The End of Systematic Detention of Asylum Seekers in Malta?

This article was authored by Claire Delom, the Legal Officer at the IDC Member the aditus foundation based in Malta. 

 

As a consequence of the transposition of the current EU asylum package, Malta recently reformed its reception system for asylum-seekers and irregular migrants. The new migration strategy, which outlines the end of automatic and systematic detention of any migrant arriving irregularly on the island, was welcomed by civil society organisations in Malta. However, the devil is in the detail and Malta is actually still a long way from the end goal.

 

pablo-42

 

For the past 15 years, Malta has been (in)famous for the automatic detention of all migrants based on the irregularity of their arrival. This in a context where the vast majority of asylum-seekers in Malta used to arrive in an irregular manner by boat, having departed from Libya. This long-awaited policy change seeks to build on learned lessons and clearly introduces a human rights dimension. It is also clear that the new policy is a response to three judgements from the European Court of Human Rights, two brought by IDC members JRS Malta and aditus foundation, condemning Malta’s detention regime as being in violation of the right to liberty and the right to an effective remedy to challenge the legality of one’s detention (Suso Musa v. Malta, 23 July 2013, 42337/12; Aden Ahmed v. Malta, 23 July 2013, 55352/12).

Malta’s new reception system includes the establishment of an Initial Reception Centre to accommodate newly arrived migrants for their first seven days. During this period, in addition to conducting basic medical examinations and providing useful information, the authorities will assess whether one of the six detention grounds foreseen in the recast EU Reception Directive apply to asylum-seekers. In terms of EU and also national law, the detention decision should be an individual and reasoned one taken after an assessment of the possibility of applying alternatives to detention. The reform also includes a mandatory review of the lawfulness of detention after seven working days, with access to free legal aid.

The reform is clearly a step in the right direction. Yet a number of issues need clarification and improvement. The procedure for challenging detention orders remains inaccessible and ineffective, the legal status of the mandatory stay in the Initial Reception Facility is akin to illegal detention, and the system allows the imposition of alternatives to detention also where no ground for detention exists.

How this policy will be implemented remains to be seen, as the past two years saw limited boat landings. Yet old habits die hard, and of particular concern is the fact that several asylum-seekers who recently entered irregularly by plane were detained without clear legal grounds and with limited possibilities to have the legality of their detention reviewed.

Aditus foundation is closely following the process, having advocated for amendments to the new regime with the Ministry for Home Affairs and National Security. We have already taken legal action challenging the new regime since we feel it results in arbitrary and illegal detention.