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Migrants and the Mediterranean: UN rights expert on human rights of migrants visits Malta to follow up on EU border management study

Valetta, 10 December 2014

Following an invitation by the Government, I conducted a visit to Malta from 6 to 10 December 2014. I met with Government officials responsible for border management, international organisations present in Malta, migrant organisations, and migrants themselves, including in detention centres, to discuss the complex management of the Maltese border.

I would like to express my appreciation for the support and cooperation the Maltese Government provided in planning and coordinating the visit. I would also like to sincerely thank the representation of the United Nations High Commissioner for Refugees (UNHCR) in Malta for their generous support and assistance.

This mission to Malta forms part of a follow-up to my 2012 year-long study on the management of the external borders of the European Union, which took me to Tunisia, Turkey, Italy, Greece and Brussels where I met with EU Institutions. I decided to conduct this follow-up study because of the unprecedented number of migrants and asylum seekers who have arrived in the Euro-Mediterranean region this year, the high number of casualties at sea, policy changes in different countries and the arrival of a new Commission in Brussels. Malta’s proximity to North Africa makes it a key entry point for those wishing to reach Europe. The study will result in a country mission report and a thematic report on EU border management to be presented to the UN Human Rights Council in June 2015.

In my conversations with the various people I have met during my visit to Malta, I have come to the understanding that, at the very heart of Malta’s approach to migration, is the need for Malta to acknowledge that human rights are essential for all people regardless of their status. This year has seen an unprecedented number of migrants and asylum seekers arrive at Europe’s borders and today, International Human Rights Day, is an important occasion for us to remember that human rights do not only belong to Europeans. They belong to all of us, regardless of nationality, immigration status or circumstances.

Migration cannot be seen only under the angle of a border security operation, especially with recent arrivals, many of whom were fleeing wars, violence and conflict. Over-reliance on border security – which focuses on policing, defence and criminality instead of a more rights-based approach – only serves to give a false sense of control over one’s borders. Malta must continue to establish a more human rights based approach to migrants and asylum seekers arriving and develop a coherent and effective migration policy.

In this respect, I would like to stress that any attempt at “sealing” borders, preventing irregular migrants from entering Malta, will fail. Sealing international borders is impossible, and migrants will continue arriving despite all efforts to stop them through mechanisms such as pushbacks. Currently, migrants themselves, often with the help of migrant smugglers, are crossing borders regardless of State policies. They see no other option but to migrate irregularly due to a lack of legal migration channels, particularly for low-skilled persons.

Malta is a key entry point into Europe. As such, European states must provide financial and human resources to support Malta in its endeavour to develop a comprehensive rights-based migration policy. Europe must also develop a coherent human-rights-based common migration policy, which will include, as central features, a robust common refugee resettlement programme with an agreed-upon distribution key, as well as legal channels for the low-wage migration its labour markets actually need.

Europe must recognize the practical limitations of the legal procedures of the Dublin Regulation, which place all the responsibility of migration control on front line states such as Malta. Europe cannot expect that such countries will use violence against thousands of migrants who haven’t committed any crime, in order to implement identification mechanisms, such as fingerprinting, when such migrants are reluctant to do so because of the consequences attached to such identification, in particular the inability to move beyond the European country responsible for the entry and the prohibition of claiming asylum in the country of their choice. This is especially true as some northern European Union Member States have made little use of the family reunification clause, the humanitarian clause and the sovereignty clause that could enhance the mobility of migrants throughout Europe. The present prohibition-based framework constitutes an incentive to place oneself in the hands of smuggling rings and drives migrants underground, making them vulnerable to human rights violations. In effect, the Dublin logic has already collapsed, with the realisation that the return of migrants to the frontline countries of Europe constitutes a punishment for both the migrant and the frontline countries to which they return: it is unsustainable in the long term.

Instead of ineffective prohibitions, repressive policies and lengthy procedures, Europe must deploy incentives for migrants to use such legal procedures, including for family reunification, and ensure the mobility of those migrants throughout the common European territory, thus allowing them to live where they will find the best employment opportunities and integration conditions, as is already the case for European citizens.

As a result of Mare Nostrum, the number of migrants arriving in Malta has fallen significantly because, once rescued at sea, they have been disembarked in Italy. However, with the phasing out of Mare Nostrum, Malta is likely to see a considerable increase in the number of arrivals next year. Given the profile of the majority of migrants and asylum seekers arriving in Malta, migration is not likely to decrease in the near future. Malta must use this lull period to prepare for withstanding such increase. Programmes developed must have a long term vision to deal with providing immediate assistance offering legal safeguards and integration programmes for migrants and asylum seekers that arrive irregularly. Malta should not be left alone in addressing and developing these programmes: Europe must actively support the initiatives developed by the Maltese Government.

Malta, of course, has the power to admit, deny entry or return migrants, but it equally has an obligation to respect the human rights of all migrants in the process. In complying with international obligations, Malta must also respect certain limitations, such as the principles of non-refoulement, of the best interest of the child and of family unity. I urge Malta to fully implement the various decisions of the European Court of Justice and European Court of Human Rights.

Malta must stop the mandatory detention of all irregular migrants and asylum seekers that arrive at its borders. Although irregular migration is not legally criminalized, the practice of mandatory detention has the unfortunate result of portraying the migrants as dangerous criminals who should be immediately locked up upon arrival for the safety of the wider public. There is no evidence that any of the migrants who came to Malta over the years has ever constituted a security risk. Mandatory detention consequently serves only to inspire in the Maltese general population a feeling of fear and distrust against the migrants and asylum seekers. This climate of fear unfortunately goes on to taint the policies and programmes put in place by Maltese authorities and the relationship between migrants, asylum seekers and citizens in Malta.

Asylum seekers in Malta are detained for up to 12 months whereas irregular migrants are detained for up to 18 months. Although this conforms to the EU Returns Directive, detention must always be prescribed by law, necessary, reasonable, proportional to the objectives to be achieved, and reviewed periodically. It must remain a measure of last resort, which duration should be as short as possible. States should move away from considering systematic or large scale detention as a legitimate tool in combatting irregular migration. With the current uncharacteristically small number of detained migrants, Malta could easily implement alternatives to detention: plans to do so have been shared with me, but need to be urgently implemented soon.

Assisted Voluntary Return (AVR) programmes are useful, although, when offered to migrants in detention, they should not be termed “voluntary”. An experiment linking the amount of money being offered to the date at which migrants accept to be part of an AVR programme (the more they wait, the smaller the amount) has failed to prove an effective incentive for migrants to use the AVR programme early after their arrival: this trial programme should be abolished and a standard AVR amount should be restored.

Migrants and asylum seekers should not be required to fill out the preliminary questionnaire immediately after they arrive in Malta. Migrants and asylum seekers are often victims of human rights violations throughout their journey. Upon arrival in Malta, they are often traumatised by their migratory experience – some do not even remember the details of their first few days after arrival: they need time to rest, ponder their situation, get information, seek legal advice, understand the system and consider their options, before being asked to fill any form which may prove a re-traumatising process.

Thanks to recent valuable policy developments, vulnerable groups, such as women, families and unaccompanied minors are immediately identified upon arrival and offered the protection that they require. In the case of children, age assessments are now carried out in primary reception centres within three days of arrival, through a primarily psychosocial approach. Plans for a new reception centre specifically dedicated to unaccompanied minors are being prepared: they should be quickly implemented.

Malta has also established open centres for undocumented migrants and asylum seekers. However, providing shelter for families with young children or single female-headed households, within the same compound as single males, works against the measures taken to identify particular vulnerabilities early. In particular, toilet and shower facilities for men and women are located side by side, which makes it uncomfortable for women to use the toilets or shower facilities alone at night.

Malta must establish programmes that facilitate access to justice for migrants and asylum seekers, by providing adequate information about protection options available, simplifying judicial procedures, establishing mechanisms for effectively reviewing the necessity of any detention, and providing low-cost quality legal representation to migrants for all the procedures they need to go through.

Migrants and people who assist migrants, such as lawyers and civil society organisations, often experience a lack of information with regard to procedures and practices in the migration and protection proceedings. An increased effort must be made to allow migrants to access relevant information in real time.

Migrants in detention seem to be missing prompt access to a competent lawyer, through an accessible legal aid system. Plans are being made for such access and they must be implemented soon.

I came across information about the exploitation of irregular migrants, asylum seekers and refugees, by employers in Malta, as they refrain from protesting and mobilising due to their fear of being detected, detained and deported. They are made to work long hours and paid wages that are below the minimum wage in Malta, often in the construction, tourism and care-giving industries. Sanctions against employers are very rare and the EU Employer Sanction Directive remains unimplemented in Malta, as is the case throughout Europe. Although labour inspectors are not empowered to check immigration papers, it is not clear whether they conduct operations with the immigration police: this would be a very bad practice, as it would not provide incentives for migrants to call labour inspectors or health and safety inspectors when work conditions are unsafe or in violation of labour laws. Migrant workers are workers, whatever their immigration status, and should be treated like all workers under labour laws.

Furthermore, it is important that Malta acknowledges that it has jobs for which it needs migrant workers, including low-wage migrants, and thus opens legal channels for migrants of all skill levels to come to Malta.

Plans for a national human rights institution respecting the Paris principles are under way: this will provide another platform for the protection of the human rights of all, including migrants, in Malta. Plans are also made for the creation, inside the Ministry of Social Dialogue, Consumer Affairs and Civil Liberties, of an integration unit which will focus on equality and non-discrimination for all, including for migrants and asylum seekers. Such plans need to quickly be implemented. Such institutional developments should initially focus on public awareness campaigns and on providing accurate data regarding migrants and asylum seekers and their economic and social contribution to Malta. These campaigns should be reinforced with an effective enforcement of laws prohibiting racist and xenophobic acts as well as hate speech against migrants and asylum seekers.

Malta is showing promising signs and seems to be going in the right direction: this political openness and will to ensure human rights for all in Malta should be translated into concrete legislation, programmes and practices. Malta has a vibrant civil society of dedicated individuals and groups, as well as international organisations with knowledge and experience. The Maltese government should work in collaboration with these stakeholders in order to better protect the human rights of migrants and asylum seekers.