Malta is a small and densely populated archipelago situated in the middle of the Mediterranean Sea. Since 1 May 2004, it forms part of the southern-most borders of the European Union.
In Malta, immigration is a recent phenomenon triggered in part by the arrival of Iraqi refugees fleeing the first Gulf war during the 1990s.
The archipelago is situated in the Mediterranean Sea between Sicily, Libya and Tunisia. It is thus situated on the path of many migrants leaving North Africa for Europe. Taking account of its size and population, Malta, proportionally speaking, receives by far the greatest number of migrants of the EU Member States.
Since 2002, the year of massive boat arrivals from Libya, immigration to Malta is considered as a problem by the government and the people living there. Contrary to other small islands that see a lot of migrant arrivals, such as the Canaries or Lampedusa, Malta is a micro-State which consequently cannot send the migrants on to a different metropolis and which therefore has to manage these new migratory phenomena alone.
Right from the first migrant boat arrivals, the Maltese government put in place an immigration law and policy of systematic detention in building emergency detention centres. All migrants, whether or not they are asylum seekers, are detained behind bars until their repatriation or until such time as a decision concerning their asylum claim is taken. Whereas the number of migrants has increased, the authorities have never attempted to find a long-term solution and thus the ’emergency’ detention centres have remained in place now for years.
Whereas the number of asylum claims has considerably decreased in other European states, it has strongly increased in Malta as well as in the 10 newest Member States of the European Union .
The systematic detention regime in Malta explains in part this phenomenon: since the legal status following an asylum request results in the diminution of one’s detention (from 18 to 12 months), almost every migrant makes an asylum claim, even if certain among them would prefer a more “classic” regularisation system.
All migrants, whether asylum seekers or not, are detained behind bars until (a) the authorities decide as to potential international protection needs, (b) social services identify severe vulnerability or (3) repatriation can be organised.
Duration of detention
The duration of detention is not provided for in any law. It is established in a “policy document” from 2005, and goes up to a maximum of 18 months for irregular migrants, migrants who do not seek asylum and for those whose claims are dismissed. For asylum seekers, a maximum of 12 months is set. This limit is based on the “Reception Directive” , which stipulates that asylum seekers should have the possibility to access the employment market after 12 months spent on the territory. As this is not possible if the person is detained, the practice has evolved towards a systematic release of persons having applied for asylum and, after 12 months, still have not received a decision from one of the authorities in charge (Office of the Refugee Commissioner or the Refugee Appeals Board).
Persons said to be vulnerable are not, in principle, subjected to the detention regime. In practice, every irregular immigrant is detained and it is only following their detention that persons presenting vulnerability are then evaluated in order to decide whether or not they should be released. The release of vulnerable persons is not automatic. The evaluations are conducted by the Organization for Integration and Welfare of Asylum Seekers (OIWAS), a governmental agency that is also in charge of the management of so-called “Open Centres”, housing migrants, asylum seekers, refugees and vulnerable persons. Thus, certain release procedures for vulnerable persons in detention are delayed if available places in the Open Centres are lacking. As for the evaluations, there are certain problems: for example, for pregnant women or families with young children who do not present any particular difficulties in terms of evaluating vulnerability, the procedure should be quite fast. But in practice, it seems that such a procedure can take from a few days to a few months. A striking example was the case of two Congolese mothers with their 6 children who had been detained for six months in a mixed centre, housed in one bedroom with two double beds for the two families. Or the Somali family where the woman arrived to Malta pregnant was detained for the term of her pregnancy and then sent back to detention until the baby reached the age of three months. In 2007, after numerous complaints on the part of NGOs, unaccompanied minors were all released after 9 months of detention, as most of them had been awaiting age verification tests (la radiography of the wrist). They great majority of them were then sent to the adult open centre until the conclusion of their evaluation.
The evaluation procedures very according to vulnerability. They start with a recommendation from the Immigration Police who will list for OIWAS the presence of pregnant women, children or minors. If the Police have not made the recommendations, the NGO present can do so, if vulnerability has not been detected beforehand or if one emerges in detention. For more delicate cases, like victims of trauma or psychological cases, the recommendations should be backed-up by evidence or reports such as medical certificates or psychological evaluations. There is no psychologist room in detention. MSF was providing this service until recently (explained below). Without their presence, the NGOs can try to appeal to the services of a private specialist. Often, recommendations of this order are carried out after a stay in a psychiatric hospital, as the situation of these undetected vulnerable persons deteriorates during their detention, given especially as there is now no presence of a specialist service there.
Once the recommendations are done by the different organization, governmental or non-governmental, OIWAS will proceed to a first interview with a social assistance, who will send a report to a team at OIWAS specialised in the evaluations for specific vulnerabilities. If this team observes vulnerability due to which the person should not be in detention, it would make a recommendation to the Principal Immigration Officer in charge of detention, who in turn may accept or refuse the recommendation. If it is accepted, an obligatory preliminary medical visit will be ordered before the release of the vulnerable person. If not, the concerned person will remain in detention. Each step represents a delay of varying and undetermined length. No appeal against this decision is provided for under the law.
The other categories of persons said to be vulnerable are generally submitted to procedures far longer and the cases of victims of torture and trauma or even unaccompanied minors are conclusive examples of the particularly long delays that underline serious dysfunctionality of the evaluation system.
There are three detention centres (Safi Barracks, Lyster Barracks et Ta’Kandja), having a total capacity of around 2300 persons. They are divided into “compounds”; some are managed by the Police, but the large majority are managed directly by the armed forces (AFM) . There is also a ’transit centre’ at the airport, where overnight stays are not permitted. According to the case, a person there may be transferred to a detention centre if expulsion is not possible. The detention centres are mixed, women are detained with men, though since the first quarter of 2009 one can observe a movement towards partitioning women from men, not yet implemented in full. Furthermore, there is no specific centre for families with children, or for unaccompanied minors.
Visits to certain centres are authorised only after a request is made. A fixed telephone line is installed in each centre to receive and give calls; credit allocated to each detained person is 5 euros per 2 months. Mobile phones are forbidden and confiscated upon arrival, as are all goods possessed by the detained – money, documents, etc. NGO workers are searched at each visit and searches are sometimes organised in the centres.
Access to healthcare is organised by a private Maltese enterprise, Medicare, and between September 2008 and March 2009 by Médecins Sans Frontières, which had access to the detention camps until this NGO announced its withdrawal. According to MSF, the present conditions in detention aggravate medical and psychological risks: the lack of a clean room to hold consultation interviews, the mixed use of sanitary facilities, the absence of female personnel to take care of the female detained persons, the lack of beds and the ongoing presence of mattresses on the flood, the lack of allocated time outdoors (2 hours per week in certain centres). It has been furthermore claimed that the medical personnel allowed in the centres is insufficient to cover the needs of the detained persons, the lack of a psychologist room, pharmacy, place for quarantined persons, all render health consultations useless. Punishment cells are presently used to house quarantined persons. The decision to quarantine somebody is taken by detention personnel when the Medicare doctors determine a risk of contagion. These cells do not offer the necessary sanitary guarantees, and the decision to place persons in isolation for medical reasons can only be taken by medical personnel.
NGOs have access to the centres after a request for authorisation sent to the Ministry of Justice and Home Affairs. This permit may be delivered after several months’ wait. In practice, the Jesuit Refugee Service, a NGO offering legal assistance to detained persons, as well as Médecins sans Frontières for medical assistance, visit the centres regularly (until March 2009 for MSF). However, in February 2009, during the publication of its report, MSF regretted that their activities in detention were not accompanied by any improvement in the sanitary conditions on the part of the authorities. Other NGOs visit the detention centres like the Red Cross, which offers a tracing and family reunification service, or SOS Malta for voluntary returns. UNHCR also has free access to the centres. In theory, lawyers also have access to the detention centres. In practice, the operation of the centres severely limits the access: the detained persons have no contact, their money is confiscated upon arrival, and there is no legal aid for the first instance decision on their asylum claim. For appeal procedures, most of the asylum seekers request legal aid and a list of “legal aid lawyers” have the right to access the centres for this purpose. Is a detained person wishes to appeal to the services of a private barrister, authority to do so must be made beforehand to the authorities
Limitations are put in place for access to isolation punishment cells, as well as for cases of general disorder.
The Open Centres
There are different types of open centres which are managed by a governmental agency called OIWAS. Three houses of small capacity offer particular support for families and minors. Added to this is a reception centre exclusively for women, which opened in 2008.
Couples without children are lodged in prefabricated housing outside an old aircraft hangar that was opened in 2008, inside which 800 beds are supposedly reserved for single men. There is another centre for single men called the “tent village” and is composed of 45 tents for 1300 persons.
Closer into town is the Marsa open centre, which is an old school renovated for the purpose. This is the most popular place to live, as it is easiest to find work in the morning around the city centre. Migrants wait outside on the street early in the morning for employers to pass by in their pickups, hoping that they will be chosen to work for the day. The total capacity of the open centres is 3500 persons.
Situation of minors
Unaccompanied minors are “evaluated” by OIWAS (Organization for Integration and Welfare of Asylum Seekers). The evaluation procedure consists of an interview of the minor carried out by a social assistant. If the interview is conclusive, the minor is released with a custody order (placing the minor under the custody of the Ministry of Social Affairs): if the interview is not conclusive, the minor receives a letter informing him that he is considered an adult. If, after this interview, a doubt persists, OIWAS orders a medical test consisting of a simple bone radiography to estimate the age of the person. According to the results of this test, the person will either be released or not. The procedures may take months before being finalised, during which time the minors are not separated from detained adults.
Externalisation and control of borders
The responsibility of the Maltese authorities to rescue boats in distress is not limited to Maltese territorial waters. The Maltese SAR (Search and Rescue Area)  stretches almost from Tunisia to Greece, which means that a boat that finds itself in distress in this region falls to the responsibility of Malta, which is then obliged to tow it to its shores. The economic advantage may justify the reluctance of the Maltese government to reduce its SAR zone since it coincides with the rights of the “Flight Information Region” which represents considerable revenue through taxation of the aerial traffic overhead. If a boat is not in distress, the patrols generally let it continue its course towards Lampedusa (Italy). Moreover, Libya generally refusing to assume any responsibility of boats present in its territorial waters, Frontex maritime patrols then tow boats towards Europe, whether Italy or Malta. In 2009, relations between Italy and Malta were marred by disputes about responsibility for boats in distress around Malta or Lampedusa. Malta referred to the SOLAS conventions, which favours the notion of the closest port, whereas Italy recalled the Maltese responsibility for all the expanse of its SAR zone.
The particularity of Malta compared with other member states of the EU is that this state carries out very few returns to country of origin or transit of migrants. While there are some individual cases of return to Africa, they are rare and have essentially concerned countries of North Africa (Morocco, Algeria, Libya, Egypt, Tunisia).
● CPT, Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, January 2004 June 2005 - May 2008: [http://www.cpt.coe.int/en/states/mlt.htm]
• “Irregular Immigrants, Refugees and Integration - Policy Document” Ministry for Justice and Home Affairs, ministry for the Family and Social Solidarity. 2005
• “Position Paper on the Report of the Board of inquiry nominated by the Prime Minister on January 17, 2005, in terms of Article 4 of the Inquiries Act, dated December 9, 2005”, JRS, Emigrant Commission, 22 December 2005.
• FIDH “Enfermer les étrangers, dissuader les réfugiés: le contrôle des flux migratoires à Malte », n°403, September 2004.
● LIBE, Report by the LIBE Committee delegation on its visit to the administrative detention centres in Malta, 2006.
● Receptions of Asylum Seekers - JRS - February 2005; http://www.jrsmalta.org/Reception_of_Asylum_Seekers_Feb2005.pdf
● Study by STEP Social Consulting for the European Parliament “Conditions of third country nationals in centres (detention camps, open centres, as well as transit zones) within the 25 Member States of the EU” 2007?
● UN Working Group on Arbitrary Detention - visit to Malta January 2009: http://www.unhchr.ch/huricane/huricane.nsf/view01/125F21AAD7DCBD1AC125754A0057F318 ?opendocument
● Immigration Act: see articles 10, 25A and 34 - http://docs.justice.gov.mt/lom/legislation/english/leg/vol_5/chapt217.pdf
● Refugee Act: http://docs.justice.gov.mt/lom/legislation/english/leg/vol_13/chapt420.pdf
● Transposition of the “Procedures” Directive: Procedural Standards in Examining Applications for refugee Status Regulations - http://docs.justice.gov.mt/lom/Legislation/English/SubLeg/420/07.pdf
● Transposition of the “Reception” Directive: Reception of asylum Seekers (Minimum standards) - http://docs.justice.gov.mt/lom/Legislation/English/SubLeg/420/06.pdf
● JRS Malta : www.jrsmalta.org
● Médecins Sans Frontières
● Red Cross
● SOS Malta
Solène Guérinot for Migrants’Solidaruty Movement Céline Warnier de Wailly for Jesuit Refugee Service March 2009
Translated by Alexandra Strang