S.L. 217.12 Art. 11Non-application of Part IV of these regulations.

(1) The provisions of Part IV, except for the provisions of regulation 5(b) and (d) and of subregulation (8), shall not apply to third-country nationals who are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by sea or air of the external border of Malta and who have not subsequently obtained an authorisation or a right to stay in Malta.

(2) A return decision, an entry-ban decision and a removal order shall be issued in writing and shall contain reasons in fact and in law and information on legal remedies:

Provided that the reasons in fact may be given in a restrictive way where the withholding of information is regulated by law, in particular where the disclosure of information endangers national security, public policy, and the prevention, detection, investigation and prosecution of criminal offences.

(3) The Board shall review decisions related to return on application by the third-country national as referred to in subregulation (2), and may temporarily suspend their enforcement.

(4) For the purposes of sub-regulation (3) a legal adviser shall be allowed to assist the third-country national and free legal aid shall be provided to the third-country national, upon request, in accordance with national legislation. Where necessary, free linguistic assistance shall be provided: Provided that free legal assistance shall only be provided where the review is likely to succeed.

(5) The Principal Immigration Officer shall, except in the case of detention as provided in regulations 9 and 10, ensure that the following principles are taken into account as far as possible in relation to third country nationals during the period granted for voluntary departure in accordance with regulation 4 or the period THIRD-COUNTRY NATIONALS [

during which removal is postponed in accordance with regulation 6:

(a) ensure as far as possible, that the third-country national remains in contact with members of his family if they are in Malta at the time;

(b) ensure that as far as possible the third-country national is provided with emergency health care and essential treatment of illness;

(c) ensure that as far as possible a minor has access to state education in Malta depending on the length of his stay; and

(d) take account as far as possible of the special need of vulnerable persons, and, where applicable, shall provide these third country nationals with a written confirmation that the period for voluntary departure has been extended in accordance with the proviso to regulation 4(2) or that the return decision will temporarily not be enforced.

(6) Where a third-country national is the subject of return procedures, unless other sufficient and less coercive measures are applicable, the Principal Immigration Officer may only keep him in detention in order to carry out the return and removal procedure, in particular where:

(a) there is a risk of absconding; or

(b) the third-country national avoids or hinders the return or removal procedure:

Provided that the detention shall be for a short period and shall subsist as long as the removal procedure is in progress and is executed with due diligence: Provided further that, save as provided in article 25A(6) of the Act, in the event of an appeal the third country national in question shall be detained for the duration of the appeal proceedings.

(7) Without prejudice to the provisions of sub-regulation (8), detention shall be a consequence of the removal order issued by the Principal Immigration Officer and the removal order shall contain reasons in fact and in law.

(8) Without prejudice to the provisions of article 25A of the Act, the third-country national subject to the provisions of sub-regulation

(6) shall have his detention reviewed either on application or ex officio by the Principal Immigration Officer at reasonable intervals of time which, in any case, shall not exceed three months. In the case of detention periods of six months or more, the Principal Immigration Officer shall carry out such review and notify the Board which shall supervise and, where necessary, revise such review.

(9) Where the third-country national is entitled to institute proceedings as provided in sub-regulation (8) he shall immediately be informed about such proceedings.

(10) The third country-national shall be immediately released from detention where in the opinion of the Board such detention is THIRD-COUNTRY NATIONALS

not lawful.

(11) The third-country national concerned shall be released immediately if:

(a) removal cannot take place due to legal or other considerations; or

(b) the conditions referred to in sub-regulation (6) no longer subsist.

(12) Detention shall be maintained until the conditions laid down in sub-regulation (6) are fulfilled and it is necessary for removal to be carried out: Provided, however, the period of detention may not exceed six months.

(13) The period of six months referred to in the preceding proviso may be extendable by a further twelve months where:

(a) there is lack of cooperation by the third-country national; or

(b) there are delays in obtaining the necessary documents form the third country in question.

(14) Where it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in sub-regulation (6) no longer exist, detention ceases to be justified and the person concerned shall be released immediately.

(15) Where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the Maltese detention facilities or on its administrative staff or on the Immigration Appeals Board, periods for judicial review longer than those provided for on application by the third-country national concerned may be allowed for as long as the exceptional situation persists.

(16) For the purposes of sub-regulation (6) if the detention period is extended, reviews longer than those provided for under the provisions of sub-regulation (8) shall be subject to the decision of the Principal Immigration Officer and the Immigration Appeals Board, and the provisions of regulations 9(1) and 10(2) shall apply.