Towards a fairer asylum policy

Last week, the Ministry for Home Affairs and National Security published a new strategy for the reception of asylum seekers and irregular migrants, following extensive consultation with NGOs.

At a glance, the measures appear positive. Gone is the mandatory, arbitrary detention of all asylum seekers upon arrival – a policy which was slammed as illegal on three occasions by the European Court of Human Rights, and yet which had been unaccountably retained until this week.

The two major contentions within Malta’s former migration regime were that detention was arbitrary (in direct contravention of the Human Rights Charter) and, unlike any other judicial or security measure, not subject to periodic review. In 2004, a maximum detention period of 18 months was introduced, again under pressure by the Council of Europe, later to be reduced to 12 months. Before that date, detention was indefinite.

In practice, this did not mean ‘forever’… but there were cases of persons unlawfully and arbitrarily detained for as long as four years. It is hardly surprising that Malta’s detention centres were also the scene of considerable unrest over the same period. From the perspective of the detainee, Malta’s policy regarding asylum seekers was the equivalent of a life-sentence from which there was no appeal, no other recourse to justice, no ray of hope whatsoever.

Not only was the previous system inhuman in itself: it was an ongoing violation of human rights that will remain a blot on Malta’s history when viewed in future. Even if the replacement policy improves over its predecessor on all fronts, it remains shocking that Malta had to lose three cases in the European Court to be finally persuaded that human rights must be respected.

The legality or otherwise of a person’s presence in any territory is no excuse to sidestep the Human Rights Charter. Its provisos apply to all human beings everywhere, regardless of race, creed, status or any other consideration.

In all three of its rulings against Malta, the ECHR declared that the Maltese legal system did not allow detainees to challenge their detention in an effective and speedy manner. In 2013, the Court declared that one asylum seeker, Suso Musa, had been detained arbitrarily after it took over six months to determine his asylum application, while separately raising concerns about the conditions of the detention centre. 

Following Musa’s case, the ECHR slapped the Maltese government with a €27,000 fine in damages and costs to Musa, and ordered it to amend the law to allow asylum seekers to challenge their detention within a time-frame deemed fair by the Geneva Conventions. It also advised Malta to limit its detention periods and to improve its detention conditions.

The new policy therefore marks a fundamental shift in approach which cannot be understated. Apart from a seven-day period in an initial reception centre – a necessary precaution with which human rights agencies agree – persons entering the country irregularly can now only be detained under certain conditions specified at law.

While regulating detention in a way that is acceptable to the Council of Europe, the document also proposes measures that could help assimilate such persons into the workforce. This addresses another problem that has been ignored for far too long: the absorption of undocumented workers into the black economy

For a period not exceeding nine months, the status of such residents can be temporarily regularised by any of a number of alternative means to detention. They can regularly report to an assigned location; reside at an assigned address, deposit or surrender documents, or place a one-time guarantee or surety.

This will surely help to clarify the position so many asylum seekers find themselves in upon release from detention. Unlike the previous regime, it offers a managed and controlled system that provides stability and long-term prospects to the asylum seeker, while also cutting off the supply channel to an underground economy that thrives on deregulation.

In Minister Carmelo Abela’s words, the new policy “seeks to draw a balance between humanitarian needs and security requirements. The aim was to ensure that the rights of asylum seekers were secured without jeopardising the security of the country.” 

Naturally, it is debatable whether the new direction goes far enough to redress the imbalances of the old one. Detention is no longer arbitrary, and no longer permissible in the case of vulnerable persons and minors. But the second human rights pitfall – the right of review – may not have been so thoroughly addressed.

While welcoming the document, Human Rights Agency Aditus expressed reservations about the means through which a detainee may challenge his or her detention. It remains to be seen if the new system is still vulnerable to another legal channel on those grounds.

Meanwhile, Malta’s new policy seems at odds with the government’s handling of its European commitments to relocate refugees. Malta has yet to take in any refugees as agreed by EU leaders following last year’s huge exodus. The latest report from the EU shows that only 272 people from Italy and Greece out of a total of 160,000 have so far been relocated. 

Nonetheless, one must acknowledge the government’s newfound commitment to respect one crucial part of its electoral mandate: the part concerning human rights.