Communicated on 10 July 2017

FOURTH SECTION

Application no 62676/16 Serge ABOYA BOA JEAN against Malta lodged on 27 October 2016

STATEMENT OF FACTS

The applicant, Mr Serge Aboya Boa Jean, is an Ivorian national, who was born in 1978 and was at the time of the lodging of the application detained in Safi Barracks, detention centre, Malta. He is represented before the Court by Dr N. Falzon, a lawyer practising in Ħ amrun.

A. The circumstances of the case

1. Background to the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 10 September 2016 the applicant, a refugee from Ivory Coast who had previously obtained asylum in Armenia, left Russia and arrived in Malta by plane. Upon arrival he presented his documents (including a national passport) to the immigration authorities.

The applicant immediately informed the authorities that he was a refugee from Ivory Coast and that he had fled the war in his country many years ago. He claimed that he had reached Malta from Armenia, where he had lived as a refugee prior to his arrival in Malta. He also promptly confirmed his intention to seek asylum in Malta, due to his fear that Armenia would return him to Ivory Coast.

The applicant was denied entry since according to the immigration authorities he was not in possession of the required documentation. On the same day he was taken to police headquarters were he was questioned. During questioning the applicant provided further information concerning his escape from war in Ivory Coast, his life in Armenia and the reasons why he felt he could no longer live there, primarily linked to his skin colour and the lack of physical security. The police confiscated his documents.

On the same day, the police (immigration branch) issued a detention order in terms of the Immigration Act (Chapter 217 of the Laws of Malta) and Subsidiary Legislation 420.06 “Reception of Asylum Seekers Regulations” (hereinafter “the Reception Regulations” – see Relevant domestic law below) on the grounds that the elements on which the applicant ’ s application for international protection had been based could not be determined in the absence of detention, in particular due to the risk of absconding. He was informed that he had the right to appeal this decision before the Immigration Appeals Board (hereinafter “the Board”) within three days. He was further informed that the Board would automatically review this order within seven days from the date of its issuance, which could be extended by a further seven days; and that if he remained in detention a further review would occur every two months. He was informed that he was entitled to free legal assistance.

The applicant was accompanied to Safi Barracks detention centre, where he was detained.

On an unspecified date the applicant was formally registered as an asylum-seeker.

On unspecified dates the police found that the passport provided by the applicant had been falsified and that the applicant was in possession of a travel ticket to Italy.

2. Proceedings before the Board

On 5 October 2016 the Board convened in order to review the legality of the applicant ’ s detention, in accordance with Regulation 6 (3) of the Reception Regulations.

According to the applicant, during the hearing before the Board, in the presence of a representative of the Malta Police Force, the Board informed the applicant that it had not been able to comply with the deadline provided by the law for the review of his detention since on the date required by the Reception Regulations (namely seven working days from the issuing of the detention order) a Board member was attending a conference overseas and therefore he could not take part in the hearing. Furthermore, the Board stressed that since its members were merely part-time employees meeting once a week and lacking administrative support while being responsible for a vast array of immigration related appeals, it was simply unable to meets it ’ s legal obligation and determine the lawfulness of his detention on time.

During the hearing the applicant ’ s representative repeatedly requested the Malta Police Force ’ s representative and the chairperson of the Board to specify the grounds on which he was being detained. Both the Malta Police Force ’ s representative and the Board ’ s chairperson orally indicated “fear of absconding” as the primary reason for the applicant ’ s detention.

The applicant ’ s representative submitted written and oral submissions to the Board. He noted, in particular, that from the moment of his first contact with the Maltese authorities the applicant had provided consistent factual information about his identity, nationality, countries of transit, intention to seek asylum in Malta, migration/asylum status in third countries and reasons for flight from Ivory Coast. He had not made any attempt to conceal any information and had acted with honesty, openness and transparency towards the authorities. It followed that he had already presented to the authorities all the elements on which his application for international protection had been based, thus the legal basis on which the authorities had relied in order to justify his detention could not be held applicable to his case and the interference with the applicant ’ s liberty had not been provided by law. The applicant also claimed that his detention had been neither necessary nor proportionate. In his opinion the immigration police had failed to demonstrate that without the applicant ’ s detention it would have been impossible for them to determine any elements on the basis of his asylum application.

On the same day the Board dismissed the applicant ’ s complaints and confirmed the legality of his detention. The Board specified that: (i) the elements in question referred to the application for refugee status, which had not yet been determined; (ii) if the applicant left Malta he would have been unable to provide the information (elements) required by the Commissioner for Refugees (REFCOM); (iii) the fact that the applicant had been found in possession of a ticket to go to Italy showed that his intention was not to remain in Malta; (iv) “with the fact that he was inadmissible in the first place because he had forged a document, there is no reason to believe that appellant will not abscond”. The Board requested the Principal Immigration Office (PIO) to inquire as to whether all elements had been clarified and given to REFCOM, and whether the applicant would have been given refugee status, in order to ensure that detention did not subsist for longer than was needed. If the period of detention continued because of the asylum proceedings, including an appeal, the PIO were to consider alternatives to detention particularly those listed in Regulation 6 (8) of [the Reception Regulations] S.L. 420.06, as such detention would then no longer be reasonable.

3. Proceedings before the Court of Magistrates

On 21 October 2016 the applicant applied to the Court of Magistrates relying on Article 409 (A) of the Criminal Code to contest the lawfulness of his detention. He argued that there had been no individual assessment of the applicant ’ s situation, and that it was not clear what elements were still required. He noted that a risk of absconding could not be examined on its own and that Regulation 1 (6) of [the Reception Regulations] S.L. 420.06 could not be interpreted as meaning that detention could be prolonged throughout the entire proceedings.

It appears that the immigration police argued that the one fundamental element they expected the applicant to provide was a document confirming the statement that he was recognized as a refugee in Armenia.

On the same day the Court of Magistrates upheld the legality of the applicant ’ s detention. The court found that the applicant was raising the same issues he had raised before the Board, and which had already been decided by it. The court agreed that the risk of absconding under Regulation 6 (1) (b) could not be seen on its own but in the light of the whole regulation. [The Reception Regulations] L.S. 420.06 allowed the detention of persons like the applicant - pending a decision on asylum - in order to establish the elements on which such application was based, when it would be difficult to do so in the absence of detention. During the hearing it transpired that further verifications were necessary and that the applicant was at risk of absconding, thus making the asylum determination impossible. It followed that the applicant ’ s detention could not be considered unlawful.

4. Subsequent happenings

The applicant was released from immigrant detention on 8 November 2016, subject to reporting at the police station daily. By 29 December 2016, the applicant ’ s asylum claim was still pending.

By a judgment of 19 January 2017 the applicant was found guilty of using a false passport. Although he was liable to imprisonment for a period of six months to two years, the presiding judge, in application of Section 22 of the Probation Act (Chapter 446 of the laws of Malta) discharged the applicant.

B. Relevant domestic law and practice

1. The Immigration Act

Immigration and asylum procedures are mainly regulated by the Immigration Act (“the Act”), Chapter 217 of the Laws of Malta. The relevant articles, in so far as relevant, read as follows:

Article 5

“ (1) Any person, other than one having the right of entry, or of entry and residence, or of movement or transit under the preceding Parts, may be refused entry, and if he lands or is in Malta without leave from the Principal Immigration Officer, he shall be a prohibited immigrant.

(2) Notwithstanding that he has landed or is in Malta with the leave of the Principal Immigration Officer or that he was granted a residence permit, a person shall, unless he is exempted under this Act from any of the following conditions or special rules applicable to him under the foregoing provisions of this Act, be a prohibited immigrant also -

( a ) if he is unable to show that he has the means of supporting himself and his dependants (if any) or if he or any of his dependants is likely to become a charge on the public funds; or ...”

Article 6

“6. (1) Without prejudice to any rights arising from the preceding Parts, for the purposes of this Act, the Principal Immigration Officer may ...

(b) grant leave to land or leave to land and remain to any other person arriving in Malta, under such conditions and for such period as the Principal Immigration Officer may deem proper to establish;

...”

Article 9

“(1) Without prejudice to any regulations made under Part III of this Act, leave to land or to land and remain in Malta shall be signified either by a written permit delivered to, or by an appropriate endorsement on the passport of, the person concerned, but the conditions attached to such leave may be contained in a separate document delivered to such person.”

Article 10

“ (1) Where leave to land is refused to any person arriving in Malta on an aircraft, such person may be placed temporarily on land and detained in some place approved by the Minister and notified by notice in the Gazette until the departure of such aircraft is imminent.

...

(3) Any person, while he is detained under sub-article (1) or (2 ), shall be deemed to be in legal custody and not to have landed.”

Article 14

“ (1) If any person is considered by the Principal Immigration Officer to be liable to return as a prohibited immigrant under any of the provisions of article 5, the said Officer may issue a return decision against such person who shall have a right to appeal against such decision in accordance with the provisions of article 25A.

(2) If such a return decision is accompanied by a removal order, such person against whom such order is made, may be detained in custody until he is removed from Malta:

Provided that if the person in respect of whom a return decision and a removal order has been made is subject to criminal proceedings for a crime punishable with imprisonment or is serving a sentence of imprisonment, the Minister may give such directions as to whether the whole or part of the sentence is to be served before the return of such person from Malta, and in default of such directions, such person shall be removed after completion of the sentence, without prejudice to the provisions of any other law.

(3) Nothing in this article shall affect the obligation of any person who does not fulfil or who no longer fulfils the conditions of entry, residence or free movement to leave Malta voluntarily without delay.

(4) Removal of a person shall be to that person ’ s country of origin or to any other State to which he may be permitted entry, in particular under the relevant provisions of any applicable readmission agreement concluded by Malta and in accordance with international obligations to which Malta may be party:

Provided that, following the issue of a removal order by the Principal Immigration Officer in accordance with the provisions of this article, to any person considered as a prohibited immigrant under any of the provisions of article 5, if such person files an application for asylum in terms of the Refugees Act, all the effects of the removal order shall be suspended pending the final determination of the asylum application. Following the final rejection of the asylum application, the removal order along with its effects shall again come into force:

Provided that, notwithstanding that the effects of the removal order are suspended pending the final determination of the asylum application, the detention of such person shall continue until a final decision on detention is reached in terms of the regulations issued under the Refugees Act:

Provided further that, whenever a prohibited immigrant has filled in an application for asylum, the Principal Immigration Officer shall not be required to issue a return decision or a removal order.

(5) Nothing in this article shall preclude or prejudice the application of Maltese law on the right to asylum and the rights of refugees and of Malta ’ s international obligations in this regard ... ”

Article 25A of the Act concerns the appeals and applications (lodged by virtue of the provisions of the Act or regulations made thereunder, or by virtue of any other law) to be heard and determined by the Immigration Appeals Board (“the Board”). Article 25A as amended in 2015 reads, in so far as relevant, as follows:

“(5) Any person aggrieved by any decision of the competent authority under any regulations made under Part III, or in virtue of article 7 [residence permits], article 14 [removal orders] or article 15 [responsibility of carriers] may enter an appeal against such decision and the Board shall have jurisdiction to hear and determine such appeals.

(6) During the course of any proceedings before it, the Board, may, even on a verbal request, grant provisional release to any person who is arrested or detained and is a party to proceedings before it, under such terms and conditions as it may deem fit, and the provisions of Title IV of Part II of Book Second of the Criminal Code shall, mutatis mutandis apply to such request.

(7) Any appeal has to be filed in the Registry of the Board within three working days from the decision subject to appeal:

Provided that the period applicable for the filing of an appeal from the refusal, annulment or revocation of a visa shall be of fifteen days.

(8) The decisions of the Board shall be final except with respect to points of law decided by the Board regarding decisions affecting persons as are mentioned in Part III, from which an appeal shall lie within ten days to the Court of Appeal (Inferior Jurisdiction). The Rule Making Boa rd established under Article 29 of the Code of Organization and Civil Procedure may make rules governing any such appeal.

(9) The Board shall also have jurisdiction to hear and determine applications made by persons in custody in virtue only of a deportation order or return decision and removal order to be released from custody pending the determination of any application under the Refugees Act or otherwise pending their deportation in accordance with the following sub-articles of this article.

(10) The Board shall grant release from custody where the detention of a person is, taking into account all the circumstances of the case, not required or no longer required for the reasons set out in this Act or subsidiary legislation under this Act or under the Refugees Act, or where, in the case of a person detained with a view to being returned, there is no reasonable prospect of return within a reasonable time-frame.”

(11) The Board shall not grant such release in the following cases:

(a) when elements on which any claim by applicant under the Refugees Act is based, have to be determined, where the determination thereof cannot be achieved in the absence of detention;

(b) where the release of the applicant could pose a threat to public security or public order.

(12) A person who has been released under the provisions of sub-articles (9) to (11) may, where the Principal Immigration Officer is satisfied that there exists a reasonable prospect of deportation or that such person is not co-operating with the Principal Immigration Officer with respect to his repatriation to his country of origin or to another country which has accepted to receive him, and no proceedings under the Refugees Act are pending, be again taken into custody pending his removal from Malta.

(13) It shall be a condition of any release under sub-articles (9) to (12) that the person so released shall periodically (and in no case less often than once every week) report to the immigration authorities at such intervals as the Board may determine.”

2. The Criminal Code

Article 409A of the Criminal Code reads as follows:

“409A. (1) Any person who alleges he is being unlawfully detained under the authority of the Police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody. Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on the same day of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained. The Commissioner of Police or public authority, as the case may be, may file a reply by not later than the day of the hearing.

(2) On the day appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour or against the lawfulness of the continued detention of the applicant.

(3) If, having heard the evidence produced and the submissions made by the applicant and respondents, the court finds that the continued detention of the applicant is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the applicant it shall allow the application. Otherwise the court shall refuse the application.

(4) Where the court decides to allow the application the record of the proceedings including a copy of the court ’ s decision shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may, within two working days from the receipt of the record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this Code or of any other law, apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released from custody. The record of the proceedings and the court ’ s decision transmitted to the Attorney General under the provisions of this sub-article shall be filed together with the application by the Attorney General to the Criminal Court.”

3. Relevant subsidiary legislation

(a) Subsidiary Legislation 420.06

Regulation 6 (1) (b), (3) and (4) of the Reception of Asylum Seekers Regulations (Legal Notice 320 of 2005 as amended by Legal Notice 417 of 2015) provides as follows:

“(1) The Principal Immigration Officer may, without prejudice to any other law, order the detention of an applicant for one or more of these reasons, pursuant to an assessment of the case:

...

(b) in order to determine those elements on which the application is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding on the part of the applicant;

...

(3) The Immigration Appeals Board shall, with due regard to Article 25A (10) of the Immigration Act, review the lawfulness of detention after a period of seven (7) working days, which may be extended by another seven (7) working days by the Board for duly justified reasons.

(4) If the applicant is still detained, a review of the lawfulness of detention shall be held after periods of two months thereafter. Wherever the Immigration Appeals Board rules that detention is unlawful, the applicant shall be released immediately.”

(b) Subsidiary Legislation 420.07

Regulations 9 (3) and 16 (2) of the Procedural Standards for Granting and Withdrawing International Protection Regulations (Legal Notice 416 of 2015) provides as follows:

Regulation 9

“...( 3) The applicant shall submit as soon as possible all elements needed to substantiate the application for international protection. Such elements shall consist of the applicant ’ s statements and all the documentation at the applicant ’ s disposal regarding the applicant ’ s age, background, including that of relevant relatives, identity, nationality, country and place of previous residence, previous applications for international protection, travel routes, travel documents and the reasons for applying for international protection....”

Regulation 16

“...(2) Notwithstanding the provisions of any other law to the contrary, and except where a subsequent application will not be further examined pursuant to article 7A of the Act, or where an applicant is to be surrendered or extradited as appropriate to another Member State pursuant to obligations in accordance with a European Arrest Warrant or otherwise, or to a third country or to international criminal courts or tribunals, an applicant shall not be removed from Malta before his application is finally determined and such applicant shall be allowed to enter or remain in Malta pending a final decision of his application....”

4. The Passport Ordinance

Section 5 of the Passports Ordinance, Chapter 61 of the Law of Malta, reads as follows:

“5. Any person who forges, alters or tampers with any passport or uses or has in his possession any passport which he knows to be forged, altered or tampered with, shall, on conviction, be liable to imprisonment for a term from six months to two years.”

5. The Probation Act

Section 22 of the Probation Act, Chapter 446 of the Laws of Malta, in so far as relevant reads as follows:

“ (1) Where a court by which a person is convicted of an offence (not being an offence punishable only be a fine ( multa or ammenda ) and not being an offence which apart from an increase of punishment in view of continuity or previous convictions, is punishable with imprisonment for a term exceeding seven years) is of opinion that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is inexpedient to inflict punishment and that a probation order, a community service order or a combination order are not appropriate, the court may make an order discharging the offender absolutely, or, if the court thinks fit, discharging the offender subject to the condition that he commits no offence during such period, not exceeding three years from the date of the order, as may be specified therein ....”

COMPLAINTS

The applicant complains under Article 5 § 1 (f) of the Convention that the deprivation of his liberty had been unlawful and arbitrary for the following reasons: ( i ) Relying on Suso Musa v. Malta (no. 42337/12, § 97, 23 July 2013) the applicant argued that Regulation 16 (2) of the Procedural Standards Regulations authorised entry, thus the detention order had been contrary to the Convention; (ii) The detention order had also been contrary to the domestic law in so far as the applicant had provided all the relevant documentation on his arrival, and he had not been requested to provide anything further. It was only one month later, during the proceedings he himself lodged, that the immigration police relied on the need for the certification concerning his refugees status in Armenia, even though such document had never been requested from the applicant. Moreover, such a document was not required by Regulation 9 (3) of the Procedural Standards Regulations. Furthermore, no assessment as to the necessity of the applicant ’ s detention had been carried out by the immigration authorities, and their conclusion that such document was impossible to provide if the applicant was at liberty had no foundation. Thus, the decision to detain him had lacked the requirements of good faith and due diligence.

The applicant further complains under Article 5 § 4 of the Convention that the remedy afforded to him to challenge his detention had not been speedy and effective, owing to the violation of the deadline provided by law in order for the Board to carry out an automatic mandatory review of his detention. Domestic law provided for a mandatory automatic review of the lawfulness of an asylum-seeker ’ s detention within seven working days. In the present case, not only had the Board reviewed the detention only one month later, but they had also failed to convene in order to discuss whether there were any duly justified reasons to postpone the review. In addition, the applicant complained about the quality of the law in so far as he was unable to know when the next automatic review would be.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the applicant ’ s deprivation of liberty fall within any of the paragraphs of this provision (see for example, Suso Musa v. Malta , no. 42337/12, § 90, 23 July 2013 and O.M. v. Hungary , no. 9912/15 , 5 July 2016) ? Was the applicant ’ s detention ordered “in accordance with a procedure prescribed by law”, and did the relevant provisions satisfy the quality requirements?

2. Was the applicant able to bring proceedings which complied with Article 5 § 4 of the Convention to challenge the lawfulness of his detention? In particular, did the length of the proceedings before the Board, by which the applicant sought to challenge the lawfulness of detention, comply with the “speed” requirement of Article 5 § 4 of the Convention?