FOURTH SECTION

Application no. 55352/12 Aslya ADEN AHMED against Malta lodged on 27 August 2012

STATEMENT OF FACTS

The applicant, Ms Aslya Aden Ahmed, is a Somali national, who was born in Mogadishu in 1987 and is currently detained in Lyster Barracks Detention Centre, Hal Far , Malta . She is represented before the Court by D r M. Camilleri and Dr K. Camilleri , lawyers practising in Valletta .

A. The circumstances of the case

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

1. Background of the case

In 2001 the applicant ’ s parents fled to Eritrea where she joined them in 2003. In 2004, the applicant married Abdi Mohammed Omar in Eritrea ; one child, a son, Ahmed, was born of this union on 24 June 2005. In 2008, the applicant left Eritrea , leaving her son in the care of her parents as it was too dangerous for her to travel with him. She has not seen him since.

After leaving Eritrea , the applicant travelled through Sudan and Libya ; she entered Malta by boat, in an irregular manner, on 5 February 2009.

Upon arrival in Malta she was registered by the immigration authorities, given identification number 09C-020 and issued with a Removal Order in terms of Article 14 (1) of the Immigration Act, Chapter 217 of the Laws of Malta (see Relevant Domestic Law), as she was deemed to be a ‘ prohibited immigrant ’ in terms of Article 5 of the said Act. She was then immediately placed in detention at Ta ’ Kandja Detentio n Centre in terms of Article 14 (2) of the said Act, which stipulates that a person against whom a Removal Order is issued “shall be detained in custody until he is removed from Malta” (see Relevant Domestic Law). The said Removal Order did not contain specific reasons for the applicant ’ s detention. In Ta ’ Kandja she was placed with another forty persons in one dormitory, including single women and children, with only occasional visits to the adjacent yard for air.

On 18 February 2009 the applicant filled a Preliminary Questionnaire, thereby, registering her wish to apply for asylum in terms of Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant Domestic Law). However, the applicant was not sure about the content and purpose of the form since it was in English. At the time, forms were simply distributed to asylum seekers by the Detention Service staff without any accompanying information. As she could not read or speak any English, she relied heavily on fellow detainees to complete the form, both for practical assistance and for information as to what she should say. On the advice of fellow detainees, who were her only source of information about the asylum procedures in the circumstances, the applicant did not divulge the fact that she and the rest of her family were refugees in Eritrea , for fear that her application would be rejected and she would be sent back there.

On 27 March 2009 the applicant was called by the Office of the Refugee Commissioner to complete a formal Application for Recognition of Refugee Status in Malta and attend an interview to present the grounds on which she was requesting protection. In her application and subsequent interview, the applicant repeated what she had said earlier, namely that her family was poor, there was no government in Somalia and that she left there because she could not find a job. She did not remedy the situation by correcting the inaccurate information she submitted earlier in the procedure.

On 9 May 2009 the Office of the Refugee Commissioner rejected her application for refugee status having considered that it failed to meet the relevant criteria.

The applicant did not appeal this decision. Instead, some days later, on 17 May 2009 she escaped from detention. Some time after her escape, the applicant travelled to the Netherlands in an irregular manner. Upon her arrival in the Netherlands she immediately approached the authorities to ask for asylum. From there she was hoping to be able to go to Sweden in order to be reunited with her family (her father, siblings and minor son) who had been granted refugee status in Eritrea and were awaiting resettlement to Sweden . They were eventually resettled there on 17 March 2011.

On 11 February 2011 the applicant was returned to Malta in terms of the Dublin II Regulation and detained at Safi Barracks, after repeated attempts by her lawyer to stop her return to Malta . At the time of her return to Malta , the applicant was two months pregnant.

2. Criminal proceedings and consequent detention

On 17 February 2011 the applicant was arraigned before the Court of Magistrates and charged with having i ) on 17 May 2009 escaped from a place of public custody, namely Ta ’ Kandja Detention Centre; ii) during the months prior to the 17 May 2009, as a person who embarked or disembarked from Malta, made or caused to be made, a false return, false statement or false representation and/or furnished the Principal Immigration Officer with false information; iii) under the same circumstances, in the Maltese Islands, knowingly made use of forged documents.

The applicant pleaded guilty to all of the charges. On the same day, she was therefore found guilty as charged and sentenced to a period of six months ’ imprisonment. As she was pregnant at the time, in giving judgment, the Court of Magistrates solicited the Director of the Corradino Correctional Facility to give her all the necessary medical attention that she might require in relation to her pregnancy whilst she was detained in prison .

Two days after the court judgment, on 19 February 2011, the applicant was hospitalised as she was very unwell. On an unspecified date, upon discharge, she was returned to the prison which she considered had small cells and where she was subject to constant passive smoking (while she was pregnant). She considered that she suffered from a lack of medical attention while there and shortly after, she was admitted to the Asylum Seekers ’ Unit of Mount Carmel Hospital (also known as Ward M8B, the ward in the psychiatric hospital where male and female immigration detainees and female prison inmates are treated) for in-patient treatment. She miscarried in March 2011 while in Mount Carmel Hospital and subsequently contracted an infection for which she needed to be hospitalised for a while. She noted that in this ward the rooms where small with no exercise space and there was a lack of proper blankets. She further alleged that the staff had failed to assist her when bleeding, which finally led to her miscarriage, and that post-operation her requests for drinking water were denied as were her requests for proper washing facilities.

3. The detention and procedures related to immigration

On 17 June 2011 having served her sentence, the applicant was released from prison. She was placed in Hermes Block in Lyster Barracks Detention Centre (Zone C) with a view to her removal from Malta . During her time in detention she was never approached by the immigration authorities regarding her removal and she had no way of knowing whether any proceedings were undertaken with a view to her removal. In practice, it is common knowledge that no deportations to Somalia or Somaliland have ever been effected. This is no doubt in part due to the UNHCR recommendation on return to Somalia (which relates primarily to South-Central Somalia ) as well as to the very real logistical difficulties presented by such returns.

In detention the applicant remained severely depressed. Her psychological distress was due to a number of factors, not least her prolonged detention, her miscarriage and the very limited prospects of being re-united with her son in Sweden . She considered the conditions of detention to be problematic, noting that although she was placed with single women, they were guarded by male officers (bar one female officer who repeatedly abused Somalis until she was no longer seen following a complaint by the applicant); they were twenty-two persons in a room which rendered sleep difficult; they were only allowed outside exercise for one or one and a half hours a day, and from April to July 2012 they were not allowed to do so at all; they were fed chicken, pasta or rice on a daily basis and were not given any telephone cards.

The applicant approached the Jesuit Refugee Service (“JRS”) for assistance with a view to obtaining a review of the decision to reject her application for international protection. On 23 September 2011 JRS staff wrote to the Refugee Commissioner requesting a copy of the relevant documents from her case-file, such as the application form, interview notes and decision which she had lost when she escaped from detention.

On 10 October 2011 social workers with JRS Malta, who were following the applicant in detention and offering psycho-social support, referred the applicant to the Agency for the Welfare of Asylum Seekers (“AWAS”). This, with a view to obtaining her release from detention in terms of government policy on grounds of vulnerability due to psychological ill-health, given her deteriorating psychological condition as supported by medical evidence (also submitted to the Court) (see below for details about this procedure).

On 16 November 2011 as the documents requested by the applicant in September had still not been provided, the applicant through JRS again wrote to the Refugee Commissioner explaining some of the developments in her case since her interview, informing him that she had obtained further documents in respect of her request for asylum and requesting copies of the documents relating to her first asylum application. She further requested a reconsideration of her application for asylum.

On 30 November 2011, the Refugee Commissioner informed the applicant of his unfavourable decision. Noting the difference between the facts as alleged by JRS and those as presented by the applicant he considered that on the basis of the information submitted by the applicant, as provided in her initial application and interview, she did not face a real risk of harm, neither did she satisfy any criteria required for a grant of temporary humanitarian protection.

The applicant was not given a copy of the documents she requested or allowed to make further submissions before this decision was taken. The applicant was finally provided with a copy of the decision and the interview notes in her case at the end of February 2012.

On 14 February 2012 while still awaiting the outcome of AWAS ’ assessment (see below), the applicant filed an application for release from detention before the Immigration Appeals Board (“IAB”), in terms of Article 25A (9) of the Immigration Act (see Relevant Domestic Law). In her application she claimed that her continued detention was no longer reasonable and she requested the Board to order her release from custody, in view of the fact that there was no reasonable prospect that the immigration authorities would be able to effect her forced removal to Somalia within a reasonable time. In her application she also noted that, in practice, no one was ever deported from Malta to Somalia . She also presented a social worker ’ s report attesting to the fact that her psychological health was suffering as a result of her prolonged detention, noting that she had also miscarried while in prison.

On 29 February 2012 the Principal Immigration Officer, filed a response. He agreed with the facts as presented by the applicant. He further stated that, as the applicant had escaped from detention she had to remain in detention, although it was not necessarily obligatory that she be held for eighteen months. Indeed she could be released from detention earlier. Regarding the applicant ’ s psychological problems caused by her separation from her child, he noted that the applicant could avail herself of the provisions of the Dublin Regulation to request to be re-united with her son in Holland [sic]. Regarding the applicant ’ s request for release from custody, he noted that, in the first place, the applicant should never have escaped from detention in order to solve her personal problems, and the time she spent as a fugitive was time she spent residing illegally in Malta and Holland, thus, her detention was a situation that she brought upon herself and she should therefore be held in detention according to the law. Moreover, he considered that by escaping from detention without being medically cleared, as requested by law, she had created a public health risk. Lastly, since she was receiving continued psychological care in detention he considered that her release from detention at that point was not advisable.

The application was never appointed for hearing by the IAB and no decision on the applicant ’ s request has been delivered.

4. The AWAS procedure

Pending and in parallel with the above, following referral by JRS, in December 2011 the applicant was interviewed by the Vulnerable Adults Assessment Team of AWAS, with a view to determining whether she should be released from detention on grounds of vulnerability in terms of government policy. The person conducting the interview spoke in English – there was no interpreter and although the applicant, who by then had learnt some basic English, managed to understand what was happening, she could not communicate fully or explain the full extent of her problems. The applicant was never formally informed of the outcome of this interview or of the decision taken regarding her request. However, some months later, she happened to see the woman who had conducted the interview at the Detention Centre, and upon the applicant ’ s enquiry, she was verbally informed that her request had not been acceded to. The applicant understood that she would not be released from detention.

The applicant explained that the vulnerability assessment procedure operated by AWAS was developed by the said organisation in order to give effect to a government policy introduced in January 2005, which states that vulnerable immigrants should not be detained. Although AWAS is not formally charged with the responsibility for this procedure by the law, in practice it has full responsibility for this procedure which is not regulated by law or by publicly available rules or procedures. The determining authority does not give written reasons for its decisions and there is no possibility of appeal, although it may be possible to request a review if more evidence is forthcoming or there is a degeneration in the individual ’ s condition.

5. Release

The applicant was released on 30 August 2012 in line with government policy, as she had spent a total of eighteen months in “immigration detention” since her arrival in Malta .

B. Relevant domestic law and practice

1. The Immigration Act

Asylum procedures are mainly regulated by the Immigration Act (“the Act”), Chapter 217 of the Laws of Malta. Article 5 of the Act defines the term prohibited immigrant and, in so far as relevant, reads as follows:

“ (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 10 of the Act, regarding temporary detention, in so far as relevant reads as follows:

“ (1) Where leave to land is refused to any person arriving in Malta on an aircraft ...

(2) Where leave to land is refused to any person arriving in Malta by any other means, such person at his own request may, with the leave of the Principal Immigration Officer, be placed temporarily on shore and detained in some place approved by the Minister and notified by notice in the Gazette:

Provided that he shall be returned to the vessel by which he is to leave Malta immediately that he makes a request to that effect or that the Principal Immigration Officer so directs, whichever is the earlier.

(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.”

In practice, upon being apprehended a prohibited immigrant is issued with a removal order, in accordance with Article 14 of the Act, which, in so far as relevant, reads as follows:

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

(2) Upon such order being made, such person against whom such order is made, shall be detained in custody until he is removed from Malta.”

An “irregular” immigrant is entitled to apply for recognition of refugee status by means of an application (in the form of a Preliminary Questionnaire) to the Commissioner for Refugees within two months of arrival. While the application is being processed, in accordance with Maltese policy, the asylum seeker will remain in detention for a period up to 18 months, which may be extended if upon rejection of the application, he or she refuses to co-operate in respect of his or her repatriation.

Article 25A of the Immigration Act provides for an application to the Immigration Appeals Board if an asylum seeker feels that his or her detention is no longer reasonable. It entails requesting release from custody pending the determination of an individual ’ s asylum claim or his or her deportation. The same article regulates the manner in which and when such release may be granted. The relevant provisions read as follows:

“(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.

(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) .. .

(9) The Board shall also have jurisdiction to hear and determine applications made by persons in custody in virtue only of a deportation or 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 subarticles of this article.

(10) The Board shall only grant release from custody under subarticle (9) where in its opinion the continued detention of such person is taking into account all the circumstances of the case, unreasonable as regards duration or because there is no reasonable prospect of deportation within a reasonable time:

Provided that where a person, whose application for protection under the Refugees Act has been refused by a final decision, does not co-operate with the Principal Immigration Officer with respect to his repatriation to his country of origin or to any other country which has accepted to receive him, the Board may refuse to order that person ’ s release.

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

( a ) when the identity of the applicant including his nationality has yet to be verified, in particular where the applicant has destroyed his travel or identification documents or used fraudulent documents in order to mislead the authorities;

( b ) 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;

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

2. The Refugees Act

Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta, reads as follows:

(1) A person may apply to the Commissioner, in the prescribed form, and shall be granted refugee protection, where it is established that he faces a well-founded fear of persecution in his country of origin or habitual residence in terms of the Convention.

(2) A well-founded fear of persecution may be based on events which have taken place after applicant has left his country of origin or activities engaged in by applicant since leaving the country of origin, except when based on circumstances which the applicant has created by his own decision since leaving the country of origin.

(3) If the Commissioner recommends the acceptance of the application, the Minister shall make a declaration that applicant is eligible for refugee status, or appeal against such recommendation.

3. Government Policy

According to the Irregular Immigrants, Refugees and Integration policy document, issued by the Ministry for Justice and Home Affairs and the Ministry for the Family and Social Solidarity, in 2005:

“ Irregular immigrants who, by virtue of their age and/or physical condition, are considered to be vulnerable are exempt from detention and are accommodated in alternative centres”.

4. Relevant subsidiary legislation

Part IV of Subsidiary Legislation 217.12, Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations, Legal Notice 81 of 2011 ( Transposing Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in member States for returning illegally staying third-country nationals), in so far as relevant, reads as follows:

Regulation 11

“ (1) The provisions of Part IV shall not apply to third country nationals who are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by sea or air of the external border of Malta and who have not subsequently obtained an authorisation or a right to stay in Malta.

(2) A return decision, an entry-ban decision and a removal order shall be issued in writing and shall contain reasons in fact and in law and information on legal remedies:

Provided that the reasons in fact may be given in a restrictive way where the withholding of information is regulated by law, in particular where the disclosure of information endangers national security, public policy, and the prevention, detection, investigation and prosecution of criminal offences.

(3) A return decision shall be issued in a standard form and general information as regards such form shall be given in at least five languages which third-country nationals may reasonably be supposed to understand.

(4) The Board shall review decisions related to return on application by the third-country national as referred to in subregulation (2), and may temporarily suspend their enforcement.

(5) For the purposes of sub-regulation (4) a legal adviser shall be allowed to assist the third-country national and, where entitled to, free legal aid shall be provided to the third-country national.

(6) The Principal Immigration Officer shall provide, upon request, a written or oral translation of the main elements of a return decision and information on the legal remedies in a language the third-country national may reasona bly be supposed to understand. ...

(8) Where a third-country national is the subject of return procedures, unless other sufficient and less coercive measures are applicable, the Principal Immigration Officer may only keep him in detention in order to carry out the return and removal procedure, in particular where:

( a ) there is a risk of absconding; or

( b ) the third-country national avoids or hinders the return or removal procedure:

Provided that the detention shall be for a short period and shall subsist as long as the removal procedure is in progress and is executed with due diligence.

(9) Detention shall be a consequence of the removal order issued by the Principal Immigration Officer and it shall contain reasons in fact and in law.

(10) The third-country national subject to the provisions of subregulation (8) shall be entitled to institute proceedings before the Board to contest the lawfulness of detention and such proceedings shall be subject to a speedy judicial review.

(11) Where the third-country national is entitled to institute proceedings as provided in sub-regulation (10) he shall immediately be informed about such proceedings.

(12) The third country-national shall be immediately released from detention where in the opinion of the Board such detention is not lawful.”

COMPLAINTS

The applicant complains under Article 3 about her conditions of detention, noting that she had no effective remedy in this respect given the lack of access, in practice, to constitutional proceedings for persons in the applicant ’ s situation, namely foreigners detained for purposes of immigration. In any event she considered that such proceedings were too lengthy to be considered effective for the purposes of an Article 3 complaint.

The applicant also complains that her period of detention between 17 June 2011 and 30 August 2012 was arbitrary since her deportation had not been feasible and its length had exceeded that reasonably required for the purpose. Moreover, she argued that it could not be considered lawful since the national laws regulating detention in an immigration context were not sufficiently precise and lacked procedural safeguards. She invoked Article 5 § 1 of the Convention.

The applicant further complains that she had not been provided with the legal and factual grounds for her detention in terms of Article 5 § 2 of the Convention .

Lastly, the applicant complains that the Maltese legal system had not provided her with a speedy and efficient rem edy, as required by Article 5 § 4 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted domestic remedies in respect of her Article 3 complaint? In particular would constitutional redress proceedings, or an other alternative remedy, if any, provide for a possibility of an improvement in the material conditions of detention and compensation for the damage or loss sustained on account of such conditions (see Roman Karasev v. Russia , no. 3 0251/03, 25 November 2010) ?

2. Did the conditions of the detention facility, namely Lyster Barracks in the period between 17 June 2011 and 30 August 2012, notably the alleged overcrowding and the lack of access to outdoor exercise, particularly between April and July 2012, amount (alone or in combination with other conditions) to inhuman and degrading treatment (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08 , §§ 98-99, 10 January 2012 and M.S.S. v. Belgium and Greece [GC], no. 30696/09 , 222 et sequi , ECHR 2011 ) ? In particular, did they affect the applicant ’ s health condition?

3. The Government are invited to submit the relevant details in respect of the conditions of the applicant ’ s detention. A failure to submit convincing evidence on material conditions of detention may give rise to the drawing of inferences as to the well- foundedness of the applicant ’ s allegations ( see Gubin v. Russia , no. 8217/04, § 56, 17 June 2010, and Khudoyorov v. Russia , no. 6847/02, § 113, ECHR 2005 ‑ X (extracts)).

4 . W as the applicant deprived of her liberty from 17 June 2011 to 30 August 2012 in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within paragraph (f) of this provision?

5. If so h as the duration of the deportat ion proceedings been excessive and have they been executed with due diligence (see Louled Massoud v. Malta , no. 24340/08 , 27 July 2010 ) ? Was her detention lawful in terms of domestic law and did it keep with the purpose of protecting the individual from arbitrariness (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164 ECHR 2009 )?

6. Was the applicant informed promptly, in a language which she understood, of the reasons for her detention under Article 5 § 1 (f) as required by Article 5 § 2 of the Convention?

7. Was the applicant able to bring proceedings which complied with Article 5 § 4 of the Convention to challenge the lawfulness of her detention?