COMMON STANDARDS AND PROCEDURES FOR RETURNING ILLEGALLY STAYING THIRD-COUNTRY NATIONALS REGULATIONS

THIRD-COUNTRY NATIONALS

SUBSIDIARY LEGISLATION 217.12

COMMON STANDARDS AND PROCEDURES

FOR RETURNING ILLEGALLY STAYING

THIRD-COUNTRY NATIONALS REGULATIONS

11th March, 2011

LEGAL NOTICE 81 of 2011, as amended by Legal Notice 15 of 2014,

410 of 2020 and 43 of 2021.

PART I

Preliminary

(1) The title of these regulations is the Common Standards

and Procedures for returning Illegally Staying Third-Country

Nationals Regulations.

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

European Parliament and of the Council of 16th 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 and the principle of non-refoulement.

(3) These regulations set out common standards and procedures

for returning illegally staying third-country nationals.

(4) These regulations shall not apply to persons who are the

subject of extradition procedures.

In these regulations -

"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 the territory of the European Union

or the Schengen Associated Countries 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;

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"international protection" means refugee status or subsidiary

protection;

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

European Union;

" o r d e r to r e t u r n " m e a n s a n or d e r i s s u e d by t h e P r i n c ip a l

Immigration Officer declaring the stay of a third country national to be

illegal and imposing an obligation to return to another Member State

in which the third country national is authorised to stay.

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

"return" 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;

"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;

"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

Provided that save as provided in article 25A(6) of the

Act, in the event of an appeal the third country national in

question shall be detained for the duration of the appeal

proceedings.

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

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

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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" 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; 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) 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.

(2) The Principal Immigration Officer shall require a 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 third country national shall be issued with

an order to return, whereupon he may be detained subject to an

assessment of the risk of absconding, until such time as his transfer

is effected. All procedural rights in relation to return as provided in

these regulations shall apply mutatis mutandis

Provided further 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 (3), (4), and (7).

(3) 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 (2).

(4) Without prejudice to sub-regulation (5), where a third-

country national staying illegally in Malta is the subject of a

pending procedure for renewing his residence permit or other

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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 com petent authority shall acknowledge such

notification.

(5) 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.

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

executed on the third-country national leaving the Schengen area

f r om M a l ta i f h e f a i ls o r c e a s e s to c om p ly w it h an y o f t he

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.

(7) 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.

(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.

(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 such as health reasons, the length of stay, the

existence of children attending school and the existence of other

family and social links.

(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.

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(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

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) 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 not effect

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

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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 the

P e r m i s s i o n t o R e s i d e f o r Vi c t i m s o f Tr a ff i c k i n g o r I l l e g a l

Immigration Regulations who cooperate with the Maltese

authorities, 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

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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 (2) and (4) to (7)

shall apply without prejudice to the right to international protection

as defined in the Procedural Standards in Examining Applications

for Refugee Status 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.

(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 for

the purpose by the Minister by notice in the Gazette

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.

(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, without prejudice to the

provisions of regulation 11(4), 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).

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(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, except for the provisions of

regulation 5(b) and (d) and of subregulation (8), 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

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) The Board shall review decisions related to return on

a p p l i c a t i o n b y t h e t h i r d - c o u n tr y n a t i o n a l a s r e f e r r e d t o i n

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

(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.

(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

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during which removal is postponed in accordance with regulation 6

(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 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.

(6) 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

Provided further that, save as provided in article 25A(6) of the

Act, in the event of an appeal the third country national in question

shall be detained for the duration of the appeal proceedings.

(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.

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

proceedings as provided in sub-regulation (8) he shall immediately

be informed about such proceedings.

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

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

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not lawful.

(11) 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 (6) no

longer subsist.

(12) Detention shall be maintained until the conditions laid

down in sub-regulation (6) are fulfilled and it is necessary for

removal to be carried out

Provided, however, the period of detention may not exceed

six months.

(13) 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.

(14) 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 (6) no longer exist, detention ceases to be

justified and the person concerned shall be released immediately.

(15) Where an exceptionally large number of third-country

nationals to be returned places an unforeseen heavy burden on the

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.

(16) For the purposes of sub-regulation (6) if the detention

period is extended, reviews longer than those provided for under

the provisions of sub-regulation (8) 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

related to return and the possibility of temporarily suspending their

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).

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