Unaccompanied children seeking asylum in Malta are deprived of their liberty until their age is determined, the age assessment procedure lacks transparency and it is not formalised or regulated by law. In addition, during the age assessment, children often have no access to a legal representative and no effective remedy is available to challenge decisions on the age, a new report by aditus foundation shows.

All asylum seekers who arrive in Malta in an irregular manner are subject to mandatory detention. Pending the assessment of their age, which can take up to several months children are not exempt from detention. This policy has repeatedly been found in violation of international and European law by the European Court of Human Rights (e.g. Suso Musa v. Malta and Aden Ahmed v. Malta) and has been condemned by UNHCR. In addition, children, who constitute an increasingly high percentage of new arrivals are often detained with adults. They are only appointed a legal representative after an order placing the child under the care of the Minister for the Family and Social Solidarity is issued and they are released.

The report recommends that each unaccompanied child is appointed an independent, experienced guardian, as soon as possible and before an age assessment procedure is carried out. The report also highlights recent positive reforms to the age assessment procedure for unaccompanied asylum seeking children in Malta, including a greater consideration of the benefit of the doubt, and an effort to minimize the period children spend in detention by introducing a time limit of 10 days to the first stages of the procedure.

Aditus has also published a report summarising their input on the Child Protection (Out of Home Care) Bill which is being negotiated at the Parliament. If adopted, the Bill will introduce a series of reforms positively impacting on unaccompanied children. It will create a number of new actors with various responsibilities toward the child, including a Child Advocate and a Guardian. In addition, it seems to provide that age assessment procedures shall not be conducted in detention. However, the Bill des not fully take into consideration the principle of the best interest of the child, does not contain a clear definition of ‘unaccompanied asylum-seeking children’, and more generally does not fully take into account the asylum context in the design of certain procedures.

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This article originally appeared in the ECRE Weekly Bulletin of 24 October 2014. You can subscribe to the Weekly Bulletin here.