Malta’s detention policy has been framed with reference to the migratory scenario in Malta, is based on legislation, and is not discriminatory, the government said today.
It said in a statement that detention applies to persons irregularly entering Malta or whose presence in Malta is otherwise irregular, irrespective of race, colour, national or ethnic origin.
The government was replying to a report published yesterday by Human Rights Watch “Boat Ride to Detention: Adult and Child Migrants in Malta”.
The government said it appreciated the efforts of HRW and other organisations to promote respect for human rights and dignity and noted that HRW acknowledged that Malta faced an “unfair burden” in dealing with the migration phenomenon.
HRW said that “Malta now has the highest number of asylum seekers relative to the national population of any country in the industrialised world.”
However, its statements that Malta’s mandatory detention policy violated international standards warranted some comments.
The government said that the European Convention on Human Rights specifically provided for “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”.
The European Court of Human Rights had also consistently concluded that sates had the right to limit the movement of those who entered their territory irregularly and this limitation did not in any manner imply any violation of fundamental human rights.
“Practically all irregular migrants reaching Malta do not carry any documents, and therefore the authorities would not be able to ascertain the identities of the persons concerned upon entry. In fact this is usually a lengthy process that is also dependent on the cooperation of the migrants themselves.
“This current detention requirement, however, does not apply across the board. Vulnerable persons, including unaccompanied minors, women with children, pregnant women, elderly persons and disabled persons are not subject to detention.
“The freedom of such persons is restricted only until such time as the necessary medical clearances are granted by the country’s medical authorities.
“It is not uncommon for migrants to claim that they pertain to one of the categories outlined above to secure their early release. In view of this scenario, procedures are in place to screen such requests as accurately and expeditiously as possible,” the government said.
The government referred to HRW’s that persons found to be under-18 spent an average 3.4 months in detention while their request for release was being determined. This, it said, was totally misguided and did not reflect current statistics.
“Out of the 1,065 persons who landed in Malta irregularly since the start of the current year, 175 have claimed they were minors, of which 46 have been issued with a care order.
“The Agency for the Welfare of Asylum Seekers (AWAS) has processed and determined all of these cases, except for 12 of the latest arrivals which are being processed this week.
“On average, it takes AWAS 18 days to determine each request and secure the release of a person who has been positively identified as a minor. This period also takes into account the time taken for the same person to be granted medical clearance from the health authorities.
“Some persons under-18 have indeed been released from detention in six days. This is a far cry from the periods claimed by HRW. Furthermore, this is one of the aspects which are currently the focus of a thorough review which the Maltese government has initiated in the field of asylum seekers.”
With reference to the allegation that persons claiming to be minors were beaten or bullied by older people while in detention, the government said the Detention Service immediately referred such instances of serious violence between migrants directly to the police and steps were taken in court when necessary against the perpetrators of such violence.
The government noted that in its report, HRW referred to the 2010 judgment of the European Court of Human Rights in the case Louled Massoud v Malta to justify its arguments against Malta’s detention policy.
“It should be noted that the facts in Louled Massoud v Malta were very particular and specific. As a matter of fact Malta was found to be in violation because in this case the authorities did not continue to pursue the necessary preparations for deportation.
“This judgment cannot therefore be applied to other cases in a general manner, where the authorities continue to make efforts to conclude the necessary arrangements to remove the person throughout the 18-month period of detention.”
The government said the Maltese authorities pursued efforts to make the necessary arrangements to remove the person throughout the 18 months of detention, which was the maximum period of detention dictated by policy.
The government said that, in the case of asylum seekers, this period was reduced to a maximum of 12 months. But, in practice, most asylum cases were determined within six months, which meant that persons recognised as in need of international protection were not detained for more than six months.
“The Maltese authorities have over the past years intensified their efforts to ensure that irregularly staying third-country nationals are removed to their respective countries of origin, thus increasing the prospects of them being repatriated in the shortest timeframe possible.
“In fact, almost 200 such persons have been returned to various African countries since the beginning of the year.
“Such returns are affected in full compliance with Malta’s international obligations, including in particular those relating to asylum, as all irregular migrants have the opportunity to apply for international protection, and are duly informed of such right.
“This is fully confirmed by the fact that the overwhelming majority of irregular migrants apply for international protection, thereby demonstrating that the system is readily accessible.
“The Maltese Government is currently engaged in a consultation process with relevant stakeholders with a view to improving policies in the sector of irregular migration and asylum.
“This in light of its consistent commitment towards ensuring and promoting the dignity and rights of every person and its willingness to collaborate with all parties in these efforts,” the government said.