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Key Words Archives: Accommodation centers

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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W.K.A v. The Principal Immigration Officer

The appellant is a Ghanaian national who 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 initially issued with a removal order in August 2021. It later transpired that the appellant had applied for asylum and consequently the PIO suspended the removal order and issued a detention order which was appealed.

The appellant was initially rejected following an age assessment procedure but filed an appeal against the decision from the Agency for the Welfare of Asylum Seekers (AWAS). The age assessment appeal was still ongoing at the time of the detention order appeal.

The Board noted that since the appellant had appealed his age assessment decision, the presumption is that he should be considered a minor and therefore the detention order should be withdrawn, and the appellant must be put in the care of AWAS.

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F.B v. The Principal Immigration Officer

The appellant is a Ghanaian national who was rescued and disembarked in Malta in July 2021 and declared that he is a minor upon arrival. He was directly detained upon disembarkation and issued with a removal order in August 2021. It later transpired that the appellant had applied for asylum and consequently the Principal Immigration Officer (PIO) suspended the removal order and issued a detention order which was appealed.

The appellant was initially rejected following an age assessment procedure but filed an appeal against the decision from the Agency for the Welfare of Asylum Seekers (AWAS). The age assessment appeal was still ongoing at the time of the detention order appeal.

The Board noted that since the appellant had appealed his age assessment decision, the presumption is that he should be considered a minor and therefore the detention order should be withdrawn, and the appellant must be put in the care of AWAS.

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CJEU, Hassen El Dridi case, Case no. C-61/11 PPU, 28 April 2011

The CJEU found that the Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Members States for returning illegally staying third-country nationals must be interpreted as precluding a Member State’s legislation which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that they remain, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62011CJ0061

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