16 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN MALTA (statelessness) very rarely occur during asylum interviews, with the Office defining a stateless person as “a citizen of no state”.64 No training on statelessness is currently offered at RefCom, with the Office explaining that this is due to the fact that it is not within its remit to determine such claims. Assessment of risk of persecution is conducted on a case-by-case basis, and protection granted accordingly. In one known case, the claimants declared that they did not have a nationality and were subsequently granted a particular form of national protection - Temporary Humanitarian Protection - on the basis that they believed they were stateless. It is not clear whether this grant of national protection was based on a policy decision regarding stateless applicants, or whether it was a one-off decision. According to RefCom, when cases of possible statelessness appear to be clearly linked with a risk of persecution and the other elements of the refugee definition were present, international protection was granted/recognised. Effectively, it is not the remit of the Immigration Police or RefCom to identify or confirm a nationality, and Maltese documentation and records will always be based on the declaration of the applicant. Therefore, if someone from Eritrea does not manage to prove his nationality to RefCom, he will be registered and remain registered as Eritrean, and the Immigration Police will continue contacting Eritrea for re-documentation and removal purposes. It is therefore evident that the early identification of stateless people is a key feature for their own protection but also in order to prevent useless, costly and inefficient procedures for the Police and other public authorities. Malta’s negative approach to the establishment of a statelessness determination procedure seems to be largely based on administrative and financial concerns, rather than on a failure to acknowledge the challenges faced by stateless persons. The Ministry for Home Affairs and National Security expressed concerns in relation to the potential pull-factor presented by such a procedure, particularly towards the population of failed asylumseekers in Malta who, the Ministry fears, might seek to ‘apply’ for such a determination in the hope of being granted residence permits, or to delay return proceedings. Furthermore, the Ministry also explained its concerns in relation to the extent of rights it would be required to grant to persons recognised as being stateless, and also its reservations about the possibility of stateless persons acquiring Maltese nationality. 65 3.2 DECISION TO DETAIN AND PROCEDURAL GUARANTEES When we arrived in Maltese territory after the rescue operation, we were presented to the Immigration Police which was asking everyone their basic identification details. The Police woman could not believe me when I said I came from Myanmar, Burma. Nobody spoke my language and there were no translators, and I really had to insist that she write my country of origin properly. I could not yet speak English at that time, just a bit of the Bangladeshi language. I could understand though, that there might not be a lot of people from my country reaching Malta. I did not even know about Malta before I arrived there. Kafil Kafil, originally from Myanmar Under Maltese law, there is no formal administrative decision to detain, and therefore no detention order in writing providing reasons in fact and in law for a person’s detention. Administrative detention in the immigration context is an automatic measure for people against whom a removal order is issued by the Principal Immigration Officer, the above-mentioned “prohibited immigrant” in terms of Article 5 of the Immigration Act. As described above, once such an order is made, the person against whom it is issued shall be detained until removal.66 Migrants who apply for asylum before they are apprehended by the Immigration Police will however not be detained pending the outcome of their asylum application. This category was always a small percentage of annual asylum applications, yet in 2015 the trend changed tremendously with arrivals of Libyan and Syrian asylum-seekers entering Europe with Schengen visas. RefCom recorded more than 500 applications in the first five months of 2015.67 Persons who apply for asylum after they are taken into custody remain in detention until their asylum application is determined, or until any of the above-mentioned elements occur resulting in the person’s release (e.g. vulnerability assessment). The Immigration Act states that an application for international protection suspends the removal order but not all of its effects, resulting in the continuation of the detention measure. In essence, therefore, Malta’s current detention regime is automatically applied in a manner that is clearly in contravention of human rights law. The regime, in law and in practice, wholly ignores the principles of necessity and proportionality that require individual assessments in order to justify the deprivation of the migrant’s liberty. In this regard, it is important to refer to the severe criticism levelled against Malta’s detention regime by national and international human rights actors, calling for a radical review of the legal framework as well as of its practical implementation.68 Reference should also be made to three judgements from the European Court of Human