UN faces Malta with criticism on child migrants’ detention

The United Nations High Commission for Refugees will be presenting proposals for changes to Malta's reception system for migrants to address, amongst other issues, the problem of the detention of children inside closed centres.

The issue of child migrants' detention inside closed centres cropped up in questions by United Nations member states to Malta, during the universal periodic review (UPR) of Malta's human rights records.

Amongst these concerns were observations by the UN's Office of the High Commissioner for Human Rights, which cited previous findings by the International Commission of Jurists, the Council of Europe's human rights commissioner, and the EU's Fundamental Rights Agency that families with children had been subjected to mandatory detention when arriving in Malta without documentation.

"Human Rights Watch stated that Malta routinely detained unaccompanied migrant children until they were through a formal age determination procedure. Children could be detained for months and they were held with unrelated adults," the OHCHR said.

The same concern was echoed by the Working Group on Arbitrary Detention, which however acknowledged the government's efforts in applying a fast-track procedure for migrants with children and unaccompanied minors. 

Similar questions on Malta's detention of migrant children came from Norway, the United Kingdom, and the Netherlands.

But in its national report, Malta categorically declared that families with children and unaccompanied minors, as well as the disabled, pregnant women, and the elderly, were not detained.

But according to a UNCHR spokesperson, which MaltaToday contacted for a comment on the Maltese government's declaration to the UPR, children are still being detained inside migrant reception centres.

"UNHCR notes that compared to previous years, the authorities are now completing age assessment procedures within a shorter period of time. However, in some cases, children are still in detention for days and even weeks, awaiting release, even after their age assessment procedures have been completed.  For example, last week, UNHCR observed 10 children who have been recognized as minors by the authorities and who were still awaiting release."

Malta uses a system of automatic and mandatory detention for all asylum-seekers who arrive in an irregular manner, as mandated by its Immigration Act: this law states that persons entering Malta irregularly have to be issued with a removal order by the immigration authorities and detained until they are deported. The law provides no exceptions for asylum-seekers including children.

A 2005 policy document on irregular migration by the Maltese government said it would give "particular attention to irregular migrants considered to be more vulnerable, namely unaccompanied minors, persons with disability, families and pregnant women."

This policy meant that children should be released from detention after they undergo an age assessment procedure by the Agency for the Welfare of Asylum Seekers (AWAS).

"In practice, this means that children are still automatically detained upon arrival and have to wait in detention, together with adults, until their age assessment procedures are completed," the UNHCR spokesperson told MaltaToday.

But as UNHCR workers inside the detention witnesssed, even children recognized as minors by the authorities were still awaiting release in some cases.

"UNHCR appreciates that the authorities have made efforts to ensure early release of children, however, the aim should still be to avoid detention of children altogether. Currently asylum-seeking children are detained as a rule and not only in exceptional cases, as should be the norm in terms of international human rights law."

According to a new EU law - the Reception Conditions Directive - minors can only be detained "as a measure of last resort and after having been established that other less coercive alternative measures cannot be applied effectively."

Under this law, the UNHCR spokesperson said, Malta will have to revise its current law and policy in order to correctly transpose, by 2015, the new EU rules on the reception of asylum seekers.

"Following the tragedy of 11 October, when a boat carrying Syrians and Palestinians capsized and more than 100 persons perished at sea, the Maltese authorities made great efforts to address the needs of the survivors without using detention for families with children. UNHCR considers this as a very positive response and we encourage the authorities to further develop a system which can avoid detention for children," the organisation said.

In her statement to the United Nations' universal periodic review, Minister Helena Dalli said that her own appointment as civil liberties and equality minister was part of the "fresh impetus" that a new Labour administration had brought to the country.

But she said that the "harsh realities of immigration, turmoil, financial challenges and actors that defied the fundamental principles of human rights were real situations that Malta confronted in upholding its international human rights commitments."

According to UNHCR statistics for 2012, Malta received the largest number of asylum applications among the 44 industrialised countries covered in the report. Malta's asylum recognition rate was consistently high, at around 50 per cent, in view of the needs of persons seeking protection in Malta. The recognition rate reached a record high of 90 per cent in 2012 and a total of over 13,000 persons have been rescued through the intervention of the Armed Forces of Malta over the period 2003-2013.