ASSISTANCE IN THE CASE OF TRANSIT FOR THE PURPOSE OF REMOVAL BY AIR ORDER

SUBSIDIARY LEGISLATION 460.14

ASSISTANCE IN THE CASE OF TRANSIT FOR

THE PURPOSE OF REMOVAL BY AIR ORDER

9th March, 2007

LEGAL NOTICE 40 of 2007.

Part I

Purpose, Definitions and Scope

(1) The title of this Order is the Assistance in the Case of

Transit for the Purpose of Removal by Air Order.

(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

(Requesting unit)

Place / Date

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

Travel

visa

document

Request Surname

First

Date of Place of Nationality

delivered

m/f

No/

no.

name

Birth

Birth

by a third

Type/

country (if

Validity

required)

Flight details

Departure

Flight no.

From

Time

To

Arrival date

Time

date

ASSISTANCE IN THE CASE OF TRANSIT

FOR THE PURPOSE OF REMOVAL BY AIR

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 -

"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 request

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

(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

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

Principal Immigration Officer shall meet the third-country national

at 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 of the Immigration 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 Stat e, take all the necessar y 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 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

readmit 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).

ASSISTANCE IN THE CASE OF TRANSIT

FOR THE PURPOSE OF REMOVAL BY AIR