Deputy Prime Minister Tonio Borg yesterday lambasted the opposition for continuing its insistence on mandatory burden-sharing, adding that this could only come about if there was consensus from all EU member states; it did not depend solely on the Maltese government.
Speaking during the second reading of the Immigration Act (Amendment) Bill, Dr Borg said that while the opposition insisted on a mandatory system, the government had opted for the best functional system that could be used, that of convincing other member states to take refugees from Malta.
He criticised the opposition having insisted with the government not to sign the Asylum Pact. The European Commission had also been doing its utmost to convince other member states to share the burden.
Minister Borg said that if a large number of countries participated in the voluntary scheme, moral pressure could be exerted on other member states to comply. For years, the immigration problem had not been an issue in the EU. Thanks to Malta and Italy, every country now recognised this problem and the EU had convinced other member states to contribute financially to solve the problem.
The Foreign Minister said that the US government was continuously taking on more refugees, while in Europe France had taken a hundred this year, promising to take another hundred refugees in 2010. Up to now the US government had taken about 400 refugees and there was no limit to how many it would take. Slovakia had agreed to take between eight and ten others. He was making efforts to convince other European countries to accept more refugees from Malta.
Minister Borg assumed that in cases involving the review of human rights violations, the rule incorporated in sub-clause 5 of the Bill would not apply. Consequently, pending review of human rights violations, warrants to stop the expulsion of a person could still be issued.
Dr Borg was reacting to Opposition spokesman on Home Affairs and Security Michael Falzon, who said it seemed that the government was now also agreeing with the opposition on the mandatory burden-sharing system, even if this had previously been described by a government speaker as a joke.
Introducing the second reading of the Immigration Act (Amendment) Bill, Justice Minister Carmelo Mifsud Bonnici said that it implemented the provisions of the 2001 European Directive on the mutual recognition of decisions on the expulsion of third-country nationals.
After the Council of Ministers had established the criteria on how to execute the deportation of third-country nationals, all EU member states were to recognise a decision of expulsion issued in another member state without the need of initiating similar criminal proceedings.
He said it ensured that a deported person was sent back to the country of origin. The amendment did not apply to relatives of EU citizens or those persons who had the right of freedom of movement within the EU.
Third-country nationals could be expelled if they were a threat to public order or to national security and safety. This would result from a conviction in a member state or if there were serious grounds to believe that the third-country national had committed serious criminal offences.
Immigrants who did not comply with national rules of entry or residence could also be deported.
Dr Mifsud Bonnici said Malta faced a situation where illegal immigrants did not have any official document - whether a passport, a travelling document or any other means of identification. This made deportation more difficult because the authorities of the country of origin would not recognise them as their nationals.
The directive gave EU member states the instrument to expel third-country nationals who entered the country illegally or who broke local laws.
No expulsion decision issued by the Principal Immigration Officer of a member state could be obstructed by means of any warrant issued under the Code of Organisation and Civil Procedure.
Asylum seekers could not be deported before their request for refugee status had been decided on.
Once the national status of illegal immigrants who were denied refugee status had been determined, these could be deported to the country of origin.
This signified agreement among member states on the right to defend territorial rights against threats to national safety and security.
Dr Mifsud Bonnici said it was a fact that the EU was taking measures to ensure the security and protection of its citizens.
Michael Falzon (PL) said that the Bill did not address illegal immigration but was simply a transposition of an EU directive into the national law.
He noted that although the directive had been approved in 2001, Malta was only transposing this law eight years later.
It would have been interesting to discuss irregular immigration especially in the light of comments made lately by an EU official. It seemed that the government was now also agreeing with the opposition in relation to the mandatory burden-sharing system, even if this had been previously described by a government speaker as a joke.
The directive spoke of third-country nationals - persons who were not citizens of any one of the EU member states. Thus, freedom of movement for EU citizens remained protected.
The directive did not address the expulsion solely of illegal immigrants but covered all third-country nationals who did not enjoy any protection under EU law, and ensured that expulsion orders issued by an EU member state were to be recognised and implemented by the other member states.
This did away with duplication of procedures in different countries.
Dr Falzon emphasised that article 23(5) did not allow the actions taken by the Principal Immigration Officer to be disrupted through the use of any warrant issued under the Code of Organisation and Civil Procedure.
Consequently, the decision taken by one member state would have effect in all EU member states, and was not subject to civil remedies within the implementing country.
He said these regulations were based on the presumption that EU countries applied the rule of law and rules of natural justice, and that these rules would all have been considered by the issuing authority.
Despite these regulations Malta could still face difficulties in the expulsion of persons against whom such an order would have been issued, especially in relation to those persons who either did not have valid travel documents or where the return of those persons to their countries of origin was prejudicial, such as the case of Somalis. In this regard, a measure of protection had to be brought into effect.
There was a general consensus in relation to the expulsion of those third-country nationals who were a serious threat to public order or public security, and also where that person was faced with expulsion following a finding of guilt of a criminal offence which was punishable by imprisonment of at least one year. This situation was based on the presumption that the person had been accorded a due process at law.
Dr Falzon commented that the implementation of expulsion orders would also widen Maltese criminal law procedures which normally required the co-existence of criminal intent and criminal act, and also embraced the principle that a person was presumed innocent until proven otherwise without any reasonable doubt.
The Bill allowed the expulsion of a person even though they would not have committed an offence. The proposed law spoke only of the intention to commit an offence, which was neither tantamount to preparatory acts for the commission of an offence nor tantamount to an attempt. Malta followed the principle that the accused was presumed innocent until proved otherwise.
The principle of subsidiarity and uniformity in European regulation was also implemented in this directive through the recognition of expulsion orders in relation to those persons who had failed to comply with national rules on entry or residence. Although the laws of the EU member states were somewhat similar, differences did exist in national laws and this could bring about the situation whereby Malta would implement an expulsion order even if the law allegedly violated was not found within the domestic legal order.
The Bill did not only address recognition of expulsion orders but also the implementation of such orders, and gave the Principal Immigration Officer the power of detaining a person against whom an expulsion order had been issued in custody, even without warrant.