Communicated on 28 August 2014
FIFTH SECTION
Application no. 56796/13
Sagal ABDI MAHAMUD
against Malta
lodged on 19 August 2013
STATEMENT OF FACTS
The applicant, Ms Sagal Abdi Mahamud, is a Somali national, who was born in 1992 and is detained in Lyster Barracks, detention Centre, Hal Far. She is represented before the Court by Dr K. Camilleri and Dr M. 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 to the case
The applicant entered Malta in an irregular manner by boat on 6 May 2012. Upon arrival, she was registered by the immigration police, given an identification number (12D-001) and presented with a Return Decision and a Removal Order. The applicant was immediately detained in Lyster Barracks; her detention was based on Article 14 (2) of the Immigration Act (see Relevant domestic law).
On 9 May 2012 the applicant was assisted in submitting the Preliminary Questionnaire (PQ), thereby registering her wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant Domestic Law, below). On 21 May 2012 the applicant was called for an interview by the Office of the Refugee Commissioner (ORC).
On 30 June 2012 the ORC rejected her application. Her appeal was also rejected by the Refugee Appeal Board (RAB) on 13 December 2012.
Up to the date of the lodging of her application with the Court on 19 August 2013 the applicant had heard no news about any steps being taken in connection with her removal. In practice Malta effected no removals to Somalia or Somaliland.
2. The AWAS Vulnerability Assessment Procedure
Ever since her arrival in Malta the applicant suffered from several medical problems, such as headaches, earaches and fainting, and was frequently hospitalized. She showed signs of severe anxiety and depression which got worse following the refusal of her asylum request. In consequence, on 1 September 2012 she was referred to the Agency for the Welfare of Asylum Seekers (AWAS) by the Jesuit Refugee Service (JRS). This referral was made with a view to obtaining her release from detention in terms of government policy on the grounds of vulnerability due to physical and psychological ill-health.
In December 2012 the applicant was interviewed (for a few minutes) by the Vulnerable Adults Assessment Team of AWAS, with a view to determine whether she should be released on the grounds of vulnerability. The interview was held in English and the applicant was assisted by another detainee who was not fluent in the language. She is of the impression that she was verbally informed that she would be released. On 10 August 2013, that is just under one year after the referral, the interviewers verbally informed her that she would be released.
Nevertheless, up to the date of the lodging of her application with the Court on 19 August 2013 the applicant was still in detention. She hoped to be released in November 2013 after the lapse of an eighteen month detention as per domestic practice at the time.
The applicant submitted 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 stated that vulnerable individuals should not be detained. The applicant submitted that although AWAS was not formally charged with the responsibility of this procedure by the law which constitutes it, in practice the agency has full responsibility for the procedure. However, in spite of the fact that this procedure can have a determining impact on the continued detention of individuals detained in terms of the Immigration Act, it was not adequately regulated by law or by publicly available rules or procedures. The determining authority does not give written reasons for its decision and there is no possibility of appeal, although it may be possible to request a review if more evidence is available or there is a degeneration of the individual’s condition.
3. Conditions of detention
The applicant was detained in Hermes Block in Lyster Barracks, in conditions which she considered prison-like and basic. She explained that the Block is divided into five zones alike in terms of lay-out and facilities. The applicant was detained in Zone C for the first seven to eight months and was afterwards transferred to Zone D for a number of months until she moved to Zone A.
She noted that in Zone C there were over eighty single women and at one point the detention centre was so crowded that there were not enough beds and people had to sleep on metal tables in the television room. She noted that Zone C was less crowded but that it still lacked privacy and sanitation.
She complained about the lack of constructive activities to occupy detainees, overcrowding (particularly during the summer months), lack of privacy, limited access to open air, difficulties in communication with staff other detainees and with the outside world, the lack of information about one’s situation, and the lack of proper arrangements for heating and cooling leading to extreme cold in winter and extreme heat in summer. The applicant highlighted the lack of female staff - in particular she noted that every morning male soldiers barged into her dormitory while they were still asleep, to make a head count, during which they removed the sheets to check for their presence. This meant that the applicant had to sleep fully dressed every night, including her head scarf to avoid embarrassing moments.
The applicant also complained of limited access to medical care, also because of a lack of interpreters to enable communication with medical staff. She submitted medical certification showing that she suffered from low moods and insomnia, somatic symptoms such as chest pains and that there had been a deterioration of her mental state. The doctor issuing such certification declared that she was to be considered as vulnerable. Another doctor certified that she was often unwell and referred to hospital “more than usual”. He noted that her health posed challenges in keeping her in detention. Further certification showed that she suffered from fits and was hospitalised in May 2012 for dehydration and that she was repeatedly seen by doctors in conjunction with infections and other medically related episodes.
4. Latest Developments
The applicant was released from detention in September 2013.
B. Relevant domestic law and practice
1. 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.”
2. 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”.
3. AWAS
In so far as relevant, Regulation 6 of the Agency for the Welfare of Asylum Seekers Regulation, Subsidiary Legislation 217.11, reads as follows:
“(1) The function of the Agency shall be the implementation of national legislation and policy concerning the welfare of refugees, persons enjoying international protection and asylum seekers.
(2) In the performance of its functions, the Agency shall:
(a) oversee the daily management of accommodation facilities either directly or through subcontracting agreements;
(b) provide particular services to categories of persons identified as vulnerable according to current policies;
(c) provide information programmes to its clients in the areas of employment, housing, education, health and welfare services offered under national schemes;
(d) act as facilitator with all public entities responsible for providing services to ensure that national obligations to refugees and asylum seekers are accessible;
(e) promote the Government’s policy and schemes regarding resettlement and assisted voluntary returns;
(f) maintain data and draw up reports that are considered relevant for its own function and to provide statistics to appropriate policy-making bodies;
(g) advice the Minister on new developments in its field of operation and propose policy or legislation required to improve the service given and fulfil any legal obligations in respect of its service users;
(h) encourage networking with local voluntary organisations so as to increase the service standards as well as academic research;
(i) work with other public stakeholders and, where possible, offer its services to asylum seekers accommodated in other reception centres not under its direct responsibility; and
(j) implement such other duties as may be assigned to it by the Minister or his representative.”
4. Other relevant law
Further relevant domestic law concerning the case is to be found in Suso Musa v. Malta (no. 42337/12, §§ 23-32, 23 July 2013).
COMPLAINTS
The applicant complains about her conditions of detention, which in her view amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.
The applicant also complains that her lengthy detention, more than seven months of which pending a decision on her asylum request and the rest allegedly pending her removal, despite no steps having been taken, was contrary to Article 5 § 1 of the Convention. She relies on the case of Suso Musa v. Malta (no. 42337/12, 23 July 2013).
The applicant further complains that she did not have a remedy which met the requirements of Article 5 § 4, as outlined in the Court’s jurisprudence, to challenge the lawfulness of her detention.
QUESTIONS TO THE PARTIES
1. Did the conditions of the detention facility, namely Lyster Barracks in each of the Zones in which the applicant had been detained, amount to inhuman or degrading treatment contrary to Article 3?
2. Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention? In particular, did the different periods of her deprivation of liberty 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 effecting an unauthorised entry into the country”, was her 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, inter alia, 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)?
3. Was the applicant able to bring proceedings which complied with Article 5 § 4 of the Convention to challenge the lawfulness of her detention?
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