Right back where they left

A decision to send a group of African immigrants back to Libya last week could have opened an unpleasant can of worms.

A boat carrying rescued Africans which landed in Malta last Sunday hardly made the front pages of newspapers.

It was, after all, only the first landing of irregular immigrants since October.

But the joint operation involving Maltese and Libyan rescuers, as explained by an Armed Forces of Malta (AFM) statement, could well explain why no immigrants have arrived on Malta's shores.

The AFM's claim that 27 Somali immigrants out of a sinking dinghy with 55 people on board chose to be 'voluntarily repatriated' to Libya during the rescue was described as "unrealistic" by the UNHCR.

Prime Minister Lawrence Gonzi on Thursday ruled out an independent inquiry into the incident, saying the AFM acted according to established rules and procedures. The government insisted it had not changed its policy.

Doubts and anger

Neil Falzon, former head of the UNHCR office in Malta, is, however, incensed after last weekend's incident.

"This is potentially the darkest day in our treatment of the most vulnerable," he said.

"It is incongruous to say Malta offers protection to people fleeing persecution and civil war when 26 Somali asylum seekers were returned to Libya in unclear circumstances," said Dr Falzon, who is a lawyer by profession.

"The obligation to disembark rescued people at a safe port necessarily requires that the port is one where the lives and freedoms of the rescued people are not at risk. Any other interpretation simply doesn't make sense."

If, prior to the incident, the Maltese authorities did not request and receive from Libya appropriate guarantees on the treatment and safety of these people, Malta could be held indirectly responsible for any eventual human rights violations, Dr Falzon warned.

Rome-based UNHCR spokesman Laura Boldrini also expressed doubts on the AFM's claims that 27 migrants chose to go back to Libya.

"It's difficult to believe anyone would choose to go back to Libya, after having paid a lot of money and risking their lives. In many years of work in this field, I've never seen anything of the sort," she told The Sunday Times.

"How can it be that an asylum seeker voluntarily opts to be returned to a place where he cannot get asylum?" said Ms Boldrini, who recently launched her book, Tutti Indietro (Everybody move back), which details the plight of those forced back to Tripoli under the controversial Italy-Libya accord.

She said African immigrants risked life and limb and normally paid a lot of money before attempting the crossing.

"We really hope this is not some sort of new policy by the Maltese government."

The push-back policy has been hailed by the Italian government for the drastic drop in immigrant numbers. In 2008, there were 31,000 asylum applications in Italy. A year later, the figures were down to 17,000.

However, in the meantime, foreigners continue to enter Italy with a regular visa and stay on after its expiry, Ms Boldrini said.

The UNHCR, ultimately, does not have the power to take action or impose sanctions against countries which breach their humanitarian obligations, she noted.

Army's line of defence

The AFM insisted it had not changed any policy. The priority of any search and rescue operation carried out on the high seas is to safeguard the life and well-being of people in distress by delivering them to a safe port in an effective manner without incurring loss of life, a spokesman said. This principle was followed in last week's operation.

The aim of such missions is to provide prompt assistance to people in distress, regardless of their origin.

Article 2.1.10 of the annex to the search and rescue convention states that "parties shall ensure that assistance be provided to any person in distress at sea. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found".

The AFM said two rescue vessels from different countries aided the sinking boat of immigrants last week. A total of 22 men, five women and a child who required medical attention boarded the AFM vessel from the migrants' dinghy. The remaining 27 immigrants "voluntarily" went onboard the Libyan vessel.

The army failed to answer other specific questions sent by The Sunday Times. These included whether last week's procedure was a one-off or standard practice and whether there was an arrangement between Malta/Italy or Malta/Libya under which these actions are envisaged.

The army was also asked what happened to the returned immigrants and whether their asylum claims were taken into consideration.

When duty calls

The basic premise is that countries have the right to control their territorial borders and to decide who may enter.

This right is, however, limited by the international obligation to respect the principle of non-refoulement, which obliges states not to return people to territories where their lives or freedom are threatened.

This obligation emerges primarily from the 1951 Refugee Convention but is also enshrined in other international and regional documents to which Malta is a party, such as the UN Convention against Torture and the European Court of Human Right (ECHR).

The principle also applies to refugees who have not yet been formally recognised as such, like asylum seekers.

Given the nationality of the rescued people (Somali), coupled with the recognition rate for Somalis in Malta, they would probably have been granted access to an asylum procedure and given protection. The ECHR has often stated that an obligation is not only applicable in a state's territory (land or sea), but whenever the state exercises 'effective control' over a person.

Dr Falzon said that in practice, this means a country's human rights obligations come into effect when it has effective control over people - wherever these may be.

Since the vessel that transferred the asylum seekers was state-owned, in all likelihood it was acting officially and exercising governmental authority, he added.

The government says its responsibility is to rescue people and ensure their disembarkation at a safe port. However, Dr Falzon said the idea of a 'safe port' does not only refer to immediate physical safety from sea risks but also safety in terms of avoiding disembarkation in territories where the lives and freedoms of the rescued people would be threatened.

The Italy/Libya deal

A controversial deal was struck in 2009 between Italy and Libya as part of a wider economic agreement. Tripoli agreed to control the flow of immigrants towards Europe, while giving Italy's coastguard the right to return illegal immigrants intercepted at sea to Libyan shores. However, the finer details of the deal are not known.

The initiative was condemned by humanitarian organisations and the Vatican, among others, and applauded by many in Malta, with an increasingly vocal anti-immigration lobby urging the government to take Italy's cue.

In terms of the protocol agreed between the two countries, Italy provided Libya with the patrol capacity (naval units and training) necessary for it to conduct control and search and rescue operations in Libyan and international waters.

Italy further committed to facilitate support from the EU, including the adoption of a framework agreement with the EU and Libya.

A technical and operational protocol provided for the setting up of a joint operational command centre and the possible involvement of Libya in Frontex joint patrols.

An additional protocol signed in February 2009 has not been made publicly available. None of the documents make any reference whatsoever to the return of people to Libya.

The bilateral agreements stipulate that the relationship shall be forged on universally recognised norms of international law and on a respect for the UN Charter and the Universal Declaration of Human Rights.

The incident

In the first known rescue operation involving Malta this year, 55 Somalis were rescued from a sinking dinghy south of the island on July 18.

The AFM said its rescue and coordination centre was alerted on Saturday morning that a boat containing immigrants was on the high seas and taking in water.

An aircraft and patrol craft were immediately sent out to sea to locate the boat in distress while the rescue centre got in touch with the migrants onboard to assess their condition. Libya also sent a rescue vessel to the area.

The passengers were divided into two groups on the high seas with 28 brought to Malta and the rest taken to Libya.

The army said those who boarded the Libyan boat did so voluntarily but the claim was disputed by migrants who spoke to The Times.

Sources said there were Italian-speaking people on board the Libyan vessel, and that could have possibly misled the immigrants into believing they could be heading for Italy.

A child and a woman were taken to Mater Dei Hospital for treatment, the rest put in detention, pending application procedures.

A pregnant woman allegedly separated from her husband during the rescue operation was released from a Libyan jail and was with relatives in Tripoli.

Aware of the rife xenophobic sentiments, the local UNHCR branch has adopted a cautious approach, saying that while it appreciated that many lives have been saved through Malta's interventions at sea, it appealed to all states involved to continue to ensure those in need of protection obtained access to safe territory and asylum procedures.

Malta defends Tripoli

When the Italian government announced a controversial push-back agreement with Libya in May 2009, Malta's Home Affairs Ministry had said it would assist in cracking down on criminal organisations behind these dangerous journeys, which lead to many deaths at sea. That view is unchanged, a ministry spokesman said.

Probed about claims that Malta is turning a blind eye to humanitarian violations, the ministry said that during the past three years Libya had made strides ahead in this particular field.

Last week, Tripoli decided to grant about 400 Eritreans permission to stay and work in Libya - and this despite the problems stemming from the huge number of illegal immigrants already in Libya, the ministry said.

Furthermore, during 2009, a total of 500 people who had been granted refugee status by the UNHCR's office in Libya were relocated to other countries.

Libya is a member of the African Union, which provides a similar seal for the UNHCR to run an effective office in Tripoli, according to the ministry.

UNHCR is not the only humanitarian organisation present in Libya. Other organisations, like the International Organisation for Migration, the International Organisation for Peace, the International Centre for Migration Policy Development, and the Italian Council for Refugees run successful operations which assist the asylum seekers in Libya.

"We will remain committed to help Libya in tackling the problems it faces and, bearing in mind this is not just an Italo-Libyan-Maltese question, we will keep insisting this is a European problem which needs a truly European solution from the EU," the ministry said.

The EU's perspective

The EU treaties contain clear provisions on the importance of human rights in the EU and there are several legal and political instruments referring to the protection of refugees across Europe.

The EU Schengen Borders Code (2006) states that any border control measures should be without prejudice to the right to seek asylum and should not affect the principle of non-refoulement.

The EU recommends that in all readmission agreements with third countries, safety clauses should be included stating that readmission shall not affect obligations arising from the 1951 Refugee Convention and the ECHR.

Libya kicks UNHCR out

Libya has not ratified the UN Convention and has no asylum procedure in place.

This means that a Somali refugee who fled Mogadishu has no opportunity to request protection and may be arrested and deported to Somalia.

Libya recently expelled the UNHCR. Before that, the UNHCR was receiving and processing asylum applications and offering the little protection it could, like education to children and prevention from arrest. This means that potential refugees now have nowhere to go and nobody to protect them.

Tripoli's human rights record is not positive, especially in relation to sub-Saharan Africans. There have been several reports of arbitrary detention, torture, discrimination and undocumented reports of people being dumped in the desert or deported to their countries of origin.

Libya's authorities say they are doing their best to cope with the flow of migrants and allege that European governments have unfairly burdened them with the responsibility of policing the EU's southern border.