Asylum seekers unable to challenge prolonged period of detention – UNHCR

The United Nations' refugee agency (UNHCR) has told the Maltese government that its reception for asylum seekers and their  systematic administrative detention policy in not in conformity with international law standards and that the fact Malta continues to receive relatively high numbers of asylum seekers does not absolve the state from its responsibilities.

UNHCR said it would shortly submit to the Maltese authorities a set of concrete proposals for various improvements to the asylum system, which take into account not only the international and European law framework, but also the practical reality of Malta's capacities, infrastructure and context.

The majority of asylum seekers in Malta are subject to prolonged periods in detention without access to adequate avenues to challenge effectively the decision to detain.

There is also no general mechanism in place to consider less coercive and alternative measures in individual cases at the time of the decision to detain.

The position paper finds that the bail system, the only statutory alternative available, is neither effective nor generally accessible to asylum seekers arriving in an irregular manner.

"In these circumstances, it is UNHCR's position that the mandatory and automatic detention of all asylum seekers who arrive in an irregular manner, for the purposes of removal, is unlawful and arbitrary."

UNHCR said that alternatives to detention are an effective means of balancing the rights of asylum seekers with the efficient management of the reception system.

"We're ready to contribute to any form of review of the current system and provide support in exploring potential adjustments which can lead to a better response towards the arrival of asylum seekers, in line with international and European law standards," UNHCR said.

The position paper on the detention of asylum seekers points out issues that must be addressed to bring Malta's reception system fully in line with the 1951 Refugee Convention and other international and regional human rights instruments.

The 33-page document gives a detailed analysis of Malta's laws and policy on detention, and is a result of extensive legal research and analysis, based in part on UNHCR's own observations as regards the reception system in Malta.

"UNHCR appreciates the ongoing cooperation with the Maltese authorities, which facilitates the agency's mandated functions, including through regular visits to detention centres and joint activities as regards training and other support.

"UNHCR is well aware that the Maltese government is faced with a challenging situation. But the fact that Malta continues to receive relatively high numbers of asylum-seekers, does not absolve fundamental state responsibilities in this regard," the agency said.

UNHCR also reminded the Maltese government that under international human rights and refugee law, as well as Maltese refugee law, asylum-seekers cannot be deported or expelled, until such time as there has been a final decision on their claims, determining that they are not in need of international protection.