Asylum seeker's detention ruled illegal

Asylum seeker Karim Barboush yesterday packed his belongings at the Hal Far detention centre and moved into the neighbouring open centre after a magistrate ruled that his detention was illegal and ordered his release.

Magistrate Anthony Vella ruled that although it was understandable that an illegal immigrant would be detained on arrival at Malta, the detention of Barboush, an asylum seeker, for 14 months went beyond the limits of what was considered reasonable, let alone legal.

The magistrate had ruled for the release of Barboush on October 25 but following an appeal filed by the Attorney General, the Criminal Court revoked the ruling on procedural grounds and ordered that the case be heard again.

Consequently, Magistrate Vella moved on to hear both parties involved in the application which Barboush filed against the Police Commissioner, claiming illegal arrest.

In the application Barboush, 43, explained he was born in Iraq and left his homeland with his uncle when he was 13 years old. After several years in Libya he decided to leave for Europe but, on May 5, 2003, ended up in Malta where he was arrested.

He was initially held at the police headquarters but was then moved to the detention centre where he has since remained, 14 months on.

Barboush applied for refugee status but his application was turned down on the grounds that he had not provided sufficient evidence regarding his identity. In a letter dated March 15 he filed an appeal but has not received a reply.

On handing down judgment, Magistrate Vella first established that the status of Barboush, as defined by law, was not of "illegal immigrant" but "asylum seeker" since he had applied for refugee status.

The Police Commissioner had argued that there was a difference between asylum seekers who entered Malta legally and those who entered illegally in terms of the legality of their arrest.

However, the magistrate noted that the Refugees' Act laid down that "a person who at any time is in Malta (whether lawfully or unlawfully) and is seeking the status of a refugee in Malta may apply in the prescribed form to the Commissioner for a declaration..." Therefore, as the part in parentheses highlighted, the law did not make a distinction between those who entered the island legally or illegally.

Moreover, the Act states that an applicant need not necessarily be detained.

The next point to be determined, the magistrate explained, was whether or not Barboush's 14-month detention was illegal.

"How could one accept that a person, with fundamental human rights like anybody else, is held in detention for 14 months when there is no disposition in the law that requests the arrest?

"How could one accept that the Board of Appeal, that determines refugee status, was not composed for months so that applicants were left waiting in detention for nothing," the magistrate asked.

Magistrate Vella added that the Act stated that applications for refugee status were to be dealt with as quickly as possible and within a relatively reasonable time.

"The court feels that 14 months was not a short or reasonable time in the circumstances. The court understands and appreciates the efforts and limited resources with which the authorities work and is in no way condemning anyone's actions but the fact is that situations where a person is denied his freedom arbitrarily and unreasonably cannot be accepted," he ruled.

Police Superintendent Peter Paul Zammit, Inspector Sandro Zarb and Dr Mark Said, from the office of the Attorney General, prosecuted.

Dr Andrew Galea Debono, Dr Cedric Mifsud, Dr Michael Camilleri and Dr Katrine Camilleri represented Barboush.