After government response, HRW says detained migrants still cannot challenge their detention in court of law.
Government has denied claims made by Human Rights Watch (HRW) in their published report regarding unaccompanied migrant children spending months at a time in detention.
The report, issued last week, details the abuse and violation of migrants' rights and calls for an end to blanket detention policy and child detention while their age is being determined.
Benjamin Ward, HRW Deputy Director in Europe and Central Asia, reacted to a statement released by the government but said the interest shown by the government was welcomed nonetheless.
"We simply differ on the interpretation of certain policies of the European Union in relation to immigrant detention. Also, blanket detention currently present in Malta is not consistent with the European Convention of Human Rights," Ward said.
Ward also explained that during the Louled Massoud vs Malta case, the European Court of Human Rights found that there were no adequate mechanisms for immigrants to challenge the detention system which was considered arbitrary.
On the other hand, the government argued that the HRW was misguided when referring to the 2010 judgement to justify its arguments against Malta's detention policies.
"The facts in the Massoud case were very particular and specific. As a matter of fact, Malta was found to be in violation because in this case, the authorities did not continue to pursue the necessary preparations for deportation.
"This judgement cannot therefore be applied to other cases in a general manner, where the authorities continue to make efforts to conclude the necessary arrangements to remove the person throughout the 18-month period of detention," the government said last week Thursday.
The government said it had made the necessary arrangements to remove detainees throughout the 18 months of detention, which is the maximum period of detention dictated by policy.
Ward said HRW disagreed with the government that this should be treated as a unique case to this particular individual. "When it comes to the report findings, it is not so much the length of time for detention but rather the fact that those in detention cannot challenge the system by we are definitely happy to discuss this further with authorities," he said.
The HRW's report claimed that unaccompanied persons under the age of 18 spend an average time of 3.4 months in detention while their request for release is being determined.
The government said that out of the 1,065 persons who landed in Malta irregularly since the start of 2012, 175 have claimed to be minors and 46 have been issued with a care order.
However, this information was not made available to the HRW upon repeated requests made to the government prior to publishing the report.
"If we had received this information, we would have included it in the report but even so, the statistics provided by the government are only in relation to 2012.The HRW is referring to two separate statistics. The first is our own interviews with those found to be children according to Maltese authorities. These 11 children said they had spent an average of four months in detention," Ward explained.
The second of these statistics was a 2009 study by the Maltese contact point to the EU who found that children had spent on average 1.6 months in detention.
"Any additional information would be useful but from a wider perspective, there clearly are children being detained for longer than the government has claimed. Ultimately, our view is that any duration for child detention is unacceptable and other arrangements should be made for those who are still having their cases processed," Ward said.
The government had also claimed that the police are immediately informed of any violence being committed by adults on minors and steps are taken in court when necessary.
Ward said that the HRW was far from disputing the fact that authorities were addressing such instances but this could altogether be avoided if vulnerable young persons were not detained together with adults.
"The government is not denying the findings in our report that such acts are occurring. The key here is that these situations are likely to arise when vulnerable young people are being detained with adults. The authorities aren't addressing the issue and being proactive. These vulnerable people may not want to come forward for fear of further victimisation," Ward said.
While understand that there may be basis for detention, particularly for repatriation of certain migrants, Ward said authorities should not be detaining individuals for such lengthened periods of time.
The government also said that vulnerable persons, including unaccompanied minors, are not subject to detention and freedom of these persons is restricted only until the country's medical authorities grant the necessary medical clearances.
But, Ward said that this is only true in theory, not in practice and only those who are visibly children in their pre-teen stages are not detained.
"The police told us that any child under the age of 12 to 14 will automatically be deemed as a child. Older children are liable to be detained. The problem is that teens from different cultures may look older or younger and be detained until determined otherwise by the Agency for the Welfare of Asylum Seekers. These are definitely things which need to be discussed in future meetings," Ward said.
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