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’.
Detention in the context of return
In terms of both the Directive and Maltese law, individuals in the return procedure may be placed in detention only if less coercive measures cannot be imposed and may be maintained in detention as long as there are guarantees that the return will happen within a reasonable timeframe. This detention should last for a maximum period of 6 months, which may be extended by a further period of 12 months in exceptional circumstances. The legality of detention pending removal must be regularly reviewed by the Principal Immigration Officer and this must be supervised by a judicial authority.
Accordingly, any individual who has lost his or her right to stay in Malta may be issued with a removal order and a return decision. They will be placed in Ħal Safi detention centre, the same centre where asylum-seekers are detained, while the Immigration Police make the necessary arrangements for their return to be carried out (confirmation of identity by the country of origin, request for identity documents, flights booking etc.).
Review of detention
In terms of the above-mentioned regulations, detention must be reviewed at regular intervals of time which may not exceed 3 months. The Immigration Police is in charge of carrying out the reviews but these have to be supervised by the Immigration Appeals Board.
The review of one’s detention is paramount to ensure that States are not arbitrarily depriving individuals of their human right to liberty. The prohibition of arbitrary detention is a fundamental right guaranteed both under International law and the Maltese Constitution.
In the framework of removal procedures, the point is to ensure that individuals are not detained unlawfully, meaning they are detained for a purpose which can reasonably be expected to happen, i.e their return to their country of origin. If return is no longer possible due to legal or other considerations, detention ceases to be justified and the individuals are to be released immediately from the detention centre.
Malta has already been found to be in violation of the European Convention on Human Rights in March 2021 for detaining an individual for 14 months while it was obvious there was no reasonable prospect of removal.
In fact, the Immigration Police is regularly compelled to release individuals from the detention centre following their failure to remove them following the exceptional 18 months deadline. aditus foundation knows of at least 26 people who have been released accordingly in 2022, but we are pretty sure the number of persons detained beyond the maximum period is higher. Since their removal could not be carried out, it is likely that some of these individuals were being arbitrarily detained, in breach of their fundamental rights.
The reason why this happens is directly linked to the lack of implementation of procedural safeguards in detention settings for these individuals since, until recently, Malta was not carrying out the necessary reviews of detention pending removal as provided in the law. In the absence of these reviews, individuals are inevitably at risk of being detained arbitrarily.
In October 2021, aditus filed applications before the Immigration Appeals Board for three of these individuals and argued that there existed no reasonable prospect of their removal. Their ‘removal’ proceedings had been ongoing since June 2020, and the absence of the reviews of detention was sufficient to order the release of the applicants since their detention was found to be illegal.
The case proved to be more complicated than anticipated, as our lawyers engaged with questions about the interpretation of the number of reviews required by law, and how the reviews should actually be carried out. Being a question relating to an interpretation of EU law, we filed a request to refer the case to the Court of Justice of the European Union, but the request was denied by the Board. The three applicants were eventually released from detention as they had reached the maximum amount of time in detention allowed at law.
Due to the fact that they had also been detained upon arrival whilst still asylum-seekers, they had spent a total of 26 months in detention. Since their arrival in Malta some 2 years ago, they had only known the blocks of the detention centre.
In April 2022, aditus foundation filed similar cases before of the Immigration Appeals Board and was informed that the Immigration Police – under the supervision of the Board – had started to implement the reviews of detention for persons pending removal. We understand that these have started to be carried out by the Immigration Police Inspectors, under the supervision of the Immigration Appeals Board. Furthermore, they are carried out in the presence of the detainee and an interpreter, as initially provided by the law. The detainees are also presented with a transcript from the hearing. It is yet unclear whether lawyers will be able to participate in the reviews and whether these persons will be eligible for legal aid.
We are pleased to see that our actions positively impacted Malta’s commitment to its legal obligations. It is encouraging for our lawyers to witness the impact of their relentless efforts…case after case! By introducing regular reviews of detention in removal proceedings, Malta has moved one step closer towards a detention regime that is compliant with national, European and International law.
Our activities in detention are partially supported by UNHCR, ESF, AMIF, ACriSL.