Universal Periodic Review: HRW Submission on Malta - Submitted in April 2013

I. Summary and Background

Malta places virtually all migrants who arrive by boat without permission, or “irregularly,” in detention, regardless of the fact that many are fleeing violence or persecution. Though under international law, migrants who do not have permission to enter or stay in a country may be subject to detention, in Malta, detention is automatic and often prolonged, without sufficient judicial review. While some vulnerable people are screened out of detention relatively quickly, asylum seekers can be detained for up to 12 months, and migrants who do not apply for asylum (or who are rejected) can be detained for up to 18 months. Malta routinely detains unaccompanied migrant children (children traveling without parents or other guardians) until they have been through a formal age determination procedure. Children can be detained for months; among the children we interviewed in 2012, who were detained between 2008 and 2011, the average length of time in detention was 3.4 months. The government has indicated that in the first six months of 2012, the average was 18 days. When children are detained in this manner, they are held with unrelated adults.

In the 10-year period from the beginning of 2002 to the end of 2011, a total of 14,735 migrants travelled by boat to Malta.^[i] Of these, 93 percent applied for asylum.^[ii] Migrant arrivals continued in 2012 and 2013: there were 1,980 new arrivals in 2012, and by July 2013, 1,294 migrants had arrived in Malta, including984 in July alone, the highest of any month on record.^[iii]

On July 9, 2013, the European Court of Human Rights issued interim measures to block Malta’s proposed immediate return to Libya of a group of 45 Somali men who had reached the island by sea earlier that day.

These migrants and asylum seekers, typically from Somalia, Eritrea, and other sub-Saharan African countries, have almost all taken months to cross the Sahara and travel north through Libya. The boat trips to Malta are perilous, involving basic vessels with limited navigation systems that are not seaworthy and often have insufficient amounts of food, water, and fuel.^[iv] Boat migrants arriving in Malta are taken straight to detention if they lack an entry visa (as they virtually all do).

II. Automatic, Arbitrary Detention

Malta detains virtually every migrant who arrives by boat forup to 12 months (if an asylum application is pending) or 18 months (if the migrant’s asylum claim has been rejected or he or she has not applied for asylum). There is no evident justification for this prolonged detention, and during detention migrants have no meaningful opportunity for judicial review in order to require the state to show justification. Such detention may therefore constitute arbitrary detention prohibited by international law. Article 9 of the International Covenant on Civil and Political Rights forbids arbitrary detention, and the United Nations Working Group on Arbitrary Detention holds that a migrant or asylum seeker placed in detention “must be brought promptly before a judge or other authority.”^[v] During its previous UPR in 2009, Malta was recommended to “avoid arbitrary and discretionary detention particularly of foreigners and adequately reduce the detention period particularly of asylum seekers,” but no stepwas taken to implement this recommendation.

In July 2010, the European Court of Human Rights found that Malta’s detention of an Algerian asylum seeker, KhaledLouledMassoud, violated the right to liberty guaranteed by the European Convention on Human Rights (ECHR).^[vi] The court argued that Maltese authorities—in light of Malta being a small island with controlled exit by air—could have found less restrictive measures than detention. The court found that insufficient grounds for detention, and the indeterminate length of detention in the law, meant that the Maltese legal system “did not provide for a procedure capable of avoiding the risk of arbitrary detention” and the detention violated article 5—the right to liberty and security—of the ECHR.^[vii]

As a party to the ECHR, Malta is legally bound to implement the judgment of the European Court of Human Rights. Malta has argued that this ruling applies only to the situation ofLouledMassoud himself, as “the facts of this case were very particular,” in part because of the length of detention to which Louled was subject.^[viii] Yet the then Commissioner for Human Rights for the Council of Europe asserted that “the general principles enunciated by the Court [in the LouledMassoud case] appear to be relevant to the situation of all those who are detained in Malta pursuant to the relevant provisions of the Immigration Act.”^[ix] The Commissioner stated that Malta’s policy of “mandatory administrative detention… isirreconcilable with the requirements of the European Convention on Human Rights (ECHR).”^[x]

In July 2013, the European Court of Human Rights issued two further rulings which underscore the impermissible nature of Malta’s migration policy: Suso Musa v. Malta (application 42337/12) and Aden Ahmed v. Malta (application 55352/12).^[xi] In the Suso Musa ruling the European Court of Human Rights makes clear that there is a need for Malta to undertake general measures to reform the inadequate remedies to challenge the lawfulness of immigration detention.^[xii] The judgment of the Court also recommends general measures in relation to improving conditions of detention (at issue in the Aden Ahmed case) and to limit duration of immigration detention.

Lack of Capacity to Challenge Detention

While there are somelimited paths available to challenge detention in Malta, these are insufficient to cover migrants’ needs or fulfil Malta’s legal obligations. Under the Immigration Act, detention may be appealed to the Immigration Appeals Board, an administrative rather than judicial body, within three days of the issuance of the removal order or where detention is “unreasonable” pending an asylum application.^[xiii] However, since Maltese law permits the detention of asylum seekers for 12 months and, for undocumented migrants, 18 months, it is extremely difficult for migrants to establish that their detention is unreasonable.^[xiv] Accordingly, this limited appeal is not sufficient to meet international standards. Indeed, in LouledMassoudv. Malta the European Court of Human Rights found that the system in place through the Immigration Appeals Board does not constitute an effective remedy under the European Convention on Human Rights.^[xv] In July 2013, in theSuso Musa and Aden Ahmed cases, the European Court of Human Rights reiterated its conclusion on this issue, finding that Malta fails to review “speedily” the lawfulness oftheir immigration detention.^[xvi]

Inadequate Justification for Detention

During its previous UPR in 2009, Malta was recommended to “strengthen its efforts to make the legal system for asylum seekers effectively accessible, prevent delays and administrative obstacles and guarantee to asylum seekers the necessary procedural safeguards in detention according to international standards.”

However, Malta detains migrants for entering the country without “right of entry,”in other words those who do not arrive through an official port of entry and come without the necessary documents.^[xvii] Essentially, this means all boat migrants are detained, even though 93 percent apply for asylum.Malta’s detention policies do not correspond with the limited circumstances in which detention of asylum seekers is permissible.

Article 31 of the 1951 Refugee Convention, to which Malta is party, states that penalties should not be imposed on account of illegal entry or presence. UNHCR’s guidelines emphasize that the detention of asylum seekers who come “in an irregular manner should… not be automatic, or unduly prolonged.”^[xviii] Under these guidelines, detention of asylum seekers may be permissible in certain circumstances,^[xix] but Malta’s automatic extended detention policy does not fit with any of these exceptional cases. In particular, the policy of detention is not aproportionateresponseto any potential threat to national security or public order (given that after 12 or 18 months, the migrant will be released to the community without an individualized assessment of the threat he or she poses).^[xx]

III. Treatment of Unaccompanied Migrant Children

During its previous UPR in 2009, Malta was recommended to “treat these immigrants and asylum seekers, particularly the most vulnerable persons—children and pregnant women—in the most proper manner.” However Malta detains all unaccompanied children for whom age is disputed pending age determination, and applies a very low threshold for disputing the age of children. As a result, unaccompanied children as young as 12 may be detained for weeks or months.During detention, children are detained with adults, without any accommodation for their young age, and with no access to education. Once determined to be under 18—and released to other accommodation—children do not receive adequate legal representation. Under international standards, unaccompanied children should not be detained for reasons related to irregular entry, and pending age determination the person claiming to be a child should be treated as such.

Among those we interviewed who were children at the time of the interview or who were children upon arrival in Malta between 2008 and 2011, the maximum time in detention was seven months (for a child in 2011), and the average time in detention was 3.4 months.^[xxi] The Maltese governmenthas indicated that the average length of time a child was detained pending age determination in the first six months of 2012 was 18 days.^[xxii]  Fluctuations in the number and timing of arrivals by sea mean that there is no guarantee that detention times will not increase again in the future.

Any period of immigration detention of unaccompanied children is unacceptable. International law states that unaccompanied children should not be criminalized for reasons related to their immigration status or illegal entry,^[xxiii] and article 37(b) of the Convention on the Rights of the Child (CRC) mandates that the detention of children “shall be used only as a measure of last resort.”The Committee on the Rights of the Child stated in its report following the Day of General Discussion on migrant children that detention of migrant children “contravenes the principle of the best interests of the child. In this light, States should expeditiously and completely cease the detention of children on the basis of their immigration status.”^[xxiv] Furthermore, the Commissioner for Human Rights for the Council of Europe has stated that, “as a principle, migrant children should not be subjected to detention.”^[xxv]

Detaining Children with Unrelated Adults

Migrant boys are routinely held in overcrowded conditions with unrelated adult men.While some children reported that they did not feel unsafe while detained with adults, others reported instances of exploitation and violence.

Human Rights Watch documented the detention of three boys co-mingled with adults in a detention center for single men during a visit to Maltese detention facilities in April 2012, all of whom appeared visibly afraid. Detaining unaccompanied migrant children with adults is in clear violation of CRC, article 37, further elaborated in the Committee’s General Comment No. 6. The Committee states “special arrangements must be made for living quarters that are appropriate for children and that separate them from adults.” Malta has not made such arrangements for children pending age determination.

Lack of legal representation in asylum proceedings

Unaccompanied migrant children in Malta receive little or no legal representation, either in challenging their detention or in requesting asylum. The Maltese government has made strides in asylum processing in the 10 or so years since it has started receiving significant numbers of asylum applications and now has one of the fastest processing times, highest recognition rates, and lowest backlogs in the European Union.Those responsible for first instance decisions in the Office of the Refugee Commissioner have undergone training on the specific needs of children seeking asylum. While the Maltese government is to be commended on these steps, and while non-governmental and inter-governmental organizations, including the Jesuit Refugee Service and UNHCR, provide counseling to unaccompanied migrant children in detention, the government shouldtake further action to ensure that unaccompanied migrant children requesting asylum receive legal representation.

As the Committee on the Rights of the Child has articulated, children involved in asylum procedures should, in addition to the appointment of a guardian, be provided with legal representation.^[xxvi] The lack of representation in first instance proceedings impacts children’s capacity to understand the proceedings and present their case. Likewise, unaccompanied migrant children whose ages are disputed and who are detained for illegal entry do not receive legal representation.According to the European Court of Human Rights in LouledMassoud, the Maltese legal system lacks the necessary “effective and speedy remedy” for challenging the lawfulness of immigration detention. Article 37(d) of the CRCmandates that children deprived of their liberty should have prompt access to legal assistance, and the Committee emphasizes that this specifically applies to unaccompanied migrant children in immigration detention.^[xxvii]

IV. Recommendations

We offer the following recommendations for inclusion in the outcome document:

• Revise laws and polices pertaining to immigration detention so that migrants are not detained simply because they have entered without permission. Specifically:
  • Allow for detention of asylum seekers only exceptionally.
  • Give migrants access to a remedy whereby they can effectively challenge their detention, in line with international standards, and ensure that these mechanisms are accessible for children.
  • Execute fully, effectively, and immediately the judgment of the European Court of Human Rights in LouledMassoud v. Malta by applying its findings to the asylum and migration system as a whole.
• End the unnecessary detention of unaccompanied migrant children:
  • Amend legislation to prohibit the detention of migrant children for the sole reason that they have arrived irregularly in Malta.
  • In the interim period while detention continues, use separate detention facilities for those with pending age determination requests.
• Reform the age determination procedure to treat applicants as children until proven otherwise:
  • Release those with pending cases to alternate open facilities until age determination is completed.
• Ensure adequate free legal representation for unaccompanied migrant children.