In an international symposium on migration, asylum and security, convened at The Victoria, Sliema, by Henry Frendo on December 9-10, 2005, speakers discussed and compared border challenges in an enlarged EU, including Poland, Hungary, Bulgaria, Italy (Lampedusa), Spain (Ceuta and Melilla), Cyprus and Malta. This is an adapted version of Professor Frendo's paper entitled "Changing Discourse and Increasing Tension: An Analytical Profile of Caseloads, Procedures and Problems in Malta".

Shortly before it joined the European Union in May 2004, Malta enacted a Refugee Act which came into effect in December 2001, when the newly-appointed Refugee Commissioner and chairman of the Refugee Appeals Board took their oaths of office.

Although Malta had been a signatory to the 1951 Geneva Convention on refugees, it was not until 2001 that it committed itself to the full implementation of the New York Protocol of 1967, waiving the earlier Europe-bound confines of responsibility and extending them worldwide.

Until 2001, Malta had used the United Nations High Commissioner for Refugees (UNHCR) - operating through the Emigrants Commission in Valletta as a partner - and had been, essentially, a transit station for asylum-seekers or refugees until permanent third country resettlement. Various groups of refugees were helped in this way - from Ugandan Asians after their expulsion by Idi Amin in 1972 to Iraqi Christians following the Gulf War in 1991, while one or two shiploads of Albanians were later fed, clothed and waved away.

The responsibilities assumed in 2001 respected Malta's sovereignty as well as, presumably, EU expectations. However, apart from being by far the smallest and the most densely populated EU country, it was also, as indeed it had been for centuries, a frontier island state between Europe and Africa.

Historically and culturally self-defined as a legendary onetime bulwark of European Christendom, it was inhabited by an insular ethnically mixed population which, nevertheless, had so far seen and felt itself to be more or less homogeneous in a Christian, Western, European and Mediterranean context.

Whereas until 2001, the number of asylum-seekers in Malta, particularly by boat, was negligible - fewer than 60 that year - it suddenly swarmed up to several hundred annually in what appears to be a steady, continuing flow. Malta was faced by this onrush at the same time that it felt itself compelled to comply with EU directives, regulations and indeed treaties, such as the outrageous Dublin Convention which penalises frontier states, and normative albeit non-mandatory state-of-the art recommendations by UNHCR.

The army started going out on search and rescue missions and trying to cope with makeshift reception or detention centres, while the police force seemed overwhelmed, even in taking action against illegal immigrants turned asylum-seekers who had been rejected at all levels of the adjudication process as manifestly unfounded, from Turks to Nigerians. The press and public trust

The public discourse began to change. A recent survey of newspaper reporting on this topic between 2002 and 2005 (in my journalism and migration class) found that whereas, in 2002, opinion, including any letters to the editor, had tended to be commiserating, even welcoming, on the basis of humanitarian concern and Christian charity, by 2005 not only had the amount of newspaper comment soared greatly, but the balance of opinion had changed and intensified in an opposite direction.

Another growing aspect of this discourse, most evident from content analyses of letters to the editor, has been increasing criticism by readers of what is perceived to be partial editorial or newspaper reporting by a small number of reporters or columnists, which ironically could be inflaming sections of public opinion further about the whole issue, an outcome surely contrary to that intended.

In this process, terms such as "racism" and now "patriotism" started being used loosely, not always caring to balance out freedom and security considerations. Costs, jobs and fears relating to lifestyle, even public health and safety, entered the informal debate, sometimes in a publicly subdued disposition which did not reflect the depth of in-group feeling (for example some disturbing accounts by teenage Maltese girls, including university students).

With a missionary zeal linked understandably and internationally to human rights considerations, on the sublime principle of neighbourly love, some members of Catholic religious orders - Jesuits, Franciscans, Dominicans - emerged as strident champions of the rights of asylum-seekers, the vast majority of whom were from sub-Saharan Africa.

To an apparently increasing number of others, this approach seemed naïve and self-deceptive, their slogan being that charity begins at home; the Maltese too had acquired rights, customs and laws, in their own country.

Another feature of the discourse became detention policy, and conditions in the reception or open centres, which were under considerable pressure, as were the armed forces and the police corps, partly deviated from their ordinary duties. Tensions, sometimes violent ones, have been simmering, often hidden from public knowledge, until an unfortunate flare-up such as that at Safi Barracks occurred, about which a judicial inquiry has finally reported.

There was a tendency to call every illegal or irregular immigrant a refugee, without really understanding who or what a bona fide refugee was under the Convention. There was also the assumption, still prevalent, that all these asylum-seekers were escaping to Europe from their own homelands because of persecution or misery, when in fact very few came to Malta directly from their country of origin, if one leaves out those who come by air from Istanbul, Cairo, etc., and stay on with expired visas.

In the meantime, thousands of dollars were being dished out to traffickers for potentially perilous journeys from shore to shore, if not also for securing organised north-bound land routes across the African continent.

Analysis of appellant statistics

In a general way, during the past five years, it can be seen that as many as 1,235 persons appealed against decisions by the Refugee Commissioner. The analytical statistical overview used here is based on appellate cases adjudicated between Feburary and November of 2005 (295 cases). Of these most hailed from Somalia (20%), the Democratic Republic of Congo (12%), the Ivory Coast (11%), Sudan (10%), Palestine (8%) and Turkey (7%).

Most of these arrivals, arriving mainly by sea, said they had departed from Libya (242 out of 295 cases, i.e. 81%). Another less important but still significant country of departure by sea has been Turkey (3%). As many as 12% had arrived by air, hence in their case almost invariably with passports and visas.

Nearly half of these arrivals had been staying in a third country, such as Libya, for over one year; 56% had been there for up to one year, 22% for up to two years, 10% for up to five years, and as many as 12% for more than five years, in some cases for very much longer (such as Palestinians living and working in Libya).

Of those who had been living and working in Libya for over five years, 49% claimed to be from Palestine, 13% from Iraq, 11% each from Somalia and Sudan, and 4% each from the Democratic Republic of Congo, Eritrea, Liberia and Nigeria.

Of the total of appellants during the period surveyed, 84% had entered Malta illegally, mainly by sea from Libya, while 16% had entered the country legally, almost invariably through Malta International Airport.

The majority of those entering Malta and then claiming asylum were under 30 years old - there was only one minor (under 16). A further 33% were aged up to 40, while 7% were over 40, and 4% were teenagers, up to 20 years old.

I have also tried to sort out their educational or professional backgrounds, which could be indicative of their prospects in various spheres (employment, integration, or otherwise, etc). The largest percentage (35%) never went to school and were illiterate.

Those who had an elementary schooling of some kind totalled 33%, whereas 22% had attended some level of secondary school. Those going to high school or college or university amounted in all to 10%. As rightly noted during our discussion by a UNHCR colleague, however, several, although illiterate, may possess skills, such as, primarily, in farming (herding, raising, etc). This is true, although Malta might not offer them much pasture.

In fact, from an analytical statistical breakdown it transpires that a relatively high percentage, 22%, claimed they had never had a job. Of the remainder, 27% had been exposed to some business or trade, 16% to agriculture, 15% to odd jobs, 9% to construction, 3% to catering and another 3% to factory work, while another 3% had some professional qualification. A handful were students; one said he was a footballer.

My final query concerned religion, which obviously can have various social and cultural implications. Of our caseload, the vast majority (67%) were Muslims; 13% were Catholics, 6% Protestants, 4% Orthodox, 3% Hindus, and other mainly Christian denominations and sects.

The bulk have been from the former Italian colonies in East Africa - Eritrea and Somalia - meaning in most cases to proceed to Italy. Others came from countries formerly occupied by other European powers such as France, Belgium and Britain. The statistical breakdowns show peculiar traits, for example, of those who have been staying longest in Libya, most claim to be of Palestinian origin.

Legal aid requests

In coping with this altogether unprecedented influx, the Office of the Refugee Commissioner and the Refugee Appeals Board, which I chaired since its inception, have worked hard with the minimum of resources to adjudicate applications.

As I noted during the national conference on immigration held at the InterContinental Hotel in February 2005, the Refugee Appeals Board had decided over 70% of cases it could adjudicate, in spite of not having a single full-time employee to assist it. Mainly as a result of the recruitment, after four years, of a full-time secretary to the board, the percentage of cases decided of those which the board could adjudicate currently stands at over 95%. This means that, in spite of misinformed allegations to the contrary, no backlog really exists so far as the board is concerned.

At the time of writing this (January 5) there are no more than 54 pending cases in all which may be adjudicated. Such cases before the board (since March assisted by a second chamber) are mostly very recent ones going back to a few weeks or months at most.

The stumbling block has always been legal aid provision, to which appellants are now entitled under Maltese law, free of charge, at the appeal stage; but this process has improved of late. It is therefore misguided to allege that the board as such has a backlog, or that additional measures should be taken or pretexts resorted to in order to reduce this.

Moreover, as asylum-seekers are being let out of detention and moved to open centres, mainly because of delays caused by the failure of the legal aid system or delaying stratagems by themselves or on their behalf by others, it frequently happens that the Refugee Appeals Board cannot communicate with its appellants because these have moved address or disappeared without informing the authorities.

Equally misguided is the idea that Malta has a problem with refugees. Not so - bona fide refugees, who are relatively few, can be assets to any society, and I personally would be sorry if these start being picked by other countries for resettlement overseas.

During 2005 immigrants whose claim for refugee status had been rejected but who, out of respect for current UNHCR recommendations, had been granted temporary humanitarian status in Malta, started appealing against these decisions. They apparently were being advised to request full refugee status as well, and moreover to request that the state provide them with free legal aid in their appeal submissions, as they were entitled to at law.

This means that appeals would not be decided until such legally assisted submissions could be made, while appellants would continue to benefit from their humanitarian status entitlements (open centres, work permits, etc). About 17% of appellants had already been granted such status by the Commissioner's office, while they were duly informed as to why they did not qualify for refugee status.

For the rest, however, the Office of the Refugee Commissioner and the Refugee Appeals Board have been at the forefront of dealing with applications and ensuring that these receive due process, even in the most manifestly unfounded cases or still worse. In January 2005, over 90% of those who applied were granted some form of protection by the Refugee Commissioner's Office while currently the average stands at some 65%, almost certainly the highest in the world. For instance, in Cyprus, where circumstances admittedly are different, the quoted rate has been 3%, including temporary humanitarian cases.

As our Cyprus colleague explained, there are political, circumstantial and geographical reasons why asylum-seeking there differs so much from that here, where there is no land frontier, much less an artificially divided one. During the migration, asylum and security conference our Refugee Commissioner showed that, so far as refugee status figures and percentages are concerned, Malta's compare more or less with those of European states.

The problem arises with temporary humanitarian status, given that many of those landing undocumented on Maltese shores claim the nationality of a country where, according to the UNHCR, there is instability and risk. Such countries include Somalia and, since 2004, Eritrea. Several hundred applicants from such countries have been and continue being granted temporary humanitarian status in Malta.

More recently, as I noted earlier, and however manifestly unfounded their cases may be on Convention grounds, a good percentage of them have even started to appeal against that recommendation, in the hope that they might benefit from refugee status and not simply a temporary humanitarian one in its absence.

In this process non-refugees benefiting from a renewable temporary humanitarian status also request the state's free legal aid to make their appeal submissions, as they are indeed entitled to do by the Refugee Act 2000. Such appeals are frequently facilitated by means of initialled fill-in-the-blank printouts made available to them, and submitted on their behalf, by the Jesuit Refugee Service.

In my assessment, Maltese adjudicating bodies at first and second instance, have acted competently and responsibly - and at the appellate stage always unanimously, I can say, after the necessary collegial deliberations had been exhausted; that in spite of institutional limitations, tokenism and sometimes unfair and uninformed criticism in the media or elsewhere.

A predominant factor in discourse about this topic has been what the EU should be doing to help out. Ministries have attempted various initiatives, although none so far have borne much fruit. A few countries have accepted to take some bona fide refugees, but these are not Malta's problem at all; on the contrary, these could be very welcome assets to it.

There is a European Refugee Fund, but this problem could only be made worse by simply throwing money at it to make residential conditions as spacious, as well-equipped and as attractive as possible, without devising long-term solutions. In small islands like Malta, integration has its limits. Joint repatriations could alleviate costs, but reducing the detention period could be problematic before legal aid provision is further improved and in any emergency, particularly as for the most part such persons are not even documented and sometimes unruly. Once again, clearly, resources and delivery deserve attention.

It is pathetic to continue talking about solidarity in the absence of burden-sharing, while at the same time it is wishful thinking to assume that self-inflicted problems in refugee-producing countries, which may be potentially wealthy, will go away without greater effort by all concerned, including the European Union.

Whether we like it or not, unless this problem is addressed effectively and realistically, humanely but pragmatically, there is every likelihood that it will lead to a potentially decisive political spill over at the national level, possibly with implications for social cohesion.

It is arguably the most difficult and delicate problem now facing Malta.