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.
From the practice observed in recent years, review of detention is usually now done after the first seven days. Lawyers assisting asylum-seekers in detention report that hearings with the IAB are extremely short and the Board usually never questions the detention itself.
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 practice, 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 majority of migrants are now 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.
Nevertheless, 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 have refrained from 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 Maltese 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.
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, it remains to be seen how the Board will interpret the concept of “lawfulness”.
According to lawyers assisting migrants served with a removal and detention order, the automatic review conducted by the IAB never questions the lawfulness of detention or its validity. The Board never questions the police about arrangements being made to return the individual as it considers the detention always necessary when a removal order is taken. Hearings last generally a few minutes and a removal/detention order will only be questioned by the Board if a subsequent application is filled.
In 2020, most people coming from safe countries of origin were detained 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, the European Human Rights Court recently 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.
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 LouledMassoud v. Malta, in AbdullahiElmi and AweysAbubakar v. Malta and in Suso Musa v. Maltathat 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 too allows a detainee to challenge the lawfulness of detention before the Court of Magistrates 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 failed the test because it does 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. As mentioned above, several successful applications were brought before the Courts throughout 2020, resulting in the immediate release of successful applicants.
Application under Article 25A of the Immigration Act
In the terms of Article 25A of the Immigration Act, the Immigration Appeals Board is competent to:
“[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”.
This remedy too was deemed to be inadequate by the ECtHR for a number of reasons: the fact that the relevant legal provision is limited since a request for release from custody has no prospect of success in the event that the identity of the detainee, including his or her nationality, has yet to be verified, in particular where he or she has destroyed his or her travel or identification documents or used fraudulent documents to mislead the authorities; the fact that over the years there were only very few cases where this remedy was used successfully; and due to the duration of such proceedings.
Detainees who apply for asylum from detention are subject to the same asylum procedure as those who apply from the community. The Refugee Commissioner will proceed to examine the application of the detained asylum seeker in the same manner as those who are not deprived of their liberty. The main difference lies in that detainees are escorted to the Refugee Commissioner’s offices and are not informed in advance of the date of their interview. They are usually informed on the day that their presence is required at the Office of the Refugee Commissioner. Detained asylum seekers do however face considerable difficulties in obtaining documents and compiling all the information which they might want to present in support of their application as their means of communication are severely restricted. Very often, detained asylum seekers rely on support from NGOs to obtain documentation and any other information which might be required.