Abstract
According to the ECtHR press release:
The case concerns two asylum seekers' detention for eight months pending the outcome of their asylum procedure and in particular a procedure to assess whether they were minors or not. The applicants, Burhaan Abdullahi Elmi and Cabdulaahi Aweys Abubakar, are Somali nationals who were born in 1996 and 1995 respectively. At the time of the introduction of their application the two applicants were detained in Safi Barracks Detention Centre, Safi, Malta. Both applicants arrived in August 2012 in Malta by boat as irregular migrants. They were immediately registered by the immigration police. They were then given two documents in English (a Return Decision and a Removal Order) informing them that their stay was being terminated and that they would remain in custody until they had been removed. Shortly after their arrival, they both applied for asylum, stating on their forms that they were 16 and 17 years old, respectively. They were referred to the Agency for the Welfare of Asylum Seekers (AWAS), a government-run agency, for an age assessment, which consists of one or two interviews and an X-ray of the wrist bones. Mr Burhaan Abdullahi Elmi was interviewed and taken for the bone test a few weeks after his arrival. He claims that he was told informally in or around October 2012 that he was found to be a minor and would be released. He was, however, only released six months later under a care order and placed in an open centre for unaccompanied minors. He subsequently absconded and went to Germany where he is waiting for the outcome of judicial proceedings as to whether he would be sent back to Malta to have his asylum claim determined there. Mr Cabdulaahi Aweys Abubakar was interviewed some weeks after his arrival and taken for the bone test some five months later. He also claims that he was told informally – in March 2013 – that he was found to be a minor and would be released. He was, however, only released two and a half months later under a care order and placed in an open centre for unaccompanied minors. He was granted subsidiary protection in September 2013. Relying on Article 3 (prohibition of inhuman or degrading treatment), both applicants complain about the conditions of their immigration detention for eight months, which involved overcrowding, lack of light and ventilation, no organised activities and a tense, violent atmosphere. They argue that these conditions were all the more difficult in view of their vulnerable status as asylum-seekers and 3 minors; indeed, there was no support mechanism for them and this, combined with the lack of information as to what was going to happen to them or how long they would be detained, had exacerbated their fears. Also relying on Article 5 § 1 (right to liberty and security), they allege that their detention was the result of a blanket policy applied to all irregular migrants without distinction or review and was therefore arbitrary and unlawful; they also complain in particular that they were detained despite the fact that they claimed to be minors. They further allege under Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) that they did not have a remedy to challenge the lawfulness of their detention and under Article 5 § 2 (right to be informed promptly of the reasons for arrest) that the documents given to them on their arrival were in English, a language they did not understand, meaning that they were not provided with enough information to challenge their detention.
Country of Decision
Council of Europe
Court Name
CoE: European Court of Human Rights [ECtHR]
Case Number
Application nos 25794/13 and 28151/13
Date of Decision
22/11/2016
Country of Origin
Somalia
Keywords
Detention/ Alternatives to Detention
Minor / Best interests of the child
Return/Removal/Deportation