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Key Words Archives: Last resort

D.A v. The Principal Immigration Officer

The appellant is an Ivorian asylum seeker who was rescued and disembarked in Malta in November 2021. He declared that he is a minor upon arrival and was directly detained by the health authorities after disembarkation. The appellant was initially rejected following an age assessment procedure in January 2022 but filed an appeal in front of the Immigration Appeals Board, Division II. He then appealed the detention order issued to him in February 2022 and appeared in front of the Immigration Appeals Board, Division II, for a first hearing on 17 February 2022.

The appellant complained that, despite being an asylum seeker, he was being detained solely on the basis of his nationality since he is from a country where Malta carries out forced returns. He further complained that there was no individual assessment of the need to detain him and that alternatives to detention were never considered. Finally, he complained that as a minor he should be detained as a measure of last resort which was not the case in his situation.

The Board considered detention to be lawful and ordered that the appellant is kept in a lodging adequate for minors. The Board decided that it would review the detention of the appellant two months after unless a decision on his age assessment is given before such date or unless the PIO offered an alternative to detention.

The PIO later refused to implement alternatives to detention and the appellant was kept in detention.

Source: PDF with the case

Source: PDF with the case

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Y.M.O v. The Principal Immigration Officer

The appellant was rescued and disembarked in Malta in July 2021 and declared that he is a minor upon arrival. He was directly detained after disembarkation and was rejected from his application for international protection in October 2021. The appellant was assessed to be an adult following an age assessment procedure but filed an appeal against the decision from the Agency for the Welfare of Asylum Seekers (AWAS).

The appellant requested a review of his detention to be held in front of the Immigration Appeals Board and argued that the possibility to apply less coercive measures were never assessed in his case since he was from a country where returns are feasible and that due consideration should be given to the fact that he is a minor.

The Board noted that the removal order could not be decided upon at this stage since there was a pending age assessment appeal before Division II. The Board rejected the arguments of the appellant and considered that since this is detention on a removal order and not on a detention order, the appellant must file a request for bail if he wants to be released.

The Board upheld the request for bail subject to a care and custody order in favour of the appellant issued by the relevant authority. The person/guardian who will have the care and custody of the appellant is to accompany the appellant to the Police station to sign every Friday from 7:00am – 7:00pm. The Board is also to be informed of the address as to where the appellant will be residing and must immediately inform the authorities if he goes missing. Additionally, the Board imposed a 1000 Euro deposit as a guarantee by the person who is going to have full care and custody.

However, the applicant was not released since the competent authority never issued a care and custody order.

Source: PDF with the case

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A.M. v. The Principal Immigration Officer

The applicant was a Bangladeshi national who was rejected from his asylum application and served with a removal order before he was referred for an age assessment procedure by the competent authorities and assessed as an adult following a bone test despite providing his birth certificate. He appealed this decision and challenged the results of the bone test as being inaccurate.

In the meantime, the appellant requested a review of his detention to be held in front of the Immigration Appeals Board and argued that the possibility to apply less coercive measures was never assessed in his case and that due consideration should be given to the fact that he is a minor assessed as an adult through an inaccurate procedure.

The Board noted the physical appearance suggesting the applicant is young and considered that there are sufficient grounds to believe that the appellant could be a minor and should therefore be released pending the result of the age assessment appeal. The Board considered that since this was an appeal on the removal order and not on a detention order, the appellant must file a request for bail if he wants to be released.

The Board upheld the request for bail subject to a care and custody order in favour of the appellant issued by the relevant authority. The person/guardian who will have care and custody of the appellant was to accompany the appellant to the Police station to sign every Friday from 7:00am – 7:00pm. The Board is also to be informed of the address as to where the appellant will be residing and must immediately inform the authorities if he goes missing. Additionally, the Board imposed a 1000 Euro deposit as a guarantee by the person who is going to have full care and custody.

However, the applicant was never released since his appointed representative (legal guardian) refused to act as the guarantor.

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CJEU, FMS, FNZ, SA, SA junior v Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság, Joined Cases no. C-924/19 PPU and C-925/19 PPU, 14 May 2020

Compulsory, indefinite placement of migrants in the transit zones qualifies as detention and is unlawful.

https://curia.europa.eu/juris/document/document.jsf?text=&docid=226495&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=4032330

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Bistieva and Others v.Poland, ECtHR, Application no. 75157/14, Judgment of 10 April 2018

The Polish authorities had failed to assess the impact of the detention on the family and the children in particular, not fulfilled their obligation to consider the family’s detention as a measure of last resort and had not considered alternative measures. Child detention is permitted for the shortest amount of time and only if the detention conditions are appropriate and less coercive measures are not available.

http://hudoc.echr.coe.int/eng?i=001-182210

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