FOURTH SECTION

Application no. 42337/12 Ibrahim SUSO MUSA against Malta lodged on 4 July 2012

STATEMENT OF FACTS

The applicant, Mr Ibrahim Suso Musa, is a Sierra Leonean national, who was born in 1983 and lives in Safi , Malta . He is represented before the Court by Dr N. Falzon , a lawyer 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

The applicant entered Malta in an irregular manner by boat on 8 April 201 1 . Upon arrival, he was arrested by the police and presented with a Return Decision and Removal Order in view of his presence in Malta as a prohibited immigrant in terms of Article 5 of the Immigration Act (Chap ter 217 of the Laws of Malta). He was defined as such due to his entry into Malta in an irregular manner, and to the consideration that he did not have sufficient means to support himself. The Return Decision informed the applicant of the possibility to apply for a period of voluntary departure. It also contained, in the same document, a Removal Order based on the rejection of the applicant ’ s request for a period of voluntary departure. It noted that the request had not been acceded to for the following reasons: due to a risk that he may abscond; his application for legal stay was considered as manifestly unfounded or fraudulent; and he was considered to be a threat to public policy, public security or national security.

In fact, the applicant never actually made a request for a voluntary departure period, since the rejection was automatically presented with the information regarding the possibility to request it. The applicant was never informed on the considerations leading to this decision or given any opportunity to present information, documentation and/or other evidence in support of a possible request for a voluntary departure period.

The applicant was further informed, through the Return Decision and Removal Order, of his right to appeal the Decision and Order before the Immigration Appeals Board (“IAB”) within three working days. No further information was provided on the appeals procedure, including information on access to legal assistance.

On the basis of the Return Decision and Removal Order, and in terms of the Immigration Act, the applicant was detained in Safi Barracks with a view to his deportation from Malta .

2. Asylum proceedings

On 14 April 2011 , whilst in Safi Barracks, the applicant submitted the Preliminary Questionnaire, the first stage of his application for asylum in Malta .

On 31 December 2011 the applicant ’ s asylum application was rejected by the Office of the Refugee Commissioner who considered that the claim as presented failed to meet the criteria for recognition of refugee status.

On 24 January 2012 the applicant appealed to the Refugee Appeals Board. Submissions were presented on 29 March 2012.

On 2 April 2012 the Refugee Appeals Board rejected the applicant ’ s appeal, thereby definitively closing his asylum procedure almost twelve months after his arrival in Malta .

3. Proceedings challenging the legality of detention

In the meantime, pending the above asylum proceedings, on 28 June 2011 the applicant filed an application before the IAB in order to challenge the legality of his detention in terms of the Immigration Act.

The application was based on Article 5 § 1 of the Convention and Regulation 11(10) of the Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations (Legal Notice 81 of 2011, hereinafter “LN 81”) (See Relevant Domestic Law below) . In his application the applicant argued that the decision to detain him as well as his on-going detention, were contrary to law. With regard to the original decision to detain him, the applicant argued that, contrary to the requirements of the above-mentioned Regulation 11(8), when he was presented with the Return Decision and Removal Order no evaluation had been made as to the possibility of exploring “other sufficient and less coercive measures” . Furthermore, in deciding to detain him, the responsible authorities decided a priori without an individual assessment of his situation that he presented a risk of absconding and that he was avoiding or hindering the return or removal procedure. Moreover, the decision was taken without the applicant having made a request for voluntary departure. The applicant further argued that his on-going detention was also contrary to law on the basis of the presentation, in April 2011, of his asylum application, by virtue of which return procedures could not be commenced or continued in his regard in terms of Regulation 12 of the Procedural Regulations in Examining Applications for Refugee Status Regulations (Legal Notice 243 of 2008, hereinafter “LN 243”) (see Relevant Domestic Law).

On 27 September 2011 the Immigration Police responded to the applicant ’ s application before the IAB, and this was followed by further submissions by the applicant. On 22 November 2011 the IAB issued a decree requesting the parties to submit further information on specific queries raised by the Board. The applicant made further submissions highlighting the delay that was being created in the proceedings and final submissions were also made by the Immigration Police.

On 5 July 2012, more than a year after the applicant ’ s challenge, the IAB rejected his application. It noted that, despite the fact that according to Regulation 11 (1) of LN 81, Part IV of those Regulations did not apply to persons who were 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, the applicant had obtained the right to stay (“ joqgħod ”) in Malta upon lodging his application for asylum. Indeed it had been correct to rely on Regulation 12 (1) of LN 243 which stated that an individual had the right of entry and to remain on the island pending a decision on his asylum request, which, in the present case, applied to the applicant when he instituted his challenge before the IAB. As a matter of fact, in the applicant ’ s case, had the asylum request still been pending, Section IV of LN 81 would in fact have been applicable, in particular in so far as an individual could not be kept in detention unless return proceedings were underway or if he or she presented a risk of absconding. However, the situation had changed given that on 2 April 2012 the applicant ’ s asylum request had been rejected by a final decision. The latter implied that Section IV of LN 81 was no longer applicable to the applicant and thus the IAB could no longer decide on the request in terms of Regulation 11 (8) of LN 81. Moreover, the applicant was not arguing the illegality of his detention on the basis of its length. In any event the IAB was not competent to decide whether there was a breach of Article 5 of the Convention.

4. Criminal proceedings

Pending the above processes, on 16 August 2011 a riot broke out at Safi Barracks, resulting in a number of detained migrants, police officers and soldiers of the Armed Forces of Malta being injured . That same day, twenty-three migrants were arrested and charged in court in relation to the riot. The applicant was amongst the arrested persons and, together with the others, was accused of a number of offences including damage to private property, use of violence against public officers, refusal to obey legitimate orders and disruption of public peace and good order. The arrested men, including the applicant, were taken to Corradino Correctional Facility to await the outcome of the criminal proceedings.

The following day, on 17 August 2011 , the Court of Magistrates confirmed that the arrest of the migrants, including the applicant, was justified and in accordance with the law. They were remanded in custody.

On 30 January 2012 , the Court of Magistrates granted the applicant bail, in terms of which he was released from Corradino Correctional Facility and returned to Safi Barracks.

5. Latest Information

According to the latest information provided by the applicant, on 11 October 2012, he was still detained and criminal proceedings in relation to the riot at Safi Barracks were still pending.

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 ar riving 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:

Provided that in relation to any such person as may be prescribed by regulations made under article 4A and who entered Malta or is in Malta, a removal order shall only be issued following an application to that effect by the Principal Immigration Officer to the Board which shall make such order upon being satisfied that such person is liable to expulsion under this Act. The provisions of article 25A shall mutatis mutandis apply to any order issued by the said Board under this proviso.

(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.

2. 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 refer red 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.”

Regulation 12 (1) of the Procedural Standards in Examining Applications for Refugee Status Regulations (Legal Notice 243 of 2008), Subsidiary Legislation 420.07 provides as follows:

“(1) Notwithstanding the provisions of any other law to the contrary, and except where a subsequent application will not be further examined, 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.”

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that his detention from 8 April 2011 to 16 August 2011 and from 30 January 2012 to the present date did not fall under any of the situations provided for by Article 5 and more particularly that it had not been carried out to prevent his unauthorised entry into Malta or with a view to his deportation, given that, he was pending a decision on his asylum application and the consequential authorisation in terms of Regulation 12 of Legal Notice 243 of 2008. Without prejudice to the above, he contended that the Maltese authorities had not sought alternatives to his detention, despite its length and that the conditions of detention were not adequate. Moreover, making reference to the case of Louled Massoud v. Malta (no. 24340/08 , 27 July 2010) he noted that to date there were no procedural safeguards against arbitrary detention.

The applicant also complains under Article 5 § 2 that upon his arrival he was not provided with any information regarding the specific reason for his detention.

The applicant further complains that the Maltese legal system did not provide him with a speedy and efficient remedy, contrary to Article 5 § 4 of the Convention. Despite slight changes in respect of the Immigration Appeals Board following the Louled Massoud judgment, it had taken more than a year to determine his application. Any other remedies had already been found to be inadequate by the Court in the Louled Massoud judgment.

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 de privation of liberty, between 8 April 2011 to date (excluding the term between 16 August 2011 to 30 January 2012) fall within paragraph (f) of this provision?

In so far as a period of that detention may have been effected for the purposes of the first limb of Article 5 § 1 (f), i.e. “to prevent his effecting an unauthorised entry into the country”, was his detention lawful in terms of domestic law and free from arbitrariness in the context of the first limb of Article 5 § 1 (f), namely was the applicant ’ s detention compatible with that provision (see Saadi v. the United Kingdom [GC], no. 13229/03, § 77 ECHR 2008)?

In so far as a period of that detention may have been effected for the purposes of the second limb of Article 5 § 1 (f), i.e., “ against whom action is being taken with a view to deportation”, has the duration of the deportation proceedings been excessive and have they been executed with due diligence (see Louled Massoud v. Malta , no. 24340/08 , 27 July 2010) ? Was his 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 )?

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

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