July 18, 2012

II. Automatic, Arbitrary Detention

Malta detains virtually every migrant who arrives by boat for up 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). However there is no evident justification for this prolonged detention, and during their detention migrants have no meaningful opportunity for judicial review in order to require the state to show such justification. Detention is more costly than alternative reception arrangements for migrants, and does not work as a mechanism for deterring migrants from travel to Malta. Remaining in detention can seriously impact the mental health of migrants, many of whom are fleeing persecution, violence, or exploitation.

Malta’s policy of prolonged, automatic immigration detention—without any meaningful possibility of judicial review or remedy—amounts to 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.”[63]The Working Group’s mandate to investigate arbitrary deprivation of liberty refers to five legal categories for arbitrary detention, including one describing arbitrary detention as “[w]hen asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy.”[64] In addition to going against these standards, Malta’s practices also violate the prohibition of arbitrary detention in the European Convention on Human Rights (ECHR).[65]

Malta operates three primary immigration detention facilities[66] and a number of “open” (non-custodial) reception centers. Several open centers house adult migrants and migrants in families after their release from detention.[67] Two open centers are specifically for unaccompanied children who have been screened and determined to be under 18.[68]

Taken from Boats to Prolonged Detention

When boat migrants reach Malta, they are transferred to the Malta Police, Immigration Section, which is responsible for border control.[69] The Immigration Section collects a list of basic biographical data of those on the boat and attempts to identify vulnerable migrants such as young children, people with disabilities, or people who are sick.

Maltese law mandates that a person who enters the country without “right of entry” shall be designated a “prohibited immigrant” and may be issued with a removal order.[70] Although the issuance of the removal order is discretionary, in practice the police routinely issue such orders at the time of apprehension and the migrants are taken to detention.[71] The law mandates that prohibited immigrants “shall be detained in custody” once the removal order is issued “until he is removed from Malta.”[72] At least initially, detention is imposed indiscriminately on all migrants who arrive by boat, including vulnerable migrants (though many vulnerable migrants are released earlier than others).

Essentially, migrants are taken from their hazardous journeys at sea straight to detention.

For example, Chris K., a Nigerian migrant who said he was 17 years old when he came to Malta, reported, “When I arrived, what happened is like with every other immigrant, they took me to detention and I spent nearly 10 months there before I got my freedom.”[73] Dennis M., from Ghana, described his transition from a boat at sea to detention: “The police came out to sea to get us. They asked about our documents, we don't have any documents. They took us to Safi [detention facility] the same day, and we stayed for one year.”[74]

Once in detention, migrants attend an information session on the asylum process run by the Office of the Refugee Commissioner, and are then requested to fill out a preliminary questionnaire.[75] The Maltese Immigration Act does not establish a maximum duration for administrative detention, of which immigration detention is a form. However, since 2005 the Maltese authorities have capped detention at 12 months for asylum seekers and at 18 months for those who have not applied for asylum or whose asylum claims have been rejected in the first and second instances.[76] If a migrant’s asylum claim is granted before the expiration of the 12-month period, that migrant is released.

While the migrants and asylum seekers are not housed in criminal prisons, many who spoke to Human Rights Watch said that immigration detention inherently feels like a criminal punishment. Hakim A., who arrived in Malta from Eritrea in 2011, observed that he “felt like an animal in detention … detention is like prison.”[77] Zerihun A., from Ethiopia, stated “We were just looking for a better life. Detention felt like Guantanamo.”[78]

In July 2010, the European Court of Human Rights found that Malta’s detention of an Algerian asylum seeker, Khaleed Louled Massoud, violated the right to liberty found in the European Convention on Human Rights.[79] Among the arguments underscoring the court’s ruling was the notion that the 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.[80]

As a party to the ECHR, Malta is legally bound to implement the judgment of the European Court of Human Rights. However, Malta has argued that this ruling applies only to the situation of Louled Massoud himself, as “the facts of this case were very particular,” in part because of the length of detention to which Louled was subject.[81] However, the then Commissioner for Human Rights for the Council of Europe asserted that “the general principles enunciated by the Court [in the Louled Massoud 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.”[82] The Commissioner stated that Malta’s policy of mandatory and prolonged administrative detention is “irreconcilable with the requirements of the European Convention on Human Rights (ECHR) and the case-law of the Strasbourg Court, especially following the latter’s July 2010 judgment in the case of Louled Massoud.”[83]

Lack of Capacity to Challenge Detention

While very limited paths are available to challenge detention in Malta, these are insufficient to cover migrants’ needs or fulfill 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.[84] However, the Appeals Board may not authorize release when the identity of the applicant has yet to be established (for instance, when the applicant does not have travel or identification documents, as in the case of most boat migrants reaching Malta).[85] This limited appeal is not sufficient to meet international standards: in Louled v. 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.[86]

None of the migrants interviewed by Human Rights Watch said they had access to legal proceedings to challenge their detention. For instance, Ali, from Somalia, said, “In prison, you have no lawyer, no rights.”[87] According to the European Court of Human Rights in Louled v. Malta, the Maltese legal system lacks the necessary “effective and speedy remedy” for challenging the lawfulness of the applicant’s detention.[88] The court found that none of the remedies available to migrants[89] were sufficient, leading to a violation of the right to liberty as set out in the European Convention on Human Rights.[90]

Inadequate Justification for Detention

Malta detains migrants for entering the country without “right of entry,” in other words not at a port of entry and without the necessary documents.[91] 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.”[92]

Under these guidelines, detention of asylum seekers may be permissible in order to verify identity (where identity is undetermined or in dispute); determine the elements of the refugee claim (but not to justify detention for the entire status determination procedure); in cases where asylum seekers have destroyed documents (requiring an intention to mislead authorities); or to protect national security and public order.[93]Malta’s automatic extended detention policy does not fit with any of these exceptional cases. In particular, the policy of detention is not a proportionate response to 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).[94]

The Maltese authorities have indicated that the detention policy exists in part to deter migrants from coming to Malta.[95] However, it is not an effective deterrent for migrants making the dangerous boat journey from Libya. Factors such as poorly-constructed vessels, engine malfunction, and lack of navigation equipment cause many migrants to arrive in Malta unintentionally. Berhane commented, “In these small boats you can’t plan your journey.”[96] Nonetheless, he was relieved to reach Malta, saying, “I wouldn’t get back in the boats, the risk. I was so happy to land safely.”[97]

Most migrants Human Rights Watch interviewed did not know about Malta’s detention policy prior to arriving there. For instance, Ghedi H. said he was 17 when he arrived in Malta from Somalia: “I was surprised ... I was going in detention, some people told me. I thought when we go to Europe we will get freedom.”[98] Berhane said, “My expectation was that I would come here, apply for asylum and be safe. I didn't expect to be in detention ... I don't understand what benefit this will bring to Malta.”[99] Some migrants pointed out that even if they knew there was a detention policy in Malta, their need to flee dangers they faced meant they would have come anyway. For instance, Labaan X., a Somali boy who came to Malta at age 15, stated:

I didn't know Malta existed as a country. I thought it was part of Italia. I didn't have a choice of where to go. I didn't know about detention, I'd never heard of that. But if I had known, I still had to come. My country, and Libya, I couldn't stay there.[100]

Detention without Realistic Prospect of Removal

When a migrant fails to gain asylum or another form of protective status by the end of the initial 12-month detention period, Malta then detains that person for an additional 6 months (for a maximum of 18 months in total), ostensibly in order to remove the person to their country of origin.[101] In reality, Malta cannot return most of these migrants to their countries of origin and simply releases them after 18 months. This policy appears more designed to punish migrants rather than to effectuate their removal.

Cherif M., a Chadian migrant who said he was 17 when he entered Malta, but who was not recognized as a minor under Malta’s age determination procedure, said he was feeling the toll of extended detention: “If it were to be a month, two months, OK. But now it's getting to 14 months, it's a problem…. I was in a school before [in Libya], but now in a locked up place like this, it's not OK.”[102] Edgard O., an Ivorian, said he was rejected from asylum at the first instance and on appeal: “I went to the interview, told them everything, and I got two rejects … I had been there for one year.”[103] Edgard remained in immigration detention for the additional six months of detention applicable to rejected asylum seekers. He asked, “I'm going to spend another six months here, and for what?”[104]

While Malta has transcribed portions of the EU’s 2008 Returns Directive into law,[105] its detention practices pending removal violate EU standards. The 2008 Returns Directive, which is binding on Malta, permits member states to detain irregular migrants for up to six more months pending removal in limited circumstances, for instance, when “there is a risk of absconding,” or the migrant “avoids or hampers the preparation of return or the removal process,” with the option of detaining the person for another 12 months if the detainee or his or her home government does not cooperate in the removal operation.[106] Such conditions necessarily require individualized determinations, rather than blanket detention as is seen in Malta. Moreover, it is not evident why in a country the size of Malta, migrants actually subject to removal could not be detained immediately prior to removal rather than held for an arbitrary maximum period and then released. Further, the Returns Directive specifically requires the member state to provide for “speedy judicial review” of such detention, which Malta does not.[107]

Malta fails to fulfill the requirement for reasonable prospects of removal. Detention may “only be maintained as long as removal arrangements are in progress,”[108] and “when it appears that a reasonable prospect of removal no longer exists … detention ceases to be justified.”[109]Returning migrants to their country of origin can be difficult in the best of circumstances, and especially complicated in cases where migrants have no documentation. Malta faces additional obstacles due to the tiny size of its government and its limited bilateral relationships with the countries of origin of many migrants.

Inadequate Procedures for Identification of Vulnerable Migrants

Vulnerable migrants, including the elderly, unaccompanied children, families with children, and migrants with mental[110] or physical disabilities, are also subject to mandatory detention upon arrival in Malta.[111] It is possible for vulnerable migrants to identify themselves and gain release before the 12 or 18-month period has expired.[112] However, in the course of screening incoming migrants, no procedures ensure that all vulnerable migrants are identified; some of the most vulnerable are also those who are unable to self-identify to a medical practitioner visiting the detention centers. Even with self-identification, the procedures for release can be ad-hoc and rely on AWAS finding alternative accommodation outside of detention centers. People with mental or physical disabilities can also be released, but the procedure for identifying them can be ad-hoc.

Unaccompanied migrant children, who are initially detained pending an age determination procedure if they appear over age 12 approximately, are released once that age determination has been made and transferred to group homes (see Section III, below).

Though families with children are typically released within a short period, even a short time can be difficult. Nyesom A., a Nigerian woman who arrived in Malta in 2011 after her husband died during the journey through Libya, told Human Rights Watch: “I was in detention for two weeks with my twin girls [who were six months old at the time], I had no option.”[113] Families are detained together in units segregated from single migrants; if a woman is found to be pregnant or becomes pregnant in detention, the family is released.[114]

Maintaining a presumption of liberty when migrants and asylum seekers arrive by boat would prevent the detention for weeks or months of families, children, and those with mental or physical disabilities. Nonetheless, the Maltese government asserts that detention furthers the public policy objective of identifying vulnerable migrants and facilitating their care, arguing that without detention vulnerable migrants might “abscond the island or ‘get lost’ in the country” and “would be open to abuse and exploitation.”[115] There are better methods of protecting vulnerable migrants other than detention, such as through the provision of adequate social services to migrants in open shelters.

Detention Conditions and Impact on Mental Health

While Malta has taken steps to improve conditions in detention centers in the last two years, the very fact of remaining in detention contributes to declining mental health. In addition, gains made in detention conditions could be eroded if new arrivals result in overcrowding. Malta operates three primary immigration detention facilities,[116]with varying conditions. Safi Warehouse has 200-300 beds in an open space divided only by partitions, with bunk beds. Safi B-Block and Lyster Barracks both have rooms of 16-30 beds, also in bunks. Single men and women are housed separately, as are married couples.

A report from the International Commission for Jurists (ICJ), based on research from a visit in September 2011 when the facilities were relatively crowded, documented dirty and inadequate sanitation conditions in Safi Barracks. [117] During our visits in April and May 2012, each facility had sanitation and hygiene facilities that seem adequate on the surface, though may decline in quality during times of overcrowding. Each facility also has outdoor recreation areas, though at Lyster Barracks access to the recreation area is time-limited and on a rota for different parts of the population, with men always able to look down on women when the women are outside. None of the facilities are fully accessible for people with disabilities.

In 2009, two thirds of the facilities exceeding the maximum density recommended for refugee camps in emergencies.[118] Médecins Sans Frontières documented corresponding problems in adequacy of shelter, hygiene, and sanitation.[119] In 2010, when there was a lull in incoming migrants, the Maltese authorities were able to conduct renovations.[120] However, the risk of overcrowding remains. The ICJ report, commenting on a September 2011 visit, documented further overcrowding, in both Safi Barracks facilities in particular, noting the lack of space for “even a minimal level of privacy.”[121]One way to avoid deterioration in detention conditions would be to end the policy of mandatory detention.

ICJ further notes that the location of detention sites within military facilities conflicts with the underlying purpose of detention (to prevent unlawful entry) and therefore may violate the ECHR; ICJ calls on guidance from the Committee for the Prevention of Torture to argue that “detained migrants should be held in specifically designed centers in conditions tailored to their legal status and catering for their particular needs.”[122]

Deteriorating Mental Health

Even without overcrowding, prolonged detention—especially for no clear reason—can have a devastating effect on migrants’ and asylum seekers’ mental health. The respected medical journal The Lancet has published research finding that lengthy asylum detention in the United States correlates with higher rates of post traumatic stress disorder, anxiety, and depression, and that detention exacerbates pre-existing symptoms, including mental trauma sustained while fleeing torture or persecution.[123] According to medical experts in the United Kingdom, children held in immigration centers developed “clinically significant emotional and behavioral problems since being detained.”[124] Drawing on an extensive study from Australia’s Human Rights and Equal Opportunities Commission, the International Detention Coalition finds that:

Children who are detained for immigration purposes are at risk of a variety of psychosocial and developmental problems linked to their detention experiences … The experience of detention may mimic the experience of human rights abuses, persecution and terror.… Children and young people who are detained for extended periods of time are more likely than others to experience feelings of isolation, detachment, and loss of confidence.[125]

Lengthy detention caused anxiety for many interviewees in Malta. Dennis M. said, “I spent one year in detention. They didn't free me for one year.… Every day you're not happy. There are people being sent home every day, so I am tense.”[126]The uncertainty of waiting in detention can be difficult. Aminata H., from Ivory Coast, said, “Detention is not easy. After a year, they have told us nothing, whether they are going to repatriate us or not.”[127]

Interviewees asserted that detention caused their overall mental state to deteriorate. Maka, who said he was detained for 10 months, said, “Hal Far [Hermes Block] was very bad. I was going crazy in that place. It was not good for my head.”[128] Aatifa T., who had spent 14 months in detention when we interviewed her, said, “When inside, your mind is always closed. We can't open our mind to new things.… For your brain this is not good.”[129] Hakim, from Eritrea, observed, "Many who spent time in detention, we don't want to talk about it," adding that the trauma makes it “very difficult to keep [one’s] head straight.”[130] Celeste said, “The issues, they are from detention. When you get out, you are cured.”[131]

Many of the migrants and asylum seekers arriving in Malta experienced trauma before fleeing their home countries. Others experienced traumatic events during their often months-long migration across the Sahara, through Libya, and over the Mediterranean in unseaworthy boats. In addition to having its own negative effects on mental health, prolonged detention can exacerbate that prior trauma.

The arbitrary nature of the detention and the lack of clarity around procedures for liberty can exacerbate mental distress. Ali Konate, a migrant community leader, told Human Rights Watch: "I see many mental problems. People despair because they don't understand what is going on, they are rejected, etcetera."[132]

Many people in detention become depressed.[133] Amina A., from Somalia, was detained at Hermes Block when Human Rights Watch interviewed her: “I went to a mental institution for 14 days because every day I cried, I was more depressed. That’s where I had the miscarriage.… [Now, back in detention] I take sleeping pills every night.”[134] Malta provides some access to mental health care for those in detention, including stays in a psychiatric hospital, but this does not address the underlying connection between detention and deterioration in mental health.

Medhane E., an Eritrean migrant who has sought help from medical staff, said, “I have thought of hurting myself ... pouring gas over myself and lighting on fire.”[135] Kelile T., who reported he was 17 years old when he arrived in Malta in 2011, and who was detained at Safi when Human Rights Watch interviewed him, spent 15 days in a mental health facility. He said, “I hate my life. These people, all big, big, not same as me. This is prison … 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.”[136]

 

[63] The International Covenant on Civil and Political Rights, General Assembly resolution 2200A (XXI)of December 16,1966, entry into force March 23,1976. Malta acceded to the ICCPR on September 13, 1990. In 1999, the UN Working Group on Arbitrary Detention developed criteria for determining whether the deprivation of liberty of migrants and asylum seekers is arbitrary. The principles mandate that a migrant or asylum seeker placed in custody "must be brought promptly before a judge or other authority," and that decisions regarding detention must be founded on criteria established by law. Moreover, migrants and asylum seekers in detention must be notified in writing—in a language they understand—of the grounds for detention and that remedy may be sought from a judicial authority empowered to decide promptly on the lawfulness of detention and to order release if appropriate. UN Commission on Human Rights, Report of the Working Group on Arbitrary Detention, E/CN.4/2000/4, December 28, 1999, Annex II, Deliberation No. 5, “Situation Regarding Immigrants and Asylum Seekers.”

[64] Report of the Working Group on Arbitrary Detention, Annex III, para. 8(d), January 17, 2011, http://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A-HRC-16-47.pdf, (accessed May 9, 2012).

[65] Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No.: 005, Rome November 4, 1950. Malta has been a party to the Convention since 1967.

[66] Malta has used a number of detention facilities over time, and has moved groups of migrants between the facilities depending on how many boats are arriving. At the time of Human Rights Watch’s most recent visit in April - May 2012, there were three occupied detention facilities: Hermes Block, within the Armed Forces of Malta facility at Lyster Barracks, in Hal Far (consisting of five “zones” housing different groups of migrants including single men, single women, and families); Safi Warehouse (housing single men); and Safi B Block (housing single men). Both Safi Warehouse and Safi B Block are within the Armed Forces of Malta facility at Safi.

[67] The primary “open centers” in use at the time of Human Rights Watch’s most recent visit in April - May 2012 were: the Marsa Open Center, in Marsa (housing single men); and four centers in Hal Far: Hal Far Tent Village, Hangar Open Center, Hal Far Reception Center (housing primarily single women), and Hal Far Families Open Center (housing families). All of the Hal Far centers are run by the government Agency for the Welfare of Asylum Seekers, while the Marsa center is run by an NGO, Fondazzjoni Suret il-Bniedem, relying on government funding. There is also a small open center at Balzan, run by the Good Shepard Sisters, a Catholic charity, and several other small facilities.

[68] These facilities are called Dar il-Liedna, in Furga, Malta, and Dar is-Sliem, in Sta Venera, Malta.

[69] Government of Malta, Malta Police Special Branch – Immigration Section, http://www.gdisc.org/index.php?id=187&no_cache=1&tx_gdiscdb_pi3%5BshowUid%5D=28 (accessed May 9, 2012).

[70] Immigration Act, Cap 217 Laws of Malta, arts. 5(1) and 14(2).

[71] Human Rights Watch interview with Supt. Sandro Zarb, International Relations Unit and Supt. Neville Xuereb, Immigration Department, Malta Police, Floriana, Malta, May 1, 2012.

[72] Immigration Act, art. 14(2).

[73] Human Rights Watch interview with Chris K., Marsa, Malta, April 25, 2012.

[74] Human Rights Watch interview with Dennis M., Hal Far, Malta, April 24, 2012.

[75] Human Rights Watch interview with Mario Friggieri, Refugee Commissioner, Valetta, Malta, March 15, 2012.

[76] Council of Europe, Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Malta from 23 to 25 March 2011, CommDH (2011) 17, June 9, 2011, para. 11.

[77] Human Rights Watch interview with Hakim A., Marsa, Malta, March 13, 2012.

[78] Human Rights Watch interview with Zerihun A., Hal Far, Malta, March 16, 2012.

[79]ECHR, Louled Massoud v. Malta.

[80] ECHR, Louled Massoud v. Malta, paras. 71-74.

[81] Reply by the Government of Malta to the report by the Commissioner for Human Rights of the Council of Europe, June 9, 2011, section on Louled Massoud v. Malta, p. 3, http://www.mjha.gov.mt/MediaCenter/PDFs/1_Hammarberg%20Govt%20Reply.pdf (accessed May 9, 2012).

[82] Council of Europe, Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Malta from 23 to 25 March 2011, CommDH (2011) 17, June 9, 2011, para. 13.

[83] Council of Europe, Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Malta from 23 to 25 March 2011, CommDH (2011) 17, June 9, 2011, para. 11. Summary.

[84] Immigration Act, art. 25A.

[85] Immigration Act, art. 25A.

[86] ECHR, Louled Massoud v. Malta.

[87] Human Rights Watch interview with Ali M., Marsa, Malta, March 13, 2012.

[88] ECHR, Louled Massoud v. Malta, para. 46.

[89] As provided by art. 409A of the Criminal Code, art. 25A of the Immigration Act, and the Constitution of Malta.

[90] ECHR, Louled Massoud v. Malta, para. 61.

[91] Immigration Act, arts. Cap 217 Laws of Malta, article 5(1) and article 14(2).

[92] Office of the United Nations High Commissioner for Refugees, “UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers,” February 1999, para. 3.

[93] Office of the United Nations High Commissioner for Refugees, “UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers,” February 1999, Guideline 3.

[94] Article 5(1)(f) of the European Convention for the Protection of Human Rights states that “the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition” is justifiable only “in accordance with a procedure prescribed by law.” In Louled v. Malta the European Court found that Malta fails to provide such a procedure. ECHR, Louled Massoud v. Malta, para. 46.

[95] “During a meeting with the Commissioner in Valletta, the Maltese authorities stated that the policy of mandatory detention is considered necessary for a number of reasons, including to ensure public order, facilitate the orderly carrying out of the relative procedures and repatriation, and also to act as a deterrent to those who would abuse the system.” Council of Europe, Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Malta from 23 to 25 March 2011, CommDH (2011) 17, June 9, 2011, para. 11.

[96] Human Rights Watch interview with Berhane K., Birkirkara, Malta, March 1, 2012.

[97] Human Rights Watch interview with Berhane K., Birkirkara, Malta, March 1, 2012.

[98] Human Rights Watch interview with Ghedi H., Valetta, Malta, April 27, 2012.

[99] Human Rights Watch interview with Berhane K., Birkirkara, Malta, March 1, 2012.

[100] Human Rights Watch interview with Labaan X., Marsa, March 13, 2012.

[101] Republic of Malta, “Irregular Immigrants, Refugees, and Integration: Policy Document,” 2005, p. 8.

[102] Human Rights Watch interview with Cherif M., Safi, Malta, May 3, 2012.

[103] Human Rights Watch interview with Edgard O., Safi, Malta, April 30, 2012.

[104] Human Rights Watch interview with Edgard O., Safi, Malta, April 30, 2012.

[105] “Part IV of Subsidiary Legislation no. 217.12 incorporates in Maltese Law most of the guarantees of procedural protection for migrants provided for by the EU Return Directive.” International Commission of Jurists, “Not Here to Stay: Report of the International Commission of Jurists on its Visit to Malta on 26-30 September, 2011,” May 2012, http://documents.icj.org/ICJMaltaMissionReport-Final.pdf (accessed June 6, 2012), p. 13.

[106] “Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals” (Return Directive), art. 15.

[107] Returns Directive, art. 15, para. 2.

[108] Returns Directive, art. 15, para. 1.

[109] Returns Directive, art. 15, para. 4.

[110] In this report, mental disability refers to mental health problems such as depression, bipolar disorder, and schizophrenia. Persons with mental health problems also refer to themselves as having psychosocial disabilities, a term that reflects the interaction between psychological differences and social/cultural limits for behavior as well as the stigma that the society attaches to persons with mental impairments. World Network of Users and Survivors of Psychiatry, Manual on Implementation of the Convention on the Rights of Persons with Disabilities, p. 9 http://www.chrusp.org/home/resources (accessed July 7, 2010).

[111] Council of Europe, Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Malta from 23 to 25 March 2011, CommDH (2011) 17, June 9, 2011, para. 11.

[112] “Irregular immigrants who, by virtue of their age and/or physical condition, are considered to be vulnerable are exempt from detention and are accommodated in alternative centres.” Republic of Malta, “Irregular Immigrants, Refugees, and Integration: Policy Document,” 2005, p. 11.

[113] Human Rights Watch interview with Success, Valetta, March 15, 2012.

[114] Human Rights Watch interview with NGO staff member, Birkirkara, Malta, March 13, 2012.

[115] Reply by the Government of Malta to the report by the Commissioner for Human Rights of the Council of Europe, June 2011, section on Louled, http://www.mjha.gov.mt/MediaCenter/PDFs/1_Hammarberg%20Govt%20Reply.pdf (accessed May 9, 2012).

[116] Malta has used a number of detention facilities over time, and has moved groups of migrants between the facilities depending on how many boats are arriving. At the time of Human Rights Watch’s most recent visit in April - May 2012, there were three occupied detention facilities: Hermes Block, within the Armed Forces of Malta facility at Lyster Barracks, in Hal Far (consisting of five “zones” housing different groups of migrants including single men, single women, and families); Safi Warehouse (housing single men); and Safi B Block (housing single men). Both Safi Warehouse and Safi B Block are within the Armed Forces of Malta facility at Safi.

[117] International Commission of Jurists, “Not Here to Stay: Report of the International Commission of Jurists on its Visit to Malta on 26-30 September, 2011,” May 2012, http://documents.icj.org/ICJMaltaMissionReport-Final.pdf (accessed June 6, 2012), p. 29.

[118] Médecins Sans Frontières, “Not Criminals: Médecins Sans Frontières Exposes Conditions for Undocumented Migrants and Asylum Seekers in Maltese Detention Centers,” 2009, pp. 8-10.

[119] Ibid., pp. 8-12.

[120] Human Rights Watch interview with Lt. Col. Brian Gatt, Commander Detention Service, Ministry for Justice and Home Affairs, Safi Barracks, Safi, Malta, April 26, 2012.

[121] International Commission of Jurists, “Not Here to Stay: Report of the International Commission of Jurists on its Visit to Malta on 26-30 September, 2011,” May 2012, http://documents.icj.org/ICJMaltaMissionReport-Final.pdf (accessed June 6, 2012), p. 29.

[122] International Commission of Jurists, “Not Here to Stay: Report of the International Commission of Jurists on its Visit to Malta on 26-30 September, 2011,” May 2012, http://documents.icj.org/ICJMaltaMissionReport-Final.pdf (accessed June 6, 2012), pp. 28-29.

[123] Dr. Allan S. Keller et al, “Mental health of detained asylum seekers,” The Lancet, vol. 362, issue 9397 (November 22, 2003), pp. 1721-1723.

[124] Karen McVeigh, “Children made ‘sick with fear’ in UK immigration detention centres: Weight loss, difficulty sleeping, bed-wetting and sickness among symptoms found at Yarl’s Wood,” The Guardian, October 13, 2009.

[125] International Detention Coalition, Captured Childhood: Introducing a New Model to Ensure the Rights and Liberty of Refugee, Asylum Seeker and Irregular Migrant Children Affected by Immigration Detention (Melbourne, 2012), pp. 48-49.

[126] Human Rights Watch interview with Dennis M., Hal Far, Malta, April 24, 2012.

[127] Human Rights Watch interview with Aminata H., Hermes Block, Hal Far, Malta, May 3, 2012.

[128] Human Rights Watch interview with Maka O., Marsa, Malta, April 25, 2012.

[129] Human Rights Watch interview with Aatifa T., Hermes Block, Hal Far, Malta, May 3, 2012.

[130] Human Rights Watch interview with Hakim A., Marsa, Malta, March 14, 2012.

[131] Human Rights Watch interview with Celeste A., Hermes Block, Hal Far, Malta, May 3, 2012.

[132] Human Rights Watch interview with Ali Konate, leader of Migrants Network for Equality, Sliema, March 14, 2012.

[133] International Commission of Jurists, “Not Here to Stay: Report of the International Commission of Jurists on its Visit to Malta on 26-30 September, 2011,” May 2012, http://documents.icj.org/ICJMaltaMissionReport-Final.pdf (accessed June 6, 2012), p. 32.

[134] Human Rights Watch interview with Amina A., Hermes Block, Hal Far, Malta, May 3, 2012.

[135] Human Rights Watch interview with Medhane E., Valetta, Marsa, March 14, 2012.

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