.
At the national level, on 13 January 2026 the Civil Court (Constitutional Jurisdiction) delivered judgement in the similar case Ayoubah Fona vs. The Minister for Home Affairs, Security, Reforms and Equality et. 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.[6] The Court upheld Fona’s claims confirming violations of ECHR Articles 3 and 5, Articles 34 and 36 of Malta’s Constitution and, for the first time in Malta, of Charter Articles 1, 4, 6 and 24.
Detention under the Reception Regulations
According to the Reception Regulations,[7] 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 their 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 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.[8]
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 appealed within three 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.[9] After a period of nine months, any person detained, if they are still an applicant for international protection, shall be released.[10]
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.[11] 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.
Since 2023, despite the requirement for individual assessments, the vast majority of applicants rescued at sea are automatically detained, with detention duration largely depending on the person’s nationality. Detention Orders are generally issued to applicants the day following their disembarkation, save in relation to persons identified as vulnerable by AWAS at disembarkation as these are accommodated in open centres either right away or after a couple of days under health-based detention.
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 – remained in detention for around two months. In the detention decision-making procedure, no individualised assessment is made and less coercive alternatives are hardly ever explored. The Detention Order includes the full list of above-listed grounds, with the one(s) applicable to the applicant ticked. No information is provided as to the facts or legal considerations made in relation to each applicant, or why it was deemed that no less coercive measures could be applied.
It seems that this change in practice was a result of the A.D. vs. Malta judgement that had declared illegal Malta’s health-based detention. 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.
Throughout 2025 Malta continued a new detention practice implemented by the PIO in 2024. As observed by stakeholders, certain groups of applicants were detained immediately following the lodging of their asylum applications. According to NGOs, the PIO regularly liaises with the IPA, the latter sharing with the PIO lists of persons having appointments to lodge their asylum applications, in order for the PIO to be alerted as to specific groups of applicants and coordinate accordingly.
At IPA premises, the PIO would conduct Eurodac fingerprinting at the moment of lodging, and the PIO officials liaised with the duty Inspector once information has been obtained from the applicant lodging the asylum application. The Inspector would then decide whether to issue a Detention Order, in terms of the Reception Conditions Directive, often relying on the grounds listed in Article 4(a), (b) or (f).
This policy was applied to persons spontaneously presenting themselves to apply for asylum – including some who were regularly staying in Malta – and who, in the PIO’s assessment, submitted an asylum application ‘too late’ or with a view to frustrating a possible eventual return/removal. The assessment primarily looked at the applicant’s nationality and the date of the lodging of the application, targeting persons seeking asylum towards the end of their visa-free period. Although the groups mainly affected were South American applicants, aditus lawyers also reported the detention of Syrian nationals.
As a result of this policy, applicants approached UNHCR and NGOs to accompany them to the lodging, hoping their presence would prevent detention. Indeed, it was reported that on some occasions NGO lawyers were able to prevent the applicant’s detention, however the same NGOs also reported that they are unable to sustain this form of support.[12]
Some applicants also reported being threatened by Immigration Inspectors that if they failed to withdraw their asylum applications they would be immediately detained.
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. These practices continued throughout 2024 and 2025 (for further information see Judicial review of the detention order). There is no further judicial stage beyond the IAB in relation to the administrative detention.
[1] Reception Regulations.
[2] Prevention of Disease Ordinance, CAP. 36.
[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/3mPtelf.
[4] Court of Magistrates of Malta, Frank Kouadioané (Ivory Coast) v Detention Services, 29 October 2020 available at: https://bit.ly/3Jckpii
[5] ECtHR, A.D. v. Malta, no 12427/22, 17 January 2024, available here.
[6] Civil Court (First Hall), Ayoubah Fona vs. L-Avukat tal-Istat, 375/2022.
[7] Regulation 6, Reception Regulations.
[8] Constitutional Court, Jovica Kolakovic v. Avukat Generali, 26/2010/1, 14 February 2011.
[9] Regulation 6(3), Reception Regulations.
[10] Regulation 6(7), Reception Regulations.
[11] Regulation 6 (1), Reception Regulations.
[12] Information provided by JRS Malta and aditus.