Court rules detention of Malian asylum seekers abusive and illegal

A group of failed asylum seekers from Mali who were rounded up and re-arrested in 2016 have won a case to have their re-arrest and detention declared illegal.

The Malians, who arrived in Malta between 2008 and 2015, had initially been issued with individual removal orders, appealable within a period of just three days, sent before they could even apply to the Refugee Commission.

But despite the return orders, the men had not been repatriated and had been living in Malta for several years as a result. They had obtained work permits and were building a life for themselves here, reads their court application.

But in 2016, after being summoned to renew a permit, the Malians were rounded up and arrested by the police, being placed in detention at Safi detention centre in order to meet a delegation from Mali, sent to identify its country’s nationals.

The defendants: The Commissioner of Police, the Minister for the Home Affairs and the Attorney General, defended the move, saying the men had never contested the removal orders or obtained residence permits or humanitarian protection and were therefore “prohibited persons” at law.

The defendants insisted that the re-arrest was permissible as the removal order was still in force. 

The court said, however, that it certainly could not be said that the authorities had been re-arresting the applicants to avoid them entering Malta without permission, as they had been living freely here since 2008, the most recent arrival being in 2015.

It did not emerge from the acts that the applicants were the subjects of any case for their deportation or extradition.

In a 60-page judgment on the matter, Madam Justice Joanne Vella Cuschieri, presiding the First Hall of the Civil Court in its Constitutional jurisdiction, ruled that the detention of the applicants was not valid as it was based on an abusive decision to return them, for which they were not given an effective remedy to contest that decision.

The group had applied for asylum, but had been refused by the Commissioner for Refugees, as well as at the appeal stage. As a consequence, they had no legal status in Malta.

They argued that at the moment of their re-arrest they had no possibility under Maltese law to contest the validity of their arrest, besides filing Constitutional proceedings. This was, in itself, proof of the absence of an effective remedy to people in their situation.

Madam justice Vella Cuschieri observed that the authorities had not made any effort analyse the individual cases and this also rendered their re-arrest as abusive and illegal.

The court declared that the men’s detention between November 2016 and February 2017 was in breach of Article 5 of the European Convention on Human Rights.

It ruled that as the men were released from detention in February 2017, there was no need for further remedies to safeguard their fundamental rights. This does not mean that no remedies need to be taken by the authorities, however - the judgment clearly states that considering the applicant's position at law, they have no remedy to contest an administrative order with which they had been given since their arrival.

Lawyers Gianluca Cappitta and Jason Grima represented the men.