5.  The applicant was born in 1978 and was at the time of the introduction of the application detained at the Safi detention centre.
6.  On 10 September 2016 the applicant, a refugee from Ivory Coast who claimed to have 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.
7.  According to the applicant he immediately informed the authorities that he was a refugee from Ivory Coast and that he had fled the war in his country many years before. 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.
8.  The applicant was found carrying false Italian identification documents and, according to the Government, when questioned, he informed the police that he had obtained the documents from a friend in Italy and that his intention was to travel to Italy by transiting via Malta. The applicant was also found to be in possession of a travel ticket to Italy.
9.  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, reasons primarily linked to his skin colour and the lack of physical security. The police confiscated his documents.
10.  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.
11.  The applicant was accompanied to Safi Barracks detention centre, where he was detained.
12.  On 20 September 2016 the applicant applied for international protection and was formally registered as an asylum‑seeker.
13.  According to documentation submitted by the Government, on 30 September 2016, the applicant appeared before the Board accompanied by one of his lawyers (of choice), but the case was put off to the next board meeting to be held on 5 October 2016, since one of the applicant’s representatives (of choice) was abroad. The applicant appears to contest the existence of this hearing and notes that the Government have not provided any proof of notification of such hearing or what went on. He however claims that even if it did occur his legal aid lawyer was not present as required by law.
14.  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. The applicant was present with his legal representatives and was provided with an interpreter.
15.  According to the applicant, during the hearing before the Board, in the presence of a representative of the Malta Police Force who explained the circumstances of the applicant’s detention, 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 its legal obligation and determine the lawfulness of his detention on time.
16.  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.
17.  The applicant’s representative made 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.
18.  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 be 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”.
19.  The Board requested the Principal Immigration Office (PIO) to enquire 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.
20.  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.
21.  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 recognised as a refugee in Armenia.
22.  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, making the asylum determination impossible. It followed that the applicant’s detention could not be considered unlawful.
23.  The applicant was released from immigrant detention on 8 November 2016, subject to reporting at the police station daily.
24.  By a judgment of 19 January 2017, in accordance with his guilty plea, 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 court, in application of Section 22 of the Probation Act (Chapter 446 of the Laws of Malta) conditionally discharged the applicant for three years.
25.  On an unspecified date in March 2017 the applicant’s asylum application was rejected. The applicant appealed, which appeal reached the Secretary of the Refugee Appeal’s Board on 21 March 2017.