What price freedom?

Op-ed pieces like this one are written to air a point of view which, if well-argued and clearly written, may shed new light on an old debate and provide food for thought and deliberation.

Here is a point of view which is liable to send this newspaper's readers scurrying to write choleric letters to the editor: I am convinced that the detention of asylum seekers is unjustifiable and seriously harming Malta's human rights record.

I have spent most of the past two years trying to understand the arguments brought by this government to justify its policy of detention and none of them bear up in the face of scrutiny. Here are some old chestnuts.

1. Detention serves to deter other asylum seekers from trying to enter the country illegally.

To start with, detention as a deterrent is totally against the spirit of refugee law. We should not want to stop asylum seekers reaching this country safely. The country is under obligation to receive asylum seekers, listen to their stories and help with repatriation, resettlement or integration, depending upon which solution is the most appropriate. As an argument, what it actually says is that we want people to stay in their country and die rather than come to our country for sanctuary.

In the Maltese context, detention simply does not make sense. It is common knowledge that asylum seekers seek to reach the European mainland. It is never their intention to come to Malta. Moreover, there is evidence that the final destination is, in the majority of cases, not decided by the asylum seeker but by the smuggler s/he has paid to help him make the voyage.

What we are in effect doing is detaining asylum seekers to deter human smugglers and traffickers. How is punishing asylum seekers for the actions of others not in breach of human rights? And how does punishing asylum seekers work to deter human smugglers/traffickers?

Before I go on to tackle other claims used to justify detention, I feel I should open a bracket to clarify some basic distinctions in any discussion of asylum seekers and refugees.

A refugee does not become a refugee at the point he is recognised as one. In other words, the Refugee Commissioner does not create refugees but simply determines that a claim for asylum is well-founded. This means that asylum seekers who are eventually recognised as refugees are already refugees at the time they are held in detention. At the same time, asylum seekers' human right to freedom from arbitrary detention is also being breached, irrespective of whether their application is eventually accepted or rejected.

Asylum seekers whose application for recognition is eventually rejected are not frauds, as some would like to think, but simply people whose claim does not fall within the very narrow definition laid down in the Geneva Convention. So much so, that in some instances it has been felt necessary to extend humanitarian protection to asylum seekers who are not strictly refugees in terms of the convention but whose life could be in danger if they were to return to their country. Asylum applications can be rejected for many reasons, not least lack of evidence, and not simply because a person is not a "genuine" asylum seeker.

2. Asylum seekers are held in detention because they enter the country without leave, illegally, in breach of the country's laws.

Again, this is totally against the spirit of refugee law. Article 31 of the 1951 Geneva Convention exempts refugees coming from a country of persecution from being punished on account of their illegal entry or presence. It should be a matter of weeks, if not days, to establish an asylum seeker's prima facie case for refugee status.

3. Detention serves to weed out the "bad" asylum seekers.

This is the first of a series of claims which can immediately be contested by bearing in mind that the current government policy has laid down that asylum seekers cannot be kept in detention for longer than 12 months while rejected asylum seekers can be detained only for a maximum 18 months. This means that the government has been persuaded that the period of detention cannot be indefinite and has to be capped.

Thus, one has to examine whether the detention period can usefully be used to change the situation at the outset. If one were to give credence to the fear that some terrorists may enter the country masquerading as asylum seekers, one would have to make the corresponding argument that terrorists may very well enter the country as tourists, something which is infinitely more likely because why would a terrorist want to invite scrutiny by coming into the country illegally?

More importantly to counteract this claim, how would 12 months in detention stop a terrorist from carrying out his intentions once he or she is released?

Also, there is little evidence to show that asylum seekers are more likely to be criminals, drug abusers, murderers or serial rapists than any other group. On the contrary, putting asylum seekers in detention leads to them being regarded as criminals (only people who do something wrong are locked up in a democratic country) and this, in turn, leads to a higher level of intolerance in their regard, with all the attendant problems of a country beset by tension and fear.

4. Detention serves to protect the labour market, to protect our culture, our traditions, our religion, our identity etc.

The very fact that such a high percentage of asylum seekers are released into the community once they are recognised as refugees or in need of humanitarian protection belies all these arguments. Asylum seekers who are not in receipt of a decision on their case within 12 months are also released. Detention is simply a delaying tactic at the expense of asylum seekers' right to freedom from arbitrary detention. Freedom from arbitrary arrest and detention is an "absolute" right. This means that any limitations on one's freedom can only be imposed in exceptional circumstances, as opposed to other rights which are considered "in balance", for, say, freedom of expression as against libel.

5. The Maltese people are not used to mixing with people of other ethnicities because Malta is a culturally homogeneous society. For this reason, asylum seekers have to be released into the community slowly.

I am afraid to say that a shiver ran down my spine when I heard this one. This is a racist fallacy masquerading as a reasonable, pragmatic solution. It is a fallacy because it is based on myth; there is no such thing as a homogeneous society and it is racist because it panders to the worst form of discrimination: the denial of the rights of a group of people for the sake of another, more powerful, group. The limitation of a person's freedom has to be necessary and justifiable; one cannot detain people on grounds that, if freed, there might be havoc on the streets. It is the government's responsibility to ensure that adequate structures are in place to help the integration of asylum seekers into the community. The implication, incidentally, is not that the asylum seekers will create the havoc because it is expedient to visualise the group as suspect. It is not unreasonable to fear trouble particularly in the context of an environment of intolerance.

6. Detention is important because otherwise asylum seekers will disappear and the state will not be able to track them down for repatriation.

The solutions to this are varied. They could be bail, reporting obligations or residency requirements. Detention is a last resort and only if other alternatives fail to work.

I am aware that there are other arguments which can be made and have been made to justify the policy of detention. No doubt some readers will write in to remind me of the ones that I have left out. I will be happy to reply to counter any argument any reader wishes to throw at me in a future opinion piece.

Ms Spiteri is a journalist and a researcher in media and identity based at the University of Sussex.

S.Spiteri@sussex.ac.uk