Asylum seeker's release contested... again

The Attorney General has filed a second application in the Criminal Court contesting the release of asylum seeker Karim Barboush, ordered by the Magistrates' Court on Tuesday, and demanding his re-arrest.

In the application, Dr Silvio Camilleri argued that the judgment ordering Barboush's release was "based on a lack of understanding of the procedure contemplated in article 409A of the Criminal Code (under which Barboush contested the legality of his arrest), irrelevant considerations, some wrong ones and several misinterpretations of the law".

Chief Justice Vincent DeGaetano yesterday heard the submissions made by both parties.

The Attorney General argued that article 409A (3) of the Criminal Code clearly outlined the role a magistrate had in the matter: "If, having heard the evidence produced and the submissions made by the applicant and respondents, the court finds that the continued detention of the applicant is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the applicant it shall allow the application. Otherwise the court shall refuse the application".

In this case, the Attorney General said, his detention was founded on article 14 (2) of the Immigration Act which states that once a removal order was issued against a person, "such person shall be detained in custody until he is removed from Malta".

Dr Cedric Mifsud, representing Barboush with Dr Katrine Camilleri, Dr Andrew Galea Debono and Dr Michael Camilleri, argued that the fact that Barboush was in illegal immigrant was never contested. It was the lawfulness of his state of arrest that was under attack.

Dr Mifsud explained that article 5 (4) of the European Convention laid down that anyone who was deprived of one's liberty by arrest or detention was entitled to take proceedings by which the lawfulness of one's detention would be decided speedily by a court and release ordered if the detention is not lawful.

It was on the strength of this article that the lawyers evoked article 409A through which the lawfulness of Barboush's arrest was contested.

The lawyer argued that no action had been taken to deport Barboush and his appeal had fallen on deaf ears as the Appeal's Board was not composed. The indefinite detention of a man, without action, was illegal.

Magistrate Anthony Vella had ruled for the release of Barboush on October 25 but following an appeal filed by the Attorney General the day after, the Criminal Court revoked the ruling on procedural grounds and ordered that the case be heard again.

Consequently, in a judgement handed down on Tuesday, Magistrate Vella ruled that although it was understandable that an illegal immigrant would be detained on arrival at Malta, the detention of Barboush, an asylum seeker, for 14 months went beyond the limits of what was considered reasonable, let alone legal.

The magistrate ordered his release and that same day Barboush packed his belongings at the Hal Far detention centre and moved into the neighbouring open centre where he has been residing at least till this afternoon, when the Chief Justice is expected to decide on the application filed by the Attorney General.