In its Position on the Detention of Asylum-Seekers in Malta published this week, UNHCR states that the Maltese practice of detaining, for the purposes of removal, all asylum seekers, who arrive on the territory in an irregular manner, is unlawful and arbitrary in terms of well-established international law standards.
The UN Refugee Agency argues that despite the challenges that the Maltese government faces due to the arrival of relatively high numbers of asylum seekers on its territory – 16,617 individuals arrived in Malta by boat in an irregular manner from 2002 to 2012 – this does not free Malta from its responsibilities under international and European law. Furthermore, UNHCR points out that in light of the steady number or arrivals in Malta, there is no evidence that the mandatory detention system has had a deterrent effect, while the negative and at times severe psychological and physical consequences of detention are well documented.
UNHCR also expresses concern as to the fact that asylum seekers are subjected to prolonged periods in detention. Due to the absence of a legally defined maximum limit on the duration of detention of asylum seekers, asylum seekers are detained for a maximum of one year (or less if they have obtained a form of protection before then) and persons whose claim for protection is rejected are detained for a maximum of 18 months.
In addition, legal remedies available under Maltese law do not provide sufficient guarantees to prevent unlawful detention of asylum seekers, leaving many of them without access to a court to effectively challenge their detention. In July, the European Court of Human Rights condemned Malta in the Suso Musa v. Malta judgment as its legal system does not provide for a procedure capable of avoiding the risk of arbitrary detention pending deportation.
Due to the absence of a legal provision prohibiting the detention of vulnerable persons, like children, they find themselves detained immediately upon arrival and only released once early release is recommended, which can take up to months.
UNHCR restates its position against the automatic and mandatory detention of asylum seekers, regardless of their mode of entry and urges the Maltese government to put into place alternatives to detention, reconciling the rights of asylum seekers with the with the Maltese government considerations regarding control and efficiency.