According to the Reception Regulations, 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.
With regard to the second ground, the Court of Magistrates clarified in 2018 in the case of an asylum seeker returned to Malta under the Dublin Regulation, that a “risk of absconding” is not a self-standing ground for detention. Since the applicant had provided most of the elements needed for the determination of his asylum claim, his detention was unlawful.
The individual detention order shall be issued in writing, in a language that the applicant is reasonably supposed to understand and shall state the reasons of the detention decision. Information about the procedures to challenge detention and obtain free legal assistance shall be provided as well.
However, in the vast majority of cases, the detention of asylum-seekers is not in line with the recast Reception Conditions Directive. Throughout 2019, Malta relied on national health legislation to deprive asylum-seekers of their liberty, on the ground that there is a reasonable suspicion that they might spread contagious diseases – Article 13 of the Prevention of Disease Ordinance (CAP. 36). This article provides that “Where 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.”
This article, therefore, authorises the Chief Medical Officer to restrict a person’s movements for up to four weeks, the period of which may be extended for up to ten weeks, on suspicion that a disease may be spread.
No form of assessment is conducted and applicants are only provided with a document – often in a language the applicant does not understand – stating that they are detained for a period of four weeks that might be extended up to ten weeks under the Health Regulations.
NGOs immediately condemned this new detention regime and expressed a series of concerns, namely:
- The suspicion that a disease may be spread is not a valid ground for detaining asylum-seekers under international, EU and national law;
- Even in such situation, the authorities should not be entitled to deprive someone of his/her liberty, as the Health Regulations do not authorise detention but merely a restriction of free movement;
- No effective legal remedy is available and the applicants have no way to challenge such decision.
UNHCR also condemned this new 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.
No data has been made available on the number of applicants detained under this new policy in 2019.
According to official data, 250 asylum seekers were placed in detention. However, the vast majority of the 3,046 persons rescued at sea and disembarked in Malta in 2019 were placed in de facto detention, and therefore not included within the 250.
Moreover, it was observed that applicants would not be released even after they were medically screened and cleared. Instead, individuals would only be released when a place is made available in the open centres.
Towards the end of 2019, a series of administrative decisions were adopted leading to a situation where detained persons are no longer receiving information about their status. No information regarding the reason for their detention is provided, neither on the expected duration of the detention and their rights. Information about the asylum procedure is provided by EASO and RefCom but only during the registration of their application, often several weeks after arrival. In the meantime, applicants rely on UNHCR, the officials of which visit the centres regularly and provide general information, and on NGOs such as JRS Malta and aditus foundation, also visiting detention and providing information and legal advice.
Over the course of 2019, detainees held a number of demonstrations at Safi to protest against their indefinite incarceration, the absence of information and the conditions in which they were being kept.
 Regulation 6 Reception Regulations.
 Court of Magistrates, Rana Ghulam Akbar v Kummissarju tal-Pulizija, 26 February 2018.