Justice on trial

In October 2024, the European Court of Human Rights (ECHR) found, in J.B. and Others v. Malta, that Malta’s Immigration Appeals Board is not independent and impartial and, therefore, cannot be deemed to provide an effective remedy. 

A year on from this decision and we have still not seen any changes that address this serious violation. Any government response will send a clear signal of its commitment – or lack thereof – to the fundamental principles of the rule of law that bind all European democracies.

Imagine arriving in Malta after a harrowing journey at sea, seeking safety, only to be placed behind locked doors. You are held with adults, even if you are a minor. The rooms are crowded, with insufficient toilets and showers in a bad state of repair.

You have to wash your single set of clothes in the same bucket used to clean the floor. There is no heating to guard against the winter cold, no access to outdoors, no reliable way to contact the outside world – not even a lawyer – and no effective way to challenge the decision to keep you locked up.

This is not a hypothetical scenario: it is the reality described in cases like J.B. and Others v. Malta and A.D. v. Malta, brought by lawyers working with Aditus Foundation before the ECHR.

The landmark J.B. judgment goes beyond the individual complaints to dissect the very structure of the legal mechanism meant to protect the fundamental right to liberty. It confirms what Aditus has long argued: the system designed to offer a check on the state’s power to detain is in itself critically flawed.

Why the Immigration Appeals Board is not a real court

One of the central questions before the Strasbourg court was whether asylum seekers, immediately detained on arrival, have access to a genuine court to challenge the lawfulness of their detention.

The court’s answer was a resounding no.

It found that the Immigration Appeals Board (IAB) – the specialised tribunal responsible for reviewing detention orders – fails to meet the fundamental standards of independence and impartiality required by the ECHR.

The court’s reasoning was based on a structural failure at the heart of the IAB, which is rooted in its relationship with the government. The judgment highlighted several critical flaws, among which that the executive, through the minister responsible for home affairs, has wide discretion in the choice of all three members of the board. Furthermore, there was a lack of a proper appointment procedure for the members and an absence of proper selection criteria based on merit.

In essence, the IAB failed to reach the standards required to be a ‘court’ under the Convention that obliges states to ensure the right for any person deprived of liberty to challenge the lawfulness of their detention in front of an independent court.

This finding was compounded by the fact that the decisions taken by the IAB are not appealable and are not subject to any further scrutiny by a higher court.

A pattern of neglect: justice delayed, denied and ignored

Besides the vitiated appointment process, the court highlighted the IAB’s procedural flaws, which render the review process meaningless by denying detainees the most basic tools for an appeal. The court noted how lawyers’ requests to postpone hearings were refused, even when the reason for the request was that they were systematically denied access to crucial documents and to their clients.

A damning indictment of the system for reviewing immigration detention in Malta

The lack of substance in the IAB’s decisions was also of particular concern to the Strasbourg judges. The court found it deeply problematic that the IAB accepted the word of detention officers, who claimed applicants wished to withdraw their appeals, without ever consulting or informing their lawyers.

They make reference to A.D. v. Malta, decided in 2023, where the IAB rejected a vulnerable minor’s detailed 10-page appeal in just two sentences with no reasons given.

Warnings ignored for years

The Strasbourg court’s damning conclusions are not new; they are confirmation of what NGOs and European bodies have been highlighting for years. The court noted that both the European Commission and the Venice Commission had raised serious concerns about the functioning of local tribunals.

The European Commission’s annual Rule of Law Cycle reports on Malta have repeatedly highlighted that specialised tribunals do not enjoy the same level of independence as that of the ordinary judiciary.

The Venice Commission has similarly found issue with the lack of independence due to the appointment procedures involving the Maltese executive power. 

In response to the European Commission’s reports, Malta had made commitments under its Recovery and Resilience Plan to review the independence of these tribunals. However, the complete lack of progress on adhering to these commitments expose a concerning disregard for urgency.

From a policy goal to an immediate legal obligation

Reform is even more pressing, as the ECHR went beyond finding a violation and explicitly called on Malta to take “general measures” to reform the IAB. It directed the government to ensure that the board’s members are appointed independently, that their term of office is secure and that they are free from outside pressure.

The ECHR has made it clear that the current system violated the European Convention on Human Rights then and continues to do so now.

It is a definitive and damning indictment of the system for reviewing immigration detention in Malta.

Carla Camilleri is deputy director of Aditus Foundation. Aditus Foundation’s work in detention is carried out thanks to the gene­rous support from PRO ASYL.