Court orders immediate release of two Pakistani asylum seekers who spent 42 days in illegal detention

A court has ordered the release of two asylum seekers from Pakistan, who had been held at Safi for the past 42 days on grounds which were only clarified during today’s hearing, after declaring their detention illegal as no detention order had been issued against them.

Awais Mohammed and Hasan Ali had arrived in Malta on 14 September onboard a boat that had made landfall at Birzebbugia during the night. They had no passports in their possession.

The men were picked up by the police 9 days later, on September 23, and had been held in detention, first at Hal Far and later Safi, ever since.

Lawyers Neil Falzon and Mireille Boffa, assisting the men, filed habeas corpus proceedings this afternoon, questioning the legal basis for their continued detention.

Falzon said that the men claim to have walked from Birzebbugia to a park, where they slept rough for a few days. With no access to food and unable to bear their hunger anymore, the men asked a passer-by for assistance. The passer-by took the men to a government office from where they were later picked up by the police.

Prosecutor Andrea Zammit from the Office of the Attorney General assisted Inspector Christian Abela appearing for the Immigration section of the police. Also present during the sitting were representatives from AWAS, the Superintendence of Public Health and the Detention Services.

Mauro Farrugia, CEO of AWAS took the stand to inform the court that one hour before the sitting, the police had informed them that the men would be released, but were still awaiting clearance by the health authorities before they could be placed in accommodation.

But no information as to the date from which the men were considered to have been cleared has been communicated to the witness, he said.

Kyle Mifsud, Deputy Head of Detention Services, said he too had received the same email. They arrived on the boat 22k, arriving at detention on 23 Sept, 9 days after the rest of the group they arrived with. They were currently being held at Safi, he said.

Court asked what his position was about the claimed illegality of their detention. “I don’t have the power to admit or release persons from detention. I received orders from the police that these persons are to be detained.”

Falzon asked Mifsud whether the men’s file shed any light on why the men had been passed into his custody.

“They were awaiting medical clearance,” he said, explaining that the police hand such documentation to the persons concerned, not to the centre, which he said only provides detainees with documents explaining their rights upon their arrival.

Normally, after medical clearance is received, the police reply to an email with instructions to take the persons to an open centre or somewhere else, he said.

Falzon asked who was instructing him to keep the men in detention. “We follow the police’s instructions,” replied the witness.

The Public Health Department’s Head of Enforcement, Malcolm Vella Haber, also testified, telling the court that medical clearance had been issued for the persons on board the boat, but not for the two men who had escaped, as they had not been examined. This had caused the medical testing to be delayed, he said.

The witness confirmed that Melillo had informed him that the men had been medically cleared.

Inspector Abela informed the court that the police were currently conducting a criminal investigation into third parties suspected of involvement in arranging the boat’s arrival.

He confirmed to the court that the men’s medical clearance had only been received today.

Falzon submitted that despite this, the legal basis for the men’s detention was still unclear. “Usually, within a week, the Board of Appeal would automatically review detention. This didn’t happen, so this means that the detention order was not issued,” said the lawyer.

The police inspector replied that he was informed that the men had been told the reasons for their detention, adding that these grounds have now been established as being medical.

“Maltese law does not permit the police to detain people at Safi or China House (Hal Far) on medical grounds,” replied Falzon. “We can assume that the intention behind their detention was to safeguard public health, in the public interest, but here we are in a court of law, and the law does not state this anywhere.”

The court, having heard the witnesses and having reviewed the documents exhibited, in particular those exhibited by the Superintendence of Public Health, together with the applicable laws, declared the detention of the men to have not been based on any legal disposition and ordered their immediate release.

The court also ordered that a copy of the decree be served on the Commissioner of Police and the Principal Immigration Officer.