H.E. Mr. Joseph Muscat

Prime Minister of Malta

Office of the Prime Minister, Auberge de Castille

Valletta VLT 2000

Malta

 

2 August 2013

 

Dear Prime Minister,

We write to urge you to revise Malta’s immigration laws in keeping with the recent European Court of Human Rights decisions Suso Musa v. Malta and Aden Ahmed v. Malta, and to inquire about the government’s progress taken with regard to immigration detention. We were encouraged to learn of the review of detention initiated in 2012 by the Office of the Prime Minister under the previous administration, and are eager to hear of steps by the present government taken to continue and conclude that review.

Issues raised both in the review and by the European Court of Human Rights echo Human Rights Watch’s concerns about arbitrary detention of migrants and asylum seekers and detention of unaccompanied children in Malta’s immigration detention facilities. Enclosed please find our July 2012 report entitled Boat Ride to Detention: Adult and Child Migrants in Malta.

Our research found that Malta routinely detains unaccompanied migrant children pending age assessment. “Unaccompanied migrant children” are children traveling without parents or other guardians; typically they travel in dangerous conditions for many months before reaching Malta.  As the children lack documents proving that they are under 18 years old, Malta detains these children until they have been through a formal age determination procedure. While we understand that efforts are made to minimize this period, the fact remains that children are being detained with unrelated adults without any special provisions for the fact they are children.

We recognize that Malta receives a large proportion of the migrants and asylum seekers entering the EU, and our report endorses and calls for the expansion of the pilot EU relocation program and the need for greater EU assistance to Malta. It also repeats Human Rights Watch’s consistent recommendation for the reform of the Dublin Regulation, which we believe imposes an unfair burden on EU states at its external borders. 

We also acknowledge that 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 subject to safeguards. However in Malta, detention is in practice automatic and prolonged, without effective safeguards. Asylum seekers who arrive by boat are 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.

We wish to draw your attention to the UN Committee on the Rights of the Child’s recent concluding observations on Malta’s compliance with the UN Convention on the Rights of the Child[i].In February 2013, the 18-member, Geneva-based committee condemned Malta’s policy of mandatory immigration detention resulting in detention of children pending age determination. The committee urged Malta to completely cease the detention of childrenin irregular migration situations, including children detained pending age determination procedures. Our findings echo this conclusion: children are currently detained, presumed to be adults, pending age determination, whereas international law mandates that they be given the benefit of the doubt: in other words, presumed to be children and not detained until found to be adults.

Malta’s migration detention has also been the subject of adverse rulings by the European Court of Human Rights, including in July 2010 in Louled Massoud v. Malta (application 24340/08), and in July 2013 in Suso Musa v. Malta (application 42337/12) and Aden Ahmed v. Malta (application 55352/12).[ii]

We understand that the position of the previous government was that the Louled Massoud case was limited to its own facts. But in the Suso Musa ruling the European Court of Human Rights makes clear that there is a need for Malta to undertake general measures in relation to inadequate remedies to challenge the lawfulness of immigration detention.[iii]The judgment of the Court also recommends general measures in relation to improving conditions of detention (at issue in the Aden Ahmed case) and limiting duration of immigration detention.

In light of the findings of the Committee on the Rights of the Child and the European Court of Human Rights, as well as our own research, Human Rights Watch recommends that Malta revise laws and policies pertaining to immigration detention, so that migrants are not detained simply because they have entered without permission, and allow for detention of asylum seekers only exceptionally. Malta should fully, effectively, and immediately comply with the judgment of the European Court of Human Rights in Suso Musa v. Malta, including by putting into place reforms giving migrants access to a remedy whereby they can effectively challenge their detention.

We strongly recommend that Malta end the unnecessary detention of unaccompanied migrant children, by amending legislation to prohibit the immigration detention of migrant children (pending age determination) for the sole reason that they arrived irregularly. Malta should provisionally treat all those with reasonable claims to be under 18 as children until age determination is completed. In the interim period while detention continues, we recommend that Malta use separate detention facilities for those with pending age determination requests so that they are not detained with unrelated adults, and 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.

We were very encouraged that a number of these issues could be addressed through the Office of the Prime Minister’s review of immigration detention initiated last year. We would be eager to hear what progress has been made toward continuing and concluding that review, as well as towards addressing the concerns listed above, whether through that review or through other mechanisms. As you are no doubt aware, Malta is due for the UN’s universal periodic review on October 30, 2013. This would be an ideal time to demonstrate Malta’s commitment to resolving these issues.

We hope you will find our analysis useful and would welcome an opportunity to discuss our findings with you in more detail.

Yours sincerely,

Zama Coursen-Neff, Executive Director of the Children's Rights Division, and Hugh Williamson, Executive Director of the Europe and Central Asia Division

 


[i]Committee on the Rights of the Child (CRC), Concluding Observations of the Committee on the Rights of the Child: Malta (CRC/C/MLT/CO/2), June 18, 2013, http://www2.ohchr.org/english/bodies/crc/crcs62.htm (accessed July 31, 2013).

[ii]European Court of Human Rights, Louled Massoud v. Malta, judgment of 27 October 2010, Application no. 24340/08, http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["louled massoud"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-100143"]} (accessedJuly 31, 2013); European Court of Human Rights, Suso Musa v. Malta, judgment of 23 July 2013, Application no. 42337/12, http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["\"suso musa\""],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-122893"]} (accessed July 31,2013); European Court of Human Rights, Aden Ahmed v. Malta, judgment of 23 July 2013, Application no. 55352/12, http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["aden ahmed"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-122894"]} (accessed July 31, 2013).

[iii]European Court of Human Rights, Suso Musa v. Malta, para 122.