J.B. v. Malta: The Systemic Consequences of Rule of Law Failures on Migrants’ Rights

Alexis Galand

The judgment of the European Court of Human Rights (‘the Court’) in J.B. v. Malta highlights systemic deficiencies in Malta’s judicial and administrative systems, revealing how rule of law failures undermine the protection of fundamental rights. In this case, the Court found that Malta had unlawfully detained unaccompanied minors for six months in inhuman and degrading conditions, without providing them with effective remedies to complain of the unlawfulness and conditions of their detention.

Building on its earlier decision in A.D. v. Malta (2023), the Court confirmed the unlawfulness of the de facto detention of asylum seekers on medical grounds, highlighting once again that states cannot evade their Convention obligations for emergency or health reasons. This ruling is unprecedented as it links Malta’s broader rule of law issues to the country’s systemic failure to provide asylum seekers with effective remedies and calls for general measures to reform Malta’s Immigration Appeals Board due to its structural lack of independence. It also underscores the importance of providing independent and effective judicial protection for detained asylum seekers, a critical issue in light of the anticipated normalisation of detention under the New EU Pact on Migration.

The Facts

The six applicants in this case were detained following their rescue at sea in November 2022. They were initially held in de facto detention with adults at the Ħal Far Initial Reception Centre (HIRC) until they were medically cleared for infectious diseases, after which detention orders were issued, and they were transferred to the Safi Detention Centre.

On 6 December 2022, an ex officio review of the detention orders issued against them was held before the Second Division of the Immigration Appeals Board (IAB), the administrative tribunal entrusted with all appeals related to immigration matters, with the exception of asylum appeals. Following a ‘mass hearing‘, the IAB issued a single decision confirming the detention of forty-six asylum seekers, including that of the applicants. While the decision mentioned that five of the applicants declared themselves to be unaccompanied minors, aged between 16 and 17, and advised the authorities to appoint a legal guardian, no concrete action was taken by the IAB or the authorities. In January 2023, NGO lawyers met with the five minors and another detainee (the first applicant) who also claimed to be a minor, and referred them to the competent authorities for age assessment and guardian appointment. The authorities claimed ignorance of their claims despite the IAB’s decision.

Following several unanswered requests for an urgent review of the applicants’ detention, their lawyers filed a request for interim measures to the Court. On 11 January 2023, the duty judge indicated to the Maltese Government that it must ‘ensure that the applicants’ conditions are compatible with Article 3 of the Convention and with their status as unaccompanied minors’. The applicants were subsequently transferred to the minor’s aisle of the detention centre. Age assessment interviews were carried out and the authorities concluded that all the applicants were adults. The appeals against those decisions were set to be heard before the Second Division of the IAB once again, but a conflict of interest was raised in that regard, since the same formation had decided on the legality of the applicants’ detention in December 2022.

The appeals were eventually heard in May 2023 by the First Division of the IAB, which found that all the applicants were minors except the first one. This five-month appeal procedure was interrupted by several attempts by the authorities to obstruct the procedure and have the appeals withdrawn. All but the first of the applicants were released following the decisions of the IAB.

The Judgment

In its judgment of 22 October 2024, the Court unanimously rejected all the admissibility objections submitted by the Government, found several violations of the Convention, and indicated general measures to be taken.

Violation of Articles 3 and 13 of the Convention

The Court considered that the living conditions in the HIRC were inadequate for the five minor applicants due to their mixed detention with adults, lack of outdoor access, and insufficient qualified assistance (§50). However, it refused to consider the first applicant as a minor during this period of detention in the HIRC, in light of the late disclosure of his claim (§54). The detention conditions in the Safi Detention Centre were deemed to be ‘more appropriate’ but the deterioration of the minors’ mental health, linked to their living conditions, led the Court to find a breach of Article 3 in respect of all of the applicants except the first one (§51).

Moreover, the Court reaffirmed previous findings on the lack of effective remedy to complain about one’s detention conditions and found that Malta had breached Article 13 in conjunction of Article 3 (§71).

Violation of Article 5 § 1 of the Convention

The Court rejected the Government’s claim that the applicants were under a restriction of movement for the period spent in the HIRC, and confirmed that this amounted to a practice of de facto detention enforced in a ‘legal vacuum’ (§§82-88). Consequently, it found a violation of Article 5 § 1 for all applicants for this period (§§104-106).

The Court further declared that Article 5 § 1 had been breached in respect of all applicants except the first one in light of the inhuman and degrading conditions they were held in, the length of the overall procedure during which they were detained, and the fact that no less coercive measures had been considered (§§118-119).

Violation of Article 5 § 4 of the Convention

The Court found that the applicants did not have access to an effective remedy to challenge the unlawfulness of their ongoing detention. Notably, the Court highlighted the ineffectiveness of the IAB’s proceedings and its lack of judicial character. It noted the wide discretion enjoyed by the Minister to appoint and dismiss its members, the opaque and unchallengeable appointment procedure, the lack of qualification criteria based on merits, and the (numerous) links of the current members of both divisions to the executive (see footnote 6 of the judgement). Furthermore, it found that the scope of its reviews was insufficient and that it failed to address the applicants’ requests in a timely manner (§§141-149). 

General Measures

The Court decided to indicate general measures to the Government of Malta in light of the established rule of law deficiencies. It instructed Malta to ensure that legislation is put in place, in order for the IAB to conform with the requirements of independence and impartiality, ‘having regard to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressure and the necessity for the body to present an appearance of independence’ (§167).

Analysis

This judgment expands on A.D. v. Malta (2023), where the Court found that the detention of a presumed minor, later declared to be nineteen years old, was unlawful and carried out in inhuman and degrading conditions. It reiterates that the de facto detention of asylum seekers on medical grounds is unlawful and sheds light on two critical issues: the absence of judicial oversight mechanisms as a symptom of Malta’s broader rule of law deficiency, and its consequences on vulnerable individuals such as minors.  

Structural Failures in the Judicial Oversight of Immigration Detention

While findings on the lack of robust judicial oversight in Malta are not new, this judgment uniquely ties them to broader rule of law issues, as highlighted by the Court’s unequivocal rejection of the judicial character of the IAB. J.B. v. Malta thus represents the culmination of two decades of negative findings on the matter.

It confirms longstanding findings on the ineffectiveness of Constitutional redress proceedings during detention, due to their excessive duration and their cumbersome nature. The Court recently added that their lack of automatic suspensive effect is another element which renders them an ineffective means to complain of a violation of the non-refoulement principle enshrined in Article 3 of the Convention (S.H. v. Malta, 2022, §§51-54).

J.B. v. Malta also confirms that habeas corpus proceedings are inaccessible in practice for applicants who are de facto detained ‘incommunicado’ in the HIRC (§94). Combined with the Court’s earlier findings in Louled Massoud v. Malta (2010) that Criminal Courts limit their competence to de facto detention and refuse to assess the lawfulness of a de jure detention (§43), this decision renders this remedy mostly ineffective. As such, it remains to be seen whether J.B v. Malta will have an impact on the Criminal Courts’ perception of their jurisdiction, as the Court’s findings on the IAB places them in the position of potentially being the only effective domestic remedy against a detention order.

While the Court had already negatively assessed the IAB’s effectiveness in Louled Massoud, in J.B. v. Malta it assessed whether the IAB has a judicial character for the first time. In Louled, the Court held that the scope of the IAB’s review was insufficient and that the duration of its proceedings was excessive. However, it did not address the applicant’s claim that the IAB did not qualify as a judicial authority (§35 and §44). Since these findings were made prior to amendments which substantially changed the legal framework governing immigration in Malta, it was crucial to obtain a complete reassessment of the IAB’s effectiveness, as well as a first assessment on its judicial character. While the applicant in A.D. v. Malta raised the issue in a similar manner as in J.B., the Court did not address the alleged violation of Article 5 § 4, despite its questions to the parties (A.D. v. Malta, §205). J.B. thus finally provided the much-awaited confirmation that IAB proceedings are deficient in all respects while also connecting these deficiencies to broader rule of law issues. 

The Court’s unequivocal rejection of the IAB’s judicial character acts as a strong reminder that administrative tribunals composed of non-professional judges cannot escape Convention standards for the sake of flexibility or efficiency. Moreover, the reasoning under Article 5 § 4 may very well be extended to IAB proceedings which fall under Article 13 and the notion of an ‘independent national authority‘. Beyond the IAB, the Court’s assessment might be applicable to the International Protection Appeals Tribunal (IPAT) in view of its similar structure, the Court having already found it ineffective when it adjudicates cases channelled through accelerated procedures in S.H. v. Malta (2022).

J.B. v. Malta critically underscores broader rule of law concerns, notably about Malta’s numerous specialised boards and tribunals (more than two-hundred of them exist), with the Court making specific reference to the Rule of Law Report and the opinions of the Venice Commission (§133). This judgment is decisive, as it is the first time the Court explicitly makes interlinkages to the rule of law when assessing national remedies in an immigration context. It confirms that the systemic issues of the asylum system are also rooted in broader rule of law issues in Malta. The broad general measures indicated by the Court will hopefully reinforce scrutiny of Malta’s tribunals at the European level and serve as a foundation for other applicants to challenge their independence.

This decision should also be considered in the context of the European Migration Pact (“the Pact”), which entered into force in June 2024. The Pact rests on the assumption that effective judicial protection is guaranteed at national level, as a counterbalance to the foreseen increase of detention. However, it is predicted that the Pact will blur the lines between detention, alternatives to detention, and restrictions on freedom of movement and lead to an increase in de facto detention, as seen in the Maltese context. J.B. v. Malta thus demonstrates that effective protection cannot be taken for granted, exposing vulnerabilities that risk undermining the Pact’s implementation.

The Systemic Consequences of Ineffective Judicial Protection

J.B. v. Malta highlights how a lack of judicial oversight leads to the emergence and persistence of unlawful practices harmful to the most vulnerable. The Court’s decision consolidates its jurisprudence on minors and signals the Court’s likely resistance to the normalisation of detention, including of children and families, fostered by the Pact.

This judgment underscores the importance for applicants to declare themselves as minors as early as possible. This triggers the protection afforded to them under the Convention and reinforces their credibility (Darboe and Camarra v. Italy, 2022, §131; A.D. v. Malta, 2023, §74; and, a contrario, Ahmade v. Greece, 2012, §78; Aarabi v. Greece, 2015, §§43-45). It also exhibits that the outcome of the age assessment significantly influences the Court’s evaluation, often leading it to treat the applicant as an adult when the result is negative (Mahamed Jama v. Malta, 2015, §149; Ahmade v. Greece, §78). The notable exception is when the Court finds that the procedure was deficient (Darboe and Camarra, §178).

As such, the tardiness of the first applicant’s claim and the negative outcome of his age assessment, based on an authenticated passport, led the Court to consider him as an adult when assessing the alleged violations of the Convention. In contrast, in A.D., the applicant claimed he was a minor upon his arrival and the negative outcome of his age assessment could be called into question in light of the age he was attributed (19 years old), the lack of evidence to support this conclusion, and the poorly motivated decision of the IAB (§§49-53). J.B. v. Malta thus confirms that A.D. aligns more with the perspective seen in Darboe, whereas it itself reflects the stricter line of case law illustrated by Ahmade and Mahamed Jama.

The decision also reiterates the prohibition of mixed detention with adults (Abdullahi Elmi and Aweys Abubakar v. Malta, 2016, §23-24; Darboe and Camarra, §§174-183; A.D v. Malta, §126). It also confirms the connection between the violation of Article 3 and that of Article 5 § 1, inadequate detention conditions being one of the criteria for determining whether a measure is arbitrary (Abdullahi Elmi and Aweys Abubakar, § 142; A.D v Malta, § 182). Finally, The Court’s strict proportionality assessment and focus on alternatives to detention reaffirms its commitment to its jurisprudence that children’s immigration detention must be a measure of last resort (§§117-119). While this judgment ignores recent calls for a more progressive stance, it has the merit of providing a strong basis to counterbalance the detrimental effects of the Pact’s controversial choice to allow child detention.

The Pact does provide for guarantees to minors, including the exemption of accelerated and border asylum procedures, but commentators have expressed concerns that they might be insufficient in practice. They underscored that for these guarantees to be effective, children must first be accurately identified as such, highlighting that the existing protection gaps on age assessment have not been addressed by the Pact. Moreover, they pointed out that minors can still be detained as a measure of last resort if this is in their best interest, expressing concerns over the interpretation that will be given of this provision. Against this background, J.B. v. Malta shows that the focus on accelerated asylum and return procedures sponsored by the Pact may lead to the emergence and persistence of dysfunctional asylum systems with flawed identification procedures and weak judicial oversight.

Conclusion

By situating J.B. v. Malta within its broader national and European contexts, the significance of the Court’s decision becomes clear. At the national level, the judgment highlights that Malta’s systemic rule of law deficiencies are at the core of its dysfunctional asylum system. It underlines that any attempt at reforming this system without addressing these foundational rule of law issues is unlikely to succeed. While the general measures indicated in this case are of particular importance, they remain insufficient in themselves to correct the whole asylum system or the broader issues surroundings the independence of Malta’s tribunals. At the European level, J.B. v. Malta serves as a cautionary example of the potential failings of the Pact, demonstrating how the guarantees intended to protect vulnerable asylum seekers can become a smokescreen, concealing human rights violations. In this context, it is foreseeable that the Pact’s implementation will provoke significant tensions between the EU and the Court.