Third-Country Nationals (Amendment) Regulations, 2014

L.N. 15 of 2014

IMMIGRATION ACT

(CAP. 217)

Common Standards and Procedures for returning Illegally Staying

Third-Country Nationals (Amendment) Regulations, 2014

IN exercise of the powers conferred by article 36 of the

Immigration Act, the Minister responsible for immigration has made

the following regulations:-

The title of these regulations is Common Standards and Title.

Procedures for Returning Illegally Staying Third-Country Nationals

(Amendment) Regulations, 2014 and these regulations shall be read

and construed as one with the Common Standards and Procedures for S.L. 217.12

Returning Illegally Staying Third-Country Nationals Regulations,

hereinafter referred to as the "principal regulations".

Regulation 1 of the principal regulations shall be amended Amends

regulation 1 of

as follows

the principal

regulations.

(a)

immediately after the words "and human rights

obligations" in sub-regulation (2) thereof there shall be inserted

the words "and the principle of non-refoulement"; and

(b)

immediately after sub-regulation (3) thereof there

shall be added the following new sub-regulation

"(4)

These regulations shall not apply to persons who

are subject to return as a criminal law sanction or as a

consequence of a criminal law sanction or who are the subject

of extradition procedures.".

Regulation 2 of the principal regulations shall be amended Amends

regulation 2 of

as follows

the principal

regulations.

(a)

the words “unless the context otherwise requires”

shall be deleted;

(b)

in the definition "return decision" the word

"decision" shall be deleted, and immediately after the definition

"decision" as amended there shall be added the following new

definition

" "return decision" means a decision issued by the

Principal Immigration Officer, stating or declaring the stay

of a third country national to be illegal and imposing or

stating an obligation to return;";

(c)

the definition "risk absconding" shall be substituted

by the following

" "risk of absconding" means the existence of

reasons to believe, on the basis of the following criteria,

that a third country national who is the subject of return

procedures may abscond, when he -

(i)

has no permanent address;

(ii)

has no, or not enough, resources which

are sufficient to maintain himself;

(iii)

is considered to be a threat to public

policy, public health or national security;

(iv)

has not complied with any of the

provisions of the Immigration Act and subsidiary

legislation made thereunder;

(v)

has applied for a residence permit more

than once and such application has been refused;

(vi)

has failed to cooperate with the Principal

Immigration Officer in establishing his identity and

nationality;

(vii) has

fraudulently

provided

false

identification details or false details regarding his

arrival in Malta;

(viii) has destroyed or otherwise disposed of

his identification documents;

(ix)

is found to be in possession of fraudulent

identification documents.";

(d)

the definition "vulnerable persons" shall be

substituted by the following

"

"vulnerable

persons"

means

minors,

unaccompanied minors, disabled people, elderly people,

pregnant women, single parents with minor children and

persons who have been subjected to torture, rape or other

serious forms of psychological, physical or sexual

violence.".

Regulation 3 of the principal regulations shall be amended Amends

regulation 3 of

as follows

the principal

regulations.

(a)

sub-regulations (1), (2), (3), (4), (5) and (6) thereof

shall be renumbered as sub-regulations (2), (3), (4), (5), (6) and

(7) respectively and immediately before sub-regulation (2) as

renumbered there shall be inserted the following new sub-

regulation

"(1) Without prejudice to the provisions of sub-

regulations (2), (3) and (4), the Principal Immigration

Officer shall issue a return decision to any third country

national staying illegally in Malta."; and

(b)

immediately after sub-regulation (7) thereof as

renumbered there shall be added the following

"(8) 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.".

In the proviso to sub-regulation (2) of regulation 4 of the Amends

principal regulations immediately after the words "of the individual regulation

the principal

case" there shall be inserted the words "such as health reasons, the regulations.

length of stay, the existence of children attending school and the

existence of other family and social links".

In paragraph (b) of sub-regulation (3) of regulation 5 of the Amends

principal regulations the words "where applicable," shall be deleted. regulation

the principal

regulations.

In sub-regulation (1) of regulation 6 of the principal Amends

regulations the word "postpone," shall be substituted by the words regulation

the principal

"not effect.

regulations.

In sub-regulation (8) of regulation 7 of the principal Amends

regulations the words "sub-regulations (1) to (6)" shall be substituted regulation

the principal

by the words "sub-regulations (1) to (2) and (4) to (7)".

regulations.

Sub-regulation (1) of regulation 8 of the principal Amends

regulation 8 of

regulations shall be substituted by the following

the principal

regulations.

"(1)

An unaccompanied minor, prior to a decision on

the issue of a return decision, shall be allowed to apply for

asylum and shall be assisted in terms of the Children and Young

Persons (Care Order) Act.".

Regulation 9 of the principal regulations shall be amended

(a)

the proviso to sub-regulation (1) thereof shall be

substituted as follows

"Provided that a third country national shall, as a

general rule, not be detained in prison, and where, due to

an exceptional necessity he is detained in prison, such third

country national shall be detained separately from ordinary

prisoners."; and

(b)

in sub-regulation (2) thereof immediately after the

words "legal representatives," there shall be inserted the words

"without prejudice to the provisions of regulation 11(4),".

Regulation 11 of the principal regulations shall be

amended as follows

(a)

in sub-regulation (1) thereof immediately after the

words "of Part IV," there shall be inserted the words "except for

the provisions of regulation 5(b) and (d) and of subregulation

(b)

sub-regulation (3) thereof shall be deleted and sub-

regulations (4) and (5) shall be renumbered as sub-regulations

(3) and (4) respectively;

(c)

sub-regulation (4) thereof as renumbered shall be

substituted by the following

"(4) For the purposes of sub-regulation (3) a legal

adviser shall be allowed to assist the third-country national

and free legal aid shall be provided to the third-country

national, upon request, in accordance with national

legislation. Where necessary, free linguistic assistance

shall be provided

Provided that free legal assistance shall only be provided

where the review is likely to succeed."; and

(d)

sub-regulation (6) thereof shall be deleted and sub-

regulations (7) to (18) shall be renumbered as sub-regulations

(5) to (16) respectively;

(e)

sub-regulation (5) thereof as renumbered shall be

substituted by the following

"(5) The Principal Immigration Officer shall,

except in the case of detention as provided in regulations 9

and 10, ensure that the following principles are taken into

account as far as possible in relation to third country

nationals during the period granted for voluntary departure

in accordance with regulation 4 or the period during which

removal is postponed in accordance with regulation 6:";

(f)

in paragraph (d) of sub-regulation (5) thereof as

renumbered shall be substituted by the following

"(d) take account as far as possible of the special

need of vulnerable persons,

and, where applicable, shall provide these third country

nationals with a written confirmation that the period for

voluntary departure has been extended in accordance with the

proviso to regulation 4(2) or that the return decision will

temporarily not be enforced.";

(g)

sub-regulations (7) and (8) thereof as renumbered

shall be substituted by the following

"(7) Without prejudice to the provisions of sub-

regulation (8), detention shall be a consequence of the

removal order issued by the Principal Immigration Officer

and the removal order shall contain reasons in fact and in

law.

(8) Without prejudice to the provisions of article

25A of the Act, the third-country national subject to the

provisions of sub-regulation (6) shall have his detention

reviewed either on application or ex officio by the Principal

Immigration Officer at reasonable intervals of time which,

in any case, shall not exceed three months. In the case of

detention periods of six months or more, the Principal

Immigration Officer shall carry out such review and notify

the Board which shall supervise and, where necessary,

revise such review.";

(h)

in sub-regulation (9) thereof as renumbered the

words "sub-regulation (10)" shall be substituted by the words

"sub-regulation (8);

(i)

in paragraph (b) of sub-regulation (11) thereof as

renumbered the words "sub-regulation (8)" shall be substituted

by the words "sub-regulation (6);

(j)

in sub-regulation (12) thereof as renumbered the

words "sub-regulation (8)" shall be substituted by the words

"sub-regulation (6)";

(k)

in paragraph (b) of sub-regulation (13) thereof as

renumbered the words "in question; or" shall be substituted by

the words "in question." and paragraph (c) shall be deleted;

(l)

in sub-regulation (14) thereof as renumbered the

words "sub-regulation (8)" shall be substituted by the words

"sub-regulation (6)";

(m)

in sub-regulation (16) thereof as renumbered the

words "sub-regulation (8)" shall be substituted by the words

"sub-regulation (6)" and the words "sub-regulation (10)" shall

be substituted by the words "sub-regulation (8)".

€0.54