by Alexis Galand, Senior Legal Officer, Legal Unit, aditus foundation
An excerpt of Alexis’ input to aditus foundation’s Annual Activity Report for 2021. The full Annual Report 2021 may be downloaded here (.pdf). In the coming weeks we’ll be publishing the other team member inputs to the Annual Report.
I started working with the aditus foundation in May 2021 as their new Legal Officer. In this position, I was responsible for the organisation of the newly formed legal unit of the NGO, composed of a Junior Legal Officer, a Case Officer and one or more interns, and my role also involved in-depth legal work which required more advanced knowledge of European and Asylum law. This included written and oral submissions for appeals before the International Protection Appeals Tribunal (IPAT) after a rejection on the asylum application and detention and age assessments appeals before the Immigration Appeals Board (IAB). This proved particularly challenging due to a certain lack of expertise, or willingness, of several members of these quasi-judicial bodies appointed by the executive, with limited safeguards guaranteeing their independence and impartiality.
Minors being hosted in the Dar Il-Liedna open shelter for unaccompanied children now live in fear of being arrested and detained at any moment following the arbitrary arrest of two Bangladeshi minors by the Principal Immigration Officer (PIO), based on controversial evidence that they were allegedly adults.
The two teenagers had been rescued at sea by the Armed Forces of Malta (AFM) and were disembarked in Malta on the 26th of May 2022. They were directly taken to detention in the so-called “China House” detention centre in Ħal Far and declared that they are minors at a later stage. They were released on the 21st of June 2022 after being confirmed as minors following an interview with social workers from the Agency for the Welfare of Asylum Seekers (AWAS) which is the Agency responsible for carrying out such assessments for unaccompanied minors (UMAS).
aditus foundation recently filed another application against Malta before the European Court of Human Rights. The applicant is alleging violations of Article 3 (inhuman and degrading treatment) and Article 5 (arbitrary detention). In an earlier case, our client is alleging that Malta’s asylum procedure did not give him the opportunity to validly present his claim.
The applicant is an asylum-seeking minor suffering from a medical condition. He has been detained since his arrival in Malta in November 2021.
In the application to the Strasbourg Court, he complains that his current detention is arbitrary and based solely on his nationality. He claims that his detention is based on the fact that he is from a country Malta deems to be safe, and to which removals from Malta are being carried out. He also complains of the unlawfulness of his previous periods of detention on health grounds and of his conditions of detention in the so called ‘China House detention centre and the Safi Detention Centre where he is still detained today.
In April, our Legal Officer, participated in a training on case law developed by the European Court of Human Rights (ECtHR) with relevance for asylum law. This was organised by the Academy of European Law (ERA) in Strasbourg.
The training provided in depth knowledge on the ECHR approach in asylum cases. Experienced speakers presented the Court’s approach in non-refoulement cases, detention cases, interim measures and the right to family life. The participants could visit the Court and meet the very experienced lawyers working there.
The seminar was attended by lawyers in private practice, judges, European and national civil servants and other legal practitioners dealing with asylum law.
Following several cases filed by aditus foundation before the Immigration Appeals Board challenging the detention of individuals under a removal order, Malta has started to comply with its obligations under European and Maltese law. We are happy to welcome this development, whereby Malta is now implementing procedural safeguards in return procedures.
In the EU, the situation of rejected asylum seekers is governed by the Return Directive 2008/115/EC, adopted by the European Union in 2008. This Directive establishes a common European legal framework of the minimum standards which are to be applied during the procedure for the return of people who are illegally staying on the territory of its Member States. In 2011, Malta duly transposed these obligations in its national legislation and provided for the same standards applicable in all the Member States in Subsidiary Legislation 217.12, entitled: ‘Common Standards and Procedures for Returning Illegally Staying Third-Country National’.