Legal assistance for review of detention

Malta

Country Report: Legal assistance for review of detention Last updated: 19/05/21

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The Reception Regulations provide for the possibility for asylum seekers to be granted free legal assistance and representation during the review of the lawfulness of detention.[1] Free legal assistance and representation entails preparation of procedural documents and participation in any hearing before the Immigration Appeals Board. Despite this specification, the public entity coordinating the provision of legal aid for such reviews has confirmed that legal aid will only be made available for the first review by the IAB and not for subsequent reviews.

Regulation 11(5) of the Returns Regulations provides that within the context of an application to the Board to review decisions related to return, a legal adviser shall be allowed to assist the third-country national and free legal aid will be provided where the individual meets the criteria for entitlement in terms of national law. It is, however, questionable whether an application to the Board to review the lawfulness of detention would qualify as a request to review a decision relating to return, which is usually understood to include a decision to issue a removal order and/or a return decision.

In the case of the asylum procedure, while applicants may be represented by a lawyer at first instance, this is not available for free and they will have to bear all the costs involved.[2] Free legal aid is however provided at the appeal stage of the asylum procedure. JRS Malta and aditus foundation are the only two organisations providing free legal services to detainees, yet capacity is very much limited according to available resources.

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.

 

[1]           Regulation 6(5) Reception Regulations.

[2]           ECtHR, Suso Musa v. Malta, Application No 42337/12, Judgement of 9 December 2013, par. 61.

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