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Key Words Archives: Necessity and proportionality

M.M. v. The Principal Immigration Officer

The appellant is a Bangladeshi national who was rescued and disembarked in Malta in September 2019. He declared to be a minor born on 01 January 2003 upon arrival and was directly detained. The appellant was detained on health grounds until June 2020 where he was issued with a removal order. The appellant complained to his lawyers that he orally requested to apply for asylum but was never registered by the IPA and therefore was illegally issued with a removal order. Following the lawyer’s intervention, the appellant was released and formally registered as an asylum seeker in November 2020.

In the meantime the Agency for the Welfare of Asylum Seekers (AWAS) declared the appellant to be an adult in October 2020, the appellant’s lawyer filed an appeal before the Immgration Appeals Board and the case was first heard by Division II in November 2021.

In August 2021, the appellant was apprehended at Malta International Airport trying to embark on a flight to Italy in possession of fraudulent documents. He was handed a six month effective prison incarceration. Upon his release from Corradino Correctional Facility in December 2021, the appellant’s return decision was “re-activated” and the appellant was transferred to Safi Detention Centre pending removal to Bangladesh.

However, the Immigration Police was informed by the appellant’s lawyers that the appellant was still an asylum seeker and, following confirmation by the International Protection Agency, the appellant was issued with a detention order based on S.L. 420.06 which transposes the Reception Directive, in April 2022. The detention order was directly appealed while the decision on the age assessment appeal was still pending.

The appellant requested his immediate release in view of the excessive duration of his detention which amounted to a total of 14 months in Safi Detention Centre and 6 months in Corradino Correctional Facility and the unlawful enforcement of his removal order taken in June 2020 while still an asylum seeker claiming to be a minor.

The Immigration Appeals Board confirmed the detention order issued in April 2022 to be legal in view of the fact that the risk of absconding is real, also considering the fact that appellant tried to abscond from Malta to be later apprehended and handed a 6 month effective incarceration.

Nonetheless, the Immigration Appeals Board decided that in view of the fact that the appellant’s age assessment was still ongoing, the appellant must be presumed a minor. The Immigration Appeals Board therefore ordered the appellant to be shifted to the buffer zone within AWAS Open Centre under those conditions that are deemed appropriate and necessary by AWAS.

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R.M v. The Principal Immigration Officer

The appellant is a Bangladeshi national who was rescued and disembarked in Malta in December 2021. He was directly detained upon arrival and later declared that he is a minor during the lodging of his asylum application and was referred for the age assessment procedure. He was still in an age assessment procedure with no final decision when he filed an appeal against his detention order but was later assessed to be an adult by the Agency for the Welfare of Asylum Seekers (AWAS). This initial decision was appealed in front of the same Board.

The Board noted that the case was initially to be heard before Immigration Appeals Board, Division I, but that a conflict of interest was registered by the Board due to the role of one of its members in the Minors Care Review Board.

The appellant’s representative questioned whether there was a similar conflict of interest before Division II given that the same Board also decides the Age Assessment Appeals. The Board advised the appellant that an objection should be registered if the appellant’s representative felt that Division II had a conflict of interest to hear both cases. The appellant’s representative declared that he wished to proceed with the hearing as this would delay the detention of the appellant

The appellant declared that he should be presumed a minor until a final decision is taken on his age and complained that his detention was not in accordance with Article 14(1) of S.L. 420.06 since it is not a measure of last resort.

The Board relied on the fact that the appellant rectified his date of birth during the asylum procedure to deem the detention to be lawful. However, the Board decided that until the Age Assessment Appeal is decided, the appellant is to be transferred to the Buffer Zone within the AWAS Open Centre under those conditions that are considered appropriate and necessary by AWAS.

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A.H v. The Principal Immigration Officer

The appellant is a Bangladeshi national who was rescued and disembarked in Malta in December 2021. He was directly detained upon arrival and later declared that he is minor during the lodging of his asylum application and was referred for the age assessment procedure. He was still in an age assessment procedure with no final decision when he filed an appeal against his detention order.

The Board registered a conflict of interest due to the role of one of its members in the Minors Care Review Board and the case was set to be heard the next week before Division II.

However, the Board still noted that there was a claim that the appellant was a minor and therefore referred to the proviso of Article 14(1) of S.L. 420.06 which states that applicants who claim to be minors shall not be detained, except as a measure of last resort, unless the claim is evidently and manifestly unfounded and directed the PIO to act according to such proviso. The Board then ordered that the age assessment procedure is to be done as soon as possible.

The case was not heard in front of Division II since the appellant was released before the hearing after he was assessed as a minor by AWAS.

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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.

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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.

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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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