Malta’s automatic detention policy for asylum seekers falls foul of the EU’s directive stipulating minimum standards for asylum seekers, a report drafted by the European Commission for the European Parliament and Council pointed out this week.

The Commission intends addressing this and other issues flagged in the report so as to limit the “wide discretion” allowed by certain member States in the area of migrant reception by proposing amendments to the directive, which will be presented in July.

The report, published this week by Justice, Freedom and Security Commissioner Franco Frattini, once again raised the issue of Malta’s violations of a number EU migrant reception rules.

Malta’s policy of automatic detention for asylum seekers landing on its shores, applied to all migrants with the exception of the most vulnerable, has been criticised on several occasions by human rights organisations and the EU itself. Earlier this year Amnesty International harshly criticised the policy and labelled it a “clear violation of international human rights laws and standards”.

Under Maltese law, the maximum period of detention is 18 months for migrants and 12 months for asylum seekers, pending a decision on their asylum application.

According to the Commission’s report, both the policy of automatic detention and the 12-month detention period for asylum seekers imposed by the Maltese authorities violate Directive 2003/9/EC of 27 January 2003 on laying down minimum standards for the reception of asylum seekers.

The report points out, “Given that according to the Directive detention is an exception to the general rule of free movement, which might be used only when ‘it proves necessary’, automatic detention without any evaluation of the situation of the person in question is contrary to the Directive.

“Furthermore, the length of detention, except in duly justified cases (e.g. public order), which prevents detained asylum seekers from enjoying the rights guaranteed under the Directive, is also contrary to its provisions.”

Malta argues that the retention of the automatic detention policy is in the national interest considering the county’s small population in relation to its number of migrant arrivals. It also contends that only 20 per cent of migrants, those not applying for asylum, remain in detention for the full 18 months.

Once an asylum application is approved, a migrant is released from detention, and the approval rate stands at 55 per cent. Vulnerable persons, the government said, are released within a month, while those who have not had their applications approved within 12 months are released as well.

The report, however, found problems with both the availability of information on applying for asylum being made available to migrants, as well as with the Malta’s application of the definition of vulnerable persons.

While finding the adequacy of reception conditions provided to asylum seekers in detention questionable, it also noted that information given to asylum seekers on organisations providing assistance to asylum seekers in Malta “does not seem to be sufficient” and is only made available in three languages. Other countries, such as Austria, make such information available in 34 languages.

The report notes, “Access to information in several languages is essential to ensure effective access of asylum seekers to rights guaranteed to them by the Directive. Therefore member States are encouraged to make use of financial assistance under European Refugee Fund in order to increase the number of languages in which the information is made available.”

Moreover, the report cites deficiencies in providing for the special needs of vulnerable asylum seekers. Some member States including Malta, the report observes, do not cover the full list of types of vulnerable persons or do not address people with special needs at all. Four member States, including Malta, also refuse reception conditions for asylum seekers who do not submit their applications for asylum straightaway.

The report also expresses doubt over the level of human and material resources available to implement reception conditions in Malta. It highlights the directive’s provision, which requires that staff dealing with asylum seekers receive appropriate training, and that adequate resources are allocated for the reception of asylum seekers.

On the positive side, in cases of non-detained asylum seekers, the report found that asylum seekers in Malta are free to leave their place of residence without any authorisation or subject to a purely formal request, which is normally accepted

The Commission is to undertake an examination of the report’s findings and “pursue all cases in which problems in the application of the directive have been identified in the report”. This is to include the “wide discretion” allowed by the directive in a number of areas, in Malta’s case the level and form of material reception conditions, free movement rights and needs of vulnerable persons, which “undermines the objective of creating a level playing field in the area of reception conditions”.

The report also notes that before proposing amendments to the Directive with a view to creating such a level playing field, the Commission will await responses to the recently published Green Paper on the future of Asylum Policy and that any such changes would require a “a wide political reflection on the level of ambition of the Common European Asylum System (CEAS)”.