July 18, 2012

Recommendations

To the Government of Malta

  • Revise laws and policies pertaining to immigration detention, so that migrants are not detained simply because they have entered without permission.
    • Allow for detention of asylum seekers only exceptionally;
    • Give migrants access to a remedy whereby they can effectively challenge their detention, in line with standards laid out by the European Court of Human Rights, and ensure that these mechanisms are accessible for children and persons with disabilities;
    • Issue official paperwork to start deportation only at the conclusion of due process proceedings to determine removability and after claims for protection or other claims against removal have been considered;
    • Detain those with pending removal orders only where proceedings to that end are underway and are being pursued with due diligence.
  • Bring policies on detention in line with standards articulated by the Council of Europe and the European Convention on Human Rights. Namely:
    • Execute fully, effectively, and immediately the judgment of the European Court of Human Rights in Louled Massoud v. Malta, which found that detention of Khaled Louled Massoud was arbitrary and in violation of the European Convention;
    • Give full effect to the Council of Europe Parliamentary Assembly Resolution 1707 (2010) “Detention of asylum seekers and irregular migrants in Europe,” in particular by using alternatives to detention wherever possible.
  • End the unnecessary detention of unaccompanied migrant children.
    • Amend legislation to prohibit the immigration detention of migrant children (pending age determination) for the sole reason that they arrived irregularly;
    • In the interim period while detention continues, use separate detention facilities for those with pending age determination requests;
    • Change the legal framework of migrant detention so that children detained pending age determination may effectively challenge their detention without waiting for the conclusion of the age determination process.

To the Ministry of Home and Parliamentary Affairs

  • Detain migrants, including asylum seekers, only in accordance with a procedure prescribed by law. Detention should occur only if, after a review of all alternatives, it is concluded that in the specific case there is no effective alternative.
    • Explore the use of open centers as an effective alternative to detention; ensure that open centers are accessible to people with physical disabilities.
  • Refrain from detaining potentially vulnerable migrants upon arrival in Malta. Ensure rapid identification and release of vulnerable migrants.
    • Accelerate and improve process for identifying vulnerable people immediately upon arrival, and transfer them to open facilities rather than detention.
    •  Include screening for mental and physical disabilities as part of initial screening procedures for all migrants.
  • Reform the age determination procedure to treat applicants who claim to be children as under age until proven otherwise.
    • Release those with pending cases to alternate accommodation, such as an open living facility, until age determination is completed.
  • Take all practical steps to reduce the time of age determination proceedings, including by:
    • Supporting the Agency for the Welfare of Asylum Seekers (AWAS) with additional capacity during peak seasons; and
    • Encouraging faster processing of medical testing.
  • Provide for administrative or judicial appeal of age determination decisions.
  • Provide unaccompanied children with free legal representation to challenge the legality of their detention (when they are detained) and to assist with asylum applications.

To the Malta Police, Immigration Section

  • Refrain from detaining potentially vulnerable migrants upon arrival in Malta.
  • Instruct arresting officers and all others with routine contact with migrants to heed migrants’ claims that they are children, increase efforts to identify those who might be children, and refer both categories to age determination in a speedy time frame.

To the Detention Services

  • Strengthen contingency plans to avert overcrowding and consequent deterioration of conditions during peak migration periods.
  • Improve training of detention officers to enable them identify detainees exhibiting mental health problems, and improve available mental health services in detention, based on the principle of informed consent.
  • Inform migrants of the availability and the process for the age determination procedure, including information on anticipated timing of the procedure and process for appeal.
  • Until such time as children pending age determination are no longer detained as a matter of policy, instruct detention staff and all others with routine contact with migrants to heed migrants’ claims that they are children, increase efforts to identify those who might be children, and refer both categories to age determination within a speedy time frame.
  • Where children remain in detention pending age determination, provide separate accommodation from adults specifically designed to meet children’s needs.

To the Agency for the Welfare of Asylum Seekers

  • Further embrace best practices for age determination:
    • Provisionally treat those claiming to be under 18 as children until age determination is completed.
    • Refrain from using radiological examinations, in light of strong medical and ethical considerations discouraging their use. In the limited instances where medical tests are carried out, rely instead on non-intrusive and non-invasive examinations including non-radiological methods of imaging bone density and dental observation; and anthropometric measuring. 
    • Speed up age determination, including by reducing time for medical testing.
    • If doubts remain that the person is underage, grant the benefit of the doubt.
    • Provide for administrative or judicial appeal of age determination decisions.
  • Inform migrants of the availability of and steps for the age determination procedure, including instructions on the process for appeal.
  • Ensure rapid identification and release of vulnerable migrants.
    • Accelerate and improve process for identifying vulnerable people immediately upon arrival, and transfer them to open facilities rather than detention.
    • Include more comprehensive screening process for mental and physical disabilities as part of initial screening procedures for all migrants.

To the Office of the Refugee Commissioner

  • Provide unaccompanied children with free legal representation in all stages of asylum proceedings.

To the European Union

  • Provide financial, material, and logistical assistance to Malta for the reception and processing of migrants and asylum seekers.
    • Broaden intra-EU relocation of recognized refugees and other migrants with protection status from Malta.
    • Permit greater family reunification in other parts of the EU of recognized refugees and other migrants with protection status in Malta, particularly with wider family relations for unaccompanied migrant children.
    • After a lawful deportation order has been issued following due process and the exhaustion of legal remedies, and after voluntary repatriation has been offered, and, in the case of children, a best-interests-of-the-child determination has been made, assist Malta through the European Return Fund in facilitating voluntary and dignified return and reintegration of migrants who do not have a protection need and who can be safely returned to their home countries, for example, by providing diplomatic assistance with countries of origin to procure travel documents, and financial and logistical assistance to carry out removals.
  • Reform the Dublin system by having the Dublin regulation take into account equitable burden-sharing among member countries that genuinely have common asylum standards and procedures by, for example, consideration of joint EU processing within EU countries for specific caseloads.
  • In assessing the state responsible for examining asylum claims, accord less weight than under the current Dublin regulation to the country of first arrival. Alternative considerations might go beyond the qualifying family relationships in the Dublin II regulation to include wider family relations (especially for unaccompanied migrant children), community ties, prior residence, language, job skills that might be in demand in one country over another, and personal preference of the applicant.
  • Invest in programs in countries of origin in order to address the root causes that compel children to undertake dangerous journeys and educate them and their parents on the risks of those journeys.