Muscat’s pledge to end child detention watched by observers

A message from Prime Minister Joseph Muscat to commit his government to ending the detention of unaccompanied child migrants has been welcomed by NGOs as well as Human Rights Watch, the international human rights organisation.

Malta detains all age-disputed cases pending an age determination process, and as a result children below the age of 18 may be detained for weeks or months, despite alternative available facilities. During detention, children are detained with adults, without any accommodation for their young age, and with no access to school.

Under international and European standards, unaccompanied children should never be detained for reasons related to irregular entry, and pending age determination the person claiming to be a child should be treated as such until the determination is complete.

During a Freedom Day celebratory rally, Muscat made a significant pledge to end the detention of migrant children.

Malta has the highest number of asylum seekers per population of any country in the European Union, and the prime minister has described detention as a “deterrent” that allows the government to process asylum seekers.

The UN Committee on the Rights of the Child said in 2013 that states should “expeditiously and completely cease the detention of children on the basis of their immigration status”.

This committee, along with the Council of Europe’s Commission against Racism and Intolerance and Commissioner for Human Rights, the UN High Commissioner for Refugees, Human Rights Watch, and leading Maltese NGOs, have all criticised Malta’s detention policy.

“There’s no question that Malta, located at the frontier of the EU, takes on a large number of migrants compared to the tiny size of the country. Malta has and uses open reception centres for certain migrants. This statement is a welcome recognition that the centres can be used more broadly, meaning freedom for children,” HRW said in one of its news items on its website.

Detention policy

Malta detains all unaccompanied children whose status as children is in question, pending age determination. The age determination procedure can take some months, leaving children in detention for long periods.

A 2009 study by the Maltese National Contact Point of the European Migration Network found an average detention time of 1.6 months for the 10 unaccompanied minors in their focus group.

International law states that unaccompanied children should not be criminalised for reasons related to their immigration status or illegal entry, and article 37(b) of the Convention on the Rights of the Child (CRC) mandates that the detention of children “shall be used only as a measure of last resort”. Furthermore, the Commissioner for Human Rights for the Council of Europe has stated that, “as a principle, migrant children should not be subjected to detention”.

Best practices indicate that, pending age determination, the person claiming to be a child should provisionally be treated as such.

Human Rights Watch says Malta should treat children pending age determination as children, and detain them only as a measure of last resort.

“While placing migrants pending age determination in the unaccompanied minor facilities is not appropriate, there is no reason why they could not be released to alternate facilities to prevent prolonged detention of children,” HRW said in a previous report on detention.

Even if unaccompanied children identify themselves as children during their initial contact with immigration policy, they will most likely still be taken to detention.

According to the Agency for the Welfare of Asylum Seekers (AWAS) and Detention Services, only age disputed cases are detained, with those who are “visibly” children released from detention within 24 hours and placed in the care of AWAS.

In practice, however, the cut-off for those who are “visibly” children is around 12 to 14 years old, with children who appear older presumed to be adults – and detained – until an age determination is carried out.

During Human Rights Watch’s visit to Maltese detention facilities in April 2012, observers met with three boys who were housed with adults in a detention centre for single men.

Two of the boys, who reported their ages as 15 and 16 years old, were visibly scared. Amr S., the 15 year old, said, “It’s very difficult to live here at Safi. I’m afraid to live where people might hit me… I don’t have anyone to take care of me.” Edgard O., a 26-year-old Ivorian man who was detained in the same facility as the boys, commented: “To be honest with you, I was a little bit concerned to see they were here [the boys.] Fifteen years old – he doesn’t deserve this.”

Age determination

Age determination in Malta is conducted by an age assessment team from AWAS composed of a social worker, psychologist, and a coordinator. Most unaccompanied children arrive without identity papers, such as passports and birth certificates. Maltese authorities rely on medical testing – in particular, bone X-rays – where initial interviews by the age assessment team are inconclusive.

However, medical examinations used to determine age are problematic because they are subject to margins of error of up to five years. In addition, radiological testing is unnecessarily intrusive; the Separated Children in Europe Program, a coalition of Save the Children and UNHCR, asserts that such testing must be avoided and non-invasive medical testing, such as physical development assessments, should be used instead.