Communicated on 28 August 2014

FIFTH SECTION
Applications nos 25794/13 and 28151/13
Burhaan ABDULLAHI ELMI against Malta
and Cabdulaahi AWEYS ABUBAKAR against Malta
both lodged on 17 April 2013
STATEMENT OF FACTS
The applicant in the first case, Mr Burhaan Abdullahi Elmi, is a Somali national, who was born in 1996. The applicant in the second case, Mr Cabdulaahi Aweys Abubakar, is a Somali national, who was born in 1995. At the time of the introduction of the application the two applicants were detained in Safi Barracks Detention Centre, Safi, Malta. The applicants are represented before the Court by Dr M. Camilleri and Dr K. Camilleri, lawyers practising in Valletta.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1.  Background to the case
(a)  Mr Burhaan Abdullahi Elmi
Mr Burhaan Abdullahi Elmi entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, he was registered by the immigration police and given an identification number (12U-029). During the registration process the immigration authorities asked the applicant to provide his personal details including name nationality and age. He informed them that he was born in 1996 and therefore was sixteen years old. Although no interpreter was present the applicant was helped by some other irregular immigrants who had arrived with him and who could speak English.
He was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because he was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the applicant that his stay was being terminated and of the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed him that he would remain in custody until removal was affected and that an entry ban would be issued against him. The two documents further informed him of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.
The contents of the decision in English were not explained to the applicant who could not understand the language. He was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language he did not understand.
In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the applicant was detained. He was originally detained in Warehouse 2 at Safi Barracks, and in 2013 was moved to Block B.
(b)  Mr Cabdulaahi Aweys Abubaker
Mr Cabdulaahi Aweys Abubaker entered Malta in an irregular manner by boat on 31 August 2012. Upon arrival, he was registered by the immigration police and given an identification number (12W-062). During the registration process the immigration authorities asked the applicant to provide his personal details including name nationality and age. He informed them that he was born in 1995 and therefore was seventeen years old.
He was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because he was in Malta “without means of subsistence and liable to become a charge on public funds” and “without leave granted by the principal Immigration Officer”. The Return Decision also informed the applicant that his stay was being terminated and of the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed him that he would remain in custody until removal was affected and that an entry ban would be issued against him. The two documents further informed him of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.
The contents of the decision in English were not explained to the applicant who could not understand the language. Mr Cabdulaahi Aweys Abubaker was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language he did not understand.
In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the applicant was detained. He was originally detained in Warehouse 2 at Safi Barracks and in January 2013 was moved to Block B.
2.  Asylum proceedings
(a)  Mr Burhaan Abdullahi Elmi
A few days following Mr Burhaan Abdullahi Elmi’s arrival he was called for an information session provided by the Staff of the Office of the Refugee Commissioner. He was assisted in submitting the Preliminary Questionnaire (PQ), thereby registering his wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant Domestic Law, below). He stated on the form that he was sixteen years old.
(b)  Mr Cabdulaahi Aweys Abubaker
A few days following Mr Cabdulaahi Aweys Abubaker’s arrival he was called for an information session provided by the Staff of the Office of the Refugee Commissioner. He was assisted in submitting the PQ, thereby registering his wish to apply for asylum. He stated on the form that he was born in 1995 and was seventeen years old.
3.  The AWAS Age-Assessment Procedure
The applicants submitted that in spite of the fact that this procedure can have a determining impact on the continued detention of individuals detained in terms of the Immigration Act, it was not adequately regulated by law or by publicly available rules or procedures. The only reference to age assessment procedures was that in the Government’s policy document and subsidiary legislation (see Relevant domestic law below).
In practice, from the information available to the applicant, it appeared that the Age Assessment Procedure consisted of a number of different phases. Individuals were referred to the Agency for the Welfare of Asylum Seekers (AWAS) by the Immigration Police (where they declare to be minors on arrival) or the Refugee Commissioner (where they declare to be minors in their PQ). Following referral, an initial interview is conducted by one member of AWAS staff. Where this interview is inconclusive, a second interview is conducted by a panel of three persons known as the Age Assessment Team (AAT).
Where the panel is convinced that the individual concerned is not a minor, the minority age claim is rejected. Where a doubt remains, s/he is referred for a Further Age Verification (FAV) test, which essentially consists of an X-ray of the bones of the wrist. Although the AAT is not bound by the results of the test, in practice, it would appear that in most cases where it is resorted to the result will determine the outcome of the assessment.
If the individual concerned is found to be a minor, a care order is issued, the individual is released from detention and placed in an appropriate non-custodial residential facility, and a legal guardian is appointed to represent the minor. Once a guardian is appointed the asylum interview is carried out, and during the said interview the minor is assisted by a legal guardian. If the individual’s claim to minor age is rejected, AWAS informs the Refugee Commissioner so that his Office can proceed with the refugee status determination procedure.
The applicants claim that the Age Assessment Procedure has often been criticized, as it is plagued by delays and by a lack of adequate procedural guarantees, including lack of information about the procedure followed and the possibility of appeal. No reasons are ever given for decisions and there is no real possibility to challenge the decision taken by the AAT. In addition, migrants undergoing Age Assessment Procedures are detained throughout the procedures, usually in centres with adults without any special consideration for the fact that they are minors. They referred to the 2012 report of Human Rights Watch entitled ‘Boatride to Detention: Adult and Child Migrants in Malta’.
4.  The applicants’ Age-Assessment Procedure
(a)  Mr Burhaan Abdullahi Elmi
In Mr Burhaan Abdullahi Elmi’s case, within a few weeks of his arrival, three people from AWAS interviewed him. After the interview they informed him that as they could not confirm his minor age through the interview they would send him for a further age verification (FAV) test - i.e. an x-ray of the bones of the wrist. He was taken for the FAV test shortly after his interview. Some weeks later, in or around October 2012, he was informed verbally by AWAS staff that he was found to be a minor and that he would be released shortly.
Until the date of the lodging of the application, that is eight months after his arrival in Malta, the Mr Burhaan Abdullahi Elmi had not received a written decision informing him of the outcome of the age assessment procedure and was still in detention.
(b)  Mr Cabdulaahi Aweys Abubaker
In Mr Cabdulaahi Aweys Abubaker’s case, he was interviewed by three people from AWAS in the third week of September 2012. After the interview they informed him that as they could not confirm his minor age through the interview they would send him for a FAV test. He was taken for the FAV test on 8 February 2013, five months after his interview with AWAS. Some weeks later, in March 2013, he was informed verbally by AWAS staff that he was found to be a minor and that he would be released shortly.
Until the date of the lodging of the application, that is almost eight months after his arrival in Malta, Mr Cabdulaahi Aweys Abubaker had not received a written decision informing him of the outcome of the age assessment procedure and was still in detention.
In the meantime both Mr Cabdulaahi Aweys Abubaker and members of the Jesuit refugee Service who visited him in detention contacted AWAS on a number of occasions to inquire about the case, but no reply was forthcoming.
5.  Conditions of detention
(a)  Mr Burhaan Abdullahi Elmi
Mr Burhaan Abdullahi Elmi claims to have been held in very difficult conditions of detention with adult men of various nationalities. In Warehouse 2 and Block B, of Safi Detention Centre, physical conditions were basic and he often lacked the most basic necessities, including clothing, particularly shoes which were only replaced every four months. Recreational activity was limited and the yard was overtaken by adult males, making it difficult for a young person like him to play with them. Educational activities were virtually non-existent. There was a lack of information, difficulties communicating with the outside world, and obstacles in obtaining the most basic services. Moreover, the centre was overcrowded and lacked protection from abuse and victimisation. Fights often broke out between men of different origins, nationalities or tribes, and he also referred to an episode were he had been beaten up by a fellow detainee. Noting there was no privacy or security, Mr Burhaan Abdullahi Elmi stressed that he felt very insecure in detention, and that his food was often stolen by detainees as was his blanket. He explained that Warehouse 2 was worse than Block B, it was like a big hall of people, hundreds of people, and he had a bunk bed in this big warehouse. He considered that the conditions in Warehouse 2 were very similar to those in Warehouse 1 which had been documented in a number of reports, including two CPT reports of 2007 and 2011. The first applicant also stated that he had difficulty communicating with a doctor in the absence of an interpreter and that he suffers from dizziness and eye sight problems.
(b)  Mr Cabdulaahi Aweys Abubaker
Mr Cabdulaahi Aweys Abubaker’s narration about the conditions of detention in Warehouse 2, and Block B are similar to those referred to by Mr Burhaan Abdullahi Elmi. Mr Cabdulaahi Aweys Abubaker also noted that in the first two weeks of his detention he had had stomach pains, but no doctor was available nor was an ambulance called. He alleged to have headaches and rashes on his scalp; however, the detention authorities would not provide him with the shampoo prescribed by the doctor. He noted that in October 2012 the detention authorities had not taken him to a hospital appointment which had to be rescheduled to March 2013. On that date, the doctor prescribed medication, however, up to the date of the introduction of the application (17 April 2013) it had not been forthcoming. He also referred to an incident in which he had been beaten up by a fellow detainee who had allegedly also previously attacked another detainee with a knife. He noted that when he arrived in detention he was given, two bed sheets, a blanket, a T-shirt, two pairs of underwear but no shoes, not even flip-flops. The second applicant further explained that they were fed chicken every day and that he was unable to keep in touch with his relatives, as the five euro phone card distributed to them every two months, only allowed four minutes of talk time to Somalia.
6.  Latest developments
(a)  Mr Burhaan Abdullahi Elmi
Following the lodging of the application with the Court, on 18 or 19 April Mr Burhaan Abdullahi Elmi was released from detention under a care order. He subsequently left Malta before the termination of his asylum proceedings.
(b)  Mr Cabdulaahi Aweys Abubaker
Following the lodging of the application with the Court, on 24 April 2013 Mr Cabdulaahi Aweys Abubaker was released from detention under a care order. He was granted subsidiary protection on 14 September 2013.
B.  Relevant domestic law and practice
1.  The Refugees Act
Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta, reads as follows:
“(1)  A person may apply to the Commissioner, in the prescribed form, and shall be granted refugee protection, where it is established that he faces a well-founded fear of persecution in his country of origin or habitual residence in terms of the Convention.
(2)  A well-founded fear of persecution may be based on events which have taken place after applicant has left his country of origin or activities engaged in by applicant since leaving the country of origin, except when based on circumstances which the applicant has created by his own decision since leaving the country of origin.
(3)  If the Commissioner recommends the acceptance of the application, the Minister shall make a declaration that applicant is eligible for refugee status, or appeal against such recommendation.”
2.  Government Policy
According to the Irregular Immigrants, Refugees and Integration Policy Document, issued by the Ministry for Justice and Home Affairs and the Ministry for the Family and Social Solidarity, in 2005:
 “Irregular immigrants who, by virtue of their age and/or physical condition, are considered to be vulnerable are exempt from detention and are accommodated in alternative centres”.
The document contains an inclusive list of those categories of migrants considered vulnerable, which includes: “unaccompanied minors, persons with disability, families and pregnant women”. With specific reference to unaccompanied minors and age assessment, the policy document states that:
“Unaccompanied children and minors will be placed under state custody in terms of the Children and Young Persons (Care Order) Act (Chapter 285). This ensures that an unaccompanied minor is given the same treatment as a Maltese minor. ... The detention of minors should be no longer than what is absolutely necessary to determine their identification and health status. Interviews are to be carried in a ‘child friendly’ manner.
Unfortunately there will be cases where individuals make false claims about their age in order to benefit from the terms and conditions of a Care Order. In order to ensure, as far as possible, that:
(a) Care Orders are only issued in respect of true minors;
(b) provisions for minors are not abused, and
(c) actual minors are not deprived of the accommodation and services to which they are entitled by virtue of their age and the degree of vulnerability associated with it, Ministry for Justice and Home Affairs in consultation with the Ministry for the Family and Social Solidarity shall, in those cases where there is good reason to suspect the veracity of the minority age claimed by the immigrant, require the individual concerned to undertake an age verification test as soon as possible after arrival”.
3.  The Age Assessment Procedure
In order to give effect to this policy, a procedure known as the Age Assessment Procedure was developed and implemented first by the Refugee Service Area within Aġenzija Appoġġ (the National Agency for children, families and the community) and later by AWAS (formerly OIWAS), with a view to assessing claims to minor age. Although AWAS is not formally charged with the responsibility for this procedure by the law which constitutes it (see below) in practice the said agency has full responsibility for this procedure.
In so far as relevant, Regulation 6 of the Agency for the Welfare of Asylum Seekers Regulation, Subsidiary Legislation 217.11, reads as follows:
 “(1) The function of the Agency shall be the implementation of national legislation and policy concerning the welfare of refugees, persons enjoying international protection and asylum seekers.
(2) In the performance of its functions, the Agency shall:
(a) oversee the daily management of accommodation facilities either directly or through subcontracting agreements;
(b) provide particular services to categories of persons identified as vulnerable according to current policies;
(c) provide information programmes to its clients in the areas of employment, housing, education, health and welfare services offered under national schemes;
(d) act as facilitator with all public entities responsible for providing services to ensure that national obligations to refugees and asylum seekers are accessible;
(e) promote the Government’s policy and schemes regarding resettlement and assisted voluntary returns;
(f) maintain data and draw up reports that are considered relevant for its own function and to provide statistics to appropriate policy-making bodies;
(g) advice the Minister on new developments in its field of operation and propose policy or legislation required to improve the service given and fulfil any legal obligations in respect of its service users;
(h) encourage networking with local voluntary organisations so as to increase the service standards as well as academic research;
(i) work with other public stakeholders and, where possible, offer its services to asylum seekers accommodated in other reception centres not under its direct responsibility; and
(j) implement such other duties as may be assigned to it by the Minister or his representative.”
Regulation 15 of the Procedural Standards in Examining Applications for Refugee Status Regulations Subsidiary Legislation 420.07 - Legal Notice 243 of 2008, lays down some basic procedural safeguards applicable when minors are interviewed, including the provision of information about the asylum procedure, assistance with preparation for the interview and presence of the representative during the interview.
Regulation 15 (2) deals with the use of medical procedures to determine age within the context of an application for asylum.
Article 15 of the Reception of Asylum Seekers (Minimum Standards) Regulations, Subsidiary Legislation 420.06 – Legal Notice 320 of 2005, states that:
“an unaccompanied minor aged sixteen years or over may be placed in accommodation centres for adult asylum seekers”.
4.  Other relevant law
Other relevant domestic law concerning the cases is to be found in Suso Musa v. Malta (no. 42337/12, §§ 23-32, 23 July 2013).
COMPLAINTS
The applicants complain under Article 3 in respect of the conditions of their detention in Warehouse 2 and Block B in Safi Barracks.
The applicants also complain under Article 5 § 1 that their continued detention for eight months was arbitrary and unlawful, as it did not fall under either of the two limbs under the mentioned provision. In any event even assuming it fell under the first limb, the law was not precise and did not provide for procedural safeguards. Moreover, their continued detention could not be considered reasonably required for the purpose, nor closely connected to the purpose of preventing an unauthorised entry. Furthermore they had been detained in conditions which were not appropriate for young asylum seekers.
The applicants further complain under Article 5 § 2 that the Return Decision and Removal Order, provided to them in English, a language they did not understand, did not contain sufficient information enabling them to challenge their detention.
The applicants also complain that they did not have a remedy which met the requirements of Article 5 § 4, as outlined in the Court’s jurisprudence, to challenge the lawfulness of their detention.
QUESTIONS TO THE PARTIES
1.  Did the conditions of the detention centre, namely Warehouse 2 and Block B, Safi Barracks, in which the applicants, both minors, had been detained, amount to inhuman or degrading treatment contrary to Article 3?

2. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty, suffered by the applicants fall within any paragraph of this provision?
In so far as their detention may have been effected for the purposes of the first limb of Article 5 § 1 (f), i.e. “to prevent effecting an unauthorised entry into the country”, was the detention lawful in terms of domestic law and free from arbitrariness in the context of the first limb of Article 5 § 1 (f), namely was the applicants’ detention compatible with that provision, and in particular given the duration of the age assessment procedure was it closely connected to the ground of detention relied on (see Saadi v. the United Kingdom [GC], no. 13229/03, § 77 ECHR 2008 and Suso Musa v. Malta, no. 42337/12, 23 July 2013)?

3. Were the applicants informed promptly, in a language which they understood, of the reasons for their detention under Article 5 § 1 as required by Article 5 § 2 of the Convention?

4. Were the applicants able to bring proceedings which complied with Article 5 § 4 of the Convention to challenge the lawfulness of their detention?