Deportation at what price!

In two weeks Malta made the news twice, on two different allegations of human rights violations. For the first time since 1988, Malta has figured among the list of countries accused of human rights violations in Amnesty International's annual report.

The first instance was a report on the fate of 220 Eritreans deported to Eritrea in September and October of 2002.

The second report deals with the excessively lengthy and essentially indefinite detention of asylum seekers and the conditions in which detainees are held, which fall well below established international standards.

While it is hoped that the institution of an inquiry headed by a magistrate will lead to more clarity regarding this case, there are a few points that definitely require elucidation. It is important to note that, despite the fact that all the deportees had either refused to apply for asylum or else had had their application for refugee status rejected, there are other elements that must be taken into consideration before leaping to the conclusion that these immigrants were not in need of international protection.

It is difficult, not to say impossible, for us to comprehend such a seemingly irrational decision, made more so by the fact that these immigrants consistently stated that they would face unimaginable harm if they were to be returned home. Yet, it is important to acknowledge that the conditions in which these people were detained, isolated from the outside world, deprived of clear information and subject to the pressure and intimidation of their peers, hardly allowed for free or informed consent.

Beyond this issue, however, there is another, perhaps more important one to be borne in mind. Do our obligations towards persons refused refugee status end once it has been established they are not refugees?

The Refugees Act is not the only law providing protection to forced migrants. Whether or not these people applied or qualified for refugee status, the government is bound to ensure that no one within its effective jurisdiction is subjected to torture or cruel, inhuman and degrading treatment or punishment, as a direct result of its actions, which include deportation. This in terms of the European Convention on Human Rights, which is part of our Constitution, and the Convention against Torture, to which Malta is also a party.

To claim that immigrants can apply to the court to seek protection under these instruments is little more than a smokescreen, as it is practically impossible for detained migrants to obtain the assistance of a lawyer or to raise the funds necessary to start court proceedings. This is clearly evidenced by the fact that although asylum seekers have a legal right on paper to legal aid at appeal stage of the proceedings for the determination of their application for protection, it is practically impossible for detained asylum seekers to obtain the assistance of a legal aid lawyer.

The statement made by Home Affairs Minister Tonio Borg (The Sunday Times, May 23) has a hollow ring. "The Maltese government was never in possession of any information whatsoever that the Eritreans repatriated were in any danger". If the authorities were unaware of the possible risks, as they claim, in the light of these reports we cannot but ask: Should they have known?

Admittedly, such protestations of ignorance seem strange, particularly in the light of reports on the situation on the ground in Eritrea published at the time, which were far from reassuring. On September 18, 2002, Amnesty International, the human rights watchdog of international repute, published a 31-page report on Eritrea entitled Eritrea: Arbitrary Detention of Government Critics and Journalists. This report contains detailed accounts of the harassment and ill-treatment of many groups and individuals in Eritrea, including deserters and draft evaders. It also contains warnings to governments not to collaborate with the Eritrean government.

In cases of deportation of immigrants, the onus of ensuring that each deportation is in line with our international human rights obligations lies squarely on the shoulders of the deporting authorities, that is, the government. The Refugee Commissioner has no authority to take decisions about the fate of people refused protection or of people who did not apply, as was implied in the statement made by the minister as reported in The Sunday Times. He is only responsible for the determination of applications for refugee status, a task he carries out with remarkable efficiency, diligence and integrity. It is up to the state to ensure that no one is sent back to face human rights violations.

The second report, which is part of the annual report, reiterates what Council of Europe Human Rights Commissioner Alvaro Gil Robles and several local NGOs said on previous occasions regarding Malta's policy of indefinite detention of immigrants and asylum seekers in conditions that can only be described as totally inadequate.

The sad thing is that, in spite of these negative reports, there have been few, if any, significant changes either in government policy or in the physical conditions of detention.

All immigrants caught entering Malta in an irregular manner, including women and children, are still detained, regardless of whether detention is indeed necessary. There are still no written regulations as to the administration of the detention centres, no special training for those responsible for the daily care of detainees, no social workers working with asylum seekers in detention or in the community, no availability of legal aid, nobody solely responsible for the centres of detention. Another major influx would see us setting up tents all over again.

The only improvement in conditions is incidental. Following the release of a substantial number of immigrants who had been detained for longer than 18 months, there is far less overcrowding in the detention centres. This release, though welcome, is totally discretionary and does not reflect a change in government policy on detention. Perhaps equally worrying is the fact that those released have no official status at all. This implies that they have no rights to work or other rights to enable them to live with dignity.

It seems that the country is moving away from being a country that applies the democratic principle of the rule of law!

Fr Grech Marguerat is director of the Jesuit Refugee Service, Malta.