Malta

Malta provides very limited protection for stateless people. Although it is party to some relevant international and regional human rights treaties, it is not party to any of the core statelessness conventions. Maltese law provides some protections against arbitrary detention, but rights afforded to people detained for removal purposes, for example, are very limited. Malta has no mechanism to identify and determine statelessness, and no stateless protection status. Data on the stateless population is therefore limited, with figures available only for the very small number of stateless people who acquire Maltese citizenship 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. Malta is also yet to amend its legislation following a European Court of Human Rights judgement, which ruled that Citizenship Act provisions distinguishing between children born in and out of wedlock to Maltese nationals abroad, were discriminatory.

Last updated: 
Dec 2017
Next scheduled update: 
Dec 2018
Country expert(s): 

Neil Falzon, aditus foundation

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 is not state party to any of the core statelessness conventions. It has signed but not acceded to the European Convention on Nationality and has neither signed nor acceded to the other three. It has fully transposed the EU Returns Directive into domestic law and is party to all other relevant human rights instruments, but it retains significant reservations to these, including in relation to protection from unlawful expulsion and several reservations to the Convention on the Elimination of all Forms of Discrimination Against Women impacting on women’s equality. 

  • Malta is not state party to the 1954 Convention.
  • Malta is not state party to the 1961 Convention.
  • 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. It has reservations to the European Convention on Human Rights, but these do not have substantive effect on statelessness.
  • Malta has fully transposed the EU Returns Directive into domestic law.
  • Malta is state party to all other relevant international treaties, but it retains several significant reservations. For example, its reservation to Art. 13 of the International Covenant on Civil and Political Rights (ICCPR) relates to protection from unlawful expulsion. Other reservations to the ICCPR 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 sufficient measures in place to count stateless persons 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 citizenship 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. 

  • 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 citizenship in Malta.
  • The last census in 2011 provided limited opportunity for respondents to self-identify as ‘stateless’. The question on citizenship allowed for a ‘yes’/’no’ answer to whether someone has Maltese citizenship or ‘any foreign citizenship’. 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' and record data on refused asylum seekers who cannot be returned, but do not have a specific 'stateless' category. They include 'Palestinian' 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 citizenship’ applied for asylum in Malta in 2016.
  • The Government does not publish statistics on the number of stateless people in 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 dedicated statelessness determination (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place (Group 1), those with other administrative procedures (Group 2), those with a status but no clear mechanism (Group 3), and those without any status or mechanism (Group 4). Where a procedure exists, this is assessed against good practice, and the rights granted to recognised stateless people are examined.

There is no mechanism to identify or determine statelessness in Malta nor any dedicated protection status for stateless people, so it falls within Group 4. 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. However, no rights are granted to stateless people in Malta purely based on their statelessness. Although there is a possibility in law for anyone resident in Malta for five years to apply for naturalisation, this is at the discretion of the Minister and almost never granted in practice.

  • There is no mechanism to identify or determine statelessness in Malta, nor any dedicated protection status.
  • The Office of the Refugee Commissioner has discretion to recommend a local form of protection - ‘Temporary Humanitarian Protection (THP/N)' - 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/N, 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/N may apply for citizenship, which by law may be granted at the discretion of the Minister. However, as Malta considers THP/N holders as migrants in an irregular situation, it is highly unlikely that their applications will even be considered.

Detention

Analyses law, policy and practice relating to immigration detention generally, but focusing 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, how 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.

In Malta, stateless people may be detained under different legal regimes, each with its own criteria, rights and guarantees. There are some protections against arbitrary detention relevant to statelessness, such as the requirement that someone is immediately released if removal is impossible. However, the law states that detention ‘shall be a consequence of the removal order’, a country of removal does not explicitly need to be identified prior to detaining, and statelessness is not considered juridically relevant. Limited procedural safeguards depend on the type of detention: if denied entry to the territory a person has very few rights and there is no time limit; if detained for removal there is a periodic review, and access to legal aid to challenge detention; detained asylum seekers have a right to legal aid, periodic review, and information on rights and remedies. 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.

  • 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.
  • Grounds for detaining asylum seekers in Maltese law reflect the EU Reception Directive.
  • 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 subject to a Removal Order 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.
  • 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 detention 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.
  • There is evidence to suggest that in practice immigration detention is used prior to all alternatives being considered.
  • 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.
  • Maximum periods of detention are set in law for asylum seekers (nine months) and those 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 available 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.
  • 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 3 months.
  • It is unclear whether cumulative time spent in detention counts toward the maximum time limit.

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, and measures taken by states to promote birth registration among groups at high risk of remaining unregistered.

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 citizenship 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 in and out of wedlock to Maltese parents abroad was ruled to be discriminatory by the ECtHR 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.

  • 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.
  • There is a provision in law for foundlings to acquire citizenship automatically.
  • The law states that the ‘new-born infant’ shall be a citizen of Malta at the date of birth but it is unclear whether this would apply at a later age.
  • The provision says ‘until his right to any other citizenship 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 citizenship for the child, the child's Maltese citizenship would cease making them potentially stateless until they apply for citizenship. The reference to 'a right to citizenship' could also be construed to mean that it is enough for a foreign national parent to be able in law to pass on their nationality for a foundling's Maltese citizenship 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.
  • The law provides for the acquisition of nationality by children adopted by a Maltese national.
  • Dual citizenship is permitted so a child adopted by foreign parents and acquiring another nationality would not automatically lose their Maltese citizenship.
  • There is a provision in the Citizenship Act for Maltese nationality to automatically be conferred through ius sanguinis to children born to Maltese citizens either in Malta or abroad, but there are discriminatory limitations in the Act, which exclude children born out of wedlock to 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 citizen, 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 a Maltese father and foreign mother out of wedlock on or after 1 August 1989 would also fail to acquire Maltese citizenship, 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 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. 
  • It is compulsory for all parents, irrespective of nationality or legal status, to register the birth of their child within 15 days of the birth.  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.
  • 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 people who are undocumented to the immigration authorities.
  • It is compulsory for parents to register the birth of their child with the Public Registry office within 15 days. 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.
  • 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.

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