Malta

Malta acceded to the 1954 Convention in 2019, but still provides very limited protection for stateless people, and is not party to the 1961 Convention. Maltese law provides some protections against arbitrary detention, but rights afforded to those detained for removal purposes are very limited. Malta has no mechanism to identify and determine statelessness, and no stateless protection status, although it did introduce a route to regularisation in 2018 for people refused asylum and unable to leave the country, who have lived in Malta for more than five years. Data on the stateless population is therefore limited, with figures available only for the very small number of stateless people who acquire Maltese nationality, and refused asylum seekers recorded as ‘nationality not known’ who cannot be returned and may or may not be stateless.

There are some safeguards in Maltese law to prevent statelessness, but implementation is problematic and there are some key gaps. The law prevents statelessness in cases of adopted children and new-born foundlings whose parents remain unidentified. There is a provision granting children born stateless on the territory a conditional right to acquire nationality following five years’ legal residence, but, although in line with the 1961 Convention, the provision does not prevent statelessness in all cases and is not currently implemented in practice. Discriminatory provisions in both law and practice relating to conferral of nationality by descent remain in force despite a European Court of Human Rights judgement ruling against Malta on this matter in 2011.

Last updated:

Mar 2020

Next scheduled update:

Mar 2021

Country expert(s):

Neil Falzon, aditus foundation

Additional resources

ASSESSMENT KEY

++POSITIVE

+ SOMEWHAT POSITIVE

+-POSITIVE and NEGATIVE

- SOMEWHAT NEGATIVE

--NEGATIVE

ADDITIONAL INFO

NORMS & GOOD PRACTICE

International and Regional Instruments

Assesses whether countries are state party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

Malta acceded to the 1954 Convention in 2019, but it is not state party to the other core statelessness conventions (1961 Convention, European Convention on Nationality, and European Convention on the Avoidance of Statelessness in Relation to State Succession), although it has signed (but not acceded to) the European Convention on Nationality. Malta has fully transposed the EU Returns Directive into domestic law and is party to most other relevant human rights instruments, but it retains significant reservations to these, including in relation to protection from unlawful expulsion and several reservations to CEDAW impacting on women’s equality.

The 1954 Convention

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Malta acceded to the 1954 Convention in December 2019, but it did so with a number of significant reservations, and the Convention does not have direct effect.

The 1961 Convention

Malta is not state party to the 1961 Convention.

Other Conventions

Malta has signed but not acceded to the European Convention on Nationality and is not state party to the Convention on the Avoidance of Statelessness in Relation to State Succession.
Malta is state party to and/or bound by all other relevant international and regional instruments, except for the Convention on the Rights of Migrant Workers, but it retains several significant reservations. For example, its reservation to Article 13 of the International Covenant on Civil and Political Rights relates to protection from unlawful expulsion. Other reservations relate to the criminal justice system and protections from hate speech and incitement to violence.
Malta’s reservations to the Convention on the Elimination of all Forms of Discrimination Against Women do not have a direct impact on statelessness, but do impact on all women in Malta (including stateless women), and relate to reproductive rights, family and property law, and the payment of certain social security entitlements to ‘the head of the household presumed to be the husband’.

Statelessness Population Data

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries and migration databases. Notes whether statelessness has been mapped in the country and whether there are effective measures in place to count stateless people in detention.

There is very limited disaggregated population data on statelessness in Malta. There is no ‘stateless’ category in the census, although the question of whether someone has Maltese or ‘any foreign citizenship’ was asked in the last census in 2011. The Annual Demographic Review has a ‘stateless’ category in its data on acquisition of Maltese nationality and the Office of the Refugee Commissioner reports on those with ‘nationality not known’ among refused asylum seekers who cannot be returned. The Government does not publish data on stateless people in detention and statelessness is not systematically recorded across government agencies. A 2014 UNHCR mapping study provides detailed commentary on the legislative framework relating to statelessness in Malta.

Availability and sources

There is no procedure for identifying and determining statelessness in Malta, but the National Statistics Office Annual Demographic Review has included a 'stateless' category since 2008 in its data on acquisition of Maltese citizenship. From 2008-2010, 24 stateless individuals are reported to have obtained Maltese nationality.
The last census in 2011 provided limited opportunity for respondents to self-identify as ‘stateless’. The question on nationality allowed for a ‘yes’/’no’ answer to whether someone has Maltese nationality or ‘any foreign nationality’. If both answers were ‘no’, there were no further questions.
The Police and the Office of the Refugee Commissioner use the statistical category ‘nationality not known' (though this does not always appear in reported figures) and record data on refused asylum seekers who cannot be returned. In 2019, a 'stateless' applicant was recorded. 'Palestine' is also used as a nationality category.
UNHCR conducted a mapping study in 2014, which provides a detailed commentary on the legislative framework on statelessness in Malta, including examples of different profiles of stateless people and those at risk of statelessness in the country.
UNHCR reports that 100 people with ‘unknown nationality’ applied for asylum in Malta in 2016, but more recent figures are not available.

Stateless in detention data

The Government records information about the nationality of detainees, but it does not routinely publish any statistics on immigration detention.
The Immigration Police collects some data on individuals released from immigration detention who could not be removed, but they do not publish this.

Statelessness Determination and Status

Identifies whether countries have a definition of a stateless person in national law that aligns with the 1954 Convention, and whether they have a dedicated statelessness determination (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and legal status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place, those with other administrative procedures, those with a status but no clear mechanism, and those without any status or mechanism. Where a procedure and status exist, these are assessed against norms and good practice, and the rights granted to recognised stateless persons are examined.

The definition of a stateless person in the Maltese Citizenship Act is not in line with the 1954 Convention definition, although the Convention definition is referenced elsewhere in Maltese law. There is no mechanism to identify or determine statelessness in Malta nor any dedicated protection status for stateless people. The Office of the Refugee Commissioner can recommend a form of temporary humanitarian protection, usually where someone has been refused asylum but cannot be removed or there are exceptional humanitarian reasons. However, applicants have no rights during the procedure, and it is completely discretionary. A person granted this form of protection can access a renewable residence permit for one year, healthcare, and the labour market. A regularisation route was introduced in 2018 for refused asylum seekers who entered Malta before 2016 and who are unable to be returned, can show at least five years’ residence, and efforts to integrate. This provides a two-year residence permit with access to a range of socio-economic rights. However, no rights are granted to stateless people in Malta purely based on their statelessness.

Definition of a stateless person

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The Immigration Regulations refer to statelessness within the meaning of the 1954 Convention. However, the Citizenship Act defines statelessness as "destitute of any nationality", which is not in line with the Convention definition.

Existence of a dedicated SDP

There is no mechanism to identify or determine statelessness in Malta, nor any dedicated protection status.

Other routes to regularisation

The Office of the Refugee Commissioner has discretion to recommend a local form of protection - ‘Temporary Humanitarian Protection (THP)' - usually either granted where someone has been refused asylum, but obtains protection for exceptional humanitarian reasons (for example, unaccompanied minors, people who are terminally or seriously ill, family reunion), or where someone cannot be removed and fulfils specific integration criteria (for example, independent accommodation and stable employment, among others). Applicants have no rights during the procedure, and it is completely discretionary.
If granted THP, under current policy the person has access to various rights including a renewable one-year residence permit implying protection from removal, access to healthcare, and access to the labour market; but these are not rights set in law.
People granted THP may apply for nationality, which by law may be granted at the discretion of the Minister. However, as Malta considers THP holders as migrants in an irregular situation, it is highly unlikely that their applications will even be considered.
In 2018, Malta introduced a regularisation route for people who arrived in Malta before 2016 whose asylum applications have been refused, and who could not return or be removed to a former country of residence/origin. This ‘Specific Residence Authorisation (SRA)’ is accessible to those who meet these criteria, have lived for at least five years in Malta, and can demonstrate good conduct, frequent employment and efforts to integration. Beneficiaries are granted a renewable residence permit for two years with access to social security (on the same basis as people with subsidiary protection), a work permit, education, healthcare and travel documents. Guidelines for decision-makers require an individual assessment and flexibility in applying the eligibility criteria with consideration for health or vulnerability issues. SRA status is granted to dependent family members in line with the main applicant and all holders of the former THP/N status received SRA status automatically.

Access to nationality

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A stateless person (who has always been stateless i.e. from birth) may apply for naturalisation after five years residence in Malta if they can meet other general eligibility requirements and have not been convicted of a crime punishable by more than five years imprisonment.
Additionally, a stateless person who has always been stateless and with a parent who is a Maltese national may naturalise after three years’ ordinary residence subject to conditions.
There is a fee of 450 EUR to apply for naturalisation and a further 50 EUR, if the application is approved and a certificate issued.

Detention

Analyses law, policy and practice relating to immigration detention generally, focusing in on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as detention decision-making, whether alternatives to detention are legislated for and implemented, procedural safeguards such as time limits, judicial oversight and effective remedies, as well as protections on release and whether statelessness is considered juridically relevant in bilateral return and readmission agreements.

In Malta, stateless people may be detained under different legal regimes, each with its own criteria, rights and guarantees. Since mid-2018, in practice, all asylum-seekers arriving by sea are detained under the Prevention of Disease Ordinance with little consideration of individual circumstances (including statelessness) and few procedural safeguards. There are some protections against the arbitrary detention of stateless people for removal, such as the requirement that someone is released if removal is impossible. However, a country of removal does not need to be identified prior to detention, and statelessness is not considered juridically relevant. There are limited procedural safeguards especially for those detained under the Health Ordinance or denied entry to the territory. If detained for removal or as an asylum seeker, there is access to legal aid to challenge detention. Asylum seekers released from detention are issued with documentation and rights under EU law, but people detained for removal are issued with an administrative record and tolerated stay, which permits access to the labour market and healthcare only if they can show social security contributions from the preceding three months.

Detention screening

Legal powers are provided for to detain asylum seekers, third country nationals denied entry at the border or in an irregular situation, and asylum seekers pending Dublin transfers. Since mid-2018, asylum-seekers arriving by sea are being detained under the Prevention of Disease Ordinance, which has been ruled unlawful by the Maltese Courts, but continues as of end 2019.
For detention for removal, the law states that ‘detention shall be a consequence of the removal order’ once an order has been issued. If someone then applies for asylum, the Order is suspended pending the outcome.
A country of removal does not explicitly need to be identified prior to detention, but there are requirements of necessity, proportionality and due diligence, which could be interpreted as requiring this.
The law provides for immediate release where removal cannot take place, but statelessness is not considered to be a juridically relevant fact during the decision to detain, and stateless people are detained in practice prior to the authorities initiating removal procedures.
The law explicitly provides for immigration detention to be used only as a last resort in the case of detention for removal or where unaccompanied minors and families with minor children are concerned. Elsewhere, the authorities have discretion on whether to consider less coercive measures and alternatives are not explicitly referred to in law, although the Asylum Reception Regulations provide for the possibility of 'temporary permission to leave' detention and lists alternatives.
There are two vulnerability assessments for asylum seekers that were developed for boat arrivals, which would impact on the decision to detain if vulnerability is identified. But those claiming asylum in-country, arriving by plane, or denied access or detained pending removal, do not systematically undergo such assessment. Statelessness is not considered a vulnerability factor.

Alternatives to detention

Although not framed as alternatives to detention and not forming part of the decision to detain, a list of what could be considered alternatives is set in Asylum Reception Regulations where someone is 'temporary released from detention': regular reporting at a police station, residing at an assigned place, depositing and surrendering documents, placing a one-time guarantee or surety. These measures are subject to a time limit of nine months, but it is not clear if they are also subject to review.
The law states that alternatives must be considered in the case of those detained for removal purposes, but alternative measures are not set in law or subject to review and it is not clear whether or how the provision is implemented in practice.
In practice, immigration detention is being used prior to all alternatives being considered, particularly in the case of asylum-seekers arriving by sea detained under the Prevention of Disease Ordinance.
People who are detained may challenge the lawfulness of their detention and request to be released on bail as part of the process, but this possibility is rarely used in practice.

Procedural safeguards

Maximum periods for detention are set in law for asylum seekers (nine months) and people detained for removal (six months plus 12 months), but not for those denied entry.
The law requires asylum seekers to be informed of the reasons for detention in a language they understand, but in practice, this is always in English. There is no requirement that reasons for detention are provided to those detained for removal or denied entry, but those detained for removal may request a translation of the main elements of a return decision and legal remedies ‘in a language they may reasonably be supposed to understand’.
The detention order for asylum seekers contains information on procedures to challenge detention and access free legal aid. People detained pending removal should be provided with information on detention facility rules, rights and obligations and the entitlement to contact external organisations, by law. There is no obligation to provide this information to those denied entry to the territory. It is questionable whether information is provided in practice.
There are periodic reviews of detention for asylum seekers and those detained pending removal (differing periods and questionable whether reviews take place within set deadlines). People denied entry have no right to automatic regular review.
Asylum seekers and people denied entry can challenge their detention order within three working days and legal aid is provided if necessary. Review of detention for those detained for removal is either automatic or triggered by the individual. There can be difficulties in practice due to the short time limit and complex procedure. People detained for removal can challenge the removal order and detention, and the reasonableness of detention (not its lawfulness).
There are no rules regarding the process of re-documentation and ascertaining nationality.
There is free legal aid for asylum seekers, and for those challenging the return decision and/or removal order. There is no legal aid for those denied entry to the territory.
There are no procedural guarantees in relation to the detention of asylum-seekers under the Prevention of Disease Ordinance.

Protection on release

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The state issues an identification document to asylum seekers released from detention in line with the EU Reception Directive. If not detained, people subject to removal or denied entry are issued with an administrative record, but this does not constitute a right to stay or official documentation.
Rights on release depend on someone's legal status. Asylum seekers have rights in line with the EU Reception Directive. People subject to removal live in the community with tolerated stay if released from detention. Their rights include: access to the labour market and work permit, and access to healthcare if they can show payment of a social security contribution in the past three months.
It is unclear whether cumulative time spent in detention counts toward the maximum time limit.

Return and readmission agreements

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The only information currently available is that Malta's readmission agreements are all based on 'the EU template'. It is not clear whether statelessness is a juridically relevant fact or whether stateless people have been returned under the agreements in practice.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy and practice on birth registration, including access to late birth registration, reduction measures taken by states to prevent statelessness among groups at high risk, and provisions regarding withdrawal of nationality.

There are some safeguards in Maltese law to prevent statelessness, but implementation is problematic and there are some gaps. There is a provision for children born stateless in Malta to acquire nationality after five years’ residence, but it is little-known and there are no reports of it ever having been used. There is a safeguard against statelessness in adoption cases. Foundlings are deemed to be Maltese from birth, but the wording of the provision leaves open the possibility of statelessness arising later in life or if parents are identified. The differential treatment of children born to unmarried Maltese parents abroad was ruled to be discriminatory by the European Court of Human Rights in 2011, but this provision remains in force in Maltese law. Birth registration is not problematic in law, but there are reports of barriers to undocumented parents registering births in practice.

Stateless born on territory

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There is a non-automatic provision in the Citizenship Act for children born stateless in Malta to acquire citizenship after five years' residence, provided that they have not been convicted of any offence against any State or sentenced to more than five years' imprisonment.
There is no age limit in the provision and the legal status or residence of the parents has no bearing on the right to acquire Maltese citizenship of a stateless child born on the territory.
However, there is no information available about how proof of the child/person's statelessness is required or evidenced, the provision is little known, and it does not seem to ever have been used in practice.

Foundlings

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There is a provision in law for foundlings to acquire nationality automatically.
The law states that the ‘new-born infant’ shall be a national of Malta at the date of birth but it is unclear whether this would apply at a later age.
The provision says ‘until their right to any other nationality is established’ so it may be that if the parents are later identified and they are nationals of a country that gives rise to a ‘right’ to nationality for the child, the child's Maltese nationality would cease making them potentially stateless until they apply for nationality. The reference to 'a right to nationality' could also be construed to mean that it is enough for a foreign national parent to be able to pass on their nationality in law for a foundling's Maltese nationality to be withdrawn. Whether there are practical barriers to acquisition of the foreign nationality may not be deemed relevant, entailing a risk of future statelessness.

Adoption

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Dual nationality is permitted so a child adopted by foreign parents and acquiring another nationality would not automatically lose their Maltese nationality.
The acquisition of Maltese nationality by an adopted foreign child is governed by a mix of law and policy. The Citizenship Act distinguishes between children over and under 10 years old. For children under 10, Maltese nationality is automatically acquired upon registration, but there is a risk of statelessness if an ascendant of the parent was not born in Malta, as Maltese nationality law requires both the parent and ascendant to be born on the territory. If the adopted child is older than 10, they can either rely on the same provision (though the inclusion of adopted children here is based on a policy decision rather than an explicit legal provision); or submit an application for nationality through naturalisation, where it is said to be policy to grant nationality in such cases, but, again, this is not set in law so there could be a risk of statelessness during the procedure.

Ius sanguinis

There is a provision in the Citizenship Act for Maltese nationality to automatically be conferred through ius sanguinis to children born to Maltese nationals either in Malta or abroad, but there are discriminatory limitations in the Act, which exclude children born to unmarried parents with a Maltese father.
Under the limitations, in the case of unmarried parents, a child born in Malta on or after 1 August 1989 shall only become Maltese if the mother is a Maltese national, which leaves a risk of statelessness if only the father is Maltese and the mother cannot confer her nationality to the child, as long as the safeguard against children born stateless on the territory is not implemented in practice.
Additionally, under these same limitations, children born abroad to an unmarried Maltese father and foreign mother on or after 1 August 1989 would also fail to acquire Maltese nationality, even if rendered stateless.
Despite being ruled discriminatory by the European Court of Human Rights in 2011 (Genovese v. Malta), Maltese law still contains these limitations distinguishing between children born in and out of wedlock and between children born to a Maltese mother as opposed to a Maltese father when unmarried.
There are also current cases being reported of Maltese fathers being required by the authorities to undergo paternity testing for their child's Maltese nationality to be recognised, even where they are married to the foreign mother of the child.

Birth registration

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It is compulsory for all parents, irrespective of nationality or legal status, to register the birth of their child within 15 days with the Public Registry office. This obligation may at times be difficult to meet, so in practice the timeframe is relaxed, and no penalties incur within the first weeks past the deadline. Late registration is allowed, with no cut-off date. If parents are unavailable, the duty falls on the doctor, midwife or any other person in attendance at the birth or in whose property the baby was born.
All children are provided with certification of birth. The document provided at birth registration does not contain information about the child's nationality, but it does contain information about the parents and their place of birth. There is no legal framework to determine the nationality of a child at birth or afterwards.
There are credible reports of births remaining unregistered due to lack of documentation or refusal of parents to register the child.
There are no mandatory requirements to report undocumented persons to the immigration authorities.

Reduction

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Identity Malta and Gov.mt provide clear and easy-to-understand information on birth registration, where to register, and services for birth registration (in English and Maltese) on their websites, but there are no proactive campaigns on birth registration.
In 2018, Identity Malta opened an office at the main public hospital to facilitate birth registration.
Malta acceded to the 1954 Convention relating to the Status of Stateless Persons in December 2019, but the Government has not implemented any other measures specifically aimed at reducing statelessness.

Withdrawal of nationality

Renunciation of nationality is only possible in cases where the person holds the nationality of another country, and a declaration should be approved by the Minister.
Deprivation is provided for in law in certain circumstances. The competent authority is the Minister responsible for Maltese nationality, who must convene a Committee of Inquiry made up of specific decision-makers. In cases involving a custodial sentence of less than 12 years there is a safeguard against statelessness, but not in other cases. There is no legal aid and no right of appeal.
NGOs have reported recent cases of withdrawal of nationality resulting in statelessness without any due process.