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Illegal migrant wins compensation for arbitrary detention

The European Court of Human Rights has ordered the Maltese government to pay an Algerian migrant, Khaled Louled Massoud, €12,000 after finding that that he had been arbitrarily detained for more than 18 months.

The court heard that Mr Massoud arrived in Malta on 24, June 2006 without documents, having travelled by boat from Libya in an irregular manner. Upon his arrival he was served with a removal order and he was detained at police headquarters.

On June 28, 2006 he was arraigned in court charged with aiding, assisting, counselling or procuring other persons to enter or to attempt to enter Malta or having conspired to that effect. He was remanded in custody.

On 1 October 2006, pending proceedings, Mr Massoud made a late preliminary application for refugee status, which was considered by the Refugee Commissioner.

On 25 October 2006 the Court of Magistrates found Mr Massoud guilty and sentenced him to 18 months' imprisonment.

While in prison, on 17 April 2007, Mr Massoud made a formal application for asylum and was interviewed on the same day.

After serving his sentence, he was released from prison on 27 June 2007 and was placed in a detention centre pending the determination of his asylum claim.

ASYLUM APPLICATION REJECTED

The asylum application was rejected on 24 April 2007 and subsequently on appeal on 18 July 2007 as Mr Massoud had failed to provide convincing evidence that he would face a real risk or had a well-founded fear of persecution.

Mr Massoud remained in detention awaiting removal until 6 January 2009 when his removal order was lifted in view of the lack of prospects of his eventual deportation.

Mr Massoud claimed that the conditions of detention in Blocks C and B had been inappropriate. Both facilities had been overcrowded, particularly in the summer months, with inadequate sanitary and other facilities, limited medical care, no possibility of constructive activities and limited recreational opportunities. He made reference to reports of the CPT, the Council of Europe Human Rights Commissioner and the LIBE Committee of the European Parliament documenting such conditions.

Mr Massoud submitted before the European court that his detention for more than 18 months after the determination of his asylum claim had been arbitrary, unlawful and not in compliance with the requirements of the European Convention on Human Rights as established in the court's case-law.

He submitted that the duration of his detention had been excessive and not determined by an assessment of the effective possibility of return but by a pre-established policy which applied independently of the individual circumstances of the case.

Moreover, while in detention he had never been approached by the immigration authorities about the subject of his removal or informed of the stage of the removal procedure. Neither had the government demonstrated in any way that removal proceedings had been undertaken with due diligence. Indeed, in 2010, although released from detention, he was still in Malta.

The Government submitted that from June 27, 2007 to January 6, 2009 Mr Massoud had been detained for lawful reasons, and the12 -month limit started to run from the date when an individual applied for asylum. Thus, the asylum claim having been decided on July 18, 2007, the decision was taken within the one year time limit provided by European law.

Furthermore, Mr Massoud had ceased to be an “asylum seeker” on July 18, 2007. However, even if this were not the case, the government argued that access to the labour market did not entail freedom from detention, as both were not incompatible.

The government further submitted that its policies on detention were reasonable in respect of duration considering the intricate problems involved in the removal of undocumented immigrants. The applicant's allegation of a blanket application of these policies to all immigrants was untrue as Malta had no desire to keep irregular immigrants in detention on its territory if it could repatriate them. However, this proved difficult because of the lack of cooperation between immigrants and their countries of origin.

Moreover, the government argued, individuals did have the possibility of review by an independent judicial authority, with the assistance of legal counsel. Furthermore, conditions of detention were adequate considering the large influx of migrants on such a small island which had limited financial and human resources.

The government pointed out that Mr Massoud had landed in Malta without any documentation and although his nationality and identity had been established, it had not been possible to arrange his removal. The police had unsuccessfully tried to obtain travel documents for the applicant from the Algerian authorities through the intervention of the Ministry of Foreign Affairs. Moreover, Mr Massoud had not shown any interest in being repatriated or sent to another destination.

Thus, the government submitted that his detention of 18 months (in accordance with government policy) pending removal had been due to the applicant's lack of cooperation and had therefore been necessary, justified and not excessive.

COURT OBSERVATIONS

The court observed that after he served his sentence, Mr Massoud was transferred to a detention centre and detained “with a view to deportation”.

It followed that the period of detention to be considered for the purposes of this complaint was that from June 27, 2007, the date when the applicant was placed in a detention centre pending the processing of his asylum claim, to January 6, 2009, when he was released.

The duration of the detention therefore amounted to 18 months and nine days.

The court noted that the entire duration of the detention was subsequent to the rejection of his asylum claim at first instance, on April 24, 2007, and that the final decision on his asylum claim was delivered three weeks after the commencement of his detention in the detention centre.

The court said that it found it hard to conceive that in a small island like Malta, where escape by sea without endangering one's life was unlikely and fleeing by air was subject to strict control, the authorities could not have had at their disposal measures other than Mr Massoud's protracted detention to secure an eventual removal in the absence of any immediate prospect of his expulsion.

"In the light of the above, the Court has grave doubts as to whether the grounds for the applicant's detention – action taken with a view to his deportation – remained valid for the whole period of his detention, namely, more than eighteen months following the rejection of his asylum claim, owing to the probable lack of a realistic prospect of his expulsion and the possible failure of the domestic authorities to conduct the proceedings with due diligence."

The court noted that the Malta Immigration Act applied no limit to detention and that the government policies have no legal force. In consequence, the applicant was subject to an indeterminate period of detention. In such circumstances the necessity of procedural safeguards becomes decisive.

However, the court had already established that the applicant did not have any effective remedy by which to contest the lawfulness and length of his detention and the government had not pointed to any other normative or practical safeguard.

"It follows that the Maltese legal system did not provide for a procedure capable of avoiding the risk of arbitrary detention pending deportation."

The court said that such considerations were sufficient for it to conclude that the national system failed to protect Mr Massoud from arbitrary detention, and his prolonged detention could not be considered to have been “lawful”.

The full text of the court decision can be found at

http://cmiskp.echr.coe.int/tkp197/view.asp?item=8&portal=hbkm&action=html&highlight=&sessionid=57469235&skin=hudoc-en

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