Libya has become the main gateway for the migrant exodus into Europe through the intersection of routes that run from Senegal and Ivory Coast, through Mali and Algeria and across the weakly patrolled Libyan border. Others make the long trek from Somalia and Sudan across the desert to the Mediterranean coastline. Syrians, too, find their way onto the armada of boats in Libya, having taken a path through Cairo.
Over 20,000 undocumented or irregular immigrants have reached Malta’s shores since 2002. Except for 2010 - when a deal brokered by Berlusconi of Italy with Libya’s Gaddafi held up - Malta has received on average over one thousand asylum seekers a year. While the number in the last three years has diminished, for a country with one of the highest population densities in the world this is a genuine and understandable matter for concern.
Although not always perfectly executed, four key principles have guided Malta’s immigration policy. The first is that Malta should offer fair, just and humane treatment of irregular immigrants in line with its international obligations. It is a long-standing signatory to the UN Convention on Refugees and has signed a number of other international agreements. It is also subject to EU directives on the matter. It is honour-bound to respect them.
The second principle is that there should be well-ordered procedures and practices for dealing with asylum seekers. Malta’s structures have taken a long time to build. With the exception of the Office of the Refugee Commissioner, they are still short of the desired standard. While the policy on reception is the right one for Malta, the accommodation centres in which asylum seekers are held are still inadequate.
The third principle is that Malta should actively encourage the social inclusion (integration) of asylum-seekers who are eligible for humanitarian protection. The Emigrants’ Commission has rightly recommended a number of changes to Maltese citizenship laws affecting refugees and those granted subsidiary protection (a status just short of that of refugee) to encourage their integration and on humane grounds.
Official figures are not available but, by my rough calculation, at any one time Malta is host to about 4,000 African or North African immigrants (the number of Libyans and Syrians has markedly increased since the abortive “Arab Spring”). They use Malta’s medical and social services and their children go to local schools.
Many are employed and have an economic stake in Malta which should be encouraged. There is an undoubted need, which the previous administration ducked, to introduce a comprehensive and far-reaching programme of integration.
The fourth principle is the orderly repatriation (bluntly, the deportation) of those ineligible for humanitarian protection, or those who can be relocated to other European countries. This is the most difficult challenge confronting Malta not only on practical, but also on moral grounds. Its execution requires a pragmatic and well-ordered system of deportation.
In practice, deportation requires, first, the establishment of a clear, legal process for determining that an application for refugee status has failed and that deportation should follow in short order. Secondly, once deportation is legally justified, it requires the failed asylum seeker’s country of origin to signify its agreement to the return of its citizen. There have been instances where Malta has been hampered in this process, either because it does not have diplomatic relations with the country of origin, or because it has to use an intermediary (normally another EU country) to effect the deportation.
I do not believe there is a conspiracy to deport failed asylum seekers as part of a populist tactic to appease anti-immigrant feeling
The legal decision-making process followed by the Office of the Refugee Commissioner is clear-cut and well-oiled. An application for asylum has to be made within three days of arrival in Malta. The commissioner must then decide whether the asylum-seeker is eligible for protection and, if so, of what status.
There are three types of protection: refugee status; subsidiary protection; and temporary humanitarian protection. Until 31 October this year, there is a fourth category in place – “temporary humanitarian protection new” (THP-n). This had come into effect in 2010, but is to be discontinued.
Refugee status derives directly from the 1951 Refugees Convention and is enshrined in Maltese law. It is based on the clear need to demonstrate that the asylum seeker would face risk of persecution on grounds of race, religion, nationality, affiliation with a particular political group or membership of a particular social group if returned to his country of origin.
This form of protection was broadened through EU Directives to include subsidiary protection, which stipulates that if the situation in an applicant’s country of origin is so bad that returning would place that individual in danger he would be entitled to protection even if ineligible for refugee status.
Temporary humanitarian protection, on the other hand, is a local form of administrative protection given to individuals who are neither exposed to personal danger in their own country, nor fall within any of the categories specified by the Refugee Convention. The judgment which the commissioner must reach is whether there are extenuating humanitarian grounds to grant temporary protection (for example, for unaccompanied children, or for medical or other humanitarian reasons).
The Commissioner for Refugees has said that since 2013 about 86 per cent of all applicants have fallen into one of these three categories, leaving about 14 per cent of rejected asylum seekers. THP-n is the category which has hitherto been given to rejected asylum seekers who have proved they are living in Malta and working legally.
The recent arrest of a number of rejected Malian asylum seekers – as a preliminary step to deportation - has exposed anomalies in this well-intentioned but muddled system. Public concern has understandably focussed on the deportation of families, many of whom have been in Malta for several years. Their Malta-born children are to all intents and purposes stateless. This has led to calls for the children of failed asylum seekers to be granted Maltese citizenship. The Children’s Commissioner has gone further and called for all migrant families who have integrated in Malta to be allowed to acquire citizenship.
The government has vehemently denied that the decision to stop issuing THP-n permits was to appease anti-immigrant sentiment in Malta. But the timing of the removal of this category in the run-up to what could be the start of a bruising electoral campaign, together with the minister’s refusal to give an undertaking that families with migrant children would not be deported, has understandably raised questions.
Hard cases make bad law. The government has got itself into a muddle. I do not believe there is a conspiracy to deport failed asylum seekers as part of a populist tactic to appease anti-immigrant feeling. As so often in these matters, there has probably been a cock-up.
The government is absolutely right to adhere to the principal that failed asylum seekers should be deported once all available means of redress have been extinguished. It is an important plank of immigration policy whose aim is to discourage economic migration and to protect genuine refugees.
But government should step back and think through its policies on citizenship for refugees as well as for families of failed asylum seekers, or those who through no fault of their own have been in Malta for a long time and are fully integrated here, on the lines proposed by the Emigrants’ Commission.
Good governance on immigration requires both compassion and steely resolve.