Reference is made to the report of the International Commission of Jurists on its visit to Malta on 26-30th September 2011, titled “Not here to stay”, which was published on Monday.
Whereas the Ministry for Home and Parliamentary Affairs appreciates the fact that the International Commission recognised, although very, very late in the day, that Malta is exposed to disproportionate migratory influxes, and that it requires assistance from the European Union and its Member States, in accordance with the principle of solidarity, it also has to be said that the report is not accurate in its portrayal of the Maltese scenario.
In the first place, the Ministry considers that Malta’s detention policy is not only fully in line with the country’s international obligations, but also that it is wholly justified in the present circumstances. The scope of detention is not punitive in scope, as its aim is primarily to safeguard national security. It is to be borne in mind that the overwhelming majority or irregular migrants reaching the country do so undocumented, as well as in disproportionately high numbers, as recognised by the International Commission itself.
It would also have to be pointed out that the European Convention on Human Rights (ECHR) does not condemn mandatory detention, so much so that Article 5(1)(f) of the Convention permits detention for the purposes of preventing unauthorised entry into the country, as well as for removal or irregularly staying persons.
As regards detention, the procedure applicable is prescribed at law, or to be precise by Article 5 of the Immigration Act (Cap. 217 of the Laws of Malta). Pursuant to this provision, persons who enter Malta without authorisation are served with a removal order and are detained. Detained persons are provided with information concerning their rights, including the right to challenge their detention and the right to apply for asylum.
Furthermore, it must be made clear that thanks to the considerable improvements implemented by the Office of the Refugee Commissioner to speed up the asylum determination process, the average length of time taken to process such claims has dropped to between three and six months. Indeed, at present the vast majority persons who are eligible for protection by Malta only spend a few weeks in administrative detention.
It is only failed asylum seekers who are detained for a longer period, during which time the Maltese authorities strive to repatriate them back to their country of origin. Since the beginning of this year 143 such persons have been repatriated to countries as far as Nigeria, Ghana and Egypt on flights chartered by Malta or joint repatriation flights under the umbrella of FRONTEX. Such repatriation operations would be made considerably more difficult in the absence of an administrative detention system and increase the risk of these persons absconding from Malta or going underground. This system is thus fair and just with the persons who are repatriated.
In view of these considerations, the Maltese Government is not in agreement with the conclusions reached by the International Commission. The detention policy is therefore to be retained in its present form.
The Ministry is likewise not in agreement with the International Commission’s conclusions as regards the Immigration Appeals Board, which is in fact a judicial authority enjoying independence at law. As a matter of fact the Board members enjoy security of tenure, in that they may be removed from office by the President acting on the advice of the Prime Minister, on grounds of gross negligence, conflict of interest, incompetence or acts or omissions unbecoming of a member of the Board. These disqualifications and reasons for removal from office are the same as those applicable to members of the Judiciary.
With regard to the riot at the Safi Detention Centre of 16th August 2011, it has to be said that only one migrant received minor injuries, which goes a long way to show that the authorities did not employ excessive force. In the light of these circumstances the International Commission’s call for an inquiry into this incident, vis-à-vis the use of force by the authorities almost a year after it took place is uncalled for.
It would also have to be pointed out that the Maltese authorities have consistently demonstrated their commitment in the field of irregular migration and asylum in several ways, including in particular by:
Conducting several refurbishment projects at the Closed Centres, including for instance the upgrading of Hermes Block;
Conducting several refurbishment projects at the Open Centres, including the ongoing project whereby the tent village is being replaced by mobile homes;
Providing irregular migrants with voluntary return opportunities, including reintegration packages;
Providing integration-oriented courses, through the Agency for the Welfare of Asylum Seekers, to address employability and other issues of concern;
Ensuring accessibility to an efficient asylum system that is concluding most first instance cases with 6 months; and by,
Having an asylum recognition rate at first instance consistently exceeding 50% in recognition of the situation of asylum claimants in Malta.
The Ministry considers that these efforts should have been given more weight by the International Commission in its assessment of the migration and asylum situation in Malta. Whilst the Ministry recognises that more remains to be done, it certainly cannot be argued that Malta is not doing enough or that it is in any way ignoring the rights of irregular migrants or asylum seekers.
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