July 18, 2012

Summary

I left Côte d’Ivoire at 16. My family was persecuted, there was violence and war. I went through Niger, Mali, and to Libya, in trucks. Then from Libya to Malta by boat…. For someone at 17 to be in detention, it's not normal. Seven months of detention, it's not normal.

—Stéphane K., an unaccompanied migrant child in Malta, March 2012

My expectation was that I would come here, apply for asylum and be safe. I didn't expect to be in detention for so long. In the end I don’t understand what benefit this will bring to Malta … I don’t see why we have to pass through detention before being granted freedom.

—Berhane K., an Eritrean asylum-seeker in Malta, March 2012

Malta routinely detains an average of 1,500 people per year, including children, who arrive in the country by boat without permission, or “irregularly.” These are migrants and asylum seekers, typically from Somalia, Eritrea, and other sub-Saharan African countries, who travel to Europe fleeing persecution or in search of a better life. Many have fled violence and conflict, and almost all have made an arduous journey, taking months to cross the Sahara and travel north through Libya. The last stage of that journey is a perilous, multi-day trip across the Mediterranean, typically in overcrowded vessels that are not seaworthy, and without enough food, water, or fuel, before they reach Maltese shores or are intercepted at sea by the Armed Forces of Malta.

Boat migrants arriving in Malta are taken straight to detention if they lack an entry visa (as they virtually all do). This report addresses their arbitrary, indiscriminate, and unfair detention. The report focuses on those who arrive in Malta by boat, as migrants who arrive in Malta by air for the most part are not detained, even if they enter under false pretenses or subsequently claim asylum. Asylum seekers who arrive by boat are detained for up to 12 months, and migrants who do not apply for asylum, or whose asylum claims are rejected, can be detained for up to 18 months. Under international law migrants who do not have permission to enter or stay in a country may be subject to detention, in certain circumstances, and also may be subject to safeguards. However in Malta, the detention policy operates in an automated, indiscriminate, and blanket manner in violation of international law.

In the course of this virtually automated detention policy, Malta routinely detains unaccompanied migrant children whose age is in question. “Unaccompanied children” are migrants under the age of 18 (typically between 14 and 17) who travel without parents or caregivers. Migrants who claim to be unaccompanied children go through an age determination procedure, which relies on interviews and occasional medical testing to establish age. In 2007 and 2008, for example, around 400 children each year arrived in Malta claiming to be unaccompanied.[1] While they register for and undergo the age determination procedure, Malta keeps these children in detention.

Whereas most children who arrive with their families are quickly moved from detention facilities to open centers, unaccompanied migrant children are detained for longer periods.

Malta detains even the most vulnerable migrants. Families with children, elderly people, and people with mental or physical disabilities, are taken to detention, though most are released before the 12 or 18 month time limit.

Unaccompanied migrant children are detained for the duration of their age determination procedure, which can take weeks or months. Among those we interviewed detained between 2008 and 2012 who Malta ultimately determined to be children, the average time in detention was 3.4 months, and the maximum time 7 months. Those who are found to be under 18 are then accommodated in group homes outside detention centers.

Malta applies a very low threshold for determining that an individual should enter the age determination process: anyone who is not “visibly” a child (an ad-hoc cut-off seemingly around 12 or 14 years of age) is detained. During detention, children live and sleep with adults, without any special accommodation for their young age and without access to education. A 15-year-old boy, who was detained with adults and visibly scared when interviewed, said, “It’s very difficult to live here at Safi [a detention facility]. I’m afraid to live where people might hit me … I don’t have anyone to take care of me.”[2]

While Malta justifies its prolonged detention of migrants as a legitimate response to irregular entry, the practice amounts to arbitrary detention prohibited by international law. Prolonged administrative custody, without the possibility of meaningful review, violates the prohibition on arbitrary detention in article 9 of the International Covenant on Civil and Political Rights, and the European Court of Human Rights has found Malta’s detention policy to violate the European Convention’s provisions on the right to liberty. Children enjoy particular protection under the law: in principle, migrant children should not be detained, and where they are detained it must be as a last resort for the shortest appropriate period of time.

Malta’s detention facilities can become overcrowded and unsanitary, though they have improved in recent years. Nonetheless, prolonged detention takes a huge mental toll on migrants, and children especially may experience declining mental health. For example, Kelile T., who reported that he was 17 years old when he arrived in Malta in 2011, was detained for nine months before he was hospitalized for 15 days for mental health treatment, and then returned to detention. He described his experience in detention: “I take medicine now, for sleep. No medicine, I can't sleep … my mind is no good, it is very hard.… I can't, I can't ... this is a hard place. I need a free place.”[3]

Flawed Maltese and European Migration Policies

Malta’s detention policy is part of flawed approaches to migration, both by Malta itself and by the European Union (EU). The central Mediterranean migration route—typically from Libya to Malta or Italy—is a major entrance point to the EU. Since 2002, approximately 15,000 migrants have reached Malta by this route, some intentionally, many by mistake as they stumble across the small island country while hoping to reach Italy. While the number of migrants arriving in Malta is low in absolute terms, Malta now has the highest number of asylum seekers relative to the national population of any country in the industrialized world. Malta, a country of only 400,000 people, received 20.1 asylum seekers per 1,000 inhabitants in the years 2007-2011, whereas France, the EU member state receiving the largest number of asylum seekers in absolute terms in 2011, received about 3 per 1,000.

Although migrants have been traveling this migration route—in higher or lower numbers—for some ten years, neither Malta nor the EU has developed a sound policy that either respects migrants’ human rights or that addresses the high burden placed on Malta. EU asylum rules mean that member states at EU borders sometimes are forced to assume responsibility for a vastly disproportionate share of migrants and asylum seekers. The Dublin II regulation, promulgated in 2003, mandates that an individual’s asylum application must be processed in the country where the individual first entered the EU. This places an unfair burden on Malta, which must process these asylum applications in-country and which is obliged to accept the return of any asylum seekers whose first port of entry in the EU was Malta.

The EU has taken some steps towards mitigating this burden, for instance by relocating recognized refugees from Malta to other EU states and providing limited financial support. But these steps have been insufficient to assist Malta in meeting migrants’ needs. The case of Malta, like that of Greece, shows the need to revise the Dublin II regulation to permit greater burden sharing in processing and hosting asylum seekers, rather than insisting on the country of first arrival as the primary factor in assessing member state responsibility.

Malta’s arbitrary detention policy, in addition to violating international standards, does not work to deter migrants from landing on its shores. Migrants may not intend to travel to Malta, and indeed the boats in which they travel lack navigational equipment that would enable them to choose their destination. Some migrants Human Rights Watch spoke with said they did not even know that Malta existed as a country before they landed there.

Though Malta’s burden is disproportionately large, detention is neither a legal nor a sound response to boat migration in the central Mediterranean. Both Malta and the EU should enact new policies to respond to their legal obligations to uphold migrants’ rights.

  • Malta should allow detention of migrants only in exceptional circumstances, with individualized determinations, and access to procedures to challenge detention.
  • Malta should treat those who claim to be children as such pending the outcome of age determination proceedings, and release all those with pending claims from detention.
  • The EU should reform the Dublin system by having the Dublin regulation take into account equitable burden-sharing among member countries.

 

[1]European Migration Network (Maltese National Contact Point), “Unaccompanied Minors in Malta: Their Numbers and the Policies and Arrangements for their Reception, Return and Integration,” Valetta, Malta, May 2009, http://www.mjha.gov.mt/MediaCenter/PDFs/1_EMN-Unaccompanied%20Minors%20Study%20FINAL%20VERSION%20(c).pdf (accessed July 6, 2012), p. 13 (relying on data from the government Agency for the Welfare of Asylum Seekers).

[2] Human Rights Watch interview with Amr S., Safi, Malta, April 30, 2012.

[3] Human Rights Watch interview with Kelile T., Safi, Malta, March 3, 2012.