A migratory crisis of Europe’s making | Thomas Hammarberg

One of the foremost critics of Malta's mandatory detention regime is the Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, whose office is at the forefront of the defence of one of Europe’s most important bill of rights: the European Convention of Human Rights. Hammarberg, a former secretary-general of Amnesty International, has visited Malta on several occasions to witness the detention regime that enjoys cross-party support in Malta.

Hammarberg has previously described Malta’s stance on migration as “reactive “and “emergency type”, words which he says point to the fact that Malta's approach to migration management and reception, still appears to rest excessively on the idea that migrants land in Malta in largely unpredictable waves and are in transit towards other European countries.

“This is reflected for instance in ‘emergency-type’ reception facilities, including tent villages, the current system for support, and the lack of credible avenues for local integration," Hammarberg says.

"While it is true that vast majority of migrants arriving in Malta aspire to reach other countries, it is important that Malta equips itself of migration policies and practices which are truly able to safeguard the human rights of migrants and provide viable long-term solutions for those who will eventually stay."

The Maltese authorities believe they cannot cope with the irregular migratory fluxes in the Mediterranean... but is it morally incumbent upon a small island-nation like Malta to put in the money into programmes that welcome more refugees into Maltese society? 

“It is incumbent on Europe to ensure that people with international protection needs are able to make their case in fair and effective national procedures, adequately received, and assisted in their first steps towards local integration. Malta must play its part within this global European effort,” Hammarberg says.

“European solidarity includes the opening of avenues enabling migrants to move from Malta to other countries, notably through relocation programmes within the European Union, and resettlement further afield, but also financial and other assistance to improve the material conditions, asylum determination procedures and integration opportunities for those who will stay, temporarily or on a long-term basis, in Malta.”

Hammarberg also questions the claims of the Mediterranean facing a migratory crisis in the Libyan war’s aftermath.

“If there is a ‘migratory crisis’ it appears to me to be largely of Europe’s own making.

“It is sobering to remember that only approximately 2% of the people who have left Libya so far as a result of the conflict have sought refuge in EU countries, while the rest have  crossed land borders into Tunisia, Egypt, Niger, Chad and Algeria.

“With the necessary political will, countries in Europe could rather easily assist each other in ensuring that the human rights of migrants, and first and foremost their right to seek international protection, are thoroughly respected. However, a vicious circle of tough stances on immigration by political leaders and widespread lack of popularity of migrants among the general public prevents this from happening in practice.”

But even though the Maltese political support for mandatory detention appears to reflect the popular anxiety on immigration, Hammarberg insists that asylum seekers, in principle, should not be detained.

“Not only do alternatives to detention, such as regular reporting, exist. They should be implemented as first choice. Detention of an asylum seeker should be ordered only if, after a careful examination of his or her individual case, no other less coercive measures appear possible.

“As for the duration of detention of asylum seekers in such cases, it should be as short as possible. What is key here, is that there must be an effective remedy available to asylum seekers to challenge the legality of their detention and have the necessity for the continuation of their detention regularly reviewed.”

Malta’s inhumane 18-month detention for asylum seekers whose claims are rejected at appeals stage has been ruled illegal by the European Court of Human Rights, something which Hammarberg has repeatedly reminded the Maltese government about. “The Strasbourg Court’s judgment in the case of Louled Massoud clearly found that such a remedy is currently not available to immigration detainees in Malta,” he says.

But if detention periods are reduced, would this mean that asylum seekers will escape to other EU countries – and perhaps return here through the problematic Dublin rule?

“It does not appear to me that there is a link between the duration of detention and the likelihood that asylum seekers will attempt to travel to other EU countries. In the Massoud case, the Court noted that it was ‘hard to conceive that in a small island like Malta, where escape by sea without endangering one’s life is unlikely and fleeing by air is subject to strict control, the authorities could not have had at their disposal measures other than the applicant’s protracted detention to secure an eventual removal in the absence of any immediate prospect of his expulsion’.”

It is common knowledge that many failed asylum seekers do not get repatriated – due to consular issues, lack of funds, or lack of documentation – often ending up in a legal limbo, being migrants with no permission to work. What real solutions exist for these people who often end up leaving Malta irregularly and go to another EU state? 

“The situation of  persons who, following fair and effective procedures, have been found to be without international protection needs and who cannot still be returned to their countries of origin for a number of reasons does pose a genuine problem in several European countries.

“The bottom line, however, is that they cannot be left without any sort of status. Eventually, especially once they have developed ties with the country in question, possibilities for regularising their positions should be explored.”