Grounds for detention

Malta

Country Report: Grounds for detention Last updated: 23/05/22

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According to the Reception Regulations,[1] the Principal Immigration Officer may order the detention of an applicant for the same grounds foreseen in the Reception Conditions Directive, namely:

  1. In order to determine or verify his or her identity or nationality;
  2. 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;
  3. 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;
  4. 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;
  5. When protection of national security or public order so require; or
  6. 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 deemed unlawful.[2]

The Constitutional Court of Malta also 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.”[3]

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.[4]

The December amendments introduced some positive changes to the Reception Regulations, with the introduction of the requirement to carry an individual assessment and only order detention if it proves necessary and if other less coercive measures cannot be applied effectively.[5] It also provides that administrative procedures relevant to the grounds for detention set out in this regulation shall be executed with due diligence.

However, no change was reported in the PIO’s policy since the introduction of these amendments.

After a period of nine months, any person detained, if they are still an applicant for international protection, shall be released.[6]

In 2020 and 2021, lawyers assisting people in detention noticed that asylum-seekers from Bangladesh, Ghana, Egypt, Morocco and Ivory Coast, were usually detained under the first two criteria of the Regulations. In most cases, such detention orders were issued several weeks or months after arrival, meaning that asylum-seekers were often detained irregularly for long periods of time. Moreover, such detention orders seem to be issued automatically, without any individual assessment, simply based on the nationality of the individual.

In relation to review or appeal possibilities, although these detention orders could be challenged, this rarely happened due to the lack of information available and the restrictions in access for NGOs and lawyers.

Moreover, in the majority of cases, the detention of asylum-seekers is not in line with the recast Reception Conditions Directive. Throughout 2020 and 2021, 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).[7] This article provides 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”.

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 they do 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. Health-related detention is also regulated by the Convention, requiring a series of procedural standards;
  • 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.[8]

Furthermore, in 2020, the vast majority of people disembarked in Malta and immediately placed in detention were detained without any form of legal basis. People were simply placed in detention without any assessment and without being given any document or information on the reasons for their detention.

No data is available on the number of applicants detained under this new policy in 2020 or 2021. According to NGOs, the use of this practice appeared to decrease in 2021. Regardless, those who were detained on this basis, were kept in Safi for several months. Furthermore, due to the lack of access to detained individuals, NGOs might not be aware of a greater number of such individuals.

According to official data provided by the Immigration Police, 415 asylum seekers were issued detention orders in 2021, out of which 85 were still detained at the end of 2021. Most of the detention orders were taken on the two first grounds foreseen by the Reception Regulations.[9]  However, this number does not include the asylum seekers detained under the Health Regulation and those who are de facto detained.

Since 838 persons were disembarked in Malta in 2021, it can be assumed that the number of people detained is approximately the same, with the exception of specific cases such as those regarding  women and children whose age cannot be disputed. 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.

Detained persons do not receive information about their status. No information regarding the reason for their detention is provided, neither on the expected duration of the detention nor their rights. Information about the asylum procedure is provided by EASO and the IPA, 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 as well as on NGOs, such as JRS Malta and aditus foundation, also visiting detention and providing information and legal advice. In 2020, access to detention was restricted for several months for NGOs and UNHCR, which prevented asylum seekers from receiving any information or legal support.

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.[10]

 

 

 

[1] Regulation 6 Reception Regulations.

[2] Court of Magistrates, Rana Ghulam Akbar v Kummissarju tal-Pulizija, 26 February 2018.

[3] QORTI KOSTITUZZJONALI, Jovica Kolakovic v. Avukat Generali, 26/2010/1, 14 February 2011.

[4] Regulation 6(3) Reception Regulations.

[5] Reception Regulations, Regulation 6 (1).

[6] Regulation 6(7) Reception Regulations.

[7] Cap. 36 of the Laws of Malta, 1908, available at: https://bit.ly/2E9u73v.

[8] The Times of Malta, ‘1400 migrants detained illegally at Marsa and Safi – UNHCR’, January 2020, available at: https://bit.ly/2JbWIXp.

[9] Information provided by the Immigration office of the Malta Police Force, January 2022.

[10] ECRE, Malta Charges Five Rescued Migrants with ‘Terrorist Activities’ while Facts Remain Unclear, 5 April 2019, available at: https://bit.ly/33HDTVD.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation