Migrant released from detention centre after court ruling

A Nigerian migrant has been released from the Safi detention centre after a court ruled that his detention was illegal.

Pascal Okafur was 16 when he arrived in Malta in 2006, but was denied asylum and found himself on the wrong side of the law three years later after he was caught with around 1kg of cocaine and jailed. He was released earlier this month, but was instantly thrown into detention on the basis of a removal order that had been slapped on him as soon as he arrived in Malta in 2006.

Okafur’s lawyer Gianluca Cappitta argued that while his client had been slapped with a removal order, no return decision had been issued against him.

A ‘return decision’ is defined by law as a decision issued by the Principal Immigration Officer, declaring the stay of a third-country national to be illegal and imposing an obligation for their person to be returned to his country of origin. A ‘removal order’ is a separate order enforcing the return decision.

However, this distinction is relatively recent and indeed was not in place when Okafur arrived in Malta in 2006 – back then, removal orders had automatically implied return decisions. As of 2015, police started issuing removal orders and return decisions to failed asylum seekers at the same time.

In court, Cappitta noted that the law requires failed asylum seekers to be issued with both a removal order and a return decision if they are to be detained. This was not the case with Okafur, who had only been issued with a removal order.

In his ruling, magistrate Aaron Bugeja agreed with Cappitta’s legal arguments and ordered that Okafur be instantly released from detention.

“The fact that his removal order was issued in 2006 doesn’t mean that the applicable procedures are those that were in place back then,” he said. “This is a procedural law, and hence must apply from the moment it was introduced onwards.”

Cappitta also confirmed with MaltaToday that Okafur has recently filed a second asylum application that is still being processed.