Intervening when maximum detention limits are exceeded

On 29 April 2022, three Bangladeshi individuals were released from the Ħal Safi Detention Centre. Nashir, Hussain and Shumon[1] were freed three days beyond the maximum permissible period of 18 months. The extra days they spent in Ħal safi were in breach of their rights as prescribed by both EU and national law. They had arrived in Malta in 2019 and had been in detention ever since. This post provides an overview of how we intervene when maximum detention limits are exceeded.

In Malta, it is common practice to automatically detain asylum-seekers from countries where returns are generally feasible. Usually they are nationals of countries listed as ‘safe’[2], but this is not always the case. These situations often result in total detention periods exceeding two years. This was the case for Nashir, Hussain and Shumon. They were detained upon arrival in December 2019, throughout their asylum procedure. Once the asylum authorities rejected their asylum claim, they were immediately issued with a return decision and removal order for them to be repatriated. They were only released in April 2022. 

The EU Reception Conditions Directive provides for the detention of asylum seekers for a maximum period of 9 nine months, to be resorted to as a means of last resort where alternatives to detention are not possible. Despite the fact that in most cases alternatives to detention are actually very feasible, detention remains the standard approach for asylum-seekers originating from specific countries.

The legal regime governing the return of migrants to their home countries, the EU Returns Directive, provides for their detention for a maximum period of six months following the issuance of a removal order. However, this period may be extended by a further period of 12 months in exceptional circumstances.

Let’s do the maths and see what this means…people could end up being detained for 27 months or more if they had been issued with a detention order on the day they were detained, followed by a removal order on the day they received a final asylum rejection. This is excluding the weeks’ or months’ (illegal) detention period upon arrival, justified by the authorities on public health grounds but also in violation of human rights law.

In fact, Nashir, Hussain and Shumon were released from detention three days beyond the extended period of 18 months. Although to most three ‘extra’ days would not appear to be an exaggerated period, consideration must be given to the extremely difficult living conditions in detention and the absence of basic procedural safeguards they were entitled to but were unable to exercise.

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Following their release from detention, our clients were not entitled to much in terms of livelihood. No provision of accommodation, no access to employment and they may still be deported any day. The lack of employment possibility is based on a recent Government policy which targeting people from countries deemed to be ‘safe’ and rejected from the asylum procedure. 

The situation of detained asylum-seekers has recently become more challenging since they are denied proper access to lawyers, social workers, NGOs and other organisations who are able to provide valuable information and support. Access arrangements for our team members are extremely burdensome, meaning the vast majority of asylum-seekers attend their first interview without ever having seen a lawyer. They remain detained, often illegally, without the possibility of obtaining information on the legality of their detention and the means to challenge it before the Courts. Without proper access to Malta’s detention centres, we are also unable to speedily identify vulnerable persons or to organise information sessions to groups of people.

Countries deemed ‘safe’ by Malta. The list includes countries that criminalise LGTIQ+ identity or related behaviour.

In terms of the the Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals, Subsidiary Legislation 217.12, detention shall be for a short period and is only justified if the removal procedure is actually in progress. This means that the process for the person’s return is being carried out with the necessary due diligence. In the absence of this, detention ceases to be justified and its continuation is in violation of the rights of the individual: the right to liberty and security of the person as envisaged by ECHR, the EU Fundamental Rights Charter as also the Constitution of Malta.

It is the duty of the Immigration Police or the Immigration Appeals Board to ensure the release of individuals where there is no reasonable prospect of their removal. It is the duty of the Immigration Police to ensure the release of individuals as soon as the maximum permissible detention period is reached.

Our legal and advocacy work will continue to highlight this situation until it is resolved in law, policy and practice.

[1] Their names have been changed for data protection purposes. 

[2] As listed in terms of Chapter 420, the International Protection Act of the Laws of Malta.