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 and detention under the Reception Regulations 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 Prevention of Disease Ordinance
Article 13 of the Prevention of Disease Ordinance 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 so-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 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.
In Frank Kouadioané v. the Detention Services, 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. 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 emphasized 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.
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.
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.
In A.D. v. Malta filed in February 2022, the applicant complains about the lawfulness and arbitrariness, as well as about the dismal conditions, of his different periods of detention under both the Prevention of Disease Ordinance and the Reception Regulations, and claims that he had no effective remedies in this respect. The applicant arrived in Malta in November 2021 and claimed to be a minor upon arrival, he was later diagnosed with Tuberculosis. He was detained for 16 days under the Period of Quarantine Order and 62 days under the Prevention of Disease Ordinance, the Court of Magistrates of Malta confirmed his detention under the Prevention of Disease Ordinance. The case was communicated on 24 May 2022 and is still pending.
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, the so-called “China House”.
Detention under the Reception Regulations
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.
In Rana Ghulam Akbar, 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.”
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. After a period of nine months, any person detained, if they are still an applicant for international protection, shall be released.
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. 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.
However, no change was observed and the PIO still automatically detains all applicants from countries of origin where returns are feasible (Bangladesh, Egypt, Morocco, Ghana, Ivory Coast, Nigeria, Lebanon), including applicants who claim to be minors. NGOs reported that this practice has been confirmed by several immigration inspectors during hearings held before the Immigration Appeals Board whereby it was declared that the PIO would proceed to the release of the detained applicant since it transpired that he was not from one of these countries.
It was reported by NGOS that applicants are not always provided with a copy of their Detention Order, which is moreover only available in English. The information provided by the PIO is reported to be very limited and aimed at obtaining consent for voluntary returns rather than inform applicants of their rights.
NGOs reported that the PIO does not always use the services of interpreters to deliver information to detainees and would often use detainees who have some knowledge of English as interpreters. This was confirmed during proceedings before the Immigration Appeals Board. NGOs further reported that several detainees complained that representatives of the PIO and the Returns Unit of the Ministry for Home Affairs attempted to coerce them into signing voluntary returns, telling them that they would remain in detention for 2 years if they dared apply for asylum.
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 remains severely limited (see Access to detention). UNHCR visits the detention centres to also provide information, but in 2022 these visits were limited due to staffing limitations. Throughout the year, the Agency was able to engage with approximately 91 persons for information counselling sessions.
While data was not provided by the PIO, NGOs could confirm that it issued around 220 Detention Orders in 2022.
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. No data was provided by the PIO in 2022 but NGOs reported that at least 220 Detention Orders were issued in 2022. Most of the Detention Orders were taken on the two first grounds foreseen by the Reception Regulations.
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.
 Prevention of Disease Ordinance, Chapter 36 of the laws of Malta.
 Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
 Prevention of Disease Ordinance, Chapter 36 of the Laws of Malta.
 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.
 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.
 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.
 Civil Court (First Hall), Ayoubah Fona vs. L-Avukat tal-Istat, 375/2022.
 Regulation 6 of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta
 Court of Magistrates of Malta, Rana Ghulam Akbar v Kummissarju tal-Pulizija, 26 February 2018.
 QORTI KOSTITUZZJONALI, Jovica Kolakovic v. Avukat Generali, 26/2010/1, 14 February 2011.
 Regulation 6(3) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
 Regulation 6(7) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
 Regulation 6 (1) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
 See IAB, Div. II, R.M. (Bangladesh) v. The PIO, (DO/35/2022), 24 March 2022, available at http://bit.ly/3V5vPHU; IAB, Div. II, F.B. (Ghana) v. The PIO (DO/2021), 4 October 2021 available at http://bit.ly/3gzB83w; IAB, Div. II, W.K.A. (Ghana) vs. The PIO (DO/2021), 4 October 2021, available at http://bit.ly/3gzB83w; IAB, Div. II., R.M. (Bangladesh) v. The PIO (DO/35/2022), 24 March 2022, available at http://bit.ly/3V5vPHU; aditus foundation, European Human Rights Court orders Malta to release children from detention, 12 January 2022, available at http://bit.ly/3j3aVeM
 Information provided by the Immigration office of the Malta Police Force, January 2022.