Third-Country Nationals Regulations, 2011

L.N. 81 of 2011

IMMIGRATION ACT

(CAP. 217)

Common Standards and Procedures for returning Illegally Staying

Third-Country Nationals Regulations, 2011

IN exercise of the powers conferred by article 36 of the

Immigration Act, the Minister responsible for immigration has made

the following regulations:-

PART I

Preliminary

(1)

The title of these regulations is Common Standards Title and scope.

and Procedures for Returning Illegally Staying Third-Country

Nationals Regulations, 2011.

(2) These regulations transpose Directive 2008/115/EC of the

European Parliament and of the Council of 16 th December 2008 on

common standards and procedures in Member States for returning

illegally staying third-country nationals, in accordance with

fundamental rights as general principles of Community law as well as

international law, including refugee protection and human rights

obligations.

(3) These regulations set out common standards and

procedures for returning illegally staying third-country nationals.

In these regulations, unless the context requires otherwise-

Interpretation.

"the Act" means the Immigration Act;

"application for asylum" means an application made by a third-

country national or stateless person who has made an application for

asylum in respect of which a final decision has not yet been taken by

the Commissioner or the Refugee Appeals Board;

"the Board" means the Immigration Appeals Board as

established by article 25A of the Act;

"competent authority" means that authority designated as such

by the Minister for any purpose of these regulations;

"country of origin" means the country or countries of nationality

or, for stateless persons, of former habitual residence;

"entry ban" means an administrative or judicial decision or act

prohibiting entry into and stay in Malta for a specified period,

accompanying a return decision;

"illegal stay" means the presence in Malta of a third-country

national who does not fulfil or no longer fulfils the conditions of entry

as set out in Article 5 of the Schengen Borders Code or other

conditions of entry, stay or residence in Malta;

"international protection" means refugee status or subsidiary

protection;

"Member State" means any one of the Member States of the

European Union;

"removal order" means an order enforcing the return decision;

"return decision" means the process of a third-country national

going back, whether in voluntary compliance with an obligation to

return or enforced to his country of origin; or a country of transit in

accordance with Community or bilateral re-admission agreements or

other arrangements; or another third country, to which the third-

country national concerned voluntarily decides to return and in which

he will be accepted;

"risk of absconding" means the existence of reasons in an

individual case which are based on objective criteria defined by law

to believe that a third-country national who is the subject of return

procedures may abscond;

"third-country national" means any person who is not a national

of the European Union within the meaning of Article 17(1) of the EC

Treaty and who is not a person enjoying the Community right of free

movement, as defined in Article 2(5) of the Schengen Borders Code;

"unaccompanied minor" means a person below the age of

eighteen years who arrives in Malta unaccompanied by an adult

responsible for him whether by law or by custom;

"vulnerable persons" includes pregnant women, persons with

disabilities, persons of old age, persons who have undergone torture,

rape or other serious forms of psychological, physical or sexual

violence, or minors who have been victims of any form of abuse,

neglect, exploitation, torture, cruel, inhuman or degrading treatment

or who have suffered from armed conflict; and

"voluntary departure" means compliance with the obligation to

return within the time-limit fixed for that purpose in the return decision.

PART II

Termination of Illegal Stay

(1)

The Principal Immigration Officer shall require a Return decision.

third-country national staying illegally in Malta under any of the

provisions of article 5 of the Act and holding a valid residence permit

or other authorisation offering a right to stay issued by another

Member State, to go to the territory of that other Member State

immediately

Provided that the Principal Immigration Officer shall issue

a return decision if the third-country national does not comply with

the above-mentioned requirement or his immediate departure is

justified on grounds of public policy or national security, subject to

the provisions of sub-regulations (2), (3), and (6).

(2) The Principal Immigration Officer may refrain from

issuing a return decision to a third-country national staying illegally

in Malta if the third-country national concerned is taken back by

another Member State under a bilateral agreement or arrangement

existing on the date of the entry into force of these regulations

Provided, however, the Principal Immigration Officer may

decide to take back into Malta a third-country national staying

illegally in another Member State, in which case after taking back the

third-country national concerned, the Principal Immigration Officer

shall apply the provisions of sub-regulation (1).

(3) Without prejudice to sub-regulation (4), where a third-

country national staying illegally in Malta is the subject of a pending

procedure for renewing his residence permit or other authorisation

offering a right to stay, the Principal Immigration Officer shall

consider refraining from issuing a return decision, until the pending

procedure is finished

Provided that the third-country national, while awaiting the

permit, shall notify the competent authority of his presence in Malta

and the competent authority shall acknowledge such notification.

(4) Nothing in this regulation shall be construed as preventing

the Principal Immigration Officer from ending a legal stay and

issuing a return decision and,or a decision on a removal and,or entry

ban in a single administrative decision.

(5) A return decision accompanied by a removal order shall be

executed on the third-country national leaving the Schengen area

from Malta if he fails or ceases to comply with any of the conditions,

including an implied condition, under which he was granted leave to

land or to land and remain in Malta or was granted a residence permit.

(6) The Principal Immigration Officer shall not issue a return

decision where a third-country national staying illegally in Malta is

granted a residence permit or a right to stay on compassionate or

humanitarian grounds

Provided that where a return decision has already been

issued, it shall be withdrawn or suspended for compassionate or

humanitarian reasons and subject to the renewal of the above-

mentioned residence permit or right to stay.

(1)

A return decision shall not affect the obligation of

any person who does not fulfil or no longer fulfils the conditions of

entry, residence or free movement to leave Malta voluntarily without

delay.

(2) The Principal Immigration Officer shall inform the third-

country national in the return decision that he may submit an

application to be granted an appropriate period for voluntary

departure, and such period shall be not less than seven days and not

more than thirty days, and this without prejudice to the possibility for

the third-country national to leave earlier

Provided that the Principal Immigration Officer shall,

where necessary, extend the period for voluntary departure by an

appropriate period, taking into account the specific circumstances of

the individual case.

(3) The Principal Immigration Officer may impose for the

duration of the period for voluntary departure certain obligations he

deems necessary to avoid the risk of absconding.

(4) The Principal Immigration Officer may refuse to grant a

period for voluntary departure or may grant a period shorter than

seven days where

(a)

there is a risk of absconding; or

(b)

the application for legal stay is considered as

manifestly unfounded or fraudulent; or

(c)

the person concerned is considered to be a threat to

public policy, public security or national security.

(1)

The Principal Immigration Officer shall take all Removal.

necessary measures to enforce the return decision and issue a removal

order if –

(a)

no period for voluntary departure has been granted

in accordance with regulation 4(4); or

(b)

the obligation to return has not been complied with

within the period for voluntary departure granted in accordance

with regulation 4

Provided that where it is necessary for the Principal

Immigration Officer to confirm the identity of the third-country

national concerned, to obtain the necessary documents, or it is

possible to return the third-country national concerned he shall place

in custody the third-country national who does not return within the

period granted to him in the return decision.

(2) If the third-country national has been granted a period for

voluntary departure in accordance with regulation 4, the Principal

Immigration Officer may enforce the return decision only after the

period has expired, unless a risk as referred to in regulation 4(4)

arises during that period.

(3) The Principal Immigration Officer shall ensure that the

coercive measures used as a last resort to carry out the removal of a

third-country national who resists removal are

(a)

proportionate and do not exceed reasonable force;

and

(b)

where applicable, executed taking into account the

fundamental rights; and

(c)

carried out with due respect for the dignity and

physical integrity of the third-country national.

(4) The Common Guidelines on security provisions for joint

removals by air annexed to Decision 2004/573/EC shall be

considered in the case of removals by air.

(5) The Minister responsible for immigration may, by Order,

provide for an effective monitoring system for forced return.

(1)

The Principal Immigration Officer shall postpone Postponement

of removal.

removal where

(a)

it violates the principle of non-refoulement; or

(b)

an appeal has been filed with the Board in

accordance with the provisions of article 25A(7) of the Act and

a decision thereon is pending

Provided that the Principal Immigration Officer may

postpone removal for an appropriate period taking into account the

specific circumstances of the case, in particular the third-country

national’s physical state or mental capacity, or technical reasons.

(2) Where a removal is postponed temporarily in accordance

with the provisions of sub-regulations (1)(a) and (b) the Principal

Immigration Officer may impose, on the third-country national for

the duration of the period for voluntary departure, obligations aimed

at avoiding the risk of absconding.

(1)

The Principal Immigration Officer shall issue a

return decision accompanied by an entry ban where

(a)

no period for voluntary departure is granted; or

(b)

the obligation to return is not complied with within

the period for voluntary departure granted in accordance with

regulation 4; or

(c)

there is a serious threat to public policy, public

security or national security; or

(d)

the Principal Immigration Officer may deem

necessary in the circumstances.

(2) Return decisions may be accompanied by an entry ban in

other cases including those mentioned in regulation 3(5).

(3) An entry ban shall be executed on the third country

national leaving the Schengen area from Malta and information on

such entry ban shall be provided to him in a language that he may

reasonably be supposed to understand.

(4) The length of the entry ban shall be determined subject to

all relevant circumstances of the case concerned and shall not exceed

five years

Provided that such entry ban may exceed five years if the

third-country national represents a serious threat to public policy,

public security or national security.

(5) The Principal Immigration Officer shall consider

withdrawing or suspending an entry ban issued in accordance with

sub-regulation (2) where the third-country national can demonstrate

that he has left Malta in full compliance with a return decision.

(6) Without prejudice to sub-regulation (1)(b) the Principal

Immigration Officer shall not issue an entry ban on a third-country

national who is a victim of trafficking of human beings and is granted

a residence permit in accordance with the provisions of Permission to S.L. 217.07.

Reside for Victims of Trafficking or Illegal Immigration who co-

operate with the Maltese Authorities Regulations, except where the

entry ban is justified on grounds of public policy, public security or

national security

Provided that the Principal Immigration Officer may

refrain from issuing, withdrawing or suspending an entry ban in

individual cases for humanitarian reasons or other reasons he may

deem appropriate.

(7) Where the Maltese authorities are considering whether to

grant a residence permit or other authorisation for a right to stay to a

third-country national who is issued with an entry ban by another

Member State, such Member State shall be first consulted and its

interests shall be taken into account in accordance with Article 25 of

the Convention implementing the Schengen Agreement.

(8) The provisions of sub-regulations (1) to (6) shall apply

without prejudice to the right to international protection as defined in

Procedural Standards in Examining Applications for Refugee Status S.L. 420.07.

Regulations.

(1)

Where an unaccompanied minor is found in Return and

circumstances which clearly indicate that he is in need of care, prior removal

unaccompanied

to a decision on the issue of a return decision he shall be allowed to minors.

apply for asylum and shall be assisted in terms of the Children and Cap. 285.

Young Persons (Care Order) Act.

(2) An unaccompanied minor shall not be removed from Malta

before the Principal Immigration Officer, in coordination with the

relative diplomatic representation of the third-country in question, is

satisfied that he will be returned to a member of his family, a

nominated guardian or adequate reception facilities in the State of

return.

PART III

Detention

(1)

Detention shall take place in the place appointed Conditions of

detention.

for the purpose by the Minister by notice in the Gazette

Provided that a third-country national detained in prison

shall be treated as a person awaiting trial.

(2) A third-country national in detention shall be allowed on

request and subject to costs to be borne by him to establish in due

time contact with legal representatives, family members and

competent consular authorities.

(3) Vulnerable persons shall be provided with emergency

health care and essential treatment of illness.

(4) Subject to authorisation by the Principal Immigration

Officer the competent national, international and non-governmental

organisations and bodies shall have the possibility to visit detention

facilities where third country nationals are kept in custody.

(5) A third-country national in detention shall be provided

with information concerning the rules applied in the detention facility,

his rights and obligations, and his entitlement under Maltese law to

contact the organisations and bodies referred to in sub-regulation (4).

(1)

An unaccompanied minor and a family with minors

shall only be detained as a measure of last resort and for the shortest

period of time possible.

(2) Separate accommodation guaranteeing adequate privacy

shall be provided to a family in detention pending removal.

(3) A minor in detention shall have access to leisure activities,

including play and recreational activities appropriate to his age, and

state education in Malta depending on the length of his stay.

(4) An unaccompanied minor shall as far as possible be

provided with accommodation in an institution provided with

personnel and facilities which takes into account the needs of a

person of his age.

(5) The best interests of the child shall be a primary

consideration in the detention of minors pending removal.

PART IV

Special Procedural Safeguards

(1)

The provisions of Part IV shall not apply to third-

country nationals who are subject to a refusal of entry in accordance

with Article 13 of the Schengen Borders Code or who are

apprehended or intercepted by the competent authorities in

connection with the irregular crossing by sea or air of the external

border of Malta and who have not subsequently obtained an

authorisation or a right to stay in Malta.

(2) A return decision, an entry-ban decision and a removal Form.

order shall be issued in writing and shall contain reasons in fact and in

law and information on legal remedies

Provided that the reasons in fact may be given in a

restrictive way where the withholding of information is regulated by

law, in particular where the disclosure of information endangers

national security, public policy, and the prevention, detection,

investigation and prosecution of criminal offences.

(3) A return decision shall be issued in a standard form and

general information as regards such form shall be given in at least

five languages which third-country nationals may reasonably be

supposed to understand.

(4) The Board shall review decisions related to return on

application by the third-country national as referred to in sub-

regulation (2), and may temporarily suspend their enforcement.

(5) For the purposes of sub-regulation (4) a legal adviser shall

be allowed to assist the third-country national and, where entitled to,

free legal aid shall be provided to the third-country national.

(6) The Principal Immigration Officer shall provide, upon

request, a written or oral translation of the main elements of a return

decision and information on the legal remedies in a language the

third-country national may reasonably be supposed to understand.

(7) The Principal Immigration Officer, except in the case of Safeguards

detention as provided in regulations 9 and 10, during the period pending return.

granted for voluntary departure in accordance with regulation 4 or the

period during which removal is postponed in accordance with

regulation 6, shall

(a)

ensure as far as possible, that the third-country

national remains in contact with members of his family if they

are in Malta at the time;

(b)

ensure that as far as possible the third-country

national is provided with emergency health care and essential

treatment of illness;

(c)

ensure that as far as possible a minor has access to

state education in Malta depending on the length of his stay; and

(d)

take account as far as possible of the special needs

of vulnerable persons.

(8) Where a third-country national is the subject of return

procedures, unless other sufficient and less coercive measures are

applicable, the Principal Immigration Officer may only keep him in

detention in order to carry out the return and removal procedure, in

particular where

(a)

there is a risk of absconding; or

(b)

the third-country national avoids or hinders the

return or removal procedure

Provided that the detention shall be for a short period and

shall subsist as long as the removal procedure is in progress and is

executed with due diligence.

(9) Detention shall be a consequence of the removal order

issued by the Principal Immigration Officer and it shall contain

reasons in fact and in law.

(10) The third-country national subject to the provisions of sub-

regulation (8) shall be entitled to institute proceedings before the

Board to contest the lawfulness of detention and such proceedings

shall be subject to a speedy judicial review.

(11) Where the third-country national is entitled to institute

proceedings as provided in sub-regulation (10) he shall immediately

be informed about such proceedings.

(12) The third country-national shall be immediately released

from detention where in the opinion of the Board such detention is

not lawful.

(13) The third-country national concerned shall be released

immediately if

(a)

removal cannot take place due to legal or other

considerations; or

(b)

the conditions referred to in sub-regulation (8) no

longer subsist.

(14) Detention shall be maintained until the conditions laid

down in sub-regulation (8) are fulfilled and it is necessary for

removal to be carried out

Provided, however, the period of detention may not exceed

six months.

(15) The period of six months referred to in the preceding

proviso may be extendable by a further twelve months where

(a)

there is lack of cooperation by the third country

national; or

(b)

there are delays in obtaining the necessary

documents form the third country in question; or

(c)

the Principal Immigration Officer may deem

necessary.

(16) Where it appears that a reasonable prospect of removal no

longer exists for legal or other considerations or the conditions laid

down in sub-regulation (8) no longer exist, detention ceases to be

justified and the person concerned shall be released immediately.

(17) Where an exceptionally large number of third-country Emergency

nationals to be returned places an unforeseen heavy burden on the situations.

Maltese detention facilities or on its administrative staff or on the

Immigration Appeals Board, periods for judicial review longer than

those provided for on application by the third-country national

concerned may be allowed for as long as the exceptional situation

persists.

(18) For the purposes of sub-regulation (8) if the detention

period is extended, reviews longer than those provided for under the

provisions of sub-regulation (10) shall be subject to the decision of

the Principal Immigration Officer and the Immigration Appeals

Board, and the provisions of regulations 9(1) and 10(2) shall apply.

PART V

General

(1)

The Board shall have the power to review decisions Immigration

related to return and the possibility of temporarily suspending their Appeals Board.

enforcement

Provided that where the third-country national is informed

about the removal an order postponing such removal shall take place.

(2) The Board shall review any removal postponed for an

appropriate period in accordance with regulation 6(2).