July 18, 2012

III. Treatment of Unaccompanied Migrant Children

Malta detains all age-disputed cases pending age determination, and applies a very low threshold for disputing the age of children. As a result, children may be detained for weeks or months, despite alternative available facilities. During detention, children are detained with adults, without any accommodation for their young age, and with no access to school. Once determined to be children—and released to other accommodation—children do not receive adequate legal representation. Under international and European standards, unaccompanied children should never be detained for reasons related to irregular entry, and pending age determination the person claiming to be a child should be treated as such until the determination is complete.

Detention of Unaccompanied Migrant Children

Malta detains all unaccompanied children whose status as children is in question, pending age determination. The age determination procedure can take some months, leaving children in detention for long periods. 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). Among those we interviewed detained between 2008 and 2011 who Malta ultimately determined to be children, the average time in detention was 3.4 months.[137] A 2009 study by the Maltese National Contact Point of the European Migration Network (funded in part by Maltese government funds) found an average detention time of 1.6 months for the 10 unaccompanied minors in their focus group.[138]

International law states that unaccompanied children should not be criminalized for reasons related to their immigration status or illegal entry,[139]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.” 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.”[140]

Best practices indicate that, pending age determination, the person claiming to be a child should provisionally be treated as such.[141] Malta should treat children pending age determination as children, and detain them only as a measure of last resort. While placing migrants pending age determination in the unaccompanied minor facilities is not appropriate, there is no reason why they could not be released to alternate facilities to prevent prolonged detention of children.

Low Threshold for Disputing Age

Malta’s trigger for questioning the age individuals claim to be, and thus detaining them, is low: interviewees reported seeing children as young as 12 detained while undergoing age determination procedures.[142] When migrants arrive by boat in Malta, the Malta Police Immigration Section takes virtually all of the passengers to detention.[143] Even if unaccompanied children identify themselves as children during this initial contact, they will most likely still be taken to detention. According to the Agency for the Welfare of Asylum Seekers (AWAS) and Detention Services, only age disputed cases are detained, with those who are “visibly” children released from detention within 24 hours[144] and placed in the care of AWAS.[145] In practice, however, the cut-off for those who are “visibly” children is around 12 to 14 years old, with children who appear older presumed to be adults—and detained—until an age determination is carried out.[146]

For example, on April 30, 2012, Human Rights Watch met with three boys detained in an immigration facility who said they had been taken straight into detention after arriving by boat two days earlier. Two of the boys, aged 15 and 16, were visibly children according to Human Rights Watch’s assessment: we were able to walk down a crowded hallway inside the detention facility and identify them by sight, having no previous knowledge of children detained in that facility. On the day of arrival, all three boys said they told the arresting authorities their birthdate during a routine data collection, but none were provided with information about procedures to establish that they are minors.[147]

Their experience is similar to that described by other interviewees. Bello E., who said he was 16 when his boat was intercepted near Malta, reported, “Before we knew it, we were in detention … I tried to tell I was 16. They didn’t accept it, they sent me back into Safi [detention center] … I had not committed a crime. Why was I in prison?”[148] Labaan X., a Somali who said he came to Malta in 2008 when he was 15 years old, and was 18 years old when we interviewed him, described to Human Rights Watch what happened after arriving: “I got off the boat and went straight to detention. I said I was a child. But I spent three months in detention before they put me in a home for young people.”[149]

Detaining Unaccompanied Children with Unrelated Adults

Detained migrant boys are routinely held, pending age determination, in overcrowded conditions with unrelated adult men. The Convention on the Rights of the Child (CRC) indicates that, in exceptional cases where children are detained, they should receive care appropriate to their age, including ability to contact family, appropriate medical treatment and psychological counseling, and access to education.[150] Detained children do not have access to education or any other care related to their age.

The Convention on the Rights of the Child, as well as the International Covenant on Civil and Political Rights oblige states parties to separate adults from children in detention, [151] and the Committee on the Rights of the Child reinforces that this obligation specifically applies to migrant children in detention. [152] The European Court of Human Rights held in Mubilanzila Mayeka and Kaniki Mitunga v. Belgium that the prolonged detention of an unaccompanied child jointly with adults amounted to inhuman or degrading treatment, in part because such detention conditions were not adapted to the extreme vulnerability of the unaccompanied child, causing “considerable distress” and “serious psychological effects.” [153]

Seventeen-year-old Stéphane K., an Ivorian who was 16 when he arrived in Malta in 2011, was detained in one room with 200-300 adult men. “The room wasn't that big—we had bunk beds,” he told Human Rights Watch.[154] Kibreab A., an Eritrean who arrived in Malta at the age of 17 in 2009, said he was detained with unrelated adults for five months before being moved to a children’s facility. He complained to Human Rights Watch that the room in detention was small for the 50 people that were staying there.[155]

Children may be exposed to periodic violence in detention facilities when detained with adults.[156] While some children reported that they did not feel unsafe while detained with adults, others reported instances of exploitation and violence. Ghedi H., who was detained with adult men in 2008 when he was 17 years old, said, “Sometimes … adults would take my food because there’s not enough.”[157] Abdi M., a Somali migrant who was detained at the same time as Ghedi, and who was 17 years old when detained, related what happened to him at the Safi detention facility:

Every day a big man from Mali came and said, “Give me your food.” And one day I said no, and he hit me. I was out on the floor [unconscious] for half an hour. I told the soldiers but they said, “We don’t care.” No one helped me, I just cried and went to sleep.[158]

During Human Rights Watch’s visit to Maltese detention facilities in April 2012, we met with three boys who were housed with adults in a detention center for single men. Two of the boys, who reported their ages as 15 and 16 years old, were visibly scared. Amr S., the 15 year old, said, “It’s very difficult to live here at Safi. I’m afraid to live where people might hit me… I don’t have anyone to take care of me.”[159] Edgard O., a 26-year-old Ivorian man who was detained in the same facility as the boys, commented: “To be honest with you, I was a little bit concerned to see they were here [the boys.] Fifteen years old—he doesn’t deserve this.”[160]

Lengthy and Incomplete Age Determination Procedures That Prolong Detention

Age determination procedures in Malta can take several months, leaving children in detention pending the outcome. AWAS has, to its credit, instituted a relatively sophisticated age determination procedure in the roughly 10-year period that unaccompanied children have been arriving by boat. Nonetheless, the procedure needs several improvements—including a reduction in processing time (including the time taken for medical testing), increased provision of information to incoming children, and a process by which children can be released from detention pending age determination.

According to the CRC, age determination should be prioritized immediately after arrival in the country, and that the best interests of the child should be a guiding principle in these proceedings.[161] Furthermore, children should never be detained for reasons related to their immigration status. Malta’s lengthy age determination procedures, in combination with routine detention of children in age disputed cases and low threshold for disputing age, stands in opposition to these principles.

Labaan, the Somali boy who arrived in Malta at 15 years old in 2008, said: “I had to wait for three months in detention. Two months before they [AWAS age determination officials] questioned me.”[162]Kibreab A., who was 17 when he arrived in Malta from Eritrea in 2009, told us he was detained for five months before being released to a children’s home.[163] After leaving the Ivory Coast and traveling for several months, Stéphane K., an Ivorian boy, told Human Rights Watch he was 16 when he reached Malta in 2011. He was detained for seven months awaiting age determination, which he described as deeply disturbing: “For someone [at that age] to be in detention, it's not normal. Seven months of detention, it's not normal. Shut in, I can't go out. It's not normal.”[164]

An NGO staff member who routinely works within the detention centers told Human Rights Watch that in 2008 and 2009 some asylum procedures actually moved more quickly than age determination procedures. Accordingly, some adult asylum seekers who arrived at the same time (and even on the same boat) as children awaiting age determination were released from detention while the children remained behind bars.[165] This could have the effect of discouraging children from disclosing their age for fear that it could extend their period of detention.

Age determination in Malta is conducted by an age assessment team from AWAS composed of a social worker, psychologist, and a coordinator.[166] Most unaccompanied children arrive without identity papers, such as passports and birth certificates. Maltese authorities rely on medical testing—in particular, bone x-rays—where initial interviews by the age assessment team are inconclusive.[167] However, medical examinations used to determine age are problematic because they are subject to margins of error of up to five years.[168] In addition, radiological testing is unnecessarily intrusive; the Separated Children in Europe Program, a coalition of Save the Children and UNHCR, asserts that such testing must be avoided and non-invasive medical testing, such as physical development assessments, should be used instead.[169] In cases where Maltese authorities turn to medical testing, they use the result as one factor in a multidisciplinary assessment.[170]

In Malta, medical testing can add months to the age determination process.[171] Christophe G., a 17-year-old Ivorian who arrived in Malta when he was 16 in 2011 and spent a total of six months in detention, reported: “After the [x-ray] machine, I waited [in detention] for one or two months more, it was one month after that that my friend left, and then one month more, so two months more total.”[172] The Committee on the Rights of the Child emphasizes that, when children are in immigration detention, “all efforts, including acceleration of relevant process, should be made to allow for the immediate release.”[173]

On a more positive note, a group of children was detained for a very short period in early 2012. Dalmar H., Nadif K., Korfa A., and Erasto M., all Somali boys aged 17, said they were detained for two weeks when they arrived in the same boat in January 2012.[174] However, fewer migrants cross the Mediterranean during the winter months, because of worse weather conditions than in the summer; this is not representative of a fundamental change in Malta’s policies.

Despite the relatively quick release of children in January 2012, there does not appear to be any permanent detention policy change.[175] AWAS has made clear attempts to take policy steps to shorten the process, including by setting internal benchmarks for preliminary interviews with children within 10 working days of arrival, and by participating in training initiatives through common European mechanisms.[176] But as long as Malta continues to detain children pending age determination, any delay in the procedure prolongs the violation of children’s rights.

Lack of Screening, Reliance on Self-identification, and Lack of Information on Procedures

Children lack adequate information about the age determination process (including whether documents are accepted and whether there is an appeal). Some migrants who request an age determination procedure are seemingly ignored: interviewees reported telling authorities they were minors but never receiving age determination. Other children never request an age determination because they lack information on the procedure.

For example, Perry O., a Ghanaian migrant, said he traveled to Malta shortly before he turned 17in 2008. He reported that he told the detention guards that he was 16 years old, but he was never interviewed by AWAS or given a medical test to determine his age. He did not know if the guards ever reported his claim to AWAS.[177] Chris K., from Nigeria, said he was 17 when he arrived in 2007. He reported: “I told them I was a child but they still put me in detention for 10 months. I told the police when I came in.”[178] Like Perry, Chris said he never received an interview with AWAS and does not know what happened to his claim.

A number of interviewees chose not to inform authorities that they were children, often on the advice of fellow migrants. Ousmane H., from Mali, said: “I came when I was 17. I spoke no English, I had no-one who could understand me. I was told by a Somali guy not to reveal my age.”[179] Bello, a Nigerian migrant who said he reached Malta when he was 16 years old, had a similar story: “The captain told all the people on my boat not to say we were below 18.”[180] Bello later tried to report his real age:

Before we knew it we were in detention. They just record your details, you don't know what we're supposed to do…. When I got information from immigration, I rushed back to say I'm 16. I went back to the security to tell them I was a child … They didn't accept it; they sent me back into Safi [the detention facility].[181]

There is no appeal of the age determination process within AWAS (and while an appeal to the Immigration Appeals Board is possible, it is rarely done), nor is there any clear guidance on whether documents are accepted.[182] Cherif M. reported that he was 17 when he arrived in Malta in 2011. He waited one month in detention for his initial interview with AWAS, he said, and was rejected: “A friend faxed my photocopied birth certificate from Chad. AWAS wouldn’t take it.”[183]

The government should do more to provide children with reliable information about the age determination procedure. Children receive no guidance on the content of the procedure, whether documents will be useful, or whether they can appeal. Malta has taken considerable steps in providing information to migrants about the process for asylum, including by conducting information sessions to every incoming migrant. It could easily do the same for the age determination process.

Lack of Legal Representation in Asylum Proceedings and in Challenging Detention

Unaccompanied migrant children in Malta receive little or no legal representation, either in requesting asylum or in challenging detention in age-disputed cases. The Maltese government relies heavily on non-governmental and inter-governmental organizations, including the Jesuit Refugee Service and UNHCR, to provide counseling to unaccompanied migrant children and other vulnerable migrants in detention. However, this is insufficient to meet the government’s obligations to provide children in asylum proceedings with legal representation.

Children involved in asylum procedures should, in addition to the appointment of a guardian, be provided with legal representation, according to the CRC.[184] The lack of representation in first instance proceedings means it is harder for children to understand the proceedings and present their case. For example, Labaan said he struggled to understand the asylum procedure: “I had three interviews with two different people. It made me confused.”[185]

Each unaccompanied child in Malta is, at the conclusion of the age determination procedure, assigned a guardian when the Minister for Justice, Dialogue, and the Family issues a care order for the child, at the direction of the Children and Young Persons Advisory Board.[186] According to the CRC, the guardian’s job should be much broader than that of a legal representative (as above, for asylum proceedings or to challenge detention): the guardian, who need not be a lawyer, should be consulted on all actions taken for the child in order to ensure that the child’s “legal, social, health, psychological, material and educational needs are adequately covered.[187] Nonetheless, this is not a substitute for legal representation.

The Maltese government has made considerable strides in asylum processing in the 10 or so years since it started receiving significant numbers of asylum applications, and now has one of the fastest processing times and lowest backlogs in the EU. Simultaneously, those responsible for first instance decisions in the Office of the Refugee Commissioner have undergone training on the specific needs of children seeking asylum through the EU-sponsored European Asylum Curriculum, and the Refugee Commissioner has urged his staff to view children’s cases in light of child-specific forms of persecution and appropriate credibility standards. While the Maltese government is to be commended on these steps, children applying for asylum still do not enjoy the requisite assistance.

As noted above, in meeting with Human Rights Watch, the Refugee Commissioner stressed that Malta has one of the highest rates of asylum applications per capita in the industrialized world—20.1 applicants per 1,000 inhabitants—and that even those not granted asylum still tend to receive other forms of protection. He pointed to this as a reason why it is not necessary for all migrants to be provided with legal representation in the first instance. [188] While this may be a valid argument for adults, provision of legal representation to unaccompanied migrant children is required by law, and necessary to protect the interests of this vulnerable group. Such representation is unlikely to be financially burdensome: there are approximately less than 100 unaccompanied children who claim asylum each year.

Likewise, unaccompanied migrant children who are detained for illegal entry do not receive legal representation. According to the European Court of Human Rights in Louled Massoud, the Maltese legal system lacks the necessary “effective and speedy remedy” for challenging the lawfulness of immigration detention. Article 37(d) of the CRC mandates that children deprived of their liberty should have prompt access to legal assistance, and the Committee on the Rights of the Child has emphasized that this specifically applies to unaccompanied migrant children in immigration detention.[189]

 

[137] Human Rights Watch interviewed 11 boys who went through the age determination procedure and were determined to be children. The average time in detention (pending age determination) for these boys was 3.4 months. In a letter of March 9, 2012, and ensuing emails, Human Rights Watch repeatedly requested data from the Agency for the Welfare of Asylum Seekers on the duration and outcomes of the age determination procedures.

[138] 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. 16.

[139] UN Committee on the Rights of the Child, General Comment No. 6, para. 62.

[140] Council of Europe, Commissioner For Human Rights, Positions on the Rights of Minor Migrants in an Irregular Situation, Position Paper (2010)6, Strasbourg, 25 June 2010, available at: https://wcd.coe.int/ViewDoc.jsp?id=1654377.

[141] Save the Children, UNHCR, UNICEF (Separated Children in Europe Program), Statement of Good Practice, 4th Revised Edition, D5 and D6 (2009).

[142] Human Rights Watch interviews with Abdi M. and Ghedi H., Valetta, April 27, 2012.

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

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

[145] E.g. 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.

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

[147] Human Rights Watch interviews with Amr S., Khaled M., and Hossein D., Safi, Malta, April 30, 2012.

[148] Human Rights Watch interview with Bello E., Marsa, March 13, 2012, and follow up interview, Marsa, April 25, 2012.

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

[150] General Comment No. 6, para. 63.

[151] CRC, art. 37(c), ICCPR, art. 10(b). The CRC only allows the joint detention of children and adults if it is in the child’s best interest. Ibid.

[152] “Special arrangements must be made for living quarters that are appropriate for children and that separate them from adults[.]” UN Committee on the Rights of the Child, General Comment No. 6, para. 63.

[153] European Court of Human Rights, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (Application no. 12178/03), Judgment of October 12, 2006, available at http://www.unhcr.org/refworld/docid/45d5cef72.html (accessed June 7, 2012), paras. 58, 103.

[154] Human Rights Watch interview with Stéphane K., Marsa, Malta, March 15, 2012.

[155] Human Rights Watch interview with Kibreab A., Marsa, Malta, March 14, 2012.

[156] There have been periodic riots at the detention facilities to which detained children were exposed. 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. See also 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. 20-21 (discussing a particularly serious riot on 16 August 2011 spurred by notification of deportation to some detainees, and noting the use of tear gas and rubber bullets to subdue the violence).

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

[158] Human Rights Watch interview with Abdi M., Valetta, Malta, April 27, 2012.

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

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

[161] CRC article 8, General Comment No. 6 para. 31 (a).

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

[163] Human Rights Watch interview with Kibreab A., Marsa, Malta, March 14, 2012.

[164] Human Rights Watch interview with Stéphane K., Marsa, Malta, March 15, 2012.

[165] Human Rights Watch interview with NGO staff member, Birkirkara, M February 27, 2012.

[166] Human Rights Watch interview with Sarah Borda Bondin, Service Manager, Agency for the Welfare of Asylum Seekers, Ministry for Home and Parliamentary Affairs, Sliema, Malta, April 30, 2012. Good practices in age determination—a challenging field—are multidisciplinary; UNHCR and the Committee on the Rights of the Child have both recommended that states not base age determinations solely on the child’s physical appearance, but also consider psychological maturity and the margin of error of medical exams, and to give the child the benefit of doubt.United Nations High Commissioner for Refugees (UNHCR), "Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum" (hereafter UNHCR Guidelines), February 1997, http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&docid=3ae6b3360 (accessed September 1, 2008), section 5.11; General Comment No. 6, para. 31 (i).

[167] Human Rights Watch interview with Sarah Borda Bondin, Service Manager, Agency for the Welfare of Asylum Seekers, Ministry for Home and Parliamentary Affairs, Sliema, Malta, April 30, 2012. Many other European countries also use medical testing to determine the age of unaccompanied migrant children, though the science is inexact. “Methods for assessing the age of migrant children must be improved,” Council of Europe press release, CommDH018(2011), August 9, 2011, https://wcd.coe.int/ViewDoc.jsp?id=1818617&Site=DC (accessed May 12, 2012).

[168] "Age determination is an inexact science and the margin of error can sometimes be as much as 5 years either side." Royal College of Paediatrics and Child Health, The Health of Refugee Children: Guidelines for Practitioners (London: 1999), p. 13. Pediatricians have further argued that it amounts to a violation of medical ethics to expose children to radiation in X-rays for non-medical purposes. Ibid., pp. 13-14

[169] Separated Children in Europe Program, Position Paper on Age Assessment in the Context of Separated Children in Europe, 2012, p. 9.

[170] Human Rights Watch interview with Sarah Borda Bondin, Service Manager, Agency for the Welfare of Asylum Seekers, Ministry for Home and Parliamentary Affairs, Sliema, Malta, April 30, 2012. Good practices in age determination are that medical examination is just one possibility for assessment, along with personal interviews, searches for documentation, and psychological evaluation. Council of Europe, Parliamentary Assembly, Unaccompanied Children in Europe: Issues of Arrival, Stay and Return, Rapporteur: Ms Mailis Reps, Estonia, Section 3.2.2, para. 30, available at: http://assembly.coe.int/Documents/WorkingDocs/Doc11/EDOC12539.pdf.

[171][171] Human Rights Watch interview with Sarah Borda Bondin, Service Manager, Agency for the Welfare of Asylum Seekers, Ministry for Home and Parliamentary Affairs, Sliema, Malta, April 30, 2012.

[172] Human Rights Watch interview with Christophe G., Fgura, Malta, May 3, 2012.

[173] General Comment No. 6, para. 61.

[174] Human Rights Watch interviews with Dalmar H., Nadif K., Korfa A., and Erasto M., Marsa, Malta, March 15, 2012.

[175] Human Rights Watch interview with Alex Tortell, Director of the Agency for the Welfare of Asylum Seekers, Ministry for Home and Parliamentary Affairs,, Valetta, Malta, March 14, 2012.

[176] Human Rights Watch interview with Sarah Borda Bondin, Service Manager, Agency for the Welfare of Asylum Seekers, Ministry for Home and Parliamentary Affairs, Sliema, Malta, April 30, 2012.

[177] Human Rights Watch interview with Perry O., Sliema, Malta, March 16, 2012, and follow up, Bugibba, Malta, April 28, 2012.

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

[179] Human Rights Watch interview with Ousmane H., Sliema, Malta, March 14, 2012.

[180] Human Rights Watch interview with Bello E., March 13, 2012.

[181] Human Rights Watch interview with Bello E., Marsa, March 13, 2012, and follow up interview, Marsa, April 25, 2012.

[182] Human Rights Watch interview with Sarah Borda Bondin, Service Manager, Agency for the Welfare of Asylum Seekers, Ministry for Home and Parliamentary Affairs, Sliema, Malta, April 30, 2012.

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

[184] General Comment No. 6, para. 33.

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

[186] Human Rights Watch interview with Mario Friggieri, Refugee Commissioner, Valetta, Malta, April 27, 2012; Republic of Malta, “Irregular Immigrants, Refugees, and Integration: Policy Document,” 2005, p. 21.

[187] General Comment No. 6, para. 33.

[188] Human Rights Watch meeting with Mario Friggieri, Valetta, Malta, April 27, 2012.

[189] General Comment No. 6, para. 63.