Guidelines for the delegation visiting
Malta as part of the review of the European Unions policies on reception for
asylum seekers and border control.
As a member of the European Union, Malta
has accepted to adhere to the principle of protection of fundamental human
rights which marked the foundation of the Union itself. European legislation
concerning asylum and reception of refugees is far from satisfactory- the IFHR
(FIDH) and its members have often highlighted this fact in the past few
years-nonetheless, it establishes minimum standards. It would therefore be
unacceptable should Malta try and exonerate itself from these minimum standards
that were established by the EU.
(FIDH Report, n403, September 2004)
SUMMARY
framework of the mission ......................................................................................................... 2
framework of the maltese migration policy...........................................................................
3
Focus : Maltese press review.................................................................................................
4
Systematic
detention of foreigners .................................................................................... 7
Concerning
reception policy: confinement .......................................................................... 7
Focus : Identification of reception centers
in Malta ............................................................ 8
Detention
of minors in the higher interest of Maltas security ........................................... 10
Absence of reception
measures for migrants and of integration measures for recognized refugees ........................................................................................................ 11
Inadequacy
of the reception centers .................................................................................... 11
Absence of a legal
framework for detention and of rules for centres.............................. 11
Inhuman reception
conditions ............................................................................................... 11
Absence
of integration policy for refugees .......................................................................... 12
Malfunctions
in the asylum procedure .............................................................................. 13
The illusionary
right to asylum................................................................................................ 13
Asylum procedure in
practice:: shortcomings in terms of information, interpreter, legal assistance,
excessive waiting periods, inefficiency of the appeal procedure ................................................................................................................................... 13
Recommendations ....................................................................................................................... 14
To the
delegation ...................................................................................................................... 14
To the Maltese
authorities ....................................................................................................... 15
To the
European Union ........................................................................................................... 16
FRAMEWORK OF THE MISSION
At the European Council in Tampere, the Member
States agreed to work on establishing a common European asylum policy based on
the full application of the Geneva Convention and the Charter of Fundamental
Rights (Charter euro DH), specifically on Articles 1(human right to dignity),
18 and 19 (right to asylum).
Given that the establishment of minimum
standards for the reception of asylum seekers is a further step towards a
European asylum policy,
it is necessary to make sure that the Member States respect obvious inviolable
principles such as fundamental rights
and also fully guarantee the right to asylum and minimum standards for the
reception of asylum seekers. Indeed, these standards are closely linked with
the quality and the effectiveness of asylum procedures and must be based on the
principle that asylum seekers must be ensured a dignified standard of living
pending the outcome of the asylum process.
The EU aims at establishing an area of
freedom, security and justice open to those who, forced by circumstances,
legitimately seek protection in the Community..
However, without mentioning the tragedies in Lampedusa, Ceuta and Melilla,
recent events concerning immigration reveal daily infringements of the right to
asylum and of the European asylum system as it is supposed to be applied in the
Member States.
The Member States were to lay down minimum
standards of reception which ensured a dignified standard of living and comparable living conditions in all
Member States by
February 6th 2005. This was a year ago and one would think that
States have had enough time to bring the full effectiveness of these measures
in accordance with the standards of this directive.
The shortcomings pointed out by surveys
carried out those last two years confirmed that the enforcement of those
standards didnt lead to the real implementation of the foreseen measures.
Thus, the implementation of this Directive should be evaluated at regular
intervals.
The delegation, appointed to observe the
setting up of the European reception policy, in particular in bordering
countries, has as its aim the assessment of the actual situation; to account
for all the difficulties met by the Authorities in implementing border controls
and reception policies. They are to provide efficient human solutions.
By 6 August 2006, the Commission shall report
to the European Parliament and the Council on the application of this Directive
and shall propose any amendments that are necessary..
Thus, it is the interest of this delegation to complete a clear and
comprehensive report on the deficiencies in reception measures and all the
infringements of asylum and fundamental rights in the Members States. It has to be pointed out that
during the mission in Lampedusa, the Italian government showed a lack of
institutional respect toward the European Parliament.
Additionally, several reports have made clear the constant abuse by the Italian
government of fundamental rights and human dignity, both by international and
European standards of asylum.
Therefore the purpose of the delegation to
Malta is to check the effective access to a fair asylum procedure and to the
reception condition offered to asylum seekers in the Member States.
framework
of the Maltese migration policy
On route to mainland Europe, the Maltese
archipelago has always been a transit country. Since Malta joined the EU in May
2004, its status as a transit country has been reinforced by the application of
the European rules concerning countries burdened with asylum seeker
applications (See DUBLIN II).
With these
geopolitical and topographical features, the Maltese authorities claim to be
incapable of managing the flow of immigrants pouring into the country (even if the phenomenon exists), and
subsequently ensuring their integration. The Maltese legislation and practices
illustrate this approach to migration.
Focus : Maltese Press
Illegal migrants in coordinated protests
Michael Testa
23/02/06, Time of Malta.
Illegal immigrants at the
three detention centres in Hal Far, Safi and the police headquarters in
Floriana staged what appeared to be a coordinated protest, yesterday.
Immigrants at Hal Far and Safi detention centres tore down the wire
fence at their compound but rather than to escape, their intention seemed to be
to hold a demonstration to highlight their situation.
Throughout their protest they insisted they wanted freedom.
At Safi, the immigrants agreed to return to the detention centre at
about 4 p.m. only after a small group representing them were allowed to speak
to the media.
No incidents were reported during the disturbances.
When contacted yesterday, Prime Minister Lawrence Gonzi said that from
the information he had at that moment in time, all the forces responsible for
maintaining order handled the situation well and in a professional manner.
Home Affairs Minister Tonio Borg said in Parliament last night that the
irregular immigrants protested because they did not want to remain in
detention. They wanted to be freed to go to Italy.
This was not acceptable and the country's laws, even though they were
tough, had to be applied.
He said a large number of people - there were 1,200 detainees - had
rushed the fence of their closed centre and went out. The army could not
control the situation without the use of weapons, which it rightly decided not
to use.
The police immediately went to help and together with the army returned
all migrants to their units.
The minister said the present number of detainees was the highest ever.
He said he was convinced the army would do its utmost to control the
problem in future but it was better to use caution rather than excessive force
to prevent escapes.
Dr Borg was replying to questions by Labour MP Joe Mizzi.
Two immigrants who escaped during the confusion at Safi in the morning
were rounded
up by the police in the neighbourhood and were returned to the centre
handcuffed.
Trouble started at about 10 a.m. when about 100 immigrants at the Hal
Far barracks broke down a gate along the perimeter fence and ran out in the
street.
Shouting slogans in favour of freedom the immigrants started walking in
the direction of Malta International Airport.
The march threw the traffic in that busy artery into chaos.
By this time police reinforcements were sent to the area to restore
order.
The immigrants decided to return to the detention centre, a stretch of
about five kilometres away when they reached the roundabout near the McDonalds'
outlet close to the airport.
This time the road from Luqa to Hal Far was closed to traffic until the
immigrants returned to barracks. An army helicopter hovered over the area.
The protest lasted about two hours.
At about the same time, a similar number of immigrants in detention at
the Safi centre escaped from their compound by pulling down part of the wire
fence but stopped outside displaying banners and placards. Some sat down on the
tarmac and others stood behind a strong contingent of army personnel.
One of the banners read "One-and-a-half years is too much. We need
freedom". The poster was referring to the duration of detention of some of
the migrants.
At one point the situation appeared to be heating up when the protestors
started slowly pushing against the soldiers to approach the area where media
representatives were observing developments. When food was offered to the
immigrants, some threw it on the ground.
One of the immigrants was heard saying "Let the press come. We are
not fighting. We want to speak to the press".
In the meantime soldiers were assigned to repair the broken fence, a
task they had to temporarily abandoned as some of the immigrants started
kicking the repaired part of the fence.
In the afternoon, arrangements were made by senior army officers, under
the direction of Lt Col Brian Gatt, the commander of the detention centres, for
a small representative group of immigrants to speak to the media on condition
that the protestors return peacefully to their quarters.
"It is all about freedom. Detention is too long," Joseph
Botchway, a Liberian 20-year-old asylum seeker who has been detained for eight
months after landing here illegally, said.
"It should not be longer than six months," he said adding that
among the detainees there were some who had been under lock and key for 18
months. "We are not criminals or murderers."
The immigrant, who said he fled his home country because of civil
strife, said: "We know we are illegal immigrants but many wanted to move
on to another country while some would prefer to stay here".
He suggested that those who wanted to remain here should be taught
Maltese so that they would integrate with the people better once they are
allowed out of the detention centres.
Mr Botchway complained about the quality of food and about what he
termed as delays to get medical attention.
"Life at the detention centre is bad, not because we are maltreated
by the soldiers but because of the environment we live in," he said.
Asked about reports of misbehaviour by the illegal immigrants towards
the soldiers, Mr Botchway denied this, but he acknowledged there was once an
incident when one of the detainees threw hot milk at the soldier offering it to
him.
At the police headquarters detention centre in Floriana the immigrants
held a noisy protest in the afternoon shouting slogans in favour of freedom and
displaying a banner explaining why they were illegal immigrants. The protest
lasted slightly less than an hour.
The immigrants at Lyster Barracks were addressed by army officials, the
Refugee Commissioner and Mgr Philip Calleja.
On Monday of last week some of the asylum seekers living in tents at the
Hal Far detention centre staged a protest to complain about what they called
their dire situation.
They claimed they were being treated like "animals", that they
were being fed nothing but macaroni and that their sanitary conditions left a
lot to be desired.
Army sources said such protests had become a fairly common occurrence.
The asylum seekers called on the Commissioner for Refugees to visit the
detention centre to hear about their problems
[http://www.timesofmalta.com/core/article.php?id=215667]
Group of immigrants escapes and walks in protest to Gudja
roundabout
Chris Galea,
22/02/06, Di-ve News
Irregular immigrants organise demonstrations at Hal Far and
Safi barracks. A group of around 80 irregular immigrants broke out from the
compounds at the detention centre in Hal Far on Wednesday at around 1000CET and
walked to the Gudja roundabout next to the Malta International Airport to
protest against their lack of freedom.
Meanwhile, a further group of around 150
irregular immigrants who had also tried to break out in protest were held by
members of the Armed Forces of Malta (AFM). Some of these however went on the
roof of the barracks and joined in the protest by showing their grievances from
there. Members of the AFM and the Police corps were also called to control the
situation at the Safi Barracks, where a number of irregular immigrants were
also protesting at the same time.
The group of protesters that had managed to
break out of the Hal Far barracks stopped at the Gudja roundabout, causing
havoc in an area that is sensitive for traffic. Members of the AFM and Police
rounded up all the irregular immigrants.
The protest was however relatively peaceful,
and no violent episodes were reported between the irregular immigrants and the
public order officials.
After some time, the AFM and Police
managed to convince the irregular immigrants to return back to the barracks and
escorted them while they walked there.
The public order officials conducted
searches in the whereabouts, including through the use of helicopters, to look
out for any immigrants that might have ran away, although reportedly all the
immigrants returned to the barracks.
[http://www.dive.com/dive/portal/portal.jhtml?id=220432]
Demonstrations at Safi barracks still ongoing
Chris Galea,
22/02/06, Di-ve news
The demonstration being held by the irregular immigrants at
the Safi Barracks is still underway, as a group of around 200 is now protesting
against the quality of their food and requesting to talk to the press.
While negotiations between the
irregular immigrants and the AFM personnel, who are not carrying any kind of
weapons, were still ongoing, a number of other immigrants that were compounded
broke their way out in order to join the other protesters in the yard.
AFM Lieutenant David Gatt, who
is acting as chief negotiator, would have allowed two of the immigrants to talk
to the press after initially allowing only one, but the immigrants still
rejected this concession and kept insisting that all of them do so as they did
not want to risk that anyone of them is marked.
The group of protesters have
also thrown their food to the ground, claiming that this was not good amidst
shouts of "dog food."
Sources told www.di-ve.com
that the food is however prepared by a renowned confectioner and not by the
AFM.
The protests apparently began
after some of the immigrants that broke away from the Hal Far Barracks earlier
in the morning called a number of immigrants being kept at the Safi Barracks on
their mobile phones.
Meanwhile, the situation at the Hal Far barracks has been brought back
to normal after this morning's demonstrations which included a walk in protest
to the Gudja roundabout by a number of immigrants who had broke away.
While minor tussles have been reported, the situation is very different
from January last year, when soldiers had clashed with migrants during a
protest at Safi Barracks. An inquiry report published last December had
concluded that excessive force was used by several soldiers to control the
migrants on that occasion.
[http://www.di-ve.com/dive/portal/portal.jhtml?id=220467&pid=23]
Des
clandestins s'chappent d'un centre de rtention Malte
6/03/2006, Reuters
Around sixty illegal immigrants, mainly of african origin, escaped from
a Maltese detention centre on Monday and went to the airport where they
protested against their deprivation of liberty.
This is the second incident of its kind
in two weeks on this Mediterranean Island, however its the first time that
protests were held at the airport where police forces were ready to intervene.
Nearby journalists watched the
immigrants pull down a wire fence in order to escape from the detention centre
at Safi, close to the airport.
They got about as far as three
kilometres, pursued by soldiers and a military helicopter. They were stopped
without any trouble in the airports departure lounge.
Malta considers it necessary to detain immigrants in such detention centres,
fearing that in their numbers they are a threat to the economy. The immigrants
say that their intention has never been to reside in Malta but to get Italy.
Around a thousand illegal immigrants
are in Malta.
[http://permanent.nouvelobs.com/etranger/20060306.REU17693.html
Systematic
detention of foreigners
Concerning reception policy : confinement
Confining
immigrants has been the practice for over 30 years. It has been mainly enforced
to control the influx of newcomers and to deter would-be immigrants to Europe
from settling temporarily in Malta.
Entry
onto Maltese territory was decriminalised in December 2002. Nevertheless, all
migrants without proper travel documents, including asylum seekers, are
systematically deemed in legal custody and placed in closed centres. Throughout
the whole asylum procedure the migrants are detained in unacceptable living
conditions incompatible with the right to respect for human dignity. As the number of reports
condemning the situation grows, the argumentative and material answers put forward by Malta are far from
satisfactory and do not comply with the established standards in the European
Union.
It comes
as no surprise that reform of Maltas policy on the detention of foreigners,
including asylum seekers, was not made a condition of entry by the EU
institutions.
The
deprivation of the liberty of asylum seekers infringes the principles of the
Geneva Convention (article 31) and European Convention on Human Rights (article
5); it is noted that Malta is a signatory to both these instruments.
Whilst,
Malta has implemented the Directive laying down minimum standards for the
reception of asylum seekers that reasserts that asylum seekers may
move freely within the territory of the host member State or within an area
assigned to them by that Member State. The assigned area shall not affect the
unalienable sphere of private life and shall allow sufficient scope for
guaranteeing all benefits under this Directive. (art. 7, 1) it is noted that the
circumstances surrounding the conditions of reception may provide for
exceptions: Member States may exceptionally set modalities for
material reception conditions different from those provided for in this
article, for a reasonable period which shall be as short as possible
when (...) the asylum seeker is in detention or confined to border posts. (art.14 8)
Focus : Identification of the measures of reception available
on the Maltese territory
DETENTION CENTRE
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Place
of detention , Immigration Act
(Article 34, (1)) :
"A person detained in custody under this Act,
other than under article 10 gold 22, goal not serving has sentence of
imprisonment, may Be detained either in prison gold in any place appointed
for the purpose by the Minister by note in Gazette, goal yew detained in
prison He shall Be treated have has person awaiting has trial ".
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Establishments
managed by the police
Hal Far, Immigration
Reception Centre
Open since February 2002 and regarded as
specifically conceived for the lodging of the detained migrants. A fire recently
damaged it.
The buildings are not adapted and the general
conditions of reception are deplorable (windows without glass, water systems
drainage defective).
The official capacity is 100 beds but the
Ombudsman (report 2002) said that the buildings cannot accommodate more than 80
people without being heavily over-populated.
The 18 rooms of 15 m2, only equipped
with bunk beds, should not hold more than 4 people to be in conformity with the
standards of the Committee of Prevention of the Torture (Council of Europe).
Terrible sanitation. The rooms are not heated. The detainees get 12 hours of
physical exercise per day in the open air.
Police
Headquarter, Floriana
The 3 large dormitories, of 150 m2
each, are equipped with bunk beds.
More than 85 people have already been placed in
the same dormitory under extreme conditions of promiscuity and confinement
(access to natural light is rare).
Moreover, the sanitation facilities are largely
insufficient in comparison with the capacity of reception. This detention
centre has held up to 180 migrants yet it only has 6 toilets and 3 showers. No
activity is offered and the courtyard used for recess, is enclosed by barbed
wire, is very small.
Ta' Kandja Police Complex,
Siggiewi
Located in the buildings of the Special
Assignment Group, the CPT describes it as an ominous and oppressing place.
Some repairs have recently been carried out (electricity system, additional
doors, showers) but the conditions remain largely below the international
standards. Access to natural light is still scarce.
Acts of police violence have been alleged, as
well as degrading and racist remarks.
The prisoners generally have the right to stay
4 hours in the open air in the courtyard enclosed by barbed wire.
Malta International Airport Custody Centre, Luqa
Dormitories (8 beds) do not have any windows.
Sheets are not always provided to the prisoners, even after several days spent
in this centre.
The hygiene conditions are appalling. The
shower was out of order while the CPT was visiting the centre. No physical
exercise in the open air is envisaged.
After 12 hours of detention, there is in theory
a transfer to Hal Far Immigration Reception Centre but this is not really
practised by the Maltese authorities.
The CPT considers that the material conditions
have largely worsened since the inspection carried out in 2001.
Military Establishments
In the centres under military authority, internal rules (March 14,
2002) determine the detainees routine (meals, cleaning, break, rest) and
measures to be taken in case of disease. Nothing like this exists in the
centres managed by the police.
Safi Barracks, 3rd
Regiment of the Armed Forces, Safi
Official capacity: 270 beds.
The hygiene conditions and medical care are
poor. The windows often dont have glass, and the heating is missing.
The men on their own are placed on the ground
floor while families and women on their own live on the first floor.
Only one hour in the open air is allowed on a
wasteland surrounded by barbed wire.
Within this military complex is Nissen
Hut (Motor and
Transport yard), a metal hangar which recently was used to house 60 migrants.
Suffocating in the summer and freezing in the winter.
On the same site, some migrants had to camp in
canvas tents for 9 months.
Lyster Barracks,
1St Regiment of the Armed Forces, Hal Far
This unit has held up to 230 asylum seekers.
The 16 dormitories, roomy and relatively well
ventilated, offer adequate access to natural light. The bed linen is worn and
hygiene is poorly lacking. There is no heating. The reception conditions are
poor.
A room is reserved for prayer; an entertainment
room exists but apparently not really busy. Detainees have access two hours per day to activities in
open air.
Finally, in addition to these different
centres, Malta uses tents in period of high throng.
"OPEN" CENTRES
These are the first port of call for freed
foreigners who have been successful in their asylum claims. They are no
longer deprived of their liberty. There may also be some asylum seekers who are still awaiting the
decision of their appeal, even of rejected asylum seekers who have asked for
preferential treatment.
In June 2003 an "open"
centre was created which accommodates an average of a hundred people, including
families. Another centre of this nature had been created in Lyster, for a
hundred or so refugees (276 in 2003). Conditions of reception are not
comparable at all with the detention centres.
The Marsa Open Centre and the Reception Centre for non
status families with children (Appogg) obtained subsidies within the framework of the European Fund
for the Refugees in 2005. The first one stresses on the suggested assistance
to refugees in terms of integration and autonomy. The atmosphere is described as pleasant and the material conditions of reception
seem acceptable. It
can accommodate at least 224 people. A community restaurant and an
entertainment room have been created. The Reception Centre for non-status
families with children intends to offer, in addition to the material conditions
of reception, offers other forms of assistances be they educational, social or cultural. The objective is to
facilitate the integration of these families.
Detention of minors for the higher interest of Maltas
security
Absence of
measures concerning reception of immigrants and integration of refugees
Inadequacy of reception centers
The
majority of the Maltese accommodation centres are closed detention centres which vary in type: barracks, camps,
sometimes tents in period of strong multitude, managed by the police and the
army. All testimonies denounce the inability of these buildings to cope with
the reception of the detainees and function on a long-term basis.
Absence of legal framework and rules
There
neither exists a legal basis outlining general conditions of imprisonment in
these centres, nor rules defining the standards of operation, and in particular
with regards the rights of the detainees such as limits on the decision-making
power of the guards.
Moreover the absence of common rules thus increasing the possibility of
control - could be a serious source of disfunction. The fact that acts of
violence by the guards against the detainees are rarely denounced and that, on
the contrary, many testimonies - including from detainees- indicate that some
guards obviously do whatever they can - within their power- to make the
conditions of detention less humane, cannot justify failure to implement legal
and procedural rules for executive/ administrative detention.
Inhuman reception conditions
All the available reports underline that: Malta must imperatively
improve, and in a significant way, the material conditions in the
establishments where migrants are held in accordance with the national
legislation. At present, Malta doesnt fulfil its obligations under
international and European law. Let it be reminded that Member States shall make provisions on
material reception conditions to ensure a standard of living adequate for the
health of applicants and capable of ensuring their subsistence. Member States
shall ensure that that standard of living is met in the specific situation of
persons who have special needs, in accordance with Article 17, as well as in
relation to the situation of persons who are in detention.
In addition to the
psychological state of the detainee, there is the boredom and deplorable
reception conditions, overpopulation, lack of privacy, extended containment,
lack of activities, and contact with the outside.
Moreover, sanitary conditions are lower than expected from international
standards. In other respects, access to medical care is usually hindered by
excessive security measures, sometimes violating human dignity.
NGO JRS underline that despite medical reports purporting the humanitarian
liberation of certain detainees, the executive plays deaf and exits from the
camp for medical reason are rare. The measures concerning reception
available on the Maltese territory at present violate the right to human
dignity and private life. The current situation cannot ensure all the benefits
encapsulated in the Directive.
On the whole, we
observe that immigrants are treated worse than prisoners, and although they may
be considered illegal they most definitely are not criminal by virtue of
seeking asylum. This
discriminatory practice must be highlighted and the emergency situation
argument can no longer be considered a justifiable excuse, after all the
Maltese authorities have been aware of this situation for a long time.
Absence of integration
policy for refugees
The feeling of
rejection within the Maltese society at present is confirmed by the racist
overtones of politicians and the anti-immigration demonstration which attracted
a huge crowd in October 2005. Moreover, even if Maltese law is now aiming to
integrate refugees on its terroritory, the project concerning resettlement of
foreigners outside Malta hasnt been called into question.
In spite of recent permission for those with a humanitarian status to work, largely
dissuasive reception conditions dont give residence permits holders a durable
integration perspective. Released, their only freedom is to leave.
Malfunctions of
the Asylum procedure
On January 15th 2005, at the Hal
Sahi Immigration Reception Center, more than 90 detainees (some of them were
locked up for more than a year and a half) took part in a peaceful
demonstration by refusing to go back into the Centre after the open-air free
time, in accordance with regulations. The use of force and bad treatment were
the only responses given to the detained migrants denunciation of the lack of
information on their rights and the progress of their asylum application, the
slowness of the procedure, lack of legal and linguistic assistance, and general
detention conditions.
The illusionary right to
asylum
If Malta answers positively to 60% of asylum
applications, it must be clear that, among every treated application, only 6,5%
get the refugee status. Thus the great majority of asylum applications only result in
temporary humanitarian protection, that is to say an unstable legal and social status, with few
integration measures.
Asylum procedure in
practice: shortcomings in terms of information, interpreters, legal assistance,
excessive waiting periods, and inefficiency of the appeal procedure
Besides debatable modalities of the accelerated
procedure and the Safe countries principle in contradiction with the spirit
and content of the Geneva Convention, the right of asylum is is treated with
complete disregard by the flagrant absence of measures allowing the effective
access to the asylum process (concerning information on access to procedure,
legal and linguistic assistance). Moreover, the improvement of staff training
and increase in staff numbers in charge of asylum claims remains a priority
that recent measures have failed to address. At the same time international
bodies have noted that the asylum process does not allow for review of the
initial decision. Asylum seekers are not heard in their appeals, and decisions
are only transferred on the asylum seekers express demand, rejections are not
motivated. It thus seems to be that the appeal process only reiterates and
confirms the Refugee Commisioneradvice. These obstacles to effective access
to the asylum process
contribute to feelings of isolation, insecurity and distress among asylum
seekers.
Given that Malta now benefits from specific
European aid, it is time for Malta to stop their extenuating circumstances
speeches and really take in charge asylum seekers and immigrants, by
establishing an asylum and immigration policy which is in accordance with the
principles and laws they are bound by. In this respect, starting
negotiations with Nigeria and Libya with a view to readmission agreement must be clarified, as well as the
Maltese authorities will to participate in common charter flights. These
chartered flights are unacceptable and are in contravention of European norms
as defined in article 4 of the 4th additional Protocol of the
European Convention for the protection of Human Rights, and in article 19 of
the European Fundamental Rights Charter.
Recommendations
To the delegation
-
Regardless
of any previous comments made to the Maltese authorities, the fact is that the
situation has not changed since their adhesion to the EU. It is therefore of
the utmost importance to remind Malta of their international obligations as
well as their obligations deriving from membership to the EU.
To achieve harmonization, the minimum rules
provide: Member States may introduce or retain favourable provisions
in the field of reception conditions for asylum seekers and other close
relatives of the applicant who are present in the same Member State when they
are dependent on him or for humanitarian reasons insofar as these provisions
are compatible with this directive. (2003/9/CE, art. 4 Provisions more favourable). Malta has, like
every other member state on the border of the European Union, to act in
accordance with fundamental Human Rights and asylum rights, thus making the EU
not only an area of security but also an area of freedom and justice to those
who, because of their circumstances, legitimately look to the community for
protection.
-
Investigatory
powers of the European Parliamentarians should allow them to access information
such as:
Centres register (centers
capacity, registers management, detainees ages and genders, vulnerable
persons census)
Assessed data on prohibited
immigrants number, as well as asylum seekers, persons with refugee status,
persons receiving temporary humanitarian aid, persons who didnt get the refugee
status, expelled persons and those who are resettled.
Centres rules and regulations (are
they available to all?
Notified to the prisoners? Translated?). In all circumstances there
must be a list of staff rights and duties drawn up and sanctions incurred if it
is not respected.
Those elements have to appear in the regulations.
-
in
order to give the parliamentary report its full effect, other points must
also be evaluated:
conditions of reception:
- detention and housing conditions
(persons housed compared to the available surface, air, natural light, private
life spheres respect and family unity) and relationship between staff and
prisoners.
- food (variety, quantity, quality) and clothing
- bathroom fittings and sanitary conditions(depending
on the center capacity)
- access to medical care (existence of
an infirmary with first aid emergency access and a psychological assistance)
- contact with others (communication,
visits)
- supervision within open-air periods
(physical exercise)
-leisure, providing school education,
personal development.
Measures aiming to give necessary
information to asylum seekers on the asylum procedure. An information pack for
prohibited migrants was about to come out, where it is?
Legal assistance at asylum seekers
disposal
An interpreter, who can give
necessary assistance to asylum seekers throughout the procedure but also on a
daily basis.
Size and formation (nature and
content of training, timetable, instructors quality) of the staff in charge of
asylum claims and appeals.
Training and awareness of
instructors and staff in charge of border control and prohibited migrants
surveillance in respect of the fundamental rights and human dignity, as well as
foreigners rights and refugee rights
To the Maltese authorities
The systematic detention policy applied to
illegal immigrants, especially asylum seekers, is not compatible with the
rule of law not with EUs values that Malta is supposed to defend and uphold.
An alternative system must be set up:
The following measures should be set
up as a matter of urgency:
-
a
legal basis for executive
detention
-
detention
rules and regulations (for the staff as well as the detainees, outlining the
rights and duties of both groups concerned and providing sanctions to be
enforced in the case of a breach). These regulations must be made available to
the prisoners
-
forbid
the detention of minors
-
improve
the training and increase the number of staff in charge of asylum claims
-
ensure
detainees have access to their rights concerning the asylum process and their
conditions of reception
-
ensuring
the availability of necessary legal and linguistic advice
Temporary humanitarian aid cannot be
a part of asylum policy. According to the Conventions binding Malta, it is a
duty to grant asylum to people falling within the scope of the Geneva
Convention. The requirements to be met to fulfil status worthy of protection
must be clearly stated by the law and upheld.
Competent authorities dealing with
asylum claims, must inform asylum seekers about the progress of their claim.
Specialised NGO interventions
(remaining exceptional) in executive detention situations must be facilitated
The Government must ensure the
successful integration of persons with refugee status or given temporary
humanitarian aid: effective regrouping of families, access to medical care and
social security, assistance in looking for work and accommodation, fighting
against racism and xenophobia aimed at immigrants.
To the European Union
Notwithstanding the comments made on the Maltese
asylum and immigration policy, it appears that the European Unions asylum
policy and some of the measures of protection of the European Unions external
borders could have been interpreted by Malta as a permissive factor. It follows
that the European Union has to take necessary measures in order to fully
respect the right to asylum, and more generally, the rights and dignity of
immigrants.
The European Unions institutions
must do everything within their power to prevent Malta from continuing its regime
of systematic detentions. Failure to do so will undermine the very principles
these institutions purport to value and moreover will undermine the founding
principles of the EUs asylum and immigration policy.
Cooperation between the Member
States reception conditions must be ensured. Any measures put into practice
must be reviewed for their effectiveness and their relevancy, both quantitively
and qualitatively.
Regardless of the controversy
surrounding the European Charter flights, the use of common European charters
per se, favours a stocking policy of migrants.
Readmission and resettlement
agreements with countries that have not signed the Geneva Conventions, and are
known by European and international organisations for their Human Rights
violations, cannot be signed by European Union Member States.
The
consequences of a strict application of the Dublin Regulation, would be to
oblige Malta to readmit most of the asylum seekers who used Malta as a transit
state, and thus would:
1.
create
a serious imbalance prejudicial to the quality and effectiveness of reception
conditions and the standard of asylum claims.
2.
subsequently,
encourage the Maltese authorities to favour a refoulement policy, detrimental
to potential asylum seekers and displaying utter disregard for the principles
underlying the protection of immigrants.
Both in asylum policy in general and with
particular regard to Malta, the European Union is urged to take ad hoc measures. These can be
divided into two main categories:
- either, to allow derogation
from the Dublin regulation, relieving Malta of its responsibility to deal with asylum claims made
by immigrants who used Malta as a transitory state and instead forwarding
asylum claims to the Member States of the immigrants choice. It is reminded
that the Council of Europe Parliamentary Assemblys Recommendation 1327 (1997)
invited Member States to amend the Dublin provision in order to allow
asylum seekers to express a choice concerning the country where they
want to apply for asylum, if they can prove their link with the country.
- or, to allow refugees and those with a
humanitarian status in Malta, to freely and legally settle in other Member
States.
Drafted by Pascaline CHAPPART, AEDH
representative, under the supervision of Catherine TEULE, Vice-President of the
AEDH.