Judicial protection in immigration detention : challenges and solutions in the Mediterranean region of the European Union

Abstract

The European Court of Human Rights' judgement in J.B. v. Malta (no. 1766/23, 22 October 2024) highlights significant shortcomings in the review of immigration detention under Article 5 § 4 of the European Convention on Human Rights. The case exposed the systemic deficiencies of Malta’s Immigration Appeals Board, including its lack of independence, procedural inefficiencies, and limited scope of review. These failings are emblematic of broader rule of law deficiencies, illustrating how systemic issues in governance and judicial structures deeply undermine the effectiveness of immigration detention oversight mechanisms. This issue is particularly pressing in the context of the growing normalisation of immigration detention, which is likely to be exacerbated by the EU Pact on Migration. This trend highlights the urgent need for robust oversight mechanisms, particularly in Mediterranean States located at the external borders of the EU, which are likely to increase their use of detention. Building on the analysis from the J.B. judgment, this Article seeks to assess the effectiveness of judicial protection mechanisms across Mediterranean states under both the ECHR and relevant EU law. By analysing structures, practices, and relevant jurisprudence, the Article seeks to identify models that best ensure the independence and efficiency necessary for meaningful and timely reviews of immigration detention, from the perspective of the entry into force of the EU Pact on Migration.