The EU and Malta’s migration problem

As the summer lull hits the countries bordering the Mediterranean, the problem of illegal migration continues to exacerbate. The concern of many Maltese about this problem is palpable. Some are genuine in their comments, others are just plain racist.

To complicate matters, there is no doubt that human traffickers are making money out of this phenomenon. Meanwhile, genuine NGOs out to rescue those whose sea crossing turns out to be a dangerous venture are accused of co-operating with the traffickers.

This year 13,000 migrants have already entered Italy – 5,000 of them via the island Lampedusa where the situation is nearing boiling point. Malta and Spain have also registered a dramatic increase in the number of immigrants that they have had to accept. To complicate matters, the entry of such immigrants into Malta has contributed to a recent sudden misleading spike in the number of COVID-19 infected persons in Malta.

An agreement tailored in Malta by a small number of EU member states to create a burden sharing mechanism has been practically rejected by other member states who do not want to accept any migrants at all.

A recently formed local anti-immigrant NGO – Malta tal-Maltin – is organising a petition asking the Maltese Parliament to decide to refuse all entry of such immigrants into Malta. The wording of the petition leaves no doubt that it puts the blame for this problem on the EU.

Some apparently think that if Malta were to leave the EU, the problem would be solved and pushbacks would be possible.

This is utter nonsense and misleading. Malta’s responsibility for accepting refugees does not stem from our EU membership but from the fact that Malta is a signatory to the Refugee Convention or the Geneva Convention of 28 July 1951 to which we acceded in 1971, making it part of our international obligations.

This predates even Malta’s request to become an EU member.

Article 33 of the convention – Prohibition of expulsion or return (‘refoulement’) says that:

1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

Malta’s EU accession in 2004 simply encoded the existing international obligations to apply to all members states into EU law.

Before the 1990s the EU did not even have a migration policy as such and its current migration policy is mainly about how the member states cooperate to implement the overriding international obligations that remain in force.

The principle of non-refoulement is seen by many legal experts as ‘jus cogens’, or international customary law, which is so essential, that it requires no treaty or contract but applies to all states as natural law. The principle itself came into effect after World War II when many states had refused to accept Jewish refugees with the tragic consequences that we all know.

It is obvious, however, that the circumstances regarding refugees today are completely different from what they were in July 1951 when the Geneva Convention was originally signed.

Contrary to what many seem to think, therefore, Malta exiting from the EU (Maltexit) does not make any difference to our international obligations to accept refugees.

One can argue that many of these migrants do not qualify as refugees. If this is the case, Malta has every right to send them back to their country of origin. We do not need Maltexit to do this.

Here the issue of whether these migrants qualify as refugees becomes important. In fact, the EU law regarding refugees refers to the obligation to examine whether migrants have a right to political asylum. This law determines which EU member state is responsible for the examination of an application for asylum, submitted by persons seeking international protection within the European Union under the Geneva Convention and the EU Qualification Directive.

The so-called Dublin System establishes a Europe-wide fingerprinting database for unauthorised entrants to the EU. The Dublin Regulation aims to determine rapidly the member state responsible to consider an asylum claim and provides for the transfer of an asylum seeker to that member state.

The idea is to prevent an applicant from submitting applications in more than one member state and to reduce the number of asylum seekers, who are shuttled from member state to member state. The country in which the asylum seeker first applies for asylum is responsible for either accepting or rejecting the claim, and the seeker may not restart the process in another EU state.

This has resulted in an unfair burden on the countries on the periphery of the EU such as Malta, Italy, Cyprus and Greece but other states such as Hungary, Slovakia and Poland have officially stated their opposition to any possible revision or enlargement of the Dublin Regulation, leading to the eventual introduction of burden sharing via new mandatory or permanent quotas for reasons of solidarity.

Currently, the move for the revision of the Dublin Agreement has festered into a stalemate.

The irony of the local anti-EU stance is that it is only because Malta is an EU state that we can insist on burden sharing with other EU states. If Malta were not an EU member state, it would have no right to insist for burden-sharing and our problems would be exacerbated rather than solved.

At the end of the day, this problem stems from our position in the middle of the Mediterranean.

For centuries, Malta has exploited our geographical position to benefit us as a small island with practically no resources. On this one, the disadvantages seem to outweigh the benefits.

Exploiting migrants

Many Maltese are, unfortunately, not shy of exploiting migrants. The recent story of how a Nigerian man was attacked and left without pay after he confronted his employer over missing wages has shocked many.

But the fact is that these people are being exploited and being paid peanuts for illegal undeclared precarious work... with the responsible authorities shirking from their duty to ensure that laws governing employment in Malta are observed by everybody and in the case of all employees.