Malta Legal Network on Asylum Archives - Page 3 of 4

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.

Our new case against Malta, filed before the European Court of Human Rights

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.

Legal training on European Court cases in asylum

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.

We welcome Malta’s implementation of procedural safeguards in return procedures

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’.

Malta still detains children with adults in Safi Detention Centre

We remain very concerned that Malta continues to detain children with adults in Safi Detention Centre.

On 18 March 2022, our lawyers appeared before the Immigration Appeals Board on behalf of three minor Bangladeshi asylum-seekers. The three young men had arrived in Malta on 25 December 2021, after being rescued by the AFM at sea following their shipwreck. Shortly after, they had indicated being minors to the authorities. Despite that, they were kept in detention with adults for nearly 3 months.

During one of our routine call to detention in early February, adult Bangladeshis who were detained in the same block as minors informed us of the presence of the children. Our met the three young men on 6 February and decided to challenge their detention before the Immigration Appeals Board.