Review of asylum detention under the Reception Regulations
The amended law foresees possibilities to review the lawfulness of the detention and this review would be automatically conducted by the Immigration Appeals Board (IAB) after seven working days from the detention order, which may be extended by another seven working days. If the applicant is still detained, a new review would be conducted after periods of two months thereafter. When the IAB would rule that detention is unlawful, the applicant would be released immediately. Free legal assistance would be provided for this review according to the Regulations.
Article 25A of the Immigration Act provides that the Board shall consist of “a lawyer who shall preside, a person versed in immigration matters and another person, each of whom shall be appointed by the President acting on the advice of the Minister. Provided that the Minister may by regulations prescribe that the Board shall consist of more than one division each composed of a Chairman and two other members as aforesaid”.
At the moment, the Board has two divisions, each composed of a Chairperson and two other members and a secretary in charge of the minutes. The presence of a secretary and hearing transcripts was a welcomed improvement that arrived in the second part of 2021. However, the very low quality of the transcript makes this improvement nearly obsolete.
Stakeholders, including the Chamber of Advocates, have expressed concerns regarding specialised tribunals such as the Board. In their feedback to DG Justice on the Malta Country Chapter for the Rule of Law Report, aditus foundation highlighted the following shortcomings regarding the Board:
- Although the basic principles of natural justice apply to the Board, the Board members are not members of the judiciary and are not bound by any code of ethics, differently from members of the judiciary. The only requisite for the Board to be validly constituted is for the Chairperson to be a lawyer and one member to be a “person versed in immigration matters”. The appointment of persons who lack any specific qualification and experience on a Board that examine particularly sensitive issues such as the detention of migrants and asylum seekers might deprive individuals of the right to an effective remedy.
- Members of the Board are part-time members. This means that they often have regular day jobs, usually in the private sector, and perform their Board functions for some hours during the week. This can raise serious conflict of interest issues, besides effecting the efficiencies of the Board.
- Members of the Board are appointed by the Prime Minister. Whilst not automatically assuming that such an appointment would lead to political interference, it is clear that the system could have an impact on independence and impartiality and could strengthen Government’s agenda on any particular issue as the Board examine decisions taken by Government bodies.
- The manner in which the Board conduct its proceedings is not publicly available through published guidelines. There is a lack of procedural transparency: proceedings are not appropriately recorded, the minutes of the hearing are poorly done (if done at all), and the method of receiving submissions from parties is not formalised. The decisions are not published and are not publicly
- The Board’s decision is final, and no further appeal is possible on substantive issues. Whilst judicial review on administrative action might be possible, as also a Constitutional case alleging human rights violations, there is rarely the possibility to bring substantive elements before the Courts of law.
These concerns were shared by the Venice Commission which considered that specialised tribunals such as the Board do not enjoy the same level of independence as that of the ordinary judiciary and reiterated in October 2020 its recommendations in that respect.
Practice as reported by lawyers assisting asylum seekers in front of the Board shows that it does not have the required level of independence to carry its mission appropriately and most of the Board members, while being competent in their own field of law, do not have the necessary knowledge of the European legal framework in matters of asylum and detention.
As such, while the review of detention is usually done after the first seven days, lawyers assisting report that hearings with the IAB are extremely short and the Board usually never questions the detention itself. Several detainees can be seen at the same time with different lawyers in the same room and there are no clear rules of procedure. Where one division of the Board will usually give a decision at the end of the short hearing, another division will postpone the decision until the situation of the applicant irremediably changes to the one of a rejected asylum seeker or the applicant is released.
Decisions are rarely motivated by any principle or law. Some decisions run contrary to well established jurisprudence, including national case law from the Court of Magistrates and the Constitutional Court. The following policies have been reported by lawyers as being consistently applied by the Board:
- The Board does not assess whether less coercive measures could be imposed instead of detention and always presumes that detention is lawful. While one Division sometimes order less coercive measures to be taken, another Division will merely confirm the detention of the applicant unless the PIO is willing to provide for alternatives to detention, Division II gives full discretion to the PIO for the possibility to do so;
- The Board will generally not order the release of an individual who tried to abscond in the past, was condemned to a prison sentence and then taken straight to detention after the end of the sentence, no matter the personal circumstances of the asylum seeker, the risk of absconding is therefore taken as a self-standing ground for detention, despite what higher Maltese Courts have said;
- The Board will generally not order the release of an individual detained because their identity, including their nationality, has yet to be verified and will agree with the PIO that, since the identity cannot be verified, the individual is potentially a threat to the public order despite no evidence of such.
- The Board will generally not order the release of an individual pending age assessment, at the fist stage or at appeal stage and rather will confirm the detention.
- The Board generally does not take into account prolonged periods of arbitrary detention which would have happened before the detention order is taken, giving the authorities complete discretion to take a detention order to remedy the illegal situation before any judicial procedure can be attempted.
While statistics are not available, NGOs and lawyers confirmed that nearly all reviews confirm the lawfulness of the detention. Legal aid lawyers participating in the reviews will rarely challenge the detention itself, unless an individual is identified as being vulnerable.
Lawyers reported that the reviews that are required by the Regulations to be carried out two months after the first one are generally not automatically done and will only happen if requested by a lawyer. This is in part due to the fact that free legal aid is only provided for the first review. This results in large numbers of asylum seekers being detained without appropriate judicial oversight. This is confirmed by the numerous cases of asylum seekers being detained beyond the 9 months deadline, as will be discussed further below.
Parallel to this automatic review, the new Reception Regulations provide for the possibility to challenge the detention order before the IAB within three working days from the order. In terms of Article 25A(10) of the Immigration Act, the Board can;
“[H]ear and determine applications made by persons in custody in virtue only of a deportation or return decision and removal order to be released from custody pending the determination of any application under the Refugees Act or otherwise pending their deportation. The Board shall grant release from custody where the detention of a person is, taking into account all the circumstances of the case, not required or no longer required for the reasons set out in this Act or subsidiary legislation under this Act or under the Refugees Act, or where, in the case of a person detained with a view to being returned, there is no reasonable prospect of return within a reasonable time-frame”.
In reality, it is practically impossible to challenge the detention order itself as asylum seekers do not have the capacity to submit such an appeal on such short notice as there is not enough time to seek the assistance of a lawyer. In 2020, due to lack of access to detention for NGOs for several months, detainees did not receive legal support and were never able to challenge their detention orders. These difficulties were also highlighted by the European Court of Human Rights in the cases brought against Malta by detained asylum seekers. The restrictions on access put in place since June 2021 still seriously hinder information provision and the lawyers’ possibility to file appeals.
The CPT report highlights that no registers of detention orders are kept in any detention centre and that management is generally not informed of who is detained on which grounds. This situation prevents the management of ensuring any oversight of the safeguards related to detention.
A significant number of migrants are detained in application of Health Regulations or de facto detained. This is not a formal detention regime where applicants are issued with a detention order. Therefore, they do not benefit from effective remedies and are not entitled to appeal against the decision, in contravention of the Reception Conditions Directive. They may, however, challenge the lawfulness of their detention in front of other remedies (see below).
Although there are a number of remedies available to detainees to challenge their detention, in addition to the remedy introduced in 2014, the ECtHR clearly stated in Louled Massoud v. Malta, in Abdullahi Elmi and Aweys Abubakar v. Malta and in Suso Musa v. Malta that three of these remedies do not qualify as “speedy, judicial remedies” in terms of Article 5(4) ECHR.
Human rights action before the national courts
This remedy, which allows a detainee to challenge the lawfulness of his or her detention in terms of the ECHR and the Constitution of Malta, has failed the Article 5(4) ECHR test as, although it is clearly judicial, it is far from speedy.
In addition to the length of time for the delivery of judgments, Constitutional proceedings are virtually inaccessible to detainees as in practice most asylum seekers do not have access to a lawyer who could file a court case on their behalf. In fact, to date most cases have been filed by lawyers working in collaboration with NGOs assisting asylum seekers. In such cases there is no waiver of court fees, as there would be if the applicant had been granted the benefit of legal aid.
Application under Article 409A of the Criminal Code
This remedy also allows a detainee to challenge the lawfulness of on-going detention before the Court of Magistrates (Criminal) and is based on an assessment of the legality of the person’s detention. Though this remedy is both speedy and judicial in nature, it had failed the test because it did not allow for an examination of the lawfulness of detention in terms of article 5 ECHR, since the Courts interpreted their remit under this article as being strictly limited to provisions of Maltese law.
With the provision of grounds for detaining asylum seekers in national law, this remedy is now, however, relevant. Several successful applications were brought before the Courts since 2019, resulting in the immediate release of successful applicants.
In October 2019, aditus foundation and JRS Malta assisted six migrants who had been detained for more than ten weeks under the above-mentioned Health Regulation to challenge their detention by filing Habeas Corpus proceedings. Lawyers raised several arguments to prove the detention unlawful:
- They indicated that these individuals, upon arrival, were only provided with a document titled ‘Restriction of Movement for Public Health Reasons’ signed by the Superintendent of Public Health. In this document applicants were not identified by their name but merely by their Immigration Number and no interpreter was present during their interview with the Malta Police Force to explain the contents of the document provided.
- Furthermore, at no stage were the applicants informed as to what elements pertaining to their specific individual situation led to the conclusion by the Superintendent that “they may spread disease” in terms of Health Regulations.
- The applicants were escorted to a Health Centre to undergo medical screenings almost immediately following their arrival in detention but were never provided with the results, even months after.
- On the basis of the fact that they are wholly impeded from any form of free movement, it cannot be said that their movements are being merely ‘restricted’. On the contrary, they were entirely deprived of their personal liberty.
- These applicants had been detained for more than ten weeks.
The Court declared the ongoing deprivation of personal liberty unlawful and ordered their immediate release.
The six asylum-seekers were released the same day but left with no support or accommodation provided by the authorities, relying entirely on NGOs and the community for immediate assistance. As a consequence, NGOs are cautious about initiating similar proceedings for other applicants.
However, several similar cases were filed in 2020 when applicants could be accommodated by friends or relatives.
On 29 October 2020, the Court of Magistrates ordered the immediate release of an Ivorian national on medical grounds, stating that his detention had no basis in law. The Court underlined that it had encountered several cases in which people were detained without a legal basis and expressed its concern regarding the impact of such detention on the rule of law.
In November 2020, four men were released by a Maltese Court, with the magistrate declaring the detention unlawful. The magistrate also condemned the policy of systematic detention due to the lack of reception space as “abusive and farcical”. These four men were disembarked in Malta in June 2020 and were put in detention without being given any official document justifying their detention.
In June 2021, 5 asylum seekers were released after a Judge found their detention illegal since the legal limit of 9 months under the Reception Directive had elapsed months earlier. It transpired that their release had been green-lighted by the immigration authorities in September and October 2020 for three of them and in January for the others. While ordering the men’s immediate release, the Magistrate flagged the matter to local authorities to ensure that similar incidents “are not repeated”. A sixth migrant, possibly a minor, had apparently lied about his age upon arrival in Malta. He was served with a removal order and return decision earlier. The Magistrate ruled that the applicant’s detention was lawful but, taking note of the physical appearance of the migrant which posed significant doubts as to whether he was an adult at all, ordered an age assessment to be carried out. This had never been done in his 16 months of uninterrupted detention.
In October 2021, another 3 asylum seekers were released as they were detained under the health regulations.
In January 2022, lawyers from aditus foundation secured the release of six men from their illegal detention at Safi Barracks. Three of them were children, as also confirmed by AWAS. In a similar Court application filed the same day by another detained young man, also represented by aditus’ lawyers, the Court of Magistrates failed to require the Government to explain the legal basis for his detention at Safi Barracks.
The first application filed by the seven men was rejected on a pure formality, yet the immediate release of six of them was quickly confirmed by the same Government entities that, just a few minutes earlier, had denied having the legal authority to detain them. A second Court petition filed by the seventh man, also a teenager, was rejected on the basis of the claim that he suffers from a contagious illness. Despite previous judgement on the matter, the Court noted that “it cannot be said that any public authority ordered the applicant’s detention…because he is presently not under any detention order but limitedly under an order that restricts his movement in relation to which Article 409A of the Criminal Code does not apply.”
The NGO reacted to the judgement by pointing out that it was incongruent to hear that the teenager was not being detained when he was actually accommodated in a place described by Maltese law as “a place of detention for the purposes of the Immigration Act”, a structure administered by a public entity called ‘Detention Services’, with the impossibility to leave the centre, limited communication with the outside world, and being under the constant supervision of a Government entity.
Review of pre-removal detention under the Returns Regulations
Since the transposition of the Returns Directive, the law provides for the possibility to institute proceedings to challenge the lawfulness of detention before the Immigration Appeals Board.
In addition to the fact that the extent to which this Act applies to detained asylum seekers, who by definition cannot be subject to removal proceedings, is questionable, from the text of the law it would appear that migrants arriving by boat who are apprehended at sea or upon arrival and migrants who are refused admission into Malta are exempt from the benefits of this provision, as Regulation 11(1) states that:
“The provisions of Part IV shall not apply to third country nationals who are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by sea or air of the external border of Malta and who have not subsequently obtained an authorisation or a right to stay in Malta”.
This said, in one case the Board held that the benefits of this provision are indeed applicable to detained asylum seekers; however, it ceases to apply once their application is no longer pending.
To date, the remedy has not proved particularly speedy, with few applications decided prior to the applicant’s release from detention in terms of Government policy. Moreover, the Board interpretation of the concept of “lawfulness” is particularly restrictive.
The law provides that reviews should be carried ex-officio by the PIO at regular intervals of 3 months for and supervised by the Board for people detained after 6 months. However, lawyers and NGOs reported that there are no traces of such reviews done by the PIO and that the Board only supervises the 6 months review.
Parallel to these reviews, the detained migrant can appeal the removal order in terms of Article 25A of the Immigration Act within 3 days of the notification of the removal order.
According to lawyers assisting migrants served with a removal and detention order, the IAB never questions the lawfulness of detention or its validity, as it considers the detention always necessary when a removal order is taken. The Board will take the police statements regarding the removal as sufficient to conclude that it is being executed with due diligence and that there is a prospect of removal despite a significant number of individuals being detained for more than 10 months.
Regarding the application of the principle of non-refoulement, the Board never questions the decisions of the IPA and will not carry its own risk assessment, even if the matter is raised during proceedings. Detention and removal will only be questioned when a subsequent application is filed.
Most people coming from safe countries of origin were detained in the last years and have seen their asylum application rejected as manifestly unfounded, denied appeal, and automatically served with a removal and detention order. These individuals have been detained for sometimes more than two years while awaiting a potential return.
As already mentioned, in 2021 the European Human Rights Court found a violation of article 5(1) of the Convention (right to liberty and security). The case was about a Nigerian national detained pending removal. The Court considered that the entire period of detention, fourteen months in total, cannot be justified for the purpose of deportation since the authorities insufficiently pursued concrete arrangements for his return. Therefore, the Court concluded that the ground for his detention could not be considered valid for the full duration of his detention.
 Regulation 6(3) Reception Regulations.
 Venice Commission, CDL-AD (2020)019-e, para. 98; see also CDL-AD(2020)006 paras. 97-98; and CDL-AD(2018)028 paras. 80-83.
 ECtHR, Louled Massoud v. Malta, Application No 24340/08, Judgment of 27 July 2010; ECtHR, Suso Musa v. Malta, Application No 42337/12, Judgment of 9 December 2013; ECtHR, Abdullahi Elmi and Aweys Abubakar v. Malta, Application Nos 25794/13 and 28151/13, Judgment of 22 November 2016.
 ECtHR, Louled Massoud v. Malta, Application No 24340/08, Judgment of 27 July 2010; ECtHR, Suso Musa v. Malta, Application No 42337/12, Judgment of 9 December 2013 and ECtHR, Abdullahi Elmi and Aweys Abubakar v. Malta, Application Nos 25794/13 and 28151/13, Judgment of 22 November 2016.
 Court of Magistrates, 7 October 2019, Mohammed Abdallah Mohammed 19O-030, available at: https://bit.ly/2V6lVcs; Court of Magistrates, Zeeshan Saleem 19N-24, 8 October 2019, available at: https://bit.ly/3b7iLea.
 Information provided by aditus foundation, January 2022.
 ECtHR, Feilazoo v. Malta, Application No. 6865/19, Judgment 11 March 2021.