Migrant pushbacks | 'No final decision was taken', Malta tells Strasbourg court

Pushing migrants back to Libya was "one possibility" of different options the government considered and no final decision had yet been taken, Malta informed the European Court of Human Rights on Tuesday.

The Maltese government had until yesterday (30 July) to inform the ECHR whether it had considered the claims of some 45 migrants who were scheduled to be deported to Libya without considering their request for asylum.

Earlier this month, in a temporary measure taken by the Strasbourg court, the government was stopped in its tracks from flying two planeloads of Somali asylum seekers to Mitiga airport after they had been rescued and brought to shore by the Armed Forces of Malta.

FULL LETTER TO European Court of Human Rights

The court, which has already declared pushbacks of asylum seekers to be illegal, asked Malta to state whether the government considered each applicant's claim that they will be exposed to inhuman treatment if returned to Libya, and what measures it will be taking to ensure each applicant's assessment and access to proceedings before the European Court.

The Maltese government has however insisted that by the time the ECHR issued its order prohibiting deportation, no final decision had yet been taken.

"Different options, including the possibility of return of the migrants to the country of their last departure were being considered as a possibility," the government said in its reply.

It went on to highlight Malta was left alone in facing "the continuous arrivals of large numbers of irregular migrants".

As soon as migrants land in Malta they are detained in detention centers until their asylum request is being processed. The group which the government had held at the police headquarters as it mulled the various possible options, were for the time being detained in the detention centres.

"The applicants were given information about their right to apply for refugee status in terms of the Refugees Act. In fact, in terms of the Refugees Act, the applicants have sixty days within which to apply for asylum which application suspends the effects of the removal order handed to the applicants upon their arrival," the government told the Strasbourg court.

"This means that the applicants will remain in Malta until their asylum application is finally decided. Moreover, the applicants had three working days within which to appeal the removal order in terms of the Immigration Act."

Applicants also have access to the domestic courts in order to request those courts to judicially review the decision on their detention. They also have access to Constitutional redress proceedings in respect of any allegations concerning the violation of Constitutional or Convention rights.

The government highlighted that six out of 102 migrants who arrived at the beginning of the month were released from the detention centre given that they were considered to be vulnerable persons. 

The group, a number of pregnant women, two minors and two families, have already approached the Commissioner for Refugees and information sessions have already been held with them.

"Moreover, the Commissioner for Refugees has held all the information sessions with the other persons to whom the application refers. A number of interviews were already held with some of the applicants and the remainder of the applicants will be interviewed in the coming days."

FULL LETTER TO European Court of Human Rights

Dear Ms Ried

Application no. 43985/13 X and Others v. Malta

Thank you for your letter of the 9th July 2013 whereby the Government was requested, under Rule 54 § 2 (a) of the Rules of Court, to submit the following information.

1. Before deciding on their deportation, did the authorities consider each applicant's claim that they will be exposed to the risk of being subjected to inhuman treatment if returned to Libya?

The Government wishes to point out that whereas in the crisis situation faced by Malta as a result of being left alone to face the continuous arrivals of large numbers of irregular migrants - of which this particular case is just one example - different options, including the possibility of return of the migrants to the country of their last departure, were being considered as a possibility. Nonetheless, no final decision in this regard had yet been taken by the time when the Court issued its order under Rule 39 of the Rules of Court prohibiting deportation.

2. Which measures will be taken by your Government in order to ensure each applicant's assessment and access to the Court's proceedings?

The Government points out that the applicants are currently in Malta and are for the time being detained in detention centres in accordance with the provisions of the Immigration Act (Chapter 217 of the Laws of Malta). The applicants were given information about their right to apply for refugee status in terms of the Refugees Act (Chapter 420 of the Laws of Malta). In fact, in terms of the Refugees Act, the applicants have sixty days within which to apply for asylum which application suspends the effects of the removal order handed to the applicants upon their arrival. This means that the applicants will remain in Malta until their asylum application is finally decided.

Moreover, the applicants had three working days within which to appeal the removal order in terms of the Immigration Act (Chapter 217 of the Laws of Malta).

Government wishes to recall that the applicants also have access to the domestic courts in order to request those courts to judicially review the decision on their detention. They also have access to Constitutional redress proceedings in respect of any allegations concerning the violation of Constitutional or Convention rights.

To date, six out of the 102 persons on the boat used by the applicants have already been released from the detention centre given that they were considered to be vulnerable persons. These included a number of pregnant women, two minors and two families. These individuals have already approached the Commissioner for Refugees and information sessions have already been held with them.

Moreover, the Commissioner for Refugees has held all the information sessions with the other persons to whom the application refers. A number of interviews were already held with some of the applicants and the remainder of the applicants will be interviewed in the coming days.

Yours sincerely

Peter Grech [Attorney General]