Human rights court calls out lack of independence on immigration appeals board

The European Court of Human Rights has found the Maltese state in breach of the fundamental rights of six Bangladeshi nationals, who as unaccompanied minors had been detained in conditions that were tantamount to  inhuman and degrading treatment.

The case was filed by six Bangladeshi nationals over various periods of detention of presumed minors.

The applicants, who claimed to have been minors aged between 16 and 17 years at the time, arrived in Malta on 18 November 2022 with a group of around another 40 persons, after being rescued at sea, and were held in Ħal Far Initial Reception Centre (China House).

The ECHR ordered the Maltese government to pay one applicant €9,000 and the rest €15,000 each, as well as €6,000 jointly to all applicants in damages and legal expenses. The applicants were represented by the human rights NGO Aditus.

The Court once again told Malta that its constitutional redress proceedings suggested were not an effective remedy for the purposes of complaints of ongoing conditions of detention.

The Court said the need to detain children in an immigration context must be very carefully considered by the national authorities.

It said the Immigration Appeals Tribunal had indiscriminately confirmed the lawfulness of their detention, despite a national regulation that provided that migrants who claimed to be minors should not be detained, except as a last resort, unless their claim was evidently untrue.

The ECHR also agreed with applicants that the independence of the IAB members as being close to the government executive, meant their independence not guaranteed.

The applicants complained that IAB members were directly connected to the executive: the chairperson Maria Cardona was the former wife of former Labour minister Chris Cardona; other members included minister’s direct and immediate relatives, state company directors who had no legal background in asylum.

“This seriously undermined the image of the IAB and its ability to act and appear as an independent entity. In relation to the members of the IAB handling their case, there had been no call for applications, the selection process was not public, nor reviewed by an independent authority and there was no possibility to challenge such Ministerial appointment,” the ECHR said.

Both the European Commission and the Venice Commission had expressed serious concerns about the functioning of similar tribunals.

It called on the government to put in place a remedy, effective both in law and in practice, for detainees to complain about the conditions of an ongoing detention.

The ECHR said the Maltese government had to ensure that legislation was put in place for the Immigration Appeals Tribunal to conform with the requirements of independence and impartiality as regards the appointment of its members and their term of office, to ensure guarantees against outside pressure, and to be seen to be independent.

The plaintiffs listed a litany of desultory conditions inside the Ħal Far centre: insufficient washrooms for the 47 persons hosted and they were in a bad state of repair; limited to no access to an outdoor area; no access to a common area; no access to any prayer room or private space; and limited access to a phone, lawyers, leisure or educational activities; no heating in any rooms; no appropriate clothing for winter; inadequate living conditions; limited to no access to drinkable water; no information provided in a language which they understood regarding their detention; and lack of adequate medical and psychosocial support.