Stopped at the border

Anna Mallia writes:
I am writing to share with you the ordeal I had to go through with the Italian immigration authorities when I landed in Rome on May 11.

I was on an Air Malta flight. All the Maltese travelling on that flight were asked 101 questions by the Italian immigration authorities.

When my turn came I refused to answer questions like: What is the purpose of your stay?, Where are you staying?, When were you last in Italy?, Where did you stay?

I was handed over to the chief immigration officer who informed me that although he was not obliged to give me an explanation he told me that as Italy was receiving plenty of Eastern Europeans with a Maltese passport they have to exercise such border control. He then let me go.

I am sure this is not in accordance with the freedom of movement principle and will be obliged if you take the matter further.

I was travelling with two American friends who, needless to say, went through the non-EU channel without the ordeal that Maltese EU citizens had to go through.

When going through an airport there are three types of controls that one normally faces. There is the security check, the Customs and the immigration controls.

As EU citizens, Maltese nationals are entitled to freedom of movement within the EU. This entitles us to different treatment with respect to two of these three checks.

The security check remains, regardless of whether you are travelling in or out of the EU or whether you are an EU or non-EU citizen.

The Customs check between Malta and other EU countries was removed in May 2004. This means that, when travelling within the EU, you are not subjected to Customs checks, except in cases of reasonable suspicion. This is why you proceed through the blue Customs channel. Customs officers verify that you are arriving from an EU country by looking at your luggage tag which is lined in green.

The immigration control is the check on your identity as a person as against the goods that you carry. This is where your travelling document is required.

Upon joining the EU, immigration controls between Malta and other EU countries were eased but not removed. As EU citizens, we can now travel to other EU countries using a passport or ID card.

But immigration controls will only be completely removed when Malta becomes part of the so-called Schengen area (often explained in this column). Once we join the Schengen system - hopefully, some time at the end of next year - all immigration border posts will disappear altogether for persons travelling from Malta to other EU countries and vice-versa.

Until we do so, Maltese nationals travelling from Malta to other EU countries are still subject to some controls that, however, entail less formalities than those for non-EU citizens. This is why immigration control posts at airports make a difference between "EU" and "non-EU" citizens.

EU nationals going through the "EU citizens" channel are required to present their passport or ID card and this is checked for identification purposes. Passports are not stamped as is the case for non-EU nationals.

Having cleared the difference between the different types of controls, let me now come to the specific incident raised by the reader on immigration controls.

Subjecting EU nationals to questioning as described by Dr Mallia goes, to my mind, beyond what is reasonably required and proportional.

But it must be said that there is a degree of discretion on the part of immigration officers, particularly in cases of reasonable suspicion. The question is when and to what extent can this discretion be exercised.

Member states may indeed restrict the freedom of movement of EU nationals at entry point. This is clearly stipulated in EU law. But this can only be done on grounds of public policy, public security or public health.

EU law goes on to state that measures taken on grounds of public policy or public security must comply with the principle of proportionality and must be exclusively based on the personal conduct of the individual concerned. The personal conduct of the individual must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

Significantly, the law also adds that justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

Now it stands to reason that Dr Mallia's personal conduct could hardly have represented a sufficiently serious threat to refuse her entry. Indeed, despite the ordeal, she was allowed entry.

But the fact that all Maltese passport holders were subjected to this kind of questioning is worrying. And I contend that this goes beyond what can be reasonably justifiable on grounds of public policy or public security. As I said, considerations of general prevention are not acceptable at law.

The explanation given by the Italian immigration officials that "Italy was receiving plenty of East Europeans with a Maltese passport" clearly merits investigation. But this should not be done by systematically quizzing all bona fide Maltese passport holders. If anything, it should be done through cooperation with the Maltese authorities and be limited to spot checks at the airport.

From time to time, different measures are adopted at EU level to increase the security of travelling documents and to enhance cooperation to combat counterfeit travel documents. Most recently a law was adopted to introduce biometric passports that will be phased in over the coming years.

But none of these measures ever justified systematic questioning at airports for EU citizens.

I hope that the reader's experience can instigate the relevant authorities on both sides to cooperate to iron things out. I will follow this matter and, if the situation persists on a systematic basis, I will raise it at EU level.

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