12 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN MALTA be insufficient by the European Court of Human Rights. 36 The Court also condemned Malta under Article 5(1) for not protecting the claimant against arbitrary detention. 37 Under the transposing Regulations, the six months period for detention remained, with the possibility to extend it for another 12 months if need be.40 In another case, whilst condemning Malta’s failure to provide an effective remedy for detained persons to question the legality of their detention, the Court also reiterated that detention for purposes of removal is only justified under the Convention when removal proceedings are being carried out with due diligence. Where returnability is no longer an option, the migrant’s continued detention becomes unjustified: Applying for asylum has the effect of suspending the removal order but not its main consequence of administrative detention. In fact, the detention of asylumseekers is not regulated by national law. The 2005 policy document specifies that detention can last as long as the asylum determination procedure. In practice, a national interpretation of the first EU Reception Conditions Directive sets a maximum detention duration of 12 months for asylum-seekers. The initial Directive provided that asylum seekers should have access to the labour market after 12 months, which was reduced to nine months in the recast.41 As it is impossible to access the labour market while being detained, applicants are released after one year if no final decision on their application for refugee status is reached within a year of their arrival. “…the Court considers that it must have become clear quite early on that the attempts to repatriate him were bound to fail as the applicant had refused to cooperate and/or the Algerian authorities had not been prepared to issue him documents. Detention cannot be said to have been effected with a view to his deportation if this was no longer feasible.”38 This latter point is clearly directly relevant to stateless persons, and is discussed in further detail below. As no account of possible statelessness is taken into consideration when detention measures are being imposed on the basis of a return decision and removal order, it is evident that current practice mainstreams stateless people and those at risk of statelessness in relation to their detention without consideration of their unreturnability. In this regard, the EU Directive on common standards and procedures for returning illegally staying thirdcountry nationals39 was first transposed into subsidiary legislation in 2011 (Return Regulations, Legal Notice 81). This legislation allows the period of detention to be extended up to 18 months on account of (1) lack of cooperation by the detainee; or (2) delays in obtaining the necessary documents from the third country only for prospects of return. The 2014 amendments to the transposing Regulations added automatic review of detention at reasonable intervals not exceeding three months, in line with the Directive. According to the amendments, these reviews are to be conducted by the Principal Immigration Officer and could lead to the release of persons where their return is no longer foreseeable. Observed practice reveals that the reviews conducted on the basis of these amendments are largely based on the person’s nationality and its relevance to the probability of the person’s return at the end of the asylum procedure. The reviews conducted have in fact resulted in the release from detention of several groups of persons, with end 2014 seeing a radical drop in the number of detained persons in Malta’s two detention centres. Detainees can be released in any of the following three situations: when they are granted a form of international protection and in this case the removal order ceases to have effect and the person is immediately released after medical clearance; when they are determined to be vulnerable adults or unaccompanied minors by the Agency for the Welfare of Asylum-Seekers, and in case of positive assessment are released after medical clearance; the lapse of the maximum period of 18 months in the case of failed asylum-seekers, with the subsequent possibility of re-detention when removal proceedings become feasible. It is pertinent to note that with the amendments to the transposition of the Return Directive, anyone found to be unreturnable is released automatically. It ought to be emphasised that this system is rather new so little information and data is available regarding its detailed implementation. The national asylum procedure remains the only procedure available for a stateless person to request determination of refugee status and international protection, where relevant.42 In fact statelessness is only seen as a component of a potential persecution claim,43 the starting point of which must be the country of former habitual residence.44 RefCom, although not entrusted with determining of statelessness, has encountered cases of people claiming to have no nationality. It seems that after assessing the merits of the case, RefCom may recognise the need to protect in relation to the situation of statelessness. Yet this is done on a discretionary basis as there is no mandatory legal obligation. Although these situations are rare, in comparison to the total amount of applications, RefCom would ‘recognise’ statelessness when there is a risk of persecution directly linked to