Assistance in the Case of Transit for the Purpose of Removal by Air

L.N. 40 of 2007

EUROPEAN UNION ACT

(CAP. 460 )

Assistance in the Case of Transit for the Purpose of Removal by Air

Order, 2007

IN exercise of the powers conferred under article 4(2) of the

European Union Act, the Prime Minister and Minister of Finance has

made the following Order:-

Part I

Purpose, Definitions and Scope

(1)

The title of this Order is Assistance in the Case of Citation and

purpose.

Transit for the Purpose of Removal by Air Order, 2007.

(2) The purpose of this Order is to

(a)

define the measures of assistance to be granted by

the Maltese authorities in airports in the case of transit with

regard to unescorted and escorted removal of third country

nationals by air as well as the rules applicable when the Maltese

authorities can make such requests for assistance in transit to

other Member States; and

(b)

transpose the provisions of Council Directive 2003/

110/EC of 25 November, 2003 on assistance in cases of transit

for the purposes of removal by air.

(3) This order shall without prejudice apply to the obligations

arising from the Geneva Convention relating to the status of refugees

of 28 July 1951, as amended by the New York Protocol of 31 January

1967, from international conventions on human rights and

fundamental freedoms and from international conventions on the

extradition of persons.

[Article 6(3)]

Transit request for the purpose of removal by air

Place / Date

(Requesting unit)

Authority

Telephone/Fax/e-mail

Address

Number of officer

Signature

(Requested unit)

Authority

Address

General information on third-country national whom the transit request concerns

Number of visa

Travel

delivered by a

Request

Date of

Place of

document No/

Surname

First name

m/f

Nationality

third-

no.

Birth

Birth

Type/

country

Validity

(if required)

Flight details

Flight no.

From

Departure date

Time

To

Arrival date

Time

Particular Information

Is the third country national

accompanied by an escort?

___ Yes

___ No

Names and functions: _______

Is the presence of a police escort at

the airport recommended?

___ Yes

___ No

If so specify: ______________

Is medical care required?

___ Yes

___ No

Contagious identifiable disease?()

___ Yes

___ No

If so specify: ______________

Previous unsuccessful attempts at

removal?

___ Yes

___ No

If so state reasons: _________

*This information shall be provided in accordance with the applicable national or international law.

Further comments

NB: at the time the request was made, no grounds for refusal under article 4(1) and (2) were known

Decision of the requested unit

†

The transit is authorised

†

The transit is not authorised

Grounds

f/Principal Immigration Officer

(Name / Signature / Date)

In this order, unless the context otherwise requires –

Definitions.

“Commission” means the European Commission;

“escort” means all persons from the requesting Member State

responsible for accompanying the third-country national, including

persons responsible for medical care and interpreters;

“principal immigration officer” means the person appointed to

such office by the Prime Minister under article 3 of the Immigration

Act, and includes, within the limits of any authority granted by the

Principal Immigration Officer under article 3(3) of the said Act, any

public officer acting under such authority;

“requested Member State” or “transit Member State” means the

Member State via whose airport the transit is to be effected;

“requesting Member State” means the Member State which

enforces a removal order in respect of a third-country national and

requests transit via the airport of another Member State;

“third-country national” means a person who is not a citizen of a

Member State;

“transit by air” means the passage of the third-country national

and, if necessary, the escort through the area of the airport of the

requested Member State for the purposes of removal by air.

Part II

Rules applicable when Malta receives a request for transit

(1)

The Principal Immigration Officer shall be the

authority responsible for the receipt of requests for assistance for the

transit of third-country nationals in cases of removal by air from other

Member States and shall decide the nature and extent of the assistance

to be afforded in relation thereto.

(2) When the Principal Immigration Officer receives a request

for assistance referred to in subarticle (1), he shall inform the

requesting Member State of his decision within forty-eight hours of

receipt of the request

Provided that the Principal Immigration Officer may

extend the said period of forty-eight hours by a maximum period of

another forty-eight hours in duly justified cases.

(3) Subject to consultations with the requesting Member State

and within the means available and in compliance with relevant

international standards, the Principal Immigration Officer shall

provide all the assistance measures necessary from landing until it is

ensured that the third-country national has left Malta

Provided that emergency medical assistance for the third-

country national or his escort, where necessary, shall be provided

without mutual consultations with the requesting Member State.

(4) In affording such assistance, the Principal Immigration

Officer may request the assistance of other authorities in Malta,

including the healthcare authorities where this is considered

necessary.

(1)

The Principal Immigration Officer may refuse a Refusal of the

request for

request for transit by air, received from another Member State, if

transit by air

(a)

the third-country national is charged with criminal

offences in Malta or is wanted for the carrying out of a sentence

in Malta;

(b)

transit through other Member States or admission

by the country of destination is not feasible;

(c)

the third-country national will be a threat to public

policy, public security, public health or to the international

relations of Malta; or

(d)

the requested assistance is impossible at a

particular moment for practical reasons

Provided that the Principal Immigration Officer

shall, as quickly as possible, inform the requesting Member

State of a date as close as possible to the originally requested

date on which transit by air may be assisted, in so far as the

other conditions are complied with.

(2) The Principal Immigration Officer may, even if a request

for transit has already been authorized, revoke the request for

assistance if circumstances within the meaning of subarticle (1)

subsequently come to light, justifying a refusal of the transit.

(3) The Principal Immigration Officer shall forthwith inform

the requesting Member State of the refusal in terms of subarticle (1)

or revocation of the authorization in terms of subarticle (2) or of any

other reason why the transit is not possible and shall give reasons for

such refusal or revocation.

(1)

When a transit through Malta for the purposes of Assistance to be

removal by air from another Member State has been agreed to, the granted

Principal

Principal Immigration Officer shall meet the third-country national at Immigration

Officer.

the aircraft and escort him within the transit area of the airport so as

to ensure that he boards the connecting flight.

(2) The Principal Immigration Officer shall be responsible for

receiving, keeping and forwarding the necessary travel documents of

the third-country national being removed particularly in the case of

unescorted removals.

(3) The Principal Immigration Officer shall ensure that the

necessary sustenance and, where necessary, emergency medical care,

is provided to the third-country national and, if necessary, his escort.

(4) In the case of an unescorted transit, the Principal

Immigration Officer shall inform the requesting Member State of the

place and time of departure of the third-country national from Malta

and inform the said State if any serious incidents took place during

the transit of the third-country national.

(5) The Principal Immigration Officer may, in accordance with

the provisions Immigration of the Act

(a)

place and accommodate the third-country national

in a secure facility; and

(b)

use legitimate means to prevent or end any attempt

by the third-country national to resist the transit.

(6) Without prejudice to article 6, the Principal Immigration

Officer may, in cases where the completion of the transit operations

cannot be ensured despite the assistance provided by the requesting

Member State, upon the request by and in consultation with the

requesting Member State, take all the necessary assistance measures

to continue the transit operation.

(7) When the requesting Member State is obliged to re-admit

the third-country national due to the fact that the transit by air was

refused or revoked by the Principal Immigration Officer, or that the

third-country national entered Malta without authorization during the

transit the removal of the third-country national to another transit

country or to the country of destination, or that boarding of the

connecting flight was unsuccessful or that the transit by air is not

possible for another reason, the Principal Immigration Officer shall

assist with the readmission of the third-country national to the

requesting Member State and the latter shall bear the costs incurred in

returning the third-country national.

Part III

Rules applicable when Malta makes a request for transit.

(1)

Prior to making a request for assistance for transit

by air, the Principal Immigration Officer shall examine whether it is

possible to use a direct flight to the country of destination and if this

is not possible, he shall request transit by air via another Member

State

Provided that, in principle, such a request shall not be

made if the removal measure requires a change of airport on the

territory of the requested Member State.

(2) The Principal Immigration Officer shall make the

appropriate arrangements so as to ensure that the transit operation

takes place in the shortest time possible and that it shall, in any case,

not take longer than twenty-four hours

Provided that, in cases where the completion of transit

operations cannot be ensured despite the assistance provided by the

Principal Immigration Officer, which necessitates the consultation

between the two sides to take all the necessary measures to continue

the transit operations, the time limit may be extended to a maximum

of forty-eight hours.

(3) A request for escorted or unescorted transit and any other

assistance related thereto shall be made in writing by the Principal

Immigration Officer, in accordance with the form as set out in the

Schedule to this order and shall ensure that the request reaches the

requested Member State as early as possible and in no case later than

two days before the transit

Provided that this time limit may be waived in particular in

urgent and in duly justified cases.

(4) The Principal Immigration Officer shall not start the transit

by air without the approval of the requested Member State

Provided that if the requested Member State does not reply

within the stipulated period of forty-eight hours, the Principal

Immigration Officer may commence the transit operations by means

of a notification

Provided further that the Principal Immigration Officer

may reach a bilateral or multilateral agreement or arrangement with

one or more Member States, which shall be notified to the

Commission, to the effect that the transit operations may be started by

means of a notification by the requesting Member State only.

(5) Costs related to the provision of emergency medical care

and the provision of sustenance to the third-country national and,

where necessary to his escort, shall be borne by the Principal

Immigration Officer as the authority responsible in the requesting

Member State, upon receipt of appropriate information with regard to

the criteria of quantification of the costs from the requested Member

State.

The Principal Immigration Officer shall undertake to re-

admit the third-country national and shall bear the costs incurred in

the return if

(a)

the transit by air authorization was refused or

revoked by the requested Member State;

(b)

the third-country national entered the requested

Member State without authorization during the transit;

(c)

removal of the third-country national to another

transit country or to the country of destination, or boarding of

the connecting flight, was unsuccessful; or

(d)

transit by air is not possible for another reason.

(1)

When carrying out transit operations, the powers of

the escorts shall be limited to self-defence and, in the absence of law-

enforcement officers from the transit Member State or for the purpose

of supporting the law-enforcement officers, the escorts may use

reasonable and proportionate action in response to an immediate and

serious risk to prevent the third-country national from escaping,

causing injury to himself or to a third party, or damage to property

Provided that, under all circumstances, escorts must

comply with the legislation of the requested Member State.

(2) During transit by air, escorts shall not carry weapons, shall

wear civilian clothes and shall provide means of appropriate

identification including the transit authorization delivered by the

requested Member State or, where applicable and at the request of the

requested Member State, the notification by the Principal

Immigration Officer as referred to in article 5(4).