9 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN MALTA 1.3 STATELESSNESS AND DETENTION IN MALTA According to the Maltese Citizenship Act, ‘stateless’ means “destitute of any nationality”.4 The Act confers Maltese nationality jus sanguinis – or by descent - (with the exception of children born out of wedlock to a Maltese father) but since the 1980’s no longer confers nationality jus soli – or by birth on the territory. As a consequence, a child born of a Maltese father and a non-Maltese mother, but remaining unrecognised by the father, will not have access to Maltese nationality. This matter was successfully raised before the European Court of Human Rights, yet Maltese law remains unchanged today.5 Similarly precarious is the situation of children born to foreign parents in Malta, as they are presumed to acquire the nationality of their parents, 6 without any individual assessment as to the legal and practical possibility of this being the case. The Malta office of the United Nations High Commissioner for Refugees (UNHCR) conducted the first research into statelessness in Malta on the occasion of the 60th anniversary of the 1954 Convention relating to the Status of Stateless Persons.7 The report, pursuant to UNHCR’s mandate to prevent and reduce statelessness, aimed at promoting Malta’s accession to the 1954 Convention and the 1961 Convention on the reduction of Statelessness. The report was presented to key government counterparts. While no definite commitments were expressed by the government, it seems that generally the response to UNHCR’s report was rather positive, and there is at least some receptiveness to instigating necessary reforms. Malta is not party to either of the statelessness Conventions, and there is currently no dedicated identification or determination procedure for stateless persons or people at risk of being stateless, nor legislation regarding entitlements and obligations of such persons. However, as mentioned above, the Ministry for Home Affairs and National Security (MHAS) is looking into the provisions of the Conventions and the possibility of acceding to these instruments and incorporating them into Maltese law.8 The Republic of Malta is an archipelago measuring around 320 km² and is extremely densely populated. When it joined the European Union in 2004, it became its southernmost frontier in the Mediterranean Sea. Immigration to Malta has an extremely long history, yet from 2002 a migration influx from North Africa started at an alarming rate, particularly in the context of the island’s size and readiness to cope with such arrivals.9 Emergency policies – including in relation to the use of immigration detention - were quickly set up, triggering serious concerns regarding the lack of safeguards to protect against violations of human rights. Although the statelessness issue was and remains almost invisible in the country, the few known occurrences and risks are largely related to these irregular migration flows. In the summer of 2012, Mr. Mamadou Kamara died when under the care of the Detention Service, after being beaten to death by personnel of the Detention Service and the Armed Forces of Malta. Following outrage expressed by a group of non-governmental organisations,10 the Prime Minister ordered an independent inquiry into the conditions of detention centres and the death of Mr. Kamara. Two years later, the findings of the inquiry were published, highlighting the appalling conditions of detention centres, the negligence of the Detention Service officers and the use of excessive force by the officers. It recommended a revision of the detention policy and resources allocated. It also emphasised the need for the duration of detention to be regulated, and on the fact that detention conditions and the length of detention negatively affected detainees and also the Maltese population. Although the general public reaction was not welcoming of the report’s conclusions and recommendations, the Government seems to be taking steps to reform the system.11 The Mare Nostrum operation, a naval operation that started in October 2013 at the initiative of Italy to deploy naval and aerial patrols “to tackle the dramatic increase of migratory flows during the second half of the year and consequent tragic ship wreckages off the island of Lampedusa”,12 had a direct impact on the number of sea arrivals in Malta, with the result that the detention centres emptied almost immediately. In 2015, although the Mare Nostrum operation ended,13 the number of arrivals by boat dropped to 93 people. Nonetheless, the Office of the Refugee Commissioner (RefCom) has said that almost 500 asylum applications were presented since the beginning of 2015,14 mainly asylum-seekers arriving by plane. At the time of writing, Malta’s detention centres are almost entirely empty.15 The issue of statelessness appears invisible in this national context, in both legislation and in the perspectives of interviewed stakeholders. Stateless people or those at risk of being stateless are therefore generally mainstreamed with other third-country nationals (TCNs) and offered the same treatment, primarily the possibility to apply for international protection