22 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN MALTA
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effective solutions. Accurate information is necessary
in order to understand who the affected persons are,
and how they are being treated.
Malta should accede to the Convention relating to
the Status of Stateless Persons of 1954 and the
Convention on the Reduction of Statelessness of
1961, which provide part of the legal framework for
the protection of the rights of stateless persons, as
well as reducing and preventing statelessness. Malta
should also fulfil its obligations by the stateless under
international and regional human rights law,
including obligations to not discriminate against and
to not arbitrarily detain the stateless.
Malta should establish a dedicated statelessness
determination procedure. In order to build on
lessons learnt, to maximise limited resources, and to
capitalise on existing expertise, the Office of the
Refugee Commission readily presents itself as a
viable option for the responsible authority. In order
to avoid abusive applications, appropriate
information ought to be provided to applicants in
order to clarify the purpose and implications of the
procedure, including the possibility of identifying a
country willing to engage in a return process. Any
procedure should enshrine all necessary procedural
guarantees, including access to information, legal aid,
and effective remedy.
Determination of statelessness in a dedicated
procedure (see above) should unequivocally rule out
detention, as it precludes the view to expulsion. This
procedure should provide a possibility of
regularisation of legal residence status of such
persons and issuance of identity and travel
documents. Accordingly, the law should set clear
rules governing statelessness determination
procedure providing inter alia, that everyone who
wishes to request statelessness status can do so
quickly and effectively.
Malta should finalise the move from an immigration
regime based largely on automatic detention
towards one based on individual assessments, and
bring Malta’s use of administrative detention in line
with human rights standards. In particular, the
circumstances facing stateless persons should be
considered as a significant factors during the process
of determining the lawfulness of immigration
detention. The initial decision to detain should
always be based on the individual circumstances and
personal history of the person in question. Decisions
should contain clear reasons why other noncustodial measures would be inadequate for the
purpose and, in the light of existing alternative
measures, there should be clear proportionality
between the detention and the end to be achieved. In
particular, when detention proceedings are carried
out, state authorities should identify whether or not
a person is stateless or at the risk of statelessness
(inter alia due to the fact that a person claims to be
from one of the countries known for generating
statelessness) having in mind that the lack of
appropriate documentation or presenting expired
documentation should not per se justify the decision
to detain and should not be equalled to a risk of
absconding. Failure to do so is likely to render
detention arbitrary.
6. Malta should ensure that detention is always used as
a last resort, after all alternatives (starting with the
least restrictive) are exhausted. Less restrictive
measures must be shown to be inadequate before
detention is applied. The choice of alternative to
detention should be influenced by the individual
assessment of the circumstances of stateless
persons.
7. Malta should formalise the detention review
procedure contained in the Returns Regulations, so
as to more appropriately establish a transparent and
accountable procedure that conforms to human
rights standards. In this regard, the notion of “due
diligence” in the context of return procedures, should
be maintained as a key priority throughout detention
– state authorities must be diligent enough to
identify if people who they initially assessed as not
being at risk of statelessness are now at risk – and
act accordingly. Decisions to continue detention of a
stateless person should always contain a detailed
justification explaining what measures aimed at
determining the nationality of the person in question
were already taken, what the reaction of the
diplomatic mission of the country contacted was and
what the prospect of a successful return of this
person to the country of origin/former habitual
residence is.
8. In the case of failed asylum-seekers, particular
attention ought to be paid to the relationship
between the migrant and the presumed or claimed
country of origin in order to ensure that where legal
and/or practical returnability is not possible,
detention is not resorted to. Furthermore, such
individuals should be referred to the statelessness
determination procedure.
9. Malta should raise the profile of statelessness and
train those public authorities potentially engaging
with this issue, in particular the Department for
Citizenship and Expatriates Affairs.
10. Malta should conduct an internal assessment of
those scenarios whereby Maltese law or practice
related to, inter alia, citizenship, residence permits,
and marriage creates or heightens risks of
statelessness, and such gaps in the law and practice
should be addressed.
11. Malta should ensure effective access to protection
for stateless persons, through the provision of legal
stay status and the formal recognition of their civil,
political, economic, social and cultural rights.
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