ECHR: lack of judicial review on refugees’ detention ‘illegal’

Two asylum seekers were awarded €6,000 each in damages after being denied the right to challenge their detention

The European Court of Human Rights has ordered the Maltese government to pay two women asylum seekers €6,000 each in damages and expenses, for denying them the right to challenge their detention.

In its decision, the court threw out their claims that their 12-month detention had breached their right to liberty or that they had suffered torture, inhumane or degrading treatment.

The two Somali women – Saamiyo Moxamed Ismaaciil and Deeqa Abdirahman Warsame – were detained at Lyster Barracks, Hal Far in August 2012 after reaching Malta by boat.

The two registered their wish for asylum, and two months later, on 2 and 9 November, 2012 respectively, they were called for a refugee status determination interview. By decisions of 19 January, 2013, communicated to the women on 31 January, 2013, the Refugee Commissioner rejected their applications on the basis that they had failed to substantiate their claim that they were born and lived in Somalia. The following month assisted by lawyers from the Jesuit Refugee Service (JRS) the women filed appeals against the decisions and were given until 18 March, 2013 to present their submissions. This time-limit was extended and appeal submissions were lodged in April 2013.

But by the date their application was lodged with the European Court, that is 11 months and three weeks from the date of their arrival, no decision had been issued. The applicants had been hoping to be released on the lapse of 12 months from their arrival as per normal domestic practice.

Both were released from detention on 14 August, 2013. Ismaail’s appeal before the appeals board was rejected on 15 October, 2013 and Warsame’s was also subsequently rejected on 14 July, 2014.

The applicants submitted to the court that they were first detained with a view to be deported under the Immigration Act; however, once they applied for asylum they could no longer be detained because Maltese law provided that once such an application was lodged the asylum seeker “shall not be removed... and the applicant shall be allowed to enter or remain in Malta pending a final decision”.

They further said that their 12-month detention – as per government policy – was arbitrary, because it exceeded the time reasonably required for its purpose, and could not be closely connected to the purpose of preventing an unauthorised entry.

In this case, the applicants’ asylum claim had been decided at first instance within three months, and eventually they had been released after a total of nearly 12 months, even though their appeal had not yet been decided.

They said that they had not been kept in conditions appropriate for young single women, as well as having been detained in the same centre as that in issue in the case of Aden Ahmed, which the European Court had found a violation.

They highlighted the crowding in the zones, making the noise unbearable and conditions difficult; the limited opportunities for recreation; the poor quality of the food; the fact that the facility was staffed almost exclusively by men; the difficulty contacting family and the lack of access to basic services, including information, psychological support and medical treatment.

They further claimed they had no access to procedural safeguards, as had been established by the Court in previous judgments against Malta. Indeed at no point had there been a review to determine whether their detention remained closely connected to the purpose pursued. 

On its part, the Maltese government said the detention had been legitimate since practically all immigrants reaching Malta did not carry documents, and ascertaining their identities upon entry was a lengthy process dependent on the cooperation of the migrants themselves.

In its decision, the ECHR said that the applicants received a decision at first instance on their asylum claims within three months, and the subsequent nine months in detention were spent awaiting the outcome of the pending appeal against the decision rejecting their claim for asylum.

“While it is true that a period of nearly 12 months cannot but be considered lengthy… the Court can accept that such a duration was overall reasonable for the purpose pursued, despite the lack of procedural safeguards.”