ASSISTANCE IN THE CASE OF TRANSIT FOR THE PURPOSE OF REMOVAL BY AIR [ S.L.460.14 SUBSIDIARY LEGISLATION 460.14 ASSISTANCE IN THE CASE OF TRANSIT FOR THE PURPOSE OF REMOVAL BY AIR ORDER 9th March, 2007 LEGAL NOTICE 40 of 2007. Part I Purpose, Definitions and Scope 1.
(1)The title of this Order is the Assistance in the Case of Transit for the Purpose of Removal by Air Order.
(2)Citation and purpose. The purpose of this Order is to: (
- a)define the measures of assistance to be granted by the Maltese authorities in airports in the case of transit with regard to unescorted and escorted removal of third country nationals by air as well as the rules applicable when the Maltese authorities can make such requests for assistance in transit to other Member States; and (
- b)transpose the provisions of Council Directive 2003/ 110/EC of 25 November, 2003 on assistance in cases of transit for the purposes of removal by air.
(3)This order shall without prejudice apply to the obligations arising from the Geneva Convention relating to the status of refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967, from international conventions on human rights and fundamental freedoms and from international conventions on the extradition of persons. 2. In this order, unless the context otherwise requires - Definitions. "Commission" means the European Commission; "escort" means all persons from the requesting Member State responsible for accompanying the third-country national, including persons responsible for medical care and interpreters; "principal immigration officer" means the person appointed to such office by the Prime Minister under article 3 of the Immigration Act, and includes, within the limits of any authority granted by the Principal Immigration Officer under article 3
(3)of the said Act, any public officer acting under such authority; "requested Member State" or "transit Member State" means the Member State via whose airport the transit is to be effected; "requesting Member State" means the Member State which enforces a removal order in respect of a third-country national and requests transit via the airport of another Member State; "third-country national" means a person who is not a citizen of a Cap. 217. 1 2 ASSISTANCE IN THE CASE OF TRANSIT FOR THE PURPOSE OF REMOVAL BY AIR [ S.L.460.14 Member State; "transit by air" means the passage of the third-country national and, if necessary, the escort through the area of the airport of the requested Member State for the purposes of removal by air. Part II Rules applicable when Malta receives a request for transit Receipt of a request for transit. 3.
(1)The Principal Immigration Officer shall be the authority responsible for the receipt of requests for assistance for the transit of third-country nationals in cases of removal by air from other Member States and shall decide the nature and extent of the assistance to be afforded in relation thereto.
(2)When the Principal Immigration Officer receives a request for assistance referred to in subarticle
(1), he shall inform the requesting Member State of his decision within forty-eight hours of receipt of the request: Provided that the Principal Immigration Officer may extend the said period of forty-eight hours by a maximum period of another forty-eight hours in duly justified cases.
(3)Subject to consultations with the requesting Member State and within the means available and in compliance with relevant international standards, the Principal Immigration Officer shall provide all the assistance measures necessary from landing until it is ensured that the third-country national has left Malta: Provided that emergency medical assistance for the third country national or his escort, where necessary, shall be provided without mutual consultations with the requesting Member State.
(4)In affording such assistance, the Principal Immigration Officer may request the assistance of other authorities in Malta, including the healthcare authorities where this is considered necessary. Refusal of the request for transit by air. 4.
(1)The Principal Immigration Officer may refuse a request for transit by air, received from another Member State, if: (
- a)the third-country national is charged with criminal offences in Malta or is wanted for the carrying out of a sentence in Malta; (
- b)transit through other Member States or admission by the country of destination is not feasible; (
- c)the third-country national will be a threat to public policy, public security, public health or to the international relations of Malta; or (
- d)the requested assistance is impossible at a particular moment for practical reasons: Provided that the Principal Immigration Officer shall, as quickly as possible, inform the requesting Member State of a date as close as possible to the originally requested date on which transit by air may be assisted, in so far as the other conditions are complied with. ASSISTANCE IN THE CASE OF TRANSIT FOR THE PURPOSE OF REMOVAL BY AIR [ S.L.460.14
(2)The Principal Immigration Officer may, even if a request for transit has already been authorized, revoke the request for assistance if circumstances within the meaning of subarticle
(1)subsequently come to light, justifying a refusal of the transit.
(3)The Principal Immigration Officer shall forthwith inform the requesting Member State of the refusal in terms of subarticle
(1)or revocation of the authorization in terms of subarticle
(2)or of any other reason why the transit is not possible and shall give reasons for such refusal or revocation. 5.
(1)When a transit through Malta for the purposes of removal by air from another Member State has been agreed to, the Principal Immigration Officer shall meet the third-country national at the aircraft and escort him within the transit area of the airport so as to ensure that he boards the connecting flight. Assistance to be granted by the Principal Immigration Officer.
(2)The Principal Immigration Officer shall be responsible for receiving, keeping and forwarding the necessary travel documents of the third-country national being removed particularly in the case of unescorted removals.
(3)The Principal Immigration Officer shall ensure that the necessary sustenance and, where necessary, emergency medical care, is provided to the third-country national and, if necessary, his escort.
(4)In the case of an unescorted transit, the Principal Immigration Officer shall inform the requesting Member State of the place and time of departure of the third-country national from Malta and inform the said State if any serious incidents took place during the transit of the third-country national.
(5)The Principal Immigration Officer may, in accordance with the provisions of the Immigration Act: (
- a)place and accommodate the third-country national in a secure facility; and (
- b)use legitimate means to prevent or end any attempt by the third-country national to resist the transit.
(6)Without prejudice to article 6, the Principal Immigration Officer may, in cases where the completion of the transit operations cannot be ensured despite the assistance provided by the requesting Member State, upon the request by and in consultation with the requesting Member Stat e, take all the necessar y assistance measures to continue the transit operation.
(7)When the requesting Member State is obliged to re-admit the third-country national due to the fact that the transit by air was refused or revoked by the Principal Immigration Officer, or that the third-country national entered Malta without authorization during the transit the removal of the third-country national to another transit country or to the country of destination, or that boarding of the connecting flight was unsuccessful or that the transit by air is not possible for another reason, the Principal Immigration Officer shall assist with the readmission of the third-country national to the requesting Member State and the latter shall bear the costs incurred Cap. 217. 3 4 [ S.L.460.14 ASSISTANCE IN THE CASE OF TRANSIT FOR THE PURPOSE OF REMOVAL BY AIR in returning the third-country national. Part III Rules applicable when Malta makes a request for transit Request for transit. 6.
(1)Prior to making a request for assistance for transit by air, the Principal Immigration Officer shall examine whether it is possible to use a direct flight to the country of destination and if this is not possible, he shall request transit by air via another Member State: Provided that, in principle, such a request shall not be made if the removal measure requires a change of airport on the territory of the requested Member State.
(2)The Principal Immigration Officer shall make the appropriate arrangements so as to ensure that the transit operation takes place in the shortest time possible and that it shall, in any case, not take longer than twenty-four hours: Provided that, in cases where the completion of transit operations cannot be ensured despite the assistance provided by the Principal Immigration Officer, which necessitates the consultation between the two sides to take all the necessary measures to continue the transit operations, the time limit may be extended to a maximum of forty-eight hours.
(3)A request for escorted or unescorted transit and any other assistance related thereto shall be made in writing by the Principal Immigration Officer, in accordance with the form as set out in the Schedule and shall ensure that the request reaches the requested Member State as early as possible and in no case later than two days before the transit: Provided that this time limit may be waived in particular in urgent and in duly justified cases.
(4)The Principal Immigration Officer shall not start the transit by air without the approval of the requested Member State: Provided that if the requested Member State does not reply within the stipulated period of forty-eight hours, the Principal Immigration Officer may commence the transit operations by means of a notification: Provided further that the Principal Immigration Officer may reach a bilateral or multilateral agreement or arrangement with one or more Member States, which shall be notified to the Commission, to the effect that the transit operations may be started by means of a notification by the requesting Member State only.
(5)Costs related to the provision of emergency medical care and the provision of sustenance to the third-country national and, where necessary to his escort, shall be borne by the Principal Immigration Officer as the authority responsible in the requesting Member State, upon receipt of appropriate information with regard to the criteria of quantification of the costs from the requested Member State. ASSISTANCE IN THE CASE OF TRANSIT FOR THE PURPOSE OF REMOVAL BY AIR [ S.L.460.14 7. The Principal Immigration Officer shall undertake to readmit the third-country national and shall bear the costs incurred in the return if: Obligation of Principal Immigration Officer to readmit. (a) the transit by air authorization was refused or revoked by the requested Member State; (b) the third-country national entered the requested Member State without authorization during the transit; (c) removal of the third-country national to another transit country or to the country of destination, or boarding of the connecting flight, was unsuccessful; or (d) transit by air is not possible for another reason. 8.
(1)When carrying out transit operations, the powers of the escorts shall be limited to self-defence and, in the absence of law enforcement officers from the transit Member State or for the purpose of supporting the law-enforcement officers, the escorts may use reasonable and proportionate action in response to an immediate and serious risk to prevent the third-country national from escaping, causing injury to himself or to a third party, or damage to property: Provided that, under all circumstances, escorts must comply with the legislation of the requested Member State.
(2)During transit by air, escorts shall not carry weapons, shall wear civilian clothes and shall provide means of appropriate identification including the transit authorization delivered by the requested Member State or, where applicable and at the request of the requested Member State, the notification by the Principal Immigration Officer as referred to in article 5
(4). 5 Powers of the escorts. ASSISTANCE IN THE CASE OF TRANSIT FOR THE PURPOSE OF REMOVAL BY AIR [ S.L.460.14 6 SCHEDULE [Article 6
(3)] Transit request for the purpose of removal by air (Requesting unit) Authority: Place / Date: Telephone/Fax/e-mail: Address: Number of officer: Signature: (Requested unit) Authority: Address: General information on third-country national whom the transit request concerns Request Surname no. First name m/f Date of Place of Nationality Birth Birth Travel document No/ Type/ Validity Number of visa delivered by a third country (if required) Arrival date Time 1 2 Flight details Flight no. 1 2 From Departure date Time To ASSISTANCE IN THE CASE OF TRANSIT FOR THE PURPOSE OF REMOVAL BY AIR [ S.L.460.14 7 Particular Information Is the third country national . accompanied by an escort? .............. Yes ............. No Is the presence of a police escort at . the airport recommended? .............. Yes ............. No Is medical care required? Names and functions: .......................................... .......................................... If so specify: ..................... .......................................... .............. Yes .............. No Contagious identifiable disease?(*) .............. Yes .............. No If so specify: ..................... .......................................... .......................................... Previous unsuccessful attempts at removal? .............. Yes ............. No If so state reasons: ............ .......................................... .......................................... *This information shall be provided in accordance with the applicable national or international law. Further comments NB: at the time the request was made, no grounds for refusal under article 4
(1)and
(2)were known Decision of the requested unit The transit is authorised The transit is not authorised Grounds: ............................................................................................................................ ............................................................................................................................ f/Principal Immigration Officer (Name / Signature / Date)