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.
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.
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.
This report addresses the treatment of migrants, including
unaccompanied children, in Malta, focusing on migrants who travel to Malta by
boat and either arrive on shore themselves or are intercepted by the Armed
Forces of Malta at sea and brought to Malta. It does not address migrants who
enter Malta by plane, because they are not typically detained in the same
manner or with the same degree of regularity as those who arrive by boat. In
this report, the term “migrant” can refer to asylum seekers and
people in need of international protection, as well as to economic migrants.
Research was carried out in Malta between February and May
2012. Eighty-eight migrants and asylum seekers between the ages of 10 and 67
were interviewed. Sixteen of the interviewees were female. Twenty-one migrants
were, according to their accounts, unaccompanied children at the time of their
entry into Malta. Eight were still children when we interviewed them, and the
other thirteen were adults. Two reported entering Malta below the age of 16,
and the rest were 16 or 17 years old when they entered the country.
Approximately 35 percent of our interviewees were from
Somalia, 10 percent from Nigeria, 10 percent from Eritrea, 9 percent from
Ethiopia, 9 percent from Ghana, and 9 percent from Ivory Coast. The rest were
from Egypt and sub-Saharan African countries including Chad, Guinea, Mali, and
Togo.
We conducted most interviews in English or French, and other
interviews with the help of interpreters in a language in which the migrant was
comfortable (such as Arabic and Somali). We interviewed migrants and asylum
seekers in three separate detention facilities (Hermes Block, Safi Warehouse,
and Safi B Block), in and around open centers, and in various locations around
Malta. We explained to all interviewees the nature of our research and our
intentions concerning the information gathered through our interviews, and we
obtained verbal consent from each interviewee.
In Malta, Human Rights Watch researchers met a number of
government officials concerned with migration, including the Refugee
Commissioner, the Children’s Commissioner, and officials with the Agency
for the Welfare of Asylum Seekers, the Malta Police, the Detention Service, the
Children and Young Persons Advisory Board, the Office of the Children’s
Commissioner, and the Ministry of Justice and the Family. In addition, we met
with representatives from the Maltese offices of the United Nations High Commissioner
for Refugees, the European Asylum Support Office, and the International
Organization of Migration, as well as staff members of nongovernmental
organizations, and human rights lawyers and activists.
All names of migrants interviewed have been replaced by
pseudonyms to protect their identity. In some cases we also withhold the
migrant’s country of origin, or precise details of the migrant’s
case, in order to avoid the possibility of identifying the individual.
Likewise, many staff members of NGOs in Malta are not identified by name at
their request.
In line with international instruments, the term
“child” refers to a person under the age of 18.[4] For
the purposes of this report, we use the term “unaccompanied child”
to describe both unaccompanied and separated children as defined by the
Committee on the Rights of the Child:
“Unaccompanied children” are children, as
defined in article 1 of the Convention, who have been separated from both
parents and other relatives and are not being cared for by an adult who, by law
or custom, is responsible for doing so. “Separated children” are
children, as defined in article 1 of the Convention, who have been separated
from both parents, or from their previous legal or customary primary caregiver,
but not necessarily from other relatives. These may, therefore, include
children accompanied by other adult family members.[5]
In this report, Human Rights Watch does not assess whether
the migrants we spoke to qualify for refugee status or other forms of
protection. Some, perhaps many, undoubtedly do—and indeed, the Maltese
government grants asylum or other forms of protection at relatively high rates
compared to other EU border countries.
This report instead focuses on how the Maltese government fails to uphold
migrants’ human rights, regardless of whether or not those migrants have
legitimate asylum claims or other protection needs, and how Malta’s
policies should be improved.
In the 10-year period from the beginning of 2002 to the end
of 2011, 14,735 migrants traveled by boat to Malta, an average of 1,470 per
year.[7]
Of the migrants who arrived in Malta by boat in this period, 93 percent applied
for asylum.[8]
At the time of writing, 838 migrants had arrived so far in 2012.[9] Migrants
typically traveled on boats leaving from Libya for Italy, many of which lacked
adequate navigation systems and so arrived in Maltese waters instead.
The flow of migrants and asylum seekers to Malta during this
10-year period has not been consistent. Numbers peaked in 2008, with 2,775
migrants entering, and in 2011, 1,579 migrants entered by boat.[10] In
2010 the numbers of migrants entering Malta temporarily dropped. Concurrently,
a joint agreement between Libya and Italy (to which Malta was not party) to
interdict and forcibly return boat migrants on the high seas between the two
countries was in operation.[11]
The implementation of this agreement—in which Italian vessels towed
migrant boats from international waters back to Libya without even a cursory screening
for whether those on board were refugees or sick or injured, and through which
the number of boats leaving from Libya was drastically curtailed —may
have contributed to the decrease in travel to Malta during that year. Boat
migration to both Italy and Malta since resumed, in light of the Arab Spring in
2011 and the suspension of the Libyan-Italian agreement after the collapse of
the Libyan regime.
Virtually all boat migrants who arrive in Maltese
waters—an average of 1,470 per year—are detained upon arrival.
Maltese law mandates that a person who enters the country without “right
of entry” shall be designated a “prohibited immigrant” and
may be detained.[13]
Mandatory detention of a prohibited immigrant occurs under the Immigration Act
with the issuance of a removal order, which, although not by law automatic,
occurs, in practice, routinely at the time of apprehension.
The law says that after the removal order is issued, the prohibited immigrant
“shall be detained in custody until he is removed from Malta.”
Additionally, as a matter of Maltese government policy, prohibited immigrants
who apply for asylum will continue to be detained.
Most boat migrants and asylum seekers during this period
were from sub-Saharan Africa. The largest group of the migrants—approximately
one third—came originally from Somalia, while the second largest group
came from Eritrea.[16]
Other significant countries of origin included Egypt, Ethiopia, Ghana, Côte
d’Ivoire, Nigeria, and Sudan.[17]
Those claiming to be unaccompanied migrant children make up
a significant portion of the migration flow to Malta. In 2007 and 2008, for
example, around 400 migrants each year arrived in Malta claiming to be
unaccompanied children.[18]
The rate at which those migrants are found to be children after an age
determination process varies: in 2007, 21 percent were found to be children and
in 2008, the rate was 8 percent.[19]
In 2011, there were 61 unaccompanied minors recognized by
the Maltese authorities after an age determination process, of whom 29 were from
Somalia. In 2011, seven unaccompanied minors were girls.[20]
Whereas most children who arrive with their families are accommodated in open
centers after a relatively short period in detention, a policy of detaining
unaccompanied migrant children pending age determination and a low threshold
for placing children in age determination proceedings means that almost all
unaccompanied migrant children are detained for weeks or months in detention
facilities with unrelated adults.
For the most part, migrants and asylum seekers who arrive in
Malta by air are not detained, because they arrive at official ports of entry
with the relevant documentation.[21]
This report focuses on migrants who arrive by boat, who are considered to have
arrived irregularly.
Arduous
Journey
The trip to Malta can last many months, according to our
interviewees. Typically, migrants might leave their countries of origin in
sub-Saharan Africa, travel to Sudan or Mali, then traverse the Sahara by truck
or jeep before crossing into Libya. After traveling north in Libya, they board
boats to cross the Mediterranean Sea. Stéphane K. described his journey:
“I left Ivory Coast when I was 16 years old. My family was
persecuted.… I went through Niger, Mali, and to Libya in trucks. Then
from Libya to Malta by boat. I’m not sure how many were in my boat,
perhaps 100 to 160 people.”[22]
The boat trips from Libya to Malta are perilous, involving
basic vessels with limited navigation systems that are not seaworthy and often
have insufficient amounts of food, water, and fuel.[23]
Celeste A., an Ivorian woman who arrived in Malta in 2011, said, “We were
at sea for 10 days. Without eating, without drinking. We arrived here almost
dead, and they took us and put us in detention.”[24] Maka
O., a man who arrived in 2011 from Nigeria, recounted, “We were three
days in the sea. The engine had problems and we were floating for three more
days. There were 73 people, not enough water, not enough food.”[25]
Many boats capsize or go into distress, and may then be
assisted by patrols from the Armed Forces of Malta.
For instance, Hani H., a Somali migrant who came to Malta in 2008, reported
that his boat “bumped with an Italian fishing boat. All 28 of us, all the
people in the water. The fishing boat gave us plastic [to use as buoys] and
radioed in. A Maltese boat came and took us straight from the sea to
detention.”[27]
United Nations High Commission for Refugees (UNHCR)
estimates that 1,500 people died attempting to cross the Mediterranean to
Europe in 2011, which amounts to approximately 2.5 percent of the 58,000
migrants who made the crossing.[28]
Indeed, many die on boats that reach Maltese waters. For instance, on May 5,
2012, a boat reached a Maltese beach with 90 Somali passengers who reported
that seven had died during their week-long trip from Libya.[29] Many
of our interviewees similarly recounted fatalities on their trip. For example,
Fethee E., who was 15 years old when he left his native Ethiopia, said,
“I came by boat from Libya … I was going to Italia but not eating,
drinking … After the boat, I was three days in hospital. We were almost
130 persons [on the boat] and one Nigerian woman died. We were traveling for 10
days.”[30]
Many migrants we interviewed, like Fethee, do not set off
with Malta as their destination. Rather, they are aiming for Europe generally,
or Italy specifically. Aminata H., said, “I arrived in … 2011 by
boat from Libya. I didn’t know that we were going to Malta. For me, the
idea was to go to Italy.”[31]
Sekou C., a Guinean migrant, agreed: “I came here from Libya by boat. The
goal wasn’t to get to Malta.”[32]
Migrants who arrive in Malta do not necessarily want to stop
there. In many cases, they are on boats without navigation systems—and
may wish to move on to mainland Europe. Malta has taken the approach of using
mandatory detention to dissuade migrants from arriving in Malta. This approach
has little deterrent effect in practice, given that migrants often cannot
control their destination.
Flight
from Poverty, Persecution, War, and Violence
Many interviewees told Human Rights Watch that hardship and
violence in their home countries motivated their journeys to Europe. Many also
pointed to Europe as a place of greater economic opportunity. Given the high
proportion of migrants who arrive in Malta from Somalia, it is no surprise that
conflict spurred some migrants’ decision to move.
Particularly among the unaccompanied migrant children we
interviewed, the death of one or both parents, and violence in their home
countries, often triggered their decisions to leave. According to studies by
the international NGO Save the Children, unaccompanied migrant children also
migrate to contribute to their family’s income, seek educational
opportunities, or escape violence or conflict.[33]
Many of the migrants we interviewed who came to Malta within
the last 18 months told us the increasingly difficult conditions in Libya
encouraged them to move on toward Europe. For instance, Maka, from Nigeria,
reported, “we were in Libya for three years, but then there was the
Gaddafi problem. I lost my father, the Gaddafi rebels killed him…. I had
to find my way out, I travelled to Europe.” Amadou K.’s story was
similar: “I was living in Guinea, then I arrived in Libya and there was
the problem of the war, so I decided to leave. My goal was to leave Libya as
quickly as possible. I arrived here [in Malta] by chance.”[34]
Asylum
in Malta and International Burden Sharing
Malta has the highest
rate of asylum applications per population in the industrialized world.[35]
Compared to its tiny size—the population of Malta is approximately
400,000 people—the island sees a disproportionately high percentage of
the migrants entering the EU.[36] While the EU provides some
financial assistance to Malta,
it fails to provide sufficient cooperation with relocation programs, asylum
determination procedures, and integration options to adequately address the
needs of migrants and asylum seekers in Malta.
Ninety-three percent of the migrants who arrive in Malta by
boat—almost all of whom are detained upon arriving on the island—apply
for asylum. Malta has an efficient asylum-processing system with one of the
lowest backlogs in Europe, and a 58 percent rate of recognition for some form
of protected status (though not necessarily asylum), considerably higher than
the EU average.
In 2011, four percent of applicants were granted refugee status.[39]
A further 37 percent were granted subsidiary protection.[40]
Subsidiary protection is a category of international protection defined by the
EU to apply to those facing a “real risk of suffering serious harm”
in their country of origin but who do not meet the more stringent requirements
of qualifying for asylum.[41]
Subsidiary protection gives recipients fewer benefits than those with full
refugee status, in part because it was initially considered a temporary form of
protection, and is time limited and subject to review.[42] For
instance, EU laws give more limited access to labor markets for people with
subsidiary protection than for refugees.[43]
Those not qualifying for asylum or subsidiary protection may
still acquire a domestic form of temporary protection, called New Temporary
Humanitarian Protection, or “THP(N),” to some migrants who do not
qualify for refugee status or subsidiary protection.[44] This
status, granted at the discretion of the Office of the Refugee Commissioner,
permits migrants to work legally in Malta, but not to travel within the EU, and
is subject to yearly review based on criteria set by the Refugee Commissioner.
In 2011, 17 percent of those who applied for asylum were granted this status.[45]
Unaccompanied migrant children may apply for asylum, as
described above. Care for unaccompanied children is split between three
ministries and numerous agencies. After the Minister for Justice, Dialogue, and
the Family issues the care order, the child is then placed in a group home run
by AWAS, an entity under the Ministry of Home and Parliamentary Affairs.
Children under AWAS’s care are entitled to education and at that stage
their needs fall to the Ministry of Education.
After release from detention, migrants can find it hard to
integrate into Maltese society. They sometimes experience xenophobia and
racism, have trouble finding work, and have uncertainty around their legal
capacity to stay. There are only a few local or national initiatives to help
those with legal status integrate into the country.[47] Many
migrants want to stay in Malta, but others would like to join family elsewhere
in Europe. European policies on relocation within Europe and family
reunification are not clear and exacerbate the uncertainty many migrants feel
about their situation. While the EU places a heavy burden on Malta and other
countries at the external borders of the EU, integration is nonetheless
considered an important aspect of responding to the needs of those with
international protection.[48]
In 1999, the EU
committed to establishing a Common European Asylum System (CEAS) which would
harmonize refugee standards and asylum procedures throughout the EU. Despite
multiple European Commission asylum directives over the past 12 years, these
have failed to remedy wide disparities throughout the EU in the treatment of
asylum seekers.
The Dublin II regulation,[49] which ostensibly
prevents asylum seekers from ‘forum shopping’ (or choosing a
destination country) based on the idea that under CEAS all claims receive the
same process, sets out which member state is responsible for examining an
asylum claim. It will normally be the country of first arrival. The regulation
means that any asylum seeker who is registered in Malta and travels on to
another EU member state can be returned to Malta to have his or her asylum
claim heard there. Among its flaws, Dublin II ignores legitimate factors, such
as extended family and community ties, that asylum seekers consider when
choosing where to apply for asylum, and unfairly allocates the burden of
processing asylum claims to the some states on the EU’s external borders,
such as Greece, which is the main land entry point into the EU, and Malta,
which is geographically close to north Africa.
The EU has taken some steps to mitigate this burden, for
instance, by relocating recognized refugees from Malta to other EU states,
and by providing limited financial support. Only a relatively small number of
migrants with protection from Malta have been relocated within the EU or
resettled to the United States: From 2007 through mid-May 2012, 985 refugees
were resettled from Malta to the United States.[51] In
2010-2011, 228 others were relocated from Malta to other EU member states.[52]
Yet the number of people relocated to the EU and the US may not stay consistent
in the future, and is insufficient to relieve Malta of its burden. In addition,
the EU has failed to develop adequate options for family reunification; for
example it has not allowed children who have been granted protection in Malta
to join extended family in other European countries.
The European Commissioner for Human Rights has emphasized
that a lack of “meaningful international solidarity and
co-operation” on the part of other EU countries contributes to the risk
of serious rights violations against migrants in Malta.[53]
Nonetheless, incomplete cooperation from the EU does not relieve Malta of its
obligations to treat migrants and asylum seekers humanely and offer options for
long-term integration.
Maltese
Institutions Responsible for Migrants
Responsibility for migrants and unaccompanied migrant
children is divided among various government entities:
The Malta Police, Immigration Section is responsible
for border activities, including border control at the airport, seaport, and
yacht marinas.[54]
The Detention Services are responsible for guarding
immigration detention facilities using staff seconded from the police and the
armed forces, as well as civilians.[55]
The Board of Visitors for Detained Persons is
responsible for oversight of the immigration detention facilities, and has the
legal authority to visit the facilities monthly.
The Agency for the Welfare of Asylum Seekers (AWAS)
manages open accommodation facilities; provides services to categories of
persons identified as vulnerable, including unaccompanied children; conducts
age determinations; provides information to asylum seekers regarding
employment, housing, education, health and welfare services offered under
national schemes; and liaises with government and civil society to advise on
policy and service provision.[57]
The Office of the Refugee Commissioner is responsible
for an independent eligibility determination process for asylum applications.[58]
The Refugee Commissioner falls under the Ministry of Home
and Parliamentary Affairs, which reviews each case as recommended by the
Commissioner.[59]
The Detention Service, the Malta Police, the Board of Visitors for Detained
Persons, and AWAS also all fall under the Ministry of Home and Parliamentary
Affairs.
The Ministry of Justice, Dialogue, and the Family is
responsible for child policy and child protection. Unaccompanied migrant
children are under the custody of the Children and Young Persons Advisory
Board,which is responsible for reviewing all the care plans related
to each minor.[60]
The Ministry of Foreign Affairs is responsible for
implementing citizenship and immigration legislation and policies including
issuing residence permits to third country nationals.[61]
The Maltese Commissioner for Children, which promotes
the welfare of children and compliance with the CRC, and the Ombudsman to
the people of Malta, who can investigate complaints against any government
department or agency, can also monitor the government’s treatment of
migrants, including migrant children. [62]
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.”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).
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.
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.
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).
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.
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).
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.
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,
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
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.
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.
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.”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.”
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.
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]
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.
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.
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,
and the Committee on the Rights of the Child reinforces that this obligation
specifically applies to migrant children in detention.
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.”
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.
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.
In cases where Maltese authorities turn to medical testing, they use the result
as one factor in a multidisciplinary assessment.
In Malta, medical testing can add months to the age
determination process.
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.”
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.
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.
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]
Malta detains an average of 1,500 migrants per year in
violation of international law. The migrants detained are overwhelmingly poor,
fleeing violence and conflict, or in search of a better life. Yet when they
reach Malta, an entrance point for the European Union, they are detained for up
to 18 months, despite the fact that 93 percent of them are asylum seekers. Even
vulnerable migrants—including children, those with mental and physical
disabilities, and the elderly—are detained.
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.
The automated, indiscriminate, and blanket detention policy does not deter
migrants from coming to Malta: most migrants who arrive by boat, typically
crossing the Mediterranean in unseaworthy vessels with insufficient navigation
systems, are not aiming to reach Malta but instead intend to travel to Italy.
Unaccompanied migrant children can travel for months in hazardous
conditions before reaching Malta. Yet these resilient and resourceful children
are not spared detention in Malta: rather, they are locked up for weeks or
months until their age determination procedures are concluded. During this
time, they are detained with unrelated adults, a further violation of
international standards on detention of children.
Among those we interviewed who were found to be children in
age determination proceedings, the average length of time spent in detention
was 3.4 months. Children should only be detained as a last resort, and for the
shortest period possible. Malta’s age determination proceedings must be
restructured to prevent extended detention of children. Crucially, anyone who
makes an application for age determination must be presumed a child until the
outcome of the proceedings, and must be released from detention.
Malta must revise its migrant detention policies for adult
and child migrants alike, and end the continued mental stress imposed on
migrants kept in prolonged detention. Maltese laws should allow detention of
migrants only in exceptional circumstances, with individualized determinations,
and access to procedures to challenge detention.
This report was researched and written by Alice Farmer, researcher
in the Children’s Rights Division. Eva Cosse, research assistant in the
Europe and Central Asia Division, Kyle Knight, Roland Algrant fellow with the
Children’s Rights Division, and Annie Gell, Leonard H. Sandler fellow,
provided additional research and drafting.
The report was reviewed and edited by: Zama Coursen-Neff,
deputy director of the Children’s Rights Division; Benjamin Ward, deputy
director in the Europe and Central Asia Division; Judith Sunderland, senior
researcher in the Europe and Central Asia Division; Bill Frelick, director of
the Refugee Policy Program; Shantha Rau Barriga, disability rights researcher
and advocate, Aisling Reidy, senior legal advisor; and
Babatunde Olugboji, deputy program director.
Noah Beaudette and Laura Schülke, associates, provided
research and production assistance. Additional production assistance was
provided by Grace Choi, Anna Lopriore, and Fitzroy Hepkins. Additional research
assistance was provided by Anne Sweigart, Ashley Harlan, and Muneeb Bokhari of
Northwestern University Law School.
We are grateful to the individuals who agreed to share their
personal stories, as well as all of the officials, service providers, and
experts who agreed to be interviewed. We thank all of the organizations and
individuals who supported this work, facilitated interviews, and provided
invaluable insight.
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).
Human Rights Watch interview with Amr S., Safi, Malta, April 30, 2012.
Human Rights Watch interview with Kelile T., Safi, Malta, March 3, 2012.
Convention on the Rights of the Child (CRC), adopted November 20,
1989, GA Res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167, UN Doc. A/44/49
(1989), entered into force September 2, 1990, ratified
by Malta on September 30, 1990, art. 1.
UN Committee on the Rights of the Child, “Treatment of
Unaccompanied and Separated Children Outside their Country of Origin,”
General Comment NO. 6, UN Doc. CRC/GC/2005/6 (2005), paras. 7-8.
Malta has a 58 percent rate of recognition for some form of protected status
(though not necessarily asylum), considerably higher than the EU average of 25
percent. See European Commission (EUROSTAT), “Asylum Statistics,”
data from September 2011,
http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Asylum_statistics
(accessed June 7, 2012).
Office of the Refugee Commissioner, “Arrivals by Boat 2002-2012,”
unpublished document provided to Human Rights Watch by the Office of the
Refugee Commissioner, on file with Human Rights Watch.
Malta received 14,735 migrants by boat from 2002-2011. Office of the Refugee
Commissioner, “Arrivals by Boat 2002-2012,” unpublished document
provided to Human Rights Watch by the Office of the Refugee Commissioner, on
file with Human Rights Watch. During the same period, 13,735 people applied for
asylum. Office of the Refugee Commissioner, “Official Statistics,”
unpublished document provided to Human Rights Watch by the Office of the
Refugee Commissioner, on file with Human Rights Watch.
Frontex Watch, “Malta, 2012
Landings,” http://www.crimemalta.com/frontexwatch.htm (accessed
July 7, 2012).
Office of the Refugee Commissioner, “Arrivals by Boat 2002-2012,”
unpublished document provided to Human Rights Watch by the Office of the
Refugee Commissioner, on file with Human Rights Watch.
Human Rights Watch, Pushed Back, Pushed Around: Italy’s Forced Return of
Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum
Seekers, September 2009,
http://www.hrw.org/reports/2009/09/21/pushed-back-pushed-around-0, p. 4.
Human Rights Watch, Pushed Back, Pushed Around: Italy’s Forced Return of
Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum
Seekers, September 2009,
http://www.hrw.org/reports/2009/09/21/pushed-back-pushed-around-0, p. 11.
Immigration Act to Restrict, Control and Regulate Immigration into Malta and to
Make Provisions for Matters Ancillary Thereto, Cap 217 of the Laws of Malta,
1970, amended repeatedly until 2009, arts. 10(2),
14(2), and 16 (“Immigration Act”)
“In practice, upon being apprehended, a prohibited immigrant is issued
with a removal order, in accordance with Article 14(2) of the Act.”
European Court of Human Rights, Louled Massoud v. Malta, judgment of 27
July 2010, Application no. 24340/08,
http://www.unhcr.org/refworld/docid/4c6ba1232.html (accessed 12 May 2012),
para. 15.
“Irregular Immigrants, Refugees and Integration,” Maltese
government policy document of 2005, cited by the European Court of Human Rights
in Louled Massoud v. Malta, para. 16. (“While the [asylum]
application is being processed, in accordance with a Maltese policy document of
2005 entitled ‘Irregular Immigrants, Refugees and Integration,’ the
immigrant will remain in detention, but no immigrant shall be kept in detention
for longer than eighteen months.”)
A total of 4,920 people, or 32.9 percent of the migrants came
from Somalia, and 2073, or 13.9 percent came from Eritrea. Office of the
Refugee Commissioner, “Arrivals by Boat 2002-2012,” unpublished
document provided to Human Rights Watch by the Office of the Refugee
Commissioner, on file with Human Rights Watch.
A
total of 1,528 people came from Egypt, 605 from Ethiopia, 546 from Ghana, 664
from Ivory Coast, 944 from Nigeria, and 782 from Sudan during this period.
Ibid.
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).
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).
Office of the Refugee Commissioner, Malta, Statistics on Category C (Boat
Persons) as on 31/12/2011, unpublished document provided to Human Rights Watch
by the Office of the Refugee Commissioner, on file with Human Rights Watch.
For instance, in 2011, 276 people who did not arrive by boat applied for
asylum. The largest group (127 people) was composed of people from Syria, while
the second largest (72 people) was composed of people from Libya. Office of the
Refugee Commissioner, “2011 Arrival Statistics ECRI,” unpublished
document provided to Human Rights Watch by the Office of the Refugee
Commissioner, on file with Human Rights Watch.
Human Rights Watch interview with Stéphane K., Marsa, Malta, March 15,
2012.
See, e.g., Judith Sunderland (Human Rights Watch), “Dying to Leave Libya,”
commentary, EUobserver, May 4, 2011,
http://www.hrw.org/news/2011/05/04/dying-leave-libya; Joe DeCapua,
“Risking Death to Reach Safety in Europe,” Voice of America,
January 31, 2012.
Human Rights Watch interview with Celeste A., Hermes Block, Hal Far, Malta, May
3, 2012.
Human Rights Watch interview with Maka O., Marsa, Malta, April 25, 2012.
Human Rights Watch has previously expressed concern that Malta and Italy, as
well as other parties, have disagreed as to who has responsibility to rescue migrants
at sea, despite the potential for loss of life.
See, e.g., Judith Sunderland (Human Rights Watch), “Dying to Leave
Libya,” commentary, EUobserver, May 4, 2011,
http://www.hrw.org/news/2011/05/04/dying-leave-libya; Letter from Human Rights
Watch et al. to NATO, “Clarify Response to Deaths at Sea: On Anniversary
of Migrant Deaths, Public Disclosure Needed,” March 26, 2012,
http://www.hrw.org/news/2012/03/26/nato-clarify-response-deaths-sea.
Human Rights Watch interview with Hani H., Hal Far, Malta, April 24, 2012.
“1,500 Died Crossing the Mediterranean Last Year—UNHCR,” Times
of Malta, January 31, 2012.
UNHCR Press Release, “Somalia: Survivors of Sea Voyage to Malta Say Seven
Somali Refugees Died,” AllAfrica.com, May 8, 2012.
Human Rights Watch interview with Fethee E., Marsa, Malta, May 2, 2012.
Human Rights Watch interview with Aminata H., Hermes Block, Hal Far, Malta, May
3, 2012.
Human Rights Watch interview with Sekou C., Marsa, Malta, April 25, 2011.
Save the Children, “Away from Home: Protecting and Supporting Children on
the Move,” 2008,
http://www.savethechildren.org.uk/resources/online-library/away-from-home-protecting-and-supporting-children-on-the-move,
pp. 7-10.
Human Rights Watch interview with Amadou K., Marsa, Malta, April 25, 2011.
Between 2007 and 2011, Malta received, on average, the highest number of
asylum-seekers compared to its national population: 20.1 per 1,000 inhabitants.
United Nations High Commissioner for Refugees, “Asylum Levels and Trends
in Industrialized Countries: Statistical overview of asylum applications lodged
in Europe and selected non-European countries,” March 27, 2012,
http://www.unhcr.org/4e9beaa19.html (accessed April 26, 2012).
United Nations High Commissioner for Refugees, “Asylum Levels and Trends
in Industrialized Countries: Statistical overview of asylum applications lodged
in Europe and selected non-European countries,” March 27, 2012,
http://www.unhcr.org/4e9beaa19.html (accessed April 26, 2012).
For the period 2007-2013 the EU established the General Programme Solidarity
and Management of Migration Flows, consisting of four Funds (Refugee, External
Borders, Return, and Integration). Malta has been allocated 22.3 million Euros
through this programme.
“In 2010, a quarter (25.0 %) of EU-27 first instance asylum
decisions resulted in positive outcomes with the grants of a refugee,
subsidiary protection status or authorisation to stay for humanitarian
reasons.” European Commission (EUROSTAT), “Asylum
Statistics,” data from September 2011,
http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Asylum_statistics
(accessed June 7, 2012).
Seventy-two persons, out of 1,862 cases, were granted refugee status. Office of
the Refugee Commissioner, “Official Statistics,” unpublished document
provided to Human Rights Watch by the Office of the Refugee Commissioner, on
file with Human Rights Watch.
Six hundred and eighty-five persons, out of 1,862 cases, were granted
subsidiary protection. Office of the Refugee Commissioner, “Official Statistics,”
unpublished document provided to Human Rights Watch by the Office of the
Refugee Commissioner, on file with Human Rights Watch.
“Applicants who do not qualify for refugee status, but who cannot return
to their country of origin due to a real risk of suffering serious harm
(torture or inhuman or degrading treatment, death penalty or execution, serious
individual threat to the life or person as result of indiscriminate violence)
have the right to subsidiary protection.” European Commission Home Affairs,
“Who can benefit from international protection in the EU?”
http://ec.europa.eu/home-affairs/policies/asylum/asylum_subsidiary_en.htm
(accessed May 13, 2007).
“When subsidiary protection was introduced, it was assumed that this
status was of a temporary nature. As a result, the Directive allows Member
States the discretion to grant them a lower level of rights in certain
respects. However, practical experience acquired so far has shown that this
initial assumption was not accurate. It is thus necessary to remove any
limitations of the rights of beneficiaries of subsidiary protection which can
no longer be considered as necessary and objectively justified.” European
Commission, “Proposal for a Directive of the European Parliament and of the
Council on minimum standards for the qualification and status of third country
nationals or stateless persons as beneficiaries of international protection and
the content of protection granted,” Com(2009) 551 final, 2009/0164 (COD),
October 21, 2009, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0551:FIN:EN:PDF
(accessed May 13, 2012), p. 8.
“Council Directive 2004/83/EC of 29 April 2004 on minimum standards for
the qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection and the
content of the protection granted,” Official Journal L 304 , 30/09/2004
P. 0012 – 0023, Council of the European Union. Chapters II and V of
Council Directive 2004/83/EC. Malta introduced subsidiary protection status in
2008 after EU Council Directive 2004/83 EC (5) was transposed into Maltese
Legislation. Previously Malta’s Refugees Act provided for temporary
humanitarian protection, defined as special leave to remain in Malta for those
persons who could not have returned safely to their country of origin.
Government of Malta, “Office of the Refugee Commissioner: Asylum
Procedure,” http://mjha.gov.mt/page.aspx?pageid=160#The_Asylum_Procedure
(accessed May 9, 2012).
In order to qualify for THP(N), migrants must have been in Malta for more than
four years, had their asylum determination process completely finalized, and
meet four main criteria: regular, steady and legal work; private accommodation
(i.e. outside the open centers); knowledge of English and Maltese; and be of
good conduct and character. Office of the Refugee Commissioner, “Welcome
Speech and Annual Report, Conference at the Palace Sliema, 14.06.11 ,”
unpublished document provided to Human Rights Watch by the Office of the Refugee
Commissioner, on file with Human Rights Watch.
Three hundred and eighteen persons out of 1,862 cases were granted subsidiary
protection. Office of the Refugee Commissioner, “Official
Statistics,” unpublished document provided to Human Rights Watch by the
Office of the Refugee Commissioner, on file with Human Rights Watch.
Maltese law permits unaccompanied migrant children to attend school, and AWAS
has several initiatives to encourage attendance. Human Rights Watch interview
with Anne-Marie Pisani, coordinator, Dar il-Liedna group home, Fgura, Malta,
May 2, 2012. There are a small number of positive examples of unaccompanied
migrant children who have gone on to higher education. There are five students
who have enrolled in foundation courses at the Maltese College of Arts, Science
and Technology. Human Rights Watch interview with Helen d’Amato,
Children’s Commissioner of Malta, Santa Venera, Malta, April 26, 2012.
See Republic of Malta, “Irregular Immigrants, Refugees, and Integration:
Policy Document,” 2005, pp. 26-27.
Council Directive 2003/109/EC concerning the status of third-country nationals
who are long-term residents, November 23, 2003,
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003L0109:EN:HTML
(accessed May 30, 2011).
Known
as “Dublin II” because the 2003 regulation replaces the previous
Convention determining the State responsible for examining applications lodged
in one of the Member States of the European Communities of 15 June 1990 –
Dublin Convention; OJ, C254, August 19, 1997. Council Regulation (EC) No
343/2003, Official Journal L 050 , 25/02/2003 P. 0001 – 0010, March 3,
2003,
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003R0343:EN:HTML
(accessed April 26, 2012).
For instance, in 2011, 288 refugees were relocated.
EUREMA (2010-2011): A pilot project for intra-EU re-allocation of beneficiaries
of protection from Malta, UN High Commissioner for Refugees.
http://unhcr.org/4ef338859.pdf (accessed May 25, 2012).
Annaliza Borg, “Nearly 1,000
refugees relocated to US from Malta since 2007,” The Malta Independent,
May 17, 2012 http://www.independent.com.mt/news.asp?newsitemid=144459 (accessed
May 25, 2012).
EUREMA (2010-2011): A pilot project for intra-EU
re-allocation of beneficiaries of protection from Malta, UN High Commissioner
for Refugees. http://unhcr.org/4ef338859.pdf (accessed May 25, 2012).
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.
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).
Global
Detention Project, “Malta Detention Profile,”
http://www.globaldetentionproject.org/countries/europe/malta/introduction.html
(accessed May 9, 2012); 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.
Human Rights Watch interview with Maryanne Agius, Chair of the Board of
Visitors for Detained Persons, Sliema, Malta, May 3, 2012.
Government of Malta, “Agency for the Welfare of Asylum Seekers,”
http://www.mjha.gov.mt/page.aspx?pageid=161
Government of Malta, “Office of the Refugee Commissioner”,
http://mjha.gov.mt/page.aspx?pageid=160(accessed May 9, 2012).
Government of Malta, “Office of the Refugee Commissioner: Asylum
Procedure,” http://mjha.gov.mt/page.aspx?pageid=160#The_Asylum_Procedure
(accessed May 9, 2012).
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).
Malta Ministry of Foreign Affairs, http://www.mfa.gov.mt/default.aspx?MDIS=522
(accessed May 9, 2012).
Ombudsman’s Charter, December 2004,
http://www.ombudsman.org.mt/index.asp?pg=charter (accessed May 9, 2012).
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.”
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).
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.
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.
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.
These facilities are called Dar il-Liedna, in Furga, Malta, and Dar is-Sliem,
in Sta Venera, Malta.
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).
Immigration Act, Cap 217 Laws of Malta, arts. 5(1) and
14(2).
Human Rights Watch interview with Supt. Sandro Zarb, International Relations
Unit and Supt. Neville Xuereb, Immigration Department, Malta Police, Floriana,
Malta, May 1, 2012.
Immigration Act, art. 14(2).
Human Rights Watch interview with Chris K., Marsa, Malta, April 25, 2012.
Human Rights Watch interview with Dennis M., Hal Far, Malta, April 24, 2012.
Human Rights Watch interview with Mario Friggieri, Refugee Commissioner,
Valetta, Malta, March 15, 2012.
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.
Human Rights Watch interview with Hakim A., Marsa, Malta, March 13, 2012.
Human Rights Watch interview with Zerihun A., Hal Far, Malta, March 16, 2012.
ECHR, Louled Massoud v. Malta.
ECHR, Louled Massoud v. Malta, paras. 71-74.
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).
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.
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.
Immigration Act, art. 25A.
Immigration Act, art. 25A.
ECHR, Louled Massoud v. Malta.
Human Rights Watch interview with Ali M., Marsa, Malta, March 13, 2012.
ECHR, Louled Massoud v. Malta, para. 46.
As provided by art. 409A of the Criminal Code, art. 25A of the Immigration Act, and the Constitution of
Malta.
ECHR, Louled Massoud v. Malta, para. 61.
Immigration Act, arts. Cap 217 Laws of Malta, article
5(1) and article 14(2).
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.
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.
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.
“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.
Human Rights Watch interview with Berhane K., Birkirkara, Malta, March 1, 2012.
Human Rights Watch interview with Berhane K., Birkirkara, Malta, March 1, 2012.
Human Rights Watch interview with Ghedi H., Valetta, Malta, April 27, 2012.
Human Rights Watch interview with Berhane K., Birkirkara, Malta, March 1, 2012.
Human Rights Watch interview with Labaan X., Marsa, March 13, 2012.
Republic of Malta, “Irregular Immigrants, Refugees, and Integration:
Policy Document,” 2005, p. 8.
Human Rights Watch interview with Cherif M., Safi, Malta, May 3, 2012.
Human Rights Watch interview with Edgard O., Safi, Malta, April 30, 2012.
Human Rights Watch interview with Edgard O., Safi, Malta, April 30, 2012.
“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.
“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.
Returns Directive, art. 15, para. 2.
Returns Directive, art. 15, para. 1.
Returns Directive, art. 15, para. 4.
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).
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.
“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.
Human Rights Watch interview with Success, Valetta, March 15, 2012.
Human Rights Watch interview with NGO staff member, Birkirkara, Malta, March
13, 2012.
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).
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.
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.
Médecins Sans Frontières, “Not Criminals: Médecins
Sans Frontières Exposes Conditions for Undocumented Migrants and Asylum
Seekers in Maltese Detention Centers,” 2009, pp. 8-10.
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.
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.
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.
Dr. Allan S. Keller et al, “Mental health of detained asylum
seekers,” The Lancet, vol. 362, issue 9397 (November 22, 2003),
pp. 1721-1723.
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.
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.
Human Rights Watch interview with Dennis M., Hal Far, Malta, April 24, 2012.
Human Rights Watch interview with Aminata H., Hermes Block, Hal Far, Malta, May
3, 2012.
Human Rights Watch interview with Maka O., Marsa, Malta, April 25, 2012.
Human Rights Watch interview with Aatifa T., Hermes Block, Hal Far, Malta, May
3, 2012.
Human Rights Watch interview with Hakim A., Marsa, Malta, March 14, 2012.
Human Rights Watch interview with Celeste A., Hermes Block, Hal Far, Malta, May
3, 2012.
Human Rights Watch interview with Ali Konate, leader of Migrants Network for
Equality, Sliema, March 14, 2012.
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.
Human Rights Watch interview with Amina A., Hermes Block, Hal Far, Malta, May
3, 2012.
Human Rights Watch interview with Medhane E., Valetta, Marsa, March 14, 2012.
Human Rights Watch interview with Kelile T., Safi, Malta, March 3, 2012.
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.
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.
UN Committee on the Rights of the Child, General Comment No. 6, para. 62.
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.
Save the Children, UNHCR, UNICEF (Separated Children in Europe Program),
Statement of Good Practice, 4th Revised Edition, D5 and D6 (2009).
Human Rights Watch interviews with Abdi M. and Ghedi H., Valetta, April 27,
2012.
Human Rights Watch interview with Supt. Sandro Zarb, International Relations
Unit and Supt. Neville Xuereb, Immigration Department, Malta Police, Floriana,
Malta, May 1, 2012.
Human Rights Watch interview with Supt. Sandro Zarb, International Relations
Unit and Supt. Neville Xuereb, Immigration Department, Malta Police, Floriana,
Malta, May 1, 2012.
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.
Human Rights Watch interview with Supt. Sandro Zarb, International Relations
Unit and Supt. Neville Xuereb, Immigration Department, Malta Police, Floriana,
Malta, May 1, 2012.
Human Rights Watch interviews with Amr S., Khaled M., and Hossein D., Safi,
Malta, April 30, 2012.
Human Rights Watch interview with Bello E., Marsa, March 13, 2012, and follow
up interview, Marsa, April 25, 2012.
Human Rights Watch interview with Labaan X., Marsa, Malta, March 13, 2012.
General Comment No. 6, para. 63.
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.
“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.
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.
Human Rights Watch interview with Stéphane K., Marsa, Malta, March 15,
2012.
Human Rights Watch interview with Kibreab A., Marsa, Malta, March 14, 2012.
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).
Human Rights Watch interview with Ghedi H., Valetta, Malta, April 27, 2012.
Human Rights Watch interview with Abdi M., Valetta, Malta, April 27, 2012.
Human Rights Watch interview with Amr S., Safi, Malta, April 30, 2012.
Human Rights Watch interview with Edgard O., Safi, Malta, April 30, 2012.
CRC article 8, General Comment No. 6 para. 31 (a).
Human Rights Watch interview with Labaan X., Marsa, Malta, March 13, 2012.
Human Rights Watch interview with Kibreab A., Marsa, Malta, March 14, 2012.
Human Rights Watch interview with Stéphane K., Marsa, Malta, March 15,
2012.
Human Rights Watch interview with NGO staff member, Birkirkara, M February 27,
2012.
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).
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).
“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
Separated Children in Europe Program, Position Paper on Age Assessment in the
Context of Separated Children in Europe, 2012, p. 9.
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] 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.
Human Rights Watch interview with Christophe G., Fgura, Malta, May 3, 2012.
General Comment No. 6, para. 61.
Human Rights Watch interviews with Dalmar H., Nadif K., Korfa A., and Erasto
M., Marsa, Malta, March 15, 2012.
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.
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.
Human Rights Watch interview with Perry O., Sliema, Malta, March 16, 2012, and
follow up, Bugibba, Malta, April 28, 2012.
Human Rights Watch interview with Chris K., Marsa, Malta, April 25, 2012.
Human Rights Watch interview with Ousmane H., Sliema, Malta, March 14, 2012.
Human Rights Watch interview with Bello E., March 13, 2012.
Human Rights Watch interview with Bello E., Marsa, March 13, 2012, and follow
up interview, Marsa, April 25, 2012.
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.
Human Rights Watch interview with Cherif M., Safi, Malta, May 3, 2012.
General Comment No. 6, para. 33.
Human Rights Watch interview with Labaan X., Marsa, Malta, March 13, 2012.
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.
General Comment No. 6, para. 33.
Human Rights Watch meeting with Mario Friggieri, Valetta, Malta, April 27,
2012.
General Comment No. 6, para. 63.
Source link : https://www.hrw.org/report/2012/07/18/boat-ride-detention/adult-and-child-migrants-malta
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Publish date : 2012-07-18 03:00:00
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