Malta can do more to bring its efforts to counter irregular migration in line with the EU’s fundamental rights standards, according to recommendations by the European Union Agency for Fundamental Rights (FRA).

The Criminalisation of Irregular Migrants paper examines measures in member states to counter irregular migration and their compatibility with fundamental rights as part of FRA’s work in the area of asylum and migration. The work contributes to current discussions about modifying EU legislation on assisting unauthorised entry.

Irregular migrants should not be subject to imprisonment

This is an important aspect of the European Commission’s Task Force for the Mediterranean, which was set up following the deaths of almost 400 people off Lampedusa last October.

The paper contains recommendations to ensure the treatment of irregular migrants entering and living in the EU is in line with the EU’s fundamental rights standards.

One of the agency’s recommendations is that member states should treat migrants, whose asylum applications have been refused, according to the safeguards contained in the Return Directive, which sets out standards and procedures for returning them.

The directive states irregular migrants should not be subject to imprisonment.

In Malta, they are automatically detained for up to 18 months although no fines are imposed.

The EU’s fundamental rights agency also recommends a system where migrants who have become victims of exploitation and abuse have a residence permit not dependent on those exploiting them.

This is particularly important for victims of gender-based violence.

In Malta, this decision is at the discretion of the visa unit, which offers no guarantee that an autonomous residence permit will be issued, which leads to victims preferring not to report the abuse for fear of losing their right to stay in the country. This was confirmed by human rights lawyer Neil Falzon: “We know of a number of cases where victims of domestic violence remain in an abusive relationship because they know their right to stay is dependent on their spouse who would have applied to bring them over.”

Dr Falzon heads Aditus foundation, established with a mission to monitor and report on access to fundamental human rights.

“It is positive that Malta is one of the few countries where migrants in an irregular situation are allowed access to the labour market, and their children are not denied access to education or health services,” he said.

But he insisted that the detention system as a whole remains questionable.