No changes to detention policy, Mifsud Bonnici tells Council of Europe

Justice and Home Affairs Minister Carm Mifsud Bonnici has disagreed with views expressed by the Council of Europe’s human rights commissioner Thomas Hammarberg to reconsider Malta’s detention policy due to the migrant crisis in Libya.

“This [the detention policy] is compliant with Malta’s EU and other international obligations. As a matter of fact, the European Convention on Human Rights does not rule out detention,” Mifsud Bonnici said, citing Article 5 (1)(f) of the Convention.

The article provides for “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

“In this regard, the European Court of Human Rights has always concluded that States have the right to limit the movement of those who enter their territory and this limitation does not in any manner imply any violation of fundamental human rights,” Mifsud Bonnici said.

Hammarberg said Malta needs to move away from a reactive approach to migration and establish a system that is fully in line with European standards on human rights of immigrants and asylum seekers, in a statement on his visit to Malta between the 23-25 March.

The Commissioner underlined that the current uncertainty related to the events in Libya and possible forced migration towards Malta and Europe should not deter the Maltese authorities from undertaking the necessary reforms.

“Instead this is another reason for more European solidarity to support these reforms,” Hammarberg said, noting also that the substantial decrease in the number of irregular arrivals in Malta over the last two years has taken considerable pressure off Malta.

He also said the policy of mandatory detention of all irregular migrants, including asylum seekers, should be reconsidered. “The mandatory detention of migrants can hardly be reconciled with the requirements set by the European Convention on Human Rights, as also reflected in a July 2010 judgment of the Strasbourg Court in the case of Louled Massoud, which found that Malta had violated the Convention by detaining an asylum seeker, whose claim had been rejected, for almost 18 months.

“Malta should take all necessary legislative and other measures in order to implement fully and effectively this important judgment of the European Court of Human Rights” said the Commissioner.

Mifsud Bonnici however said that the judgement in the Massoud vs Malta case, “cannot, in any way be interpreted as constituting a condemnation of Malta’s detention policy. This has been proved and explained time and again.”

The minister said Malta is not considering reviewing the country’s detention policy. “The detention policy and the period of detention are not meant to penalise the immigrants since this is purely a security measure which is also meant to facilitate the repatriation of those immigrants who do not qualify for international protection.”

In Malta the maximum duration of detention is 18 months, and reduced to 12 months in the case of asylum seekers. According to Mifsud Bonnici, on average asylum cases are determined within six months, which means that ‘genuine’ asylum seekers generally do not spend more than six months in detention. “Of course, the detention requirement does not apply in respect to vulnerable migrants. Such migrants are housed in apposite open centres catering for their needs immediately after the issuing of the necessary medical clearance.”

Criticism of open centres

Hammarberg also said material conditions in the open centres, which currently house some 2,300 migrants, were substandard and needed to be improved “as a matter of urgency”.

The Commissioner found that the Marsa open centre and, in particular, the tent village in Hal-Far offered clearly inadequate conditions of accommodation for short or long periods of time. While efforts are made to prevent vulnerable groups, such as children, families and pregnant women from being accommodated in the big, inadequate centres, the placement of such migrants in adequate accommodation centres is not always guaranteed.

Mifsud Bonnici said that the open centres were never intended to provide long-term accommodation, but rather offer shelter only until such time as the migrants in question could find suitable independent accommodation.

“Moreover, although it is recognised that material conditions at the Centres would, in certain cases, benefit from improvement, current conditions are a direct result of the fact over the past few years the Centres have practically always been at full capacity and beyond, making refurbishment of certain facilities difficult, if not impossible,” Mifsud Bonnici said.

He added that significant numbers of immigrants have been allowed to remain at the centres for prolonged periods, as they could not find independent accommodation. “This has resulted in crowding, yet the alternative would have been to send immigrants out to live in the streets. This was not, and is still not considered, a suitable alternative.”

The minister said the fact that significant numbers of migrants did not manage to move out of the centres is the result of the small labour market, which places severe limitations on integration efforts.

“Again, the fact that there has been a significant reduction in the number of migrant arrivals over 2010 has in no way alleviated such pressures, as ultimately attested by the increase in the number of beneficiaries of international protection between the end of 2009 and the present year, as well as by the continued presence of illegal migrants who could not, for one reason or other, be returned to their countries of origin.

“With respect to durable solutions for beneficiaries of international protection, despite all our best intentions it is considered that Malta cannot integrate the large number of immigrants present on the island. Significant resettlement efforts, particularly by the EU Member States, are still required.”

The Commissioner also stressed that the establishment of durable solutions for at least some refugees in Malta should include a support system that favours self-reliance and integration into Maltese society.

“In this context it is important to overhaul the current system which makes financial support dependent on residence in the open centres and thus hampers integration in the community.

“Migrants I spoke to really show a high level of frustration and feel stuck in a limbo – unable to move to other European countries which return them to Malta because they are fingerprinted here; unable to return home; and unable to integrate in Malta. Measures enhancing migrants’ integration should be accompanied by determined action to eliminate manifestations of intolerance and xenophobia”.

Mifsud Bonnici said the financial support being referred to is allocated to those who are unemployed and living in the centres.

“This form of support should not be extended to those living outside the Centres, as once they have left, the migrants should be encourage to work and live independently, rather than continuing to rely on AWAS support and their ‘institutionalisation’.”