Legislation essential, ECHR reports

Irregular immigration remains one of this country's serious problems. Despite talks, within the EU to alleviate the pressure on Malta, due to its small size and the inordinate influx of migrants, nothing seems to be materialising.

We cannot leave these people to drown. Yet, once we have saved them, we don't know what to do with them except imprison them and condemn them to a long stretch of harsh living.

This when the only 'crime' they have committed is to fight for survival and a better life - something all human beings aspire to.

A certain (not substantial) amount of funds has been allocated to Malta and other countries towards ameliorating the situation. Malta's allocation for 2005 under the European Refugee Fund totals €34,824. I tried to find out where the money would go, but did not get a specific response.

"Following a call for the submission of project proposals, and the subsequent selection of eligible projects, the Ministry of Justice and Home Affairs forwarded the work programme for 2005 to the Commission and is awaiting clearance to enable initiation of the projects."

However, the EU Affairs Directorate at the ministry, who gave me the information, also supplied me with the following relevant data.

During 2005 the ministry implemented an EU Twinning Light Project, "Modular Training Programme for the enhancement of the Asylum System in Malta", funded under the 2004 Transition Facility Programme in partnership with the Greek Centre of International and European Economic Law (CIEEL). The project had a total budget of €95,000.

In collaboration with the UK Presidency and the European Commission, the ministry organised an EU-Libya dialogue seminar, held in Malta in July 2005, on the proposed action plan for saving life at sea and in the desert. The project was co-funded under the ARGO 2005 mini-work programme, which financed a total of €32,304.

In partnership with The Netherlands, a request for €119,700 was forwarded under the ARGO 2005 programme for the implementation of the project "Intra-European burden sharing in the field of asylum", this project is currently under evaluation from the European Commission. These funds will cover the resettlement expenses for the 36 refugees from Malta to the Netherlands, as well as training provided by the Dutch government to Maltese officers in reception and general asylum matters.

Under the Return Preparatory Actions programme, Malta submitted a request for the co-financing of a project, "Return of Northern African Illegal Immigrants", for a total of €86,437.

Yet, despite these efforts, the problem of what to do with the large number of irregular immigrants once they land in Malta seems to be unresolved.

There is a bilateral agreement with Holland, but other than that nothing has been formalised, although discussions are taking place.

Considering the widespread international inability to reach a solution on how best to deal with the problem, it is not surprising that the Maltese authorities are having a hard time coping.

The government is under pressure from two opposing factions, internally. On the one hand there are people, some motivated by racism and xenophobia, who want the government to be even more draconian, and on the other there are the humanitarian NGOs who, quite rightly, exert pressure to better the plight of the migrants.

To the government's credit, it has not given in to pressure to be tougher, but it cannot ignore the substantial number of people who are concerned about how our small community can absorb more people.

But neither is the government satisfying the calls from the human rights lobby. To give just one example, the call to end the use of handcuffs has been rejected on grounds of security.

Then besides the local pressure, the authorities are also pressured by Europe. Following the visit to Malta, in 2003, by Mr Alvaro Gil-Robles, the then Commissioner for Human Rights, within the Council of Europe, a follow-up report covering 2003-2005 was released on Tuesday. The report acknowledges some progress, while pointing out that the authorities have not taken up some of the recommendations in the original report.

The report deals with asylum-seekers and irregular migrants in detention centres; open centres for refugees and regular or irregular aliens; asylum procedure; access to education for irregular foreign children; functioning of the justice system; detention conditions of some prisoners, and the undertakings on protection of human rights.

I am not here covering all the items in the report, but I hope to convey the general gist. In the original report the Commissioner had stated his disagreement with the practice of unlimited detention of all irregular immigrants - including families with children - whether or not they were asylum-seekers.

He recommended the enactment of legislation providing that detention of asylum-seekers be authorised only in exceptional circumstances and preventing the unlimited detention of irregular migrants. Immediately after the Commissioner's visit the authorities released a number of migrants, particularly those with families, who had been detained for a long time.

Since then an unwritten, administrative practice has been adopted, whereby all foreign migrants who have been detained for longer than 18 months are released, whether they are asylum-seekers or irregular migrants.

The practice became official when the Ministry of Justice and Home Affairs and the Ministry of the Family and Social Solidarity adopted a policy document on irregular immigrants, refugees and integration, in 2004.

The document states (section 5) that irregular immigrants are to remain at closed reception centres, until their identity is established and their asylum request processed. However, no immigrant is to remain in detention longer than 18 months. The commission's follow-up visit revealed that the authorities now release asylum-seekers after a year in detention to bring Malta in line with the EU Council directive on minimum standards for the reception of asylum-seekers. The directive required that "on certain conditions, member states grant asylum-seekers access to their labour markets after a year's proceedings".

However, these are just administrative practices and are not bound by legislation and "therefore cannot be relied upon before a court". The releases therefore are more of an administrative concession then a "set standard".

Releases are not automatic and it is up to the Commissioner of Police, who is the chief immigration officer, to decide whether an individual foreigner is released or not.

The report states that there have been "occasional" allegations where releases were made after the time limit. However, according to the Home Affairs Ministry, the time limit cannot be clear-cut because there are so many new directives that amendments have to be constantly made.

As to vulnerable groups, although the authorities have introduced a "speeded-up" release procedure for "vulnerable" persons, and there is a procedure whereby once the persons are registered and cleared of any contagious disease they are released, the waiting time remains haphazard, says the report.

This is because no legal instrument exists, which lays down the responsibilities of individual administrative authorities and sets time limits for drawing up the necessary documents.

The report also points out that because there is no "clear definition of vulnerable categories", older people and people with disabilities, who should in theory qualify to the speeded up process, leaves them open to "discretionary practices and differences of treatment".

The Commission concludes that, regarding the above, although the authorities have made progress in that detention is no longer unlimited; the current periods of maximum detention "still appear excessive and inappropriate".

The Council of Europe's Committee of Ministers' Recommendation (2003) states clearly that detention measures "should be specific, temporary and non-arbitrary and should be applied for the shortest time possible".

The report points out "once again" that asylum-seekers and irregular migrants have not committed any offence or been tried by any court, "yet their systematic arrest and detention for as long as 18 months resembles a prison sentence in all but name".

The main obstacle to improving the situation seems to be lack of appropriate legislation. Article 5 (4) of the European Convention on Human Rights requires national legal systems to provide irregular migrants with the possibility of challenging the lawfulness of detention before a court. At the moment legal aid is available only to appeal once a decision has been taken.

Legislation would cut down on haphazard, arbitrary decisions, would give clear indication on where responsibility lies and establish time frames, which will have to be adhered to.

Current administrative practices are reactive rather than pro-active. Legislation would improve that situation. The commissioner "regrets that, contrary to his recommendation, no legislation on the subject has been passed. The new measures in place are the result of administrative practice, albeit confirmed to varying extent by government documents.

"It is clear that such practices are often introduced after the event, in an attempt to remedy some occurrence. A more pro-active policy on the question, particularly enshrined in a piece of legislation, might greatly contribute to clarify the situation."

The lack of proper medical care is also highlighted in the report, stating that the least that is expected is the same medical standard maintained at Corradino Prison.

However, following a recent demonstration by the migrants, Tonio Borg, the minister responsible, told reporters that a medical team is to be assigned as soon as possible. This further highlights the point that practices are reactive to events. It is not all bad news, though; the commissioner does congratulate the authorities on their efforts to accommodate migrants at open centres. He asks that more open centres, modelled on the Marsa one, be opened, and to provide decent conditions and sufficient places for the foreign detainees released from the closed centres.

He also "invites" the authorities to develop private accommodation for those persons in order to further their integration into Maltese society.

A spokesperson at the Ministry for the Family and Social Solidarity informs me that rather than develop more open centres, the emphasis being made is on encouraging the people in the open centres, especially those in work, to move out into private accommodation.

The full report can be accessed on the Council of Europe Website, www.echr.coe.int/echr

phansen@timesofmalta.com