Arrest of failed Malian asylum seeker declared illegal by court

A court has held that the Immigration Act allows the Commissioner of Police to arrest persons suspected of illegal immigration but was still obliged to press charges or release them within 48 hours

Failed asylum seekers are being kept at the Safi detention centre ahead of their deportation to Mali
Failed asylum seekers are being kept at the Safi detention centre ahead of their deportation to Mali

A Malian man, one of 33 failed asylum seekers arrested last month for living in Malta without a residence permit, was released from arrest this morning after a court ruled that his continued detention was illegal.

Namake Nomo had arrived in Malta in 2008 before moving on to Italy, where he was given an Italian ID card and residence permit on humanitarian grounds. In 2015, lacking the necessary travel documents, he had tried to return to Malta using someone else’s passport in order to find work, but was arrested at the airport and subsequently spent six months in prison. His application for refugee status was refused by the Refugee Appeals Board in March 2015.

He was arrested again when immigration police recently rounded up 33 failed asylum seekers who had been living in Malta illegally for a number of years and had been held at the Safi detention centre for over a month. This was due to an impending visit from a Malian delegation that had been invited to Malta in order to identify its nationals so they may be deported back to Mali.

Nomo’s lawyers had filed a writ of Habeas Corpus - an urgent request for the judicial review of the legality of an arrest - yesterday.

The Attorney General had countered that Nomo had not supplied any official documentation regarding his humanitarian status. In the absence of documents, he was a prohibited immigrant at law.

In a decision handed down at around 1:00am this morning, magistrate Marseanne Farrugia agreed that there was no doubt that Nomo fell within the definition of “prohibited immigrant” and so the man’s arrest could legally be ordered. “However in the humble opinion of this court, this doesn’t mean the Commissioner is legally entitled to keep the applicant in detention indefinitely.”

The Commissioner’s right to arrest a person under the Immigration Act, the court said, was intended to allow the person to be arraigned before a court and charged with breaching that Act within the normal 48 hour period applicable to every other arrest.

The only difference was that the Immigration Act “exempts the Commissioner from having to obtain a warrant from a magistrate, as laid out in the Criminal Code, to arrest an illegal immigrant and nothing more.” After that arrest, the Principal Immigration Officer could then order the illegal immigrant’s deportation.

The court, noting that it had not been shown any evidence of a deportation or repatriation order being issued against Nomo, declared the arrest to be illegal and ordered the man’s immediate release.

Lawyer Jason Grima appeared for Nomo.

The case comes amid uncertainty over the future of failed asylum seekers from Mali, with the Foreign Minister of the West African country today ruling out any cooperation with the EU's recently announced plans to expedite the return of Malian migrants as part of a $160 million deal.

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