The system is broken | Gillian Triggs

During this visit you have been familiarising yourself with Malta’s asylum system. What are your impressions so far? How do you assess the local asylum and reception procedures?

This is our first mission, globally, after lockdown… precisely because we are so concerned where Malta stands in the asylum system: being, as it is, at the centre of the crossroads of world migration; on the frontline, really, when it comes to boats crossing the Mediterranean.

We are very conscious of the fact that Malta is a common-law country; a rule-of-law based democracy. Over the years you have established an asylum system, with its own processes… and that is encouraging.

But I think what has happened, over time, is that the numbers coming have been more than that system is capable of dealing with. […] It has not been invested in enough, or expanded to deal with the emerging and contemporary environment. As a result, the asylum process is extremely slow: people with multiple applications can end up staying here for many, many years.

The refugee assessment system is now subject to backlogs; and the capacity for appeals can go on for years. I was advised by one of the tribunal judges that you can receive seven or eight constant appeals, on one ground or another. There is no limit to the number of appeals that can be made, which is clogging the system up.

And of course, there’s the problem of reception facilities: the use of what is effectively mandatory detention, in conditions which are substandard. There is also the added challenge of the sheer numbers of boats coming in, and the ad hoc way in which disembarkation is allowed…

We have also observed how asylum seekers and other migrants from mixed flows, who no longer have access to reception centres, seem to get caught up in a cycle of homelessness. Is this a problem with the system itself; and if so, how can it be addressed?

I think it has become a problem with the system. With smaller numbers, and a different environment, the system might have been able to cope. But as things stand, it can’t.

Adding to that is another problem: even if you emerge from that process as someone who is not entitled to international protection – and that’s probably a very high number of people – for practical purposes, overwhelmingly they are not able to be returned.

Most will refuse to return voluntarily; and even if you were to embark on a forcible return, that also very often proves unsuccessful: most commonly, because the country of origin would refuse to provide the necessary documents, or refuse to take them back.

In that way, too, the system is breaking down. And it’s a very important matter, as far as UNHCR is concerned: because if you can’t return those who are not entitled to asylum, then you will have diminished the credibility of the asylum system to protect who are entitled to refugee status. The whole system has to work: not just bits of it.

But what I’m also observing, if I may, is that the same system does have the potential for working; and that the government has the political commitment to respect the fundamental right of asylum.

The part of the puzzle that we can help with, as UNHCR, is to help establish an asylum system which works: ensuring returns; ensuring speedy responses to asylum requests; a single, definitive appeals process…. To clean up the system, if you like; which would help reduce the pull-factor.

Do you see this systemic failure as being a ‘pull-factor’ in its own right? If so, how?

At the moment, unfortunately, Malta has – if I may say so – some rather contradictory policies. Firstly, the pull-factor.  We are very grateful that, through search and rescue, you have picked people up at sea; and you have disembarked them, and brought them into the system. But given that the system itself is broken, and that people in fact stay here for many, many years – without or without protection status; mostly without – that becomes a pull-factor. It encourages people smugglers.

Then, of course, there’s a failure to control the borders of Libya: which is in a protracted conflict situation. So it’s a very complex issue. But the contribution we feel we can make – and I’m not suggesting that we’ll solve all the problems, all the way through the pipeline – is to help establish a quick, safe and rule-of-law based system, which is dependent upon the return of those who are not entitled to refugee protection.

If the message could be made demonstrably clear from the process itself, and from advocacy and public information, that would help to dry up the interest of people smugglers being able to bring boats across into Malta’s search and rescue area, and subsequently into Malta. 

There is also an argument that people smugglers thrive in the absence of any legal channels for migration. Local advocacy groups have campaigned for a legal mechanism, whereby asylum seekers would be provided with safe, regulated channels to enter Europe. Does the UNHCR agree with that approach?

We certainly would insist, as a matter of law, that anyone who reaches your shores has the right to claim asylum, and has to be treated under the terms of the Refugee Convention. But putting that to one side: yes, we very strongly want a rule-of-law based process for authorised travel, done in a regular way.

My own experience - both here at UNHCR and in my previous work - is that the general public wants regularity, order, and proper processes. It’s not that they’re necessarily ‘anti-immigration’, or that they don’t approve of supporting asylum seekers and refugees. But what they don’t want to see is boats illegally coming in dangerous crossings, with lives lost in traumatic circumstances: boats dashed against the rocks; horrible images of people drowning at sea…. nobody wants that.

And nobody wants people coming into the country in an unauthorised way. People generally want things to happen in an orderly, structured manner; this is very common, it is true across the world.

There are, however, also what are called ‘complementary pathways’: through education programmes, through regulated labour programmes; through community sponsorships - as well as applications to governments, via the normal consular processes – it is possible to develop more authorised, regular and safe ways of coming into a country.

Those are the pathways that are much more acceptable politically; and which may also help to share, if you like, the burdens and responsibility for people who would otherwise, in desperation, take these other, extremely dangerous paths… paths which lead to trafficking, criminality, abuse of women and children, and so on. It’s an appalling situation, really.

So one of the things we argue for very strongly, and consistently, through the framework of the UN’s Global Compact on Refugees, is that if we work together on this, we could achieve regular processes that are humane, and that meet the needs of asylum seekers and refugees.

But if we try to do it unilaterally, in a competitive environment with each other… and if we accuse each other of ‘not playing the game’… it’s not ultimately helpful. The only way we will manage this global movement of people is through the principle of solidarity; through diplomatic negotiations; and through the acceptance of a shared responsibility.

What you describe seems almost identical to what Malta has been officially demanding, at European level, for years: an agreed-upon burden (or responsibility) sharing mechanism. So far, however, it has failed to materialise. What would you say are the main stumbling blocks?

That is, in a way, ‘the’ question. Because globally, we at the UNHCR are very keen to see the principle of solidarity and burden-sharing becoming real. And things were going quite well in 2018: when [the Global Compact on Refugees] was agreed. The international community accepted the notions of responsibility sharing and solidarity; the General Assembly approved it; we then had the pledging conference, in December last year…

Nobody could have imagined, however, that within weeks we would have the COVID-19 pandemic: which I think has significantly exacerbated the problem. It has provided an excuse, in some respects – a form of ‘camouflage’ – for states to return to a highly individualistic and unilateral approach. They have become less interested in sharing the responsibility, and more interested in protecting their own national interest.

Malta’s (and Italy’s) response to COVID-19 was in fact to close ports and harbours to migrant landings, and NGO rescue vessels. This was justified on the grounds of protecting public health. Do you think these measures were reasonable, or should the ports have stayed open for irregular migrants?

We have a very clear answer to that question: given the horror of how this pandemic could have played out - and has done, for some countries - of course, the circumstances of COVID-19 more than justified the closure of national borders.

At its peak, 168 countries closed their borders as a response to COVID-19. And we, at UNHCR, fully support that. But what we also say is that you can protect your own borders, as well as safeguard public health, whilst also ensuring that there is a right of access to claim asylum.

That is not contradictory. It’s not a binary question: you can do both. And many, many countries have in fact done both. Individuals who’ve reached a frontier that is effectively closed, can nonetheless still make their claim – through digital applications, for instance. They would then be put into quarantine; held in detention for a period of time, to establish identity, health and so on. Many countries have already shown that you can both protect your borders, and also allow claims for asylum,

Now: I realise that this is difficult; and as you can imagine, it was an extremely difficult position for UNHCR to be arguing, at a time when people were very, very concerned – rightly so – about the impact of this pandemic. But we have seen many countries which have honoured their international obligations, while also protecting public health. It can be done.

The EU has been criticised for neglecting its search and rescue duties in the central Mediterranean: creating a vacuum that has so far been filled by rescue charities. Some of these NGOs have separately been accused of ‘abetting traffickers’, or unwittingly aiding their business model. Do you think the role of NGOs, in this context, is helping or hindering the situation?

Our fundamental position is that everyone must be rescued at sea. And this is not a new idea; it is a fundamental maritime principle that has been in place for centuries. In a way, I would think it holds a special significance for Malta: given where you are, and your history as a maritime nation. But it’s true for all parts of the world. People must be rescued at sea, wherever it is possible to do so… without endangering your own ship, crew and passengers.

This is a fundamental imperative – saving lives at sea – and over these past few days, I have been very pleased to be able to thank Malta for continuing its work of search and rescue; we understand that you are continuing to co-ordinate and manage rescue operations… and we also understand the difficulties of being responsible for such a large search and rescue area.

But without getting into the political complexities of this very difficult situation: the imperative remains to save lives at sea. Now: is that principle being manipulated by people smugglers? Almost certainly. But we, at UNHCR, believe and find that the NGOs have been enormously helpful. They’ve been rescuing where others can’t; so I think our position at UNHCR is to be immensely grateful to the NGOs.

That is not to say there aren’t occasions where they may be manipulated: for instance, by people smugglers dropping off dinghies full of asylum seekers close to an NGO boat, knowing that they’ll be picked up. It is, after all, a highly manipulative situation.

But the NGOs’ primary objective is to save lives; and we do commend them for that.