in Malta
Understanding the human rights implications and realities of detention practices in Malta.
Understanding the human rights implications and realities of detention practices in Malta.
Malta’s administrative detention is regulated across various laws, including national norms transposing relevant EU legislation. The Principal Immigration Office (PIO) may detain non-nationals under the Immigration Act, under the Reception Regulations and under the Returns Regulations.
Immigration legislation authorises the detention of any person who, arriving by plane, is not granted permission to land in Malta. Article 10 of the Immigration Act specifies that the purpose of detention is to ensure the person’s removal either on the same flight on which they arrived, or on the next available flight. The same article specifies that persons arriving by any other means and not granted leave to land may also be detained.
Article 10 states that all persons detained under this article are in legal custody and are deemed not to have landed. No appeal or review is mentioned in Article 10.
2023 amendments to the Immigration Regulations allow border officers to detain any person whilst conducting border checks. In such cases, the detention must be for the purpose of taking the person before a police officer or until the police officer arrives. Anyone may be also detained if they refuse to stop in order to provide information requested or in order to prevent their entry to Malta where they do not meet entry requirements.
Our observations
We have never visited the detention space at the Malta International Airport. Since these procedures usually happen within a very short timeframe, sometimes hours or days, we are rarely aware of people detained at the Malta International Airport. It is not clear what information is given to detained persons in terms of their right to seek asylum and other related rights, yet if anyone expresses a wish to seek asylum, they are generally referred to the International Protection Agency.
According to Regulation 6(1) of the Reception Regulations, asylum-seekers may be detained only on the following grounds:
In order to determine or verify their 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.
The Reception Regulations specify that detention may only be imposed following an individual assessment, where if it proves to be necessary and if other less coercive measures cannot be applied effectively. They also underline that administrative procedures relevant to the grounds for detention set out in the Regulations shall be executed with due diligence.
Regulation 11(6) authorise the detention of persons in order to carry out their return and removal, on the following grounds:
there is a risk of absconding; or
the person avoids or hinders the return or removal procedure.
Detention may only be imposed where other sufficient and less coercive measures may not be applied and should only subsist as long as the removal procedure is in progress and being executed with due diligence. This is further complemented by Regulation 11(14) clarifying that detention is only permissible where and for as long as there is a reasonable prospect of removal, in law and in practice.
The somewhat contradictory Regulation 11(7) states that a Removal Order shall lead to the person’s detention, doing away with the discretion and conditions required in Regulation 11(6). We believe this provision is not in conformity with the Returns Directive and with European human rights standards.
Our observations
Malta adopts a blanket policy of automatically detaining all persons rescued at sea. Only persons deemed to be vulnerable following a prima facie visual assessment by the Agency for the Welfare of Asylum-Seekers (AWAS) are exempt from this initial detention. The PIO provides all persons with a Detention Order indicating the grounds for their detention, generally being a combination of grounds (a), (b) and (e).
In terms of an unwritten policy, and confirmed by our own observations, persons having high chances of being granted international protection – based on their nationality – are generally released after 2 months’ detention whilst all others remain detained throughout their asylum procedures. A detained person who is deemed to be vulnerable by AWAS may seek release from the PIO. Whilst this is often granted, we have seen cases where the PIO refuses to release vulnerable persons, arguing that they are able to receive sufficient are and support in detention.
The PIO also detains asylum-seekers on the territory at the moment of lodging their asylum applications, including regularly-staying persons. PIO argues that this is done when there is suspicion that the asylum application was submitted towards the end of regular stay in an attempt to frustrate an eventual return. Many potential applicants approach us seeking advice as to whether they should apply for asylum, fearing their immediate detention. Whilst we sometimes succeed in preventing their detention through calls and interventions with the PIO, we are largely unsuccessful.
We have also observed the systemic detention of Dublin returnees, although the PIO denies a polity of detention for these groups of people.
Most rejected asylum-seekers detained under these Regulations would have already been in detention throughout their entire asylum procedure. Although the Regulations require a reasonable prospect of removal, pre-removal detention is automatically imposed on all rejected asylum-seekers and persons in an irregular immigration situation, often with a mere e-mail sent to the relevant Embassies.
We are often successful in securing the release of persons not identified by their State representatives.