Dear Committee Members,

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1 HUMAN RIGHTS WATCH 51 Avenue Blanc 1202 Geneva Switzerland Phne: Fax: hrwgva@hrw.rg Geneva Staff Juliette de River, Geneva Directr Philippe Dam, HRC Advcate Laura Schülke, Advcacy Assciate Peter Buckaert, Emergencies Directr Gerry Simpsn, Refugee Researcher & Advcate Lisa Rimli, Angla Researcher Alice Farmer, CRD Researcher Armelle Armstrng, Develpment & Outreach Directr Lilian Lauber, Develpment & Outreach Manager Keyvan Ghavami, Develpment & Outreach Assciate Jean-Claude Gurdine, Office Administratr Geneva Cmmittee Neil Rimer, Chair Michel Halpérin, Hnrary Chair Rachel Babecff Lrella Bertani Leda Braga Meagan Carnahan Gilles Cncrdel Marie Cncrdel Suzan Craig Claes Crnstedt Claude Demle Yussef Dib Gerge Duffield Paula Dupraz-Dbias Adla El Sayegh Lubna Freih Gerges Yasma Fuleihan Philip Grant Nadège Hentsch Caitlin Kraft-Buchman Philippa Layland Vgel Julie de Luxemburg Jhn H. McCall MacBain Marcy McCall MacBain Pierre Mirabaud Atalanti Mquette Angela de Oliveira Sibylle Pastré Michael de Piccitt Marina de Planta Renaud de Planta Camille Prezis Stephanie Rada Zcc Elianna Sabbag Members f the United Natins Cmmittee n the Rights f the Child Office f the United Natins High Cmmissiner fr Human Rights (OHCHR) Palais Wilsn 52 rue des Pâquis CH-1202 Geneva, Switzerland 14 May 2012 Re: Pre-Sessinal Review f Malta Dear Cmmittee Members, We write in advance f yur upcming pre-sessinal review f Malta t highlight areas f cncern regarding the Maltese gvernment s cmpliance with the Cnventin n the Rights f the Child. Infrmed by ur n-ging investigatin, including n-the-grund research, this submissin cntains up-t-date infrmatin that Malta s treatment f unaccmpanied migrant children is incnsistent with Articles 2, 8, 12, 20, 22, and 37 f the Cnventin. It als highlights cncrete steps that the Maltese gvernment shuld be asked t take t address these prblems. Human Rights Watch has clsely mnitred the human rights situatin in Malta and, in particular, the treatment f unaccmpanied migrant children ver the past nine mnths. This research is part f ur n-ging wrk n unaccmpanied migrant children in Eurpe. 1 We have interviewed child and adult migrants in Malta, as well as gvernment and civil sciety representatives. Our findings in this submissin draw n a series f research trips t Malta by Human Rights Watch staff frm February t May Dalia Said Dina Said Walter Stresemann Dimitri Thefilides Vanessa Vanderspuy Olivier Vdz Jennifer Wingate Rger Wingate Sandra Wlf 1 Human Rights Watch has cnducted research n unaccmpanied migrant children in Eurpe fr mre than five years. See Human Rights Watch, Unwelcme Respnsibilities: Spain s Failure t Prtect the Rights f Unaccmpanied Migrant Children in the Canary Islands, July 27, 2007, Human Rights Watch, Left t Survive: Systematic Failure t Prtect Unaccmpanied Migrant Children in Greece, December 22, 2008, Human Rights Watch, France Lst in Transit: Insufficient Prtectin fr Unaccmpanied Migrant Children at Rissy Charles de Gaulle Airprt, Octber 29, 2009, Human Rights Watch, N Refuge: Migrants in Greece, Nvember 2, 2009, Human Rights Watch, Spain Eternal Emergency: N End t Unaccmpanied Migrant Children s Institutinalizatin in Canary Islands Emergency Centers, June 22, 2010, Human Rights Watch, Buffeted in the Brderland: The Treatment f Asylum Seekers and Migrants in Ukraine, December 16, 2010,

2 Human Rights Watch welcmes the gvernment s actins in recent years t imprving the situatin f migrant rights in Malta, and its repeated effrts t prvide adequate care fr unaccmpanied migrant children. Hwever, the gvernment cntinues t detain unaccmpanied migrant children pending age determinatin, despite the availability and feasibility f alternative care arrangements. And while the gvernment has taken clear steps twards establishing adequate age determinatin prcedures, the remaining delays and reliance n lengthy medical tests leaves children in detentin fr far t lng. Finally, the gvernment fails t prvide children with adequate guardianship and legal representatin in cmpliance with the standards articulated in the Cnventin and in General Cmment N. 6. Treatment f unaccmpanied migrant children In the ten-year perid frm the beginning f 2002 t the end f 2011, apprximately 14,000 migrants and asylum seekers have traveled by bat t Malta, a huge increase frm previus years. Numbers peaked in 2008, with 2,775 migrants entering, and in 2011, 1,579 migrants entered Malta by bat. Apprximately 99% f these migrants apply fr asylum. 2 Mst f these migrants are frm sub-saharan Africa, and depart frm Libya t crss the Mediterranean Sea in basic vessels with limited navigatin systems, fd, water, and fuel. Since 2002 apprximately 700 f these migrants have been unaccmpanied migrant children. In 2011, fr example, there were 61 unaccmpanied minrs recgnized by the Maltese authrities after an age determinatin prcess, f whm 29 were frm Smalia. Seven unaccmpanied minrs were girls. 3 Whereas mst children wh arrive with their families are quickly accmmdated in pen centers utside detentin, almst all unaccmpanied migrant children are detained fr weeks r mnths pending age assessment, in detentin facilities with unrelated adults. In additin t three primary immigratin detentin facilities, 4 Malta perates a number f pen (nn-custdial) receptin centers in rder t assist adult migrants and migrants in families with husing needs after their release frm detentin. 5 In additin, Malta perates tw pen centers specifically fr unaccmpanied migrant children wh have passed Malta s age determinatin prcedures. 6 The cnditins in pen centers fr unaccmpanied migrant 2 Office f the Refugee Cmmissiner, Malta, Reprt, February Office f the Refugee Cmmissiner, Malta, Statistics n Categry C (Bat Persns) as n 31/12/2011, n file with Human Rights Watch. 4 Malta has used a number f detentin facilities ver time, and has mved grups f migrants between the facilities depending n the emergency nature f the situatin. At the time f Human Rights Watch s mst recent visit, in April May 2012, there were three pen and ccupied detentin facilities: Hermes Blck, within the Armed Frces f Malta facility at Lyster Barracks, Hal Far (cnsisting f five znes husing different grups f migrants including single men, single wmen, and families); Safi Warehuse (husing single men); and Safi B Blck (husing single men). Bth Safi Warehuse and Safi B Blck are within the Armed Frces f Malta facility at Safi. 5 The primary pen centers in use at the time f Human Rights Watch s mst recent visit in April May 2012 were: the Marsa Open Center, in Marsa (husing single men); and Hal Far Tent Village, Hangar Open Center, Hal Far Receptin Center (husing primarily single wmen), and Hal Far Families Open Center (husing families), all fur f which are in Hal Far. All f the Hal Far centers are run by the gvernment Agency fr the Welfare f Asylum Seekers, while the Marsa center is run by an NGO, Fndazzjni Suret il-bniedem, relying n gvernment funding. There is als a small pen center at Balzan, run by the Gd Shepard Sisters, a Cathlic charity, and several ther small facilities. 6 These facilities are called Dar il-liedna, in Furga, Malta, and Dar is-sliem, in Sta Venera, Malta. 2

3 children are far mre favrable than the cnditins in detentin, with children prvided with adequate shelter, fd, and security. Migrants als arrive in Malta by air. Fr the mst part, these peple are nt detained. This submissin fcuses n migrants wh arrive by bat, wh are cnsidered t have arrived irregularly. Maltese law mandates that a persn wh enters the cuntry withut right f entry shall be designated a prhibited immigrant and may be detained. 7 An individual wh applies fr asylum may be detained while the applicatin is being prcessed, 8 and individuals wh have been issued remval rders may be further detained. 9 Fr the purpses f this submissin, we use the term unaccmpanied child t describe bth unaccmpanied and separated children as defined by the Cmmittee: Unaccmpanied children are children, as defined in article 1 f the Cnventin, wh have been separated frm bth parents and ther relatives and are nt being cared fr by an adult wh, by law r custm, is respnsible fr ding s. Separated children are children, as defined in article 1 f the Cnventin, wh have been separated frm bth parents, r frm their previus legal r custmary primary caregiver, but nt necessarily frm ther relatives. These may, therefre, include children accmpanied by ther adult family members. 10 Detentin f Unaccmpanied Migrant Children (Articles 2, 20, 22, 37) Our research shws that Malta applies a very lw threshld fr disputing the age f children, and detains all age-disputed cases pending age determinatin. As a result, children may be detained fr weeks r mnths pending age assessment despite alternative available facilities, and that such detentin is impsed rutinely as a respnse t irregular entry. During detentin, children are detained with adults, withut any accmmdatin fr their minrity. Lengthy Detentin f Unaccmpanied Migrant Children Malta detains virtually every migrant wh arrives by bat, fr up t 18 mnths. 11 Varius categries f vulnerable migrants are detained fr shrter perids. Unaccmpanied children are rutinely detained pending age determinatin. Our interviewees wh reprted that they 7 Immigratin Act Cap 217 Laws f Malta, Article 5(1) and Article 14(2). 8 Immigratin Act Cap 217 Laws f Malta, Article 5(1) and Article 14(2). 9 Article 14(2) f the Immigratin Act. 10 UN Cmmittee n the Rights f the Child, Treatment f Unaccmpanied and Separated Children Outside their Cuntry f Origin, General Cmment N. 6, UN Dc. CRC/GC/2005/6 (2005), paras The Maltese Immigratin Act des nt establish a maximum duratin fr administrative detentin. Hwever, since 2005 the Maltese authrities have capped detentin at 12 mnths fr asylum seekers and at 18 mnths fr thse wh have nt applied fr asylum r whse asylum claims have been rejected. Cuncil f Eurpe, Cmmissiner fr Human Rights, Reprt by Thmas Hammarberg, Cmmissiner fr Human Rights f the Cuncil f Eurpe, fllwing his visit t Malta frm 23 t 25 March 2011, para. 11, June

4 were detained as children were between 15 and 17 years ld at the time f detentin 12 ; tw interviewees reprted that there were children between 12 and 14 detained with them. 13 The age determinatin prcedure can take sme mnths, leaving children in detentin fr cnsiderable perids f time. Amng thse we interviewed wh were children at the time f the interview r wh were children n arrival in Malta, the maximum time in detentin was seven mnths (in 2011). Amng thse we interviewed wh were determined t be children in Malta s age determinatin prcedure (wh were detained between 2008 and 2011), the average time in detentin was 3.4 mnths. 14 Fr example, Kibreab A., wh was 17 when he arrived in Malta frm Eritrea in 2009, tld us he was detained fr five mnths befre being released t a children s hme. 15 Isaias B., an Eritrean 17-year-ld, arrived in Malta aged 16 in 2011, and was detained fr 5 mnths. After leaving the Ivry Cast and traveling fr several mnths, Stéphane K. was 16 when he reached Malta in He was detained fr seven mnths awaiting age assessment. He cmmented: Fr smene [at that age] t be in detentin, it's nt nrmal. Seven mnths f detentin, it's nt nrmal. Shut in, I can't g ut. It's nt nrmal. 16 On a mre psitive nte, cmpared with summer 2011, fr example, detentin times appear t have drpped in early This may be due t the fact that facilities are less crwded during the winter mnths because fewer migrants crss the Mediterranean during this time, rather than a fundamental change in Malta s plicies. Fr example, Dalmar H., Nadif K., Krfa A., and Erast M., all Smali bys aged 17, said they were detained fr tw weeks when they arrived in January Article 37(b) f the CRC permits detentin f children nly fr the shrtest apprpriate perid f time. The mnths unaccmpanied migrant children spend in detentin in Malta seem t exceed these parameters. Despite the relatively quick release f children in January 2012, this des nt seem t be a permanent plicy change, and we are cncerned that detentin f children fr tw weeks slely fr the purpses f age determinatin, is nt necessary. Best practices mandate that unaccmpanied children shuld never be detained fr reasns related t their immigratin status r illegal entry, and that pending age assessment, the persn claiming t be a child shuld prvisinally be treated as such. 18 While we recgnize that placing migrants pending age determinatin in the unaccmpanied minr facilities may nt be apprpriate, there is n reasn why they culd nt be released t pen centers r similar facilities, t prevent prlnged detentin f children. 12 Human Rights Watch interviewed 22 peple in this categry frm March t May Human Rights Watch interviews with Abdi M. and Ghedi H., Valetta, April 27, Human Rights Watch interviewed 11 bys wh went thrugh the age determinatin prcedure and were determined t be children. The average time in detentin (pending age determinatin) fr these bys was 3.4 mnths. 15 Human Rights Watch interview with Kibreab A., Marsa, Malta, March 14, Human Rights Watch interview with Stéphane K., Marsa, Malta, March 15, Human Rights Watch interviews with Dalmar H., Nadif K., Krfa A., and Erast M., Marsa, Malta, March 15, Save the Children, UNHCR, UNICEF (Separated Children in Eurpe Prgram), Statement f Gd Practice, 4th Revised Editin, D5 and D6 (2009). 4

5 Immediate, autmatic detentin Immediately after landing, virtually all migrants wh arrive in Malta by bat including unaccmpanied migrant children are detained because f irregular entry int the cuntry withut crrect papers. Children are held in detentin fr mnths despite, as nted abve, the availability f alternative facilities. Typically, the first cntact between unaccmpanied migrant children and the authrities invlves the plice r the Armed Frces f Malta, depending n whether the bat reaches land r is intercepted at sea. In either case, the migrants and asylum seekers n bard are transferred t the custdy f the Malta Plice, Immigratin Sectin, which is respnsible fr brder cntrl. 19 The Plice Immigratin Sectin cnducts the first asylum screening and takes virtually all f the passengers t detentin. 20 Even if an unaccmpanied child identifies himself as a child during this initial cntact with authrities, he will mst likely still be taken t detentin. We were tld by the Agency fr the Welfare f Asylum Seekers and Detentin Service that nly age disputed cases are detained, with thse wh are visibly children released frm detentin within 24 hurs 21 and placed in the care f AWAS. 22 But the prblem is that it appears that in practice the cut-ff is fr children wh lk t be arund 12 r 14 years ld, with children wh appear lder presumed t be adults until an age assessment is carried ut. Thse wh are nt visibly children using this relatively yung, ad-hc cut-ff are taken straight t detentin fllwing an irregular entry. 23 Fr example, n April 30, 2012, Human Rights Watch met with three bys detained in an immigratin facility wh said they had been taken straight int detentin after arriving by bat tw days earlier. Tw f the bys, aged 15 and 16, were visibly children accrding t Human Rights Watch s assessment: we were able t walk dwn a crwded hallway inside the detentin facility and identify them by sight, having n previus knwledge f children detained in that facility. On the day f arrival, all three bys said they tld the arresting authrities their birthdates during a rutine data cllectin, but all three were taken straight t immigratin detentin and nne were prvided with infrmatin abut prcedures t establish their minrity. 24 Their experience is similar t that described by ther interviewees. Bell E., wh said he was 16 when his bat was intercepted near Malta, reprted befre we knew it we were in detentin I tried t tell I was 16. They didn t accept it, they sent me back int Safi I had nt cmmitted a 19 General Directrs Immigratin Services Cnference, Malta prfile, 20 Human Rights Watch interview with Supt. Sandr Zarb, Internatinal Relatins Unit and Supt. Neville Xuereb, Immigratin Department, Malta Plice, Flriana, Malta, May 1, Human Rights Watch interview with Supt. Sandr Zarb, Internatinal Relatins Unit and Supt. Neville Xuereb, Immigratin Department, Malta Plice, Flriana, Malta, May 1, E.g. Human Rights Watch interview with Lt. Cl. Brian Gatt, Cmmander Detentin Service, Ministry fr Justice and Hme Affairs, Safi Barracks, Safi, Malta, April 26, Human Rights Watch interview with Supt. Sandr Zarb, Internatinal Relatins Unit and Supt. Neville Xuereb, Immigratin Department, Malta Plice, Flriana, Malta, May 1, Human Rights Watch interviews with Amr S., Khaled M., and Hssein D., Safi, Malta, April 30,

6 crime. Why was I in prisn? 25 Labaan X., a yung Smali wh said he came t Malta when he was 15 years ld, described t Human Rights Watch what happened after arriving in the cuntry: I gt ff the bat and went straight t detentin. I said I was a child. But I spent three mnths in detentin befre they put me in a hme fr yung peple. 26 Article 37(b) mandates that the detentin f children shall be used nly as a measure f last resrt. In additin, the Cmmittee has stated in General Cmment N. 6 that unaccmpanied migrant children shuld nt be criminalized fr the sle reasn f illegal entry r presence in the cuntry. 27 Malta s plicy f rutine detentin f unaccmpanied migrant children wh arrive by bat, pending age determinatin, stands in stark cntrast t these standards. Detaining children with adults Detained migrant bys are rutinely held in vercrwded cnditins with unrelated adult men. Fr example, Labaan, at age 15, said he was detained in 2008 fr three mnths in the Ta Kandja facility. 28 He tld us: "[It] was very difficult. I was in the same rm with 100 guys." 29 Kibreab, an Eritrean wh arrived in Malta at the age f seventeen in 2009, said he was detained with unrelated adults fr five mnths befre being mved t a children s facility. He cmplained t Human Rights Watch that the rm was small fr the 50 peple that were staying there. 30 Seventeen-year-ld Stéphane, an Ivrian wh was 16 when he arrived in Malta in 2011, was nt s lucky: he was detained in ne rm with adult men. The rm wasn't that big we had bunk beds, he tld us. 31 While sme children reprted that they did nt feel unsafe while detained with adults, thers reprted instances f explitatin and vilence. Ghedi H., wh was detained with adult men in 2008 when he was 17 years ld, cmmented, smetimes they wuld take my fd, adults wuld take my fd because there s nt enugh. 32 Abdi M., a Smali migrant wh was detained at the same time as Ghedi, and wh was 17 years ld when detained, related what happened t him at the Safi detentin facility: Every day a big man frm Mali came and said, Give me yur fd. And ne day I said n, and he hit me. I was ut n the flr [uncnscius] fr half an 25 Human Rights Watch interview with Bell E., Marsa, March 13, 2012, and fllw up interview, Marsa, April 25, Human Rights Watch interview with Labaan X., Marsa, Malta, March 13, United Natins Cmmittee n the Rights f the Child, General Cmment N. 6 para The Ta Kandjia facility is n lnger in use as an immigratin detentin facility. t Human Rights Watch frm Lt. Cl. Gatt, May 2, Hwever, the plicies permitting detentin f unaccmpanied migrant children pending age determinatin with adults has nt changed. 29 Human Rights Watch interview with Labaan X., Marsa, Malta, March 13, Human Rights Watch interview with Kibreab A., Marsa, Malta, March 14, Human Rights Watch interview with Stéphane K., Marsa, Malta, March 15, Human Rights Watch interview with Ghedi H., Valetta, Malta, April 27,

7 hur. I tld the sldiers but they said, we dn t care. N ne helped me, I just cried and went t sleep. 33 During Human Rights Watch s visit t Maltese detentin facilities in April 2012, we met with three bys c-mingled with adults in a detentin centre fr single men. Tw f the bys, wh reprted their ages as 15 and 16 years ld, were visibly scared. Amr S., the 15 year ld, said It s very difficult t live here at Safi. I m afraid t live where peple might hit me I dn t have anyne t take care f me. 34 Edgard O., a 26-year-ld Ivrian man wh was detained in the same facility as the bys, cmmented: T be hnest with yu, I was a little bit cncerned t see they were here [the bys.] Fifteen years ld he desn t deserve this. 35 The tll f detentin caused mental stress fr sme f ur interviewees. Fr instance, Kelile T., wh said he was 17 when his bat was intercepted near Malta, had just been returned t detentin after 15 days at a state psychiatric hspital. He cmmented: These peple, all big, big - nt same as me. This is prisn. These [peple] are lder ages. Only me, and this guy and anther - they are the nly nes like us I take medicine nw, fr sleep. N medicine, I can't sleep My mind is n gd, it is very hard." 36 Detaining unaccmpanied migrant children with adults is in clear vilatin f CRC, article 37, further elabrated in the Cmmittee s General Cmment N. 6. The Cmmittee states special arrangements must be made fr living quarters that are apprpriate fr children and that separate them frm adults. Malta has nt made such arrangements fr children pending age determinatin. Recmmendatins t Malta: - End the unnecessary detentin f unaccmpanied migrant children. Amend legislatin t prhibit the detentin f migrant children fr the sle reasn that they have arrived irregularly in Malta. In the interim perid while detentin cntinues, use separate detentin facilities fr thse with pending age determinatin requests. - Refrm the age determinatin prcedure t treat applicants as children until prven therwise. Release thse with pending cases t alternate facilities until age determinatin is cmpleted. 33 Human Rights Watch interview with Abdi M., Valetta, Malta, April 27, Human Rights Watch interview with Amr S., Safi, Malta, April 30, Human Rights Watch interview with Edgard O., Safi, Malta, April 30, Human Rights Watch interview with Kelile T., Safi, Malta, 7

8 Insufficient Age Determinatin Prcedures (Articles 8, 12, 37(b)) Age determinatin prcedures in Malta can take several mnths, leaving children in detentin pending the utcme. Malta s Agency fr the Welfare f Asylum Seekers (AWAS) has, t its credit, instituted a relatively sphisticated age determinatin prcedure in the shrt perid f time that unaccmpanied children have been arriving by bat. Nnetheless, the prcedure needs several imprvements including a reductin in prcessing time, increased prvisin f infrmatin t incming children, a lessened reliance n medical testing, and sme type f interim care rder t release children frm detentin pending age determinatin. Extended prcessing times Our research shws that age determinatin in Malta can take t lng especially when children remain in detentin and relies unnecessarily n invasive medical testing. Fr example, Labaan, the Smali by wh arrived in Malta at 15 in 2009, went t detentin pending a lng age assessment: "I had t wait fr three mnths in detentin. Tw mnths befre they [AWAS age determinatin fficials] questined me." 37 In an interview with an NGO staff member wh rutinely wrks within the detentin centers, Human Rights Watch was tld that in 2008 and 2009, sme asylum prcedures actually mved mre quickly than age determinatin prcedures. Accrdingly, sme adult asylum seekers wh arrived at the same time as children awaiting age determinatin were released frm detentin while the children remained behind bars. 38 This may have the effect f discuraging children frm disclsing that their age fr fear that it culd extend their perid f detentin. As nted abve, in early 2012 sme migrant children have mved mre quickly thrugh the age determinatin prcess and ut f detentin, sme in as little as tw weeks. Likewise, Agency fr the Welfare f Asylum Seekers (AWAS) has made clear attempts t take plicy steps t shrten the prcess, including by setting internal benchmarks fr preliminary interviews with children within 10 wrking days f arrival, and by participating in training initiatives thrugh cmmn Eurpean mechanisms. 39 But while Malta cntinues t detain children pending age assessment, any delay in the prcedure results in children unfairly detained. General Cmment N. 6 indicates that age determinatin is a prcedure that shuld be priritized immediately after arrival in the cuntry, and that the best interests f the child shuld be a guiding principle in these prceedings. 40 Furthermre, children shuld never be detained fr reasns related t their immigratin status. Malta s lengthy age determinatin 37 Human Rights Watch interview with Labaan X., Marsa, Malta, March 13, Human Rights Watch interview with NGO staff member, Birkirkara, M February 27, Human Rights Watch interview with Sarah Brda Bndin, Service Manager, Agency fr the Welfare f Asylum Seekers, Ministry fr Hme and Parliamentary Affairs, Sliema, Malta, April 30, CRC Article 8, General Cmment N. 6 paragraph 31 (a). 8

9 prcedures, in cmbinatin with rutine detentin f children in age disputed cases and lw threshld fr disputing age, stand in ppsitin t these principles. Lack f screening and reliance n self-identificatin Sme migrants wh request an age determinatin prcedure are seemingly ignred: interviewees reprted telling authrities they were minrs but never receiving age determinatin prcedures. Other children never request an age determinatin because they lack infrmatin n the prcedure and its benefits. Fr example, Perry O., a Ghanaian migrant, said he traveled t Malta shrtly befre his 17 th birthday in He reprted that he tld the detentin guards that he was 16 years ld, but he was never given an interview with AWAS r a medical test t determine his age. He did nt knw if the guards ever reprted his claim t AWAS. 41 Chris K., frm Nigeria, was 17 when he arrived in He reprted t Human Rights Watch: "I tld them I was a child but they still put me in detentin fr 10 mnths. I tld the plice when I came in." 42 Like Perry, Chris never received an interview with AWAS and said he des nt knw what happened t his claim. A number f ur interviewees chse nt t reprt their minrity t the authrities, ften n the advice f fellw migrants. Ali K., a Malian migrant wh came t Malta at 17 years ld, received such advice: I came when I was 17. I spke n English, I had n-ne wh culd understand me. I was tld by a Smali guy nt t reveal my age. 43 Bell, a Nigerian migrant wh reached Malta when he was 16 years ld, had a similar stry: "The captain tld all the peple n my bat nt t say we were belw 18." 44 Bell later tried t reprt his real age: Befre we knew it we were in detentin. They just recrd yur details, yu dn't knw what we're suppsed t d. When I gt infrmatin frm immigratin, I rushed back t say I'm 16. I went back t the security t tell them I was a child They didn't accept it, they sent me back int Safi [the detentin facility]. 45 The gvernment shuld d mre t prvide children with reliable infrmatin abut the benefits f declaring their minrity, and t give them infrmatin abut the prcedure itself. Children receive n guidance n the cntent f the prcedure, whether dcuments will be useful, r whether they can appeal. Malta has taken cnsiderable steps n prviding infrmatin t migrants abut the refugee prcess, including by cnducting infrmatin sessins t every incming migrant. It culd easily d the same fr the age determinatin prcess. 41 Human Rights Watch interview with Perry O., Sliema, Malta, March 16, 2012, and fllw up, Bugibba, Malta, April 28, Human Rights Watch interview with Chris K., Marsa, Malta, April 25, Human Rights Watch interview with Ali K., March 14, 2012 (real name). 44 Human Rights Watch interview with Bell E., March 13, Human Rights Watch interview with Bell E., Marsa, March 13, 2012, and fllw-up interview, Marsa, April 25,

10 Heavy reliance n medical testing There is an increasing pl f evidence indicating that medical tests fail t prvide sufficient levels f accuracy fr their use t be a prminent part f the age determinatin prcess, especially when cupled with the ethical cncerns f subjecting children t unnecessary and invasive medical prcedures. In Malta, many children have their wrists x-rayed as part f the age determinatin prcedure. 46 Sme interviewees reprted that they endured a significant wait after the medical test befre their age determinatin was finalized. Fr instance, Adama, a 17-year-ld Ivrian wh arrived in Malta when he was 16 in 2011, reprted: A machine lked at my hand. After the machine, I waited [in detentin] fr ne r tw mnths mre, it was ne mnth after that that my friend left, and then ne mnth mre, s tw mnths ttal. 47 Medical examinatins used t determine the age f presumed children are subject t margins f errr f up t five years. 48 Pediatricians have further criticized the fact that sme exams expse children t X-ray fr nn-medical purpses as a vilatin f medical ethics. 49 The Cmmittee and UNHCR have bth asked states nt t base age assessments slely n the physical appearance f a child, but t als cnsider his r her psychlgical maturity, t take int accunt the margin f errr that medical exams are subject t, and t give the child the benefit f dubt. 50 Standards fr age assessment f migrants differ tremendusly amng and within EU Member States. 51 Medical examinatin is just ne pssibility fr age determinatin, alng with persnal interviews, searches fr dcumentatin, and psychlgical evaluatin. 52 Malta shuld avail itself f best practices elsewhere in Eurpe and f guidelines prmted by agencies such as UNHCR in rder t decrease reliance n invasive medical tests. Recmmendatins t Malta: - End the plicy f detaining children in age-disputed cases pending age assessment. - Take all practical steps t reduce the time f age assessment prceedings, including by: Supprting AWAS with additinal capacity during peak seasns; and Encuraging faster prcessing f medical testing. 46 Human Rights Watch interview with Kibreab A., Marsa, Malta, March 14, Human Rights Watch interview with Christphe G., Fgura, Malta, May 3, "Age determinatin is an inexact science and the margin f errr can smetimes be as much as 5 years either side." Ryal Cllege f Paediatrics and Child Health, The Health f Refugee Children: Guidelines fr Practitiners (Lndn: 1999), p Ibid, pp United Natins High Cmmissiner fr Refugees (UNHCR), "Guidelines n Plicies and Prcedures in Dealing with Unaccmpanied Children Seeking Asylum" (hereafter UNHCR Guidelines), February 1997, (accessed September 1, 2008), sectin 5.11; Cmmittee n the Rights f the Child, "Treatment f Unaccmpanied and Separated Children utside their Cuntry f Origin," General Cmment N. 6, CRC/GC/2005/6 (2005), para. 31 (i). 51 Cuncil f Eurpe, Parliamentary Assembly, Unaccmpanied Children in Eurpe: Issues f Arrival, Stay and Return, Rapprteur: Ms Mailis Reps, Estnia, Sectin 3.2.2, Paragraph 30, available at: 52 Id. at para

11 - Further embrace best practices in the age assessment field: Carry ut assessments nly if there are reasnable dubts abut a persn being underage. Base assessment n the presumptin f minrity. Reduce reliance n medical testing by using multi-disciplinary assessments by an independent authrity. Indicate the margin f errr in medical testing. If dubts remain that the persn is underage, grant the benefit f the dubt. Prvide fr administrative r judicial appeal f assessment decisins. - Instruct arresting fficers, detentin staff, and all thers with rutine cntact with migrants t heed migrants reprts f minrity, increase effrts t identify thse wh might be children, and refer bth categries t the age determinatin prcedure within a speedy time frame. Incmplete Guardianship and Lack f Legal Representatin (Articles 20(1), 22, 37) Lack f meaningful guardianship Children we interviewed reprted that they did nt receive adequate assistance in preparing asylum applicatins, nr did they receive any ther meaningful assistance frm their legal guardians, in making decisins fr the future. While each child is technically assigned a legal guardian, 53 the resulting prcedure is bureaucratic and des nt respnd t these children s need fr guidance in asylum prceedings, access t educatin, r finding part-time wrk. Care fr unaccmpanied migrant children is split between three ministries and numerus agencies, meaning their needs can fall int a bureaucratic vid. At the cnclusin f the age determinatin prcedure, the Minister fr Justice and the Family issues a care rder fr the child, at the directin f the Children and Yung Persns Advisry Bard. The child is then placed in a grup hme run by the Agency fr the Welfare f Asylum Seekers (AWAS), an entity under the Ministry f Hme and Parliamentary Affairs. Children under AWAS s care are entitled t educatin thugh issues f truancy and language ften arise and at that stage their needs fall t the Ministry f Educatin. While Malta is t be praised fr its multi-faceted cmmitment t the welfare f these children, a mre cmprehensive and less bureaucratic guardianship system culd deliver individualized care t each child. The grup hmes run by AWAS have scial wrkers n staff, but they d nt 53 Human Rights Watch interview with Mari Friggieri, Refugee Cmmissiner, Valetta, Malta, April 27,

12 necessarily crdinate with the child s fficial guardian at the Ministry fr Justice and the Family. Children reprt that the grup hmes meet their basic needs but d nt ffer mre. Fr example, Labaan, wh was 16 when he mved frm detentin t a grup hme, cmmented, They gave me 7 Eurs a week, fd, and a hme. 54 Likewise, Maltese law permits unaccmpanied migrant children t attend schl, and AWAS has several initiatives t encurage attendance. 55 There are a small number f psitive examples f unaccmpanied migrant children wh have gne n t higher educatin. 56 Hwever, particularly past the age f 16, the schl leaving age in Malta, children reprt that language and ther barriers make further attendance difficult, and that their guardians d nt help them access educatin. Abdi, wh was 17 when he mved int a grup hme, stated "I had a bad time... There was n schl. A teacher came nce a week. I culdn't g t a Maltese schl, they tld me I wasn't Maltese." 57 Kibreab, wh was als 17 when he mved t the grup hme, highlighted a cmmn cncern fr these children: "I tried t g [t schl] but I stpped. I had t wrk." 58 An NGO wrker, himself a migrant, wh wrks n access t educatin, emphasized the difficulty children face negtiating these hurdles withut guidance: "Frm ur experience wrking with [the unaccmpanied minrs] we can see there are prblems: n clear guidelines fr integratin, language issues, and prblems with identity. 59 The guardianship system des little t prvide advice n asylum r ther issues f imprtance t the children s future. Labaan stated that at his asylum prcedure, "there was a legal guardian but she said nthing. She gave me n advice befrehand." 60 Accrding t the Cmmittee, an asylum-seeking child shuld be represented by an adult wh is familiar with the child s backgrund and wh is cmpetent and able t represent his r her best interests. 61 Such an adult a guardian shuld have the necessary expertise in the field f childcare, s as t ensure that the interests f the child are safeguarded and that the child s legal, scial, health, psychlgical, material and educatinal needs are apprpriately cvered. 62 Malta needs t d mre thrugh training, crdinatin, and additinal staffing t ensure a meaningful system f guardianship that prvides individualized care and respnds t unaccmpanied migrant children s varied needs. Lack f legal representatin in asylum prcedures and in challenging detentin Unaccmpanied migrant children in Malta receive little r n legal representatin, either in challenging their detentin r in requesting asylum. The Maltese gvernment relies heavily n nn-gvernmental and inter-gvernmental rganizatins, including the Jesuit Refugee Service 54 Human Rights Watch interview with Labaan X., Marsa, Malta, March 13, Human Rights Watch interview with Anne-Marie Pisani, crdinatr, Dar il-liedna grup hme, Fgura, Malta, May 2, There are five students wh have enrlled in fundatin curses at the Maltese Cllege f Arts, Science and Technlgy. Human Rights Watch interview with Helen d Amat, Children s Cmmissiner f Malta, Santa Venera, Malta, April 26, Human Rights Watch interviews with Abdi M. and Ghedi H., Valetta, April 27, Human Rights Watch interview with Kibreab A., Marsa, Malta, March 14, Human Rights Watch interview with NGO staff member, Birkirkara, Malta, March 1, Human Rights Watch interview with Labaan X., Marsa, Malta, March 13, General Cmment N. 6, Para General Cmment N. 6, Para

13 and UNHCR, t prvide cunseling t unaccmpanied migrant children and ther vulnerable migrants in detentin. Hwever, this is insufficient t meet the gvernment s full bligatins t prvide legal representatin. The Maltese gvernment has made great strides in asylum prcessing in the 10 r s years since it has started receiving significant numbers f asylum applicatins, and nw has ne f the fastest prcessing times and lwest backlg in the Eurpean Unin. Simultaneusly, thse respnsible fr first instance decisins in the Office f the Refugee Cmmissiner have undergne training n the specific needs f children seeking asylum thrugh the EUspnsred Eurpean Asylum Curriculum, and the Refugee Cmmissiner has urged his staff t view children s cases in light f child-specific frms f persecutin and apprpriate credibility standards. While the Maltese gvernment is t be cmmended n these steps, it culd take further actin t ensure that unaccmpanied migrant children requesting asylum receive legal representatin. As the Cmmittee has articulated in General Cmment N. 6, children invlved in asylum prcedures shuld, in additin t the appintment f a guardian, be prvided with legal representatin. 63 The lack f representatin in first instance prceedings impacts children s capacity t understand the prceedings and present their case. Labaan, ne f ur interviewees, struggled t understand the asylum prcedure: "I had three interviews with tw different peple. It made me cnfused. I nw have humanitarian status. I dn't knw when it expires." 64 In meeting with Human Rights Watch, the Refugee Cmmissiner stressed that Malta has ne f the highest rates f asylum applicatins per capita in the industrialized wrld, and pinted t this as a reasn why legal representatin in the first instance is hard t prvide t all migrants. 65 He als nted that Malta has a very high recgnitin rate f granting sme frm f prtectin t asylum applicants, suggesting that legal representatin t all at first instance is unnecessary. Nnetheless, prvisin f legal representatin t unaccmpanied migrant children is imprtant particularly t ensure that thse wh are entitled t refugee status rather than temprary prtectin are granted it. There are a relatively small number f children in this categry apprximately wh claim asylum each year. Likewise, unaccmpanied migrant children wh are deprived f their liberty thrugh detentin fr illegal entry d nt receive legal representatin. Accrding t the Eurpean Curt f Human Rights in Luled Massud, the Maltese legal system lacks the necessary effective and speedy remedy fr challenging the lawfulness f immigratin detentin. Article 37(d) f the Cnventin mandates that children deprived f their liberty shuld have prmpt access t 63 General Cmment N. 6, para Human Rights Watch interview with Labaan X., Marsa, Malta, March 13, Human Rights Watch meeting with Mari Friggieri, Valetta, Malta, April 27,

14 legal assistance, and the Cmmittee emphasizes in General Cmment N. 6 that this specifically applies t unaccmpanied migrant children in immigratin detentin. 66 Recmmendatins t Malta: - Ensure adequate, individualized guardianship fr each unaccmpanied migrant child: Streamline the crdinatin between agencies; institute a review prcess (perhaps hused with the Ministry f Justice, Dialgue, and the Family) t evaluate regularly the effectiveness f the guardianship prcess. Transfer additinal resurces t AWAS s that they may prvide meaningful guardianship directly t the children in their care. Prvide additinal training t thse wh functin as guardians t unaccmpanied migrant children s that they might advise children n their specific needs, including but nt limited t asylum, ther immigratin ptins, educatin, and future develpment. - Ensure adequate free legal representatin fr unaccmpanied minr children: Prvide unaccmpanied minr children with free legal representatin in all stages f asylum prceedings. Prvide unaccmpanied minr children with free legal representatin t challenge the legality f their detentin. Change the legal framewrk f migrant detentin s that children may challenge their detentin withut waiting fr the cnclusin f the age determinatin prcess. --- We encurage the Cmmittee t take these findings int accunt during Malta s pre-sessinal review. In particular, we recmmend that the Cmmittee request the Maltese gvernment t prvide infrmatin that demnstrates hw its plicy cmmitments will cntribute t cncrete imprvements in the treatment f unaccmpanied migrant children. In additin t ur detailed recmmendatins abve, we further encurage the Cmmittee t: - Urge Malta t take immediate steps t end the detentin f unaccmpanied migrant children. 66 General Cmment N. 6, para

15 - Request infrmatin frm Malta n adjustments t the age determinatin prcedure t speed up the prcess s that unaccmpanied migrant children can be released frm detentin mre rapidly. - Request infrmatin frm Malta n steps taken tward the prvisin f meaningful guardianship and free legal representatin t unaccmpanied migrant children. We strngly believe that sustained mnitring f the Maltese gvernment by the UN and ther rights bdies are crucial t ensure that the rights f marginalized children, such as unaccmpanied migrant children, are best respected. We hpe yu will find these cmments useful and wuld welcme an pprtunity t discuss them further with yu. Thank yu fr yur attentin t ur cncerns, and with best wishes fr a prductive sessin. Sincerely, Alice Farmer Researcher Children s Rights Divisin Human Rights Watch Benjamin Ward Deputy Directr Eurpe & Central Asia Divisin Human Rights Watch 15