New report confirms the urgency for Malta to revise its detention regime

Neil Falzon, aditus foundation
/ 6 mins read

New report “Protecting Stateless Persons from Arbitrary Detention in Malta” published today by ENS and aditus foundation warns that widespread use of administrative detention has a severe impact on stateless persons in Malta. The absence of a statelessness procedures to identify and recognize stateless persons results in instances of detention which are, in many cases, in breach of Malta’s human rights obligations. The report is nonetheless optimistic that upcoming changes to Malta’s detention regime, and steps towards the accession to the 1954 Statelessness Convention, could result in dramatic changes to the way stateless persons are treated.

The report is the most recent in a series of publications forming part of a Europe wide research and advocacy effort by the European Network on Statelessness and its regional partners to investigate the law, policy and practice related to the detention of stateless persons.

Statelessness and risk of detention in Malta

Statelessness has never been an issue of national importance in Malta. The main reason is that the arrival of thousands of asylum-seekers by boat has been dominating political and media agendas since 2002. As a result statelessness receives much less attention and is often described in terms of seemingly small numbers of those affected. The authors of the report struggled to deal with these two elements insofar as they had a direct impact on the quality of available information and data, as well as on the nature of protection afforded to stateless persons.

Although the report focuses on the specific issue of detention, it nonetheless presents interesting insights into how stateless persons are generally mainstreamed within the broader migratory flows reaching Malta. This is evident from the first interaction with immigration authorities, to the relationship with the asylum procedure and, ultimately, through to removal documentation and procedures.

Malta’s detention regime is one of Europe’s toughest. It raises serious human rights concerns with regards to its conformity with the standards established in the European Convention on Human Rights. Repeatedly, the Strasbourg Court found the procedural set-up of Malta’s detention regime is arbitrary, and has criticized the system for failing to provide detained persons the real possibility of challenging the legality of their detention. Living conditions in the detention centres have also been heavily criticised as violating human dignity.

Stateless persons and persons at risk of statelessness face detention if found to be attempting to enter Malta in an irregular manner. This is no different from the manner used by the vast majority of asylum-seekers reaching Malta as they leave Libya on small boats heading for Europe.

Absence of statelessness determination procedure

The report notes how at this early stage, initial registration for immigration purposes does not envisage ‘stateless’ as a category in the nationality or country of origin query. This absence forces a response, a country choice, which remains attached to the individual’s documentation in all further procedures. Beyond the failure to correctly reflect the person’s status, the country choice shapes the person’s protection claim and assessment, as well as the return procedure once initiated if the person is found not to be in need of international protection.

In the absence of a statelessness determination procedure, and because the asylum procedure offers a possibility of release from detention (for applicants awaiting a decision after 12 months of application), stateless persons are almost automatically streamlined into the asylum procedure. Our research shows that whilst the asylum procedure has offered a solution to some persons, notably where statelessness gives rise to an international protection claim, it is not specifically geared or mandated to identify and assess statelessness.

The report nonetheless acknowledges the experience and expertise the Office of the Refugee Commissioner has acquired since its establishment – including country of origin information research and analysis, interview skills, availability of interpreters – and identifies the ORC as the best-suited to take on stateless determination proceedings once these are established.  

Stateless persons are at risk of detention once more at the end of an unsuccessful asylum claim. With no right to remain on Maltese territory, stateless persons are channelled into a return procedure that, in terms of ECHR Article 5(1)(f) and of the EU Returns Directive, permits the person’s detention and remains based on the person’s country choice made during the first interview with the immigration authorities.

Maltese legislation transposing the Returns Directive was initially deficient in incorporating elements that guaranteed the legality of this pre-removal detention. In the absence of the ‘due diligence’ requirement, clearly enshrined in ECtHR jurisprudence on Article 5(1)(f) and in the Directive, migrants pending removal from Malta were all automatically detained for up to 18 months, irrespectively of the likelihood of their actual removal. Amendments to the legislation, introducing the mandatory ‘due diligence’ requirement and an automatic review process conducted by the immigration authorities, were welcomed and seen as a first step towards a revision of the entire detention regime.

The review process led to the release from detention of all those persons whose return was clearly not feasible, including asylum-seekers and, possibly without any specific intention, stateless persons. As indicated in the report, Malta’s return rate remains quite low. Beyond the logistical difficulties Malta faces as a small EU Member State, failure or refusal of authorities of countries of origin to confirm nationality and grant documents results in slow returns.

Recommendations and looking ahead

Ibrahim Suzo’s story, included in the report, captures the loneliness of persons caught in this predicament. Neither here, nor there, unrecognised by his claimed country of origin, Suzo lives in Malta without any form of legal or social protection. With no procedure before which he, and others like him, can bring their claims for protection, he lives on the fringes of Malta’s communities: the local and the refugee community.

The Report makes a series of practical recommendations, focusing on the need for Malta to make some minor arrangements in order for it to significantly improve the lives of many people. On a positive note, in the course of the Report’s research, and possibly thanks to the research itself, we were able to openly share our concerns and suggestions with the Ministry for Home Affairs and National Security. Resources, citizenship, access to social welfare were highlighted as key government preoccupations, yet we were also able to identify areas where on-going discussion and capacity building could change the status quo.

Malta’s on-going review of its detention regime, primarily in view of its transposition of the EU recast Reception Conditions Directive and of the three Strasbourg judgements (Louled, Suzo, Aden Ahmed) offers interesting potential. Coupled with a more rigorous implementation of the ‘due diligence’ requirement in return proceedings, these measures may effectively put an end to the arbitrary detention of stateless persons.

It is therefore necessary for Malta to complement these measures with a stateless determination procedure, encompassing early identification, referral and processing of cases. With the administrative set-up already largely in place, through the Office of the Refugee Commissioner, added technical capacity can be readily accessed including through support by European Network on Statelessness.

The Malta report is a first in identifying the risks of arbitrary detention faced by stateless persons in Malta. It also touches on contextual issues that provide a new insight into groups of migrants reaching Malta often falling through cracks in protection systems. We hope that these stories and their analyses go beyond shedding a light on challenges, and trigger the opportunities needed to overcome them.

On 12 November the European Network on Statelessness and aditus foundation released the report “Protecting stateless persons from arbitrary detention in Malta”. You can download the full report [pdf] and the summary version [pdf]

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