asylum seekers: the european situation, the malta experience and analysis of the situation

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I have never experienced so much hassle as when I was putting together this article. It takes some legal knowledge in order to understand the situation refugees are in. And it took me a great deal of energy to do research and make sure everything written is understood. If while reading you don’t understand something it is likely that it will be explained later on.

The reason why anger and discrimination is expressed against refugees is because the general public is not familiar with refugees issues. Articles explaining who is a refugee, the meaning of the term refugee status and it’s legal implications do not appear on the mainstream media. The general public is so alienated from the refugee issue that the words “illegal immigrant” and “clandestine” are often used to refer to a refugee, asylum seekers, economic migrant or an undocumented person.

Before explaining how governments of first world countries obstruct asylum seekers from receiving protection and induce discriminative thoughts into their citizens I’ll explain some keywords about refugees through some questions.

Why do people become refugees?

One of the fundamental responsibilities of a government (or any oher form of authority that calls itself legitimate) is to give security to its citizens in the territory it controls. This means that it must make sure that citizens living in that territory sustain themselves in a humane way. Sometime due to various reasons, e.g. war, political oppression, militia group rise-up, etc the safetynet offered by governments disappears and people would need to flee their country and seek asylum in another country.

Once a person leaves his or her country for reasons of persecution and enters into another country, the person has the right to ask the authorities of that country whether protection could be granted to him or her. It is up to the authorities of the country that the person enters whether such protection (in the form of humanitarian or refugee status) is granted to that person.

It makes perfect sense that anyone who is persecuted in his or her country can flee the persecution, so the UN wrote “Everyone has the right to seek and to enjoy in other countries asylum from persecution. – Article 14” in the Universal Declaration of Human Rights.

How did the UNHCR come about and what is its 1951 Refugee Convention?

One of the first tasks assigned to the United Nations after being set-up was to resettle 1.2 million people who where homeless and stateless after World War II. Seeing that resettling 1.2 million people was no easy task the UN established the UNHCR (United Nations High Commissioner For Refugees) and gave it a three year mandate to resettle these people. On being set-up the UNHCR needed to define who is a refugee, and give the definition legal weight.

To do this it wrote the 1951 Refugee Convention. The scope (at least maintained by the UNHCR) of the 1951 Refugee Convention is to clearly spell out who is a refugee and the legal rights a refugee is entitled to. The problem as I’ll explain further on is that the 1951 Convention uses a liberal method of defining who is a refugee and the procedure that governments should adopt to determine who is a refugee.

Article 1 of the convention defines a refugee as a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country…”

The UNHCR used the term “being persecuted for reasons of race, religion, nationality, etc” in the 1951 Refugee Convention as a definition to who is a refugee so that European governments could resettle the homeless and stateless people in another country with a legal backing. Remember that less than a decade before, these stateless homeless people were being persecuted by the Nazi regime. Since the Nazi regime had been defeated they were not persecuted anymore so they could not be recognized as refugees anymore. Because the 1951 Refugee Convention would be used by a large variety of governmental forms and it would need to define a refugee in many contexts it was written in a very liberal form. Because it was written in a very liberal form it makes who is a refugee and what process governments should adopt to determine who is a refugee unclear.

Let’s start by who is a refugee. Read again how the Convention defines a refugee (page 8). Since the words “we l l foun ded f ea r ” and “persecution” are not defined in the convention it makes the definition of a refugee ambiguous. To give you a concrete example in the United States, Canada and Netherlands genital mutilation is considered persecution and asylum seekers have been given refugee status because they are fleeing genital mutilation. In other countries genital mutilation is not considered persecution therefore asylum seekers are denied refugee status.

Don’t think that in the countries mentioned in the previous paragraph refugees are welcome. Clinton ordered the National Coast Guard to intercept boats containing refugees to sink the boats and return the refugees to where they think the boats departed from. They justify their action because they say that everything is done in international waters so refugee laws do not apply there.

Determining who is in need of asylum (i.e. is being persecuted in his/her country of origin) and who is not is by no means an easy task. In this light, the 1951 Refugee Convention asks that governments adopt a flexible, rapid and liberal process in determining who is in need of asylum and who is not. It also asks that detention on asylum seekers should be used as a last resort. Again the words flexible, liberal, rapid, last resort and detention are not defined. Governments could always say, however shitty their asylum seeker determining procedure is, that they are abiding to the 1951 Refugee Convention.
The UNHCR recognizes that the 1951 Refugee Convention could be interpreted in several ways giving governments the possibility to hinder asylum seekers from getting refugee status. So in 1992 they published the “Handbook on Procedures and Criteria for Determining Refugee Status”, which give a realistic interpretation of the 1951 Convention. Since the handbook is just a handbook not a convention it has no legal weight whatsoever and governments can still go around the convention.

The Maltese Government

In 1971 Malta acceded to the 1951 Refugee Convention. Although it did this it did not check that it had the infrastructure and necessary juridical to handle asylum seekers. For thirty years its governments never bothered to make sure that the country had a good and efficient juridical system to deal with people when asking for asylum.

To date, the government is refusing to pump in enough resources (or change it’s naïve policy) so that asylum seekers would not have to spend years in “shocking and appalling” conditions waiting for their applications to be processed.

In the beginning of 2002 an unexpected number of asylum seekers started arriving in Malta. Because of the reasons that I’ve mentioned the government started detaining refugees in military barracks. When all military barracks were at an inhumane capacity (30 people living in a rooms sized10x10 meters) the government ordered that refugees should be detained at the police depot and when that was also at an inhumane capacity the rest where stuffed into a 1930 aircraft hanger with holes from the ceiling.

It took the Jesuit Refugee Service years lobbying with the home affairs minister to get permission to send volunteers into at least one detention center, with rumors from soldiers that the living conditions in that detention center were “heaven” when compared to others. The JRS offers legal advice to asylum seekers because the government does not employ enough lawyers for these people. If JRS does not do this these asylum seekers could end up waiting for years before even seeing their lawyer!

The “juridical” system used by the Maltese government to determine who needs protection is very bad. The reason why terrible mistakes are being made is because the 1951 Refugee Convention is very liberal and the Maltese government abuses it’s making (i.e. being liberal).

In October 2002, Malta deported over two hundred refugees to Eritrea. They were arrested upon arrival in Asmara, taken to a military camp, and held incommunicado. This was done at a time when Eritreans caught attempting to flee their country were reportedly beaten and tortured. These people where in need of protection!

I speculate that the Maltese government has come up with its own method of determining who is in really need of asylum and who is not. And this is… keep them locked up in bad conditions and those who beg to be sent back are not in need of a refugee status. Two years ago around 60 Pakistani, Egyptian and Nigerian people accidentally arrived in Malta and had no grounds on which asylum could be granted to them – because of the human right situation in their country. They were detained for nearly 5 months in two medium sized rooms before they where deported back to their countries. It took them less than one month into their detention-days before they where begging the authorities to be sent back to their country!

Big human right organizations from around the world condemned the Maltese government after the deportation and the conditions that asylum seekers are kept in. Instead of listening to the proposals made by organizations he used another mean to recover from the bad image that such organizations were putting. The government used tactics to gain public support to justify his means of dealing with asylum seekers.

In order to gain public support he (the government) demonises asylum seekers and to do this he took the following steps:

  1. Knowing that the Maltese population has little or no knowledge in refugee issues the prime minister made a press conference and said that if we treat asylum seekers in a humane way more of them will come to Malta. This does not make sense, because if a person is in need of protection asylum should be granted to the person.

  2. Instead of using the terms asylum seekers, refugees, economic migrants and undocumented persons, the government used two words which are very misleading – illegal immigrants and clandestine. This confuses people’s minds. Also I wonder how many libel cases could be won in this case.

  3. The government made a big fuss on how much money is being pumped into keeping them incarcerated in Malta. He does not give them any opportunity whatsoever to sustain themselves. It is obvious that in order to keep a large amount of people incarcerated you need resources.

  4. The government is proud whenever laws hindering asylum seekers from getting protection are passed. The Minister of internal affairs – glorifies the fact that in December 2002 a new law concerning immigration was adopted and that such law empowers the Police Commissioner that he can order repartitions on “immigrant clandestines”. A clandestine is someone who does something illegal and in secret. Asking for asylum implies neither! And still, giving so much powers to a single person is not the way to go about in a democracy’s.

  5. Detention centres are restricted to the general public and very burocratic for NGOs to get into them. The media are not allowed to film anything in the detention centres. Alvaro Gil-Robles – Europe’s commissioner for human rights was allowed into the detention centres after much pressure from organisation and described them as “shocking and appalling”. It is true that between 2001 and 2002 an unexpected amount of asylum seekers came to the island, but that does not justify that they should be maltreated. Exploiting the Maltese citizens’ ignorance concerning refugees to defend the country’s bad human rights situation is not acceptable!

Solutions to facilitate life for asylum seekers

The Maltese governments should emulate other European countries in handling asylum seekers. Instead of detention centres, there should be open centres and through organisations, make sure that refugees sustain themselves while waiting for asylum from the juridical system. Asylum seekers could sustain themselves without putting pressure on the job market. These people are capable of cooking and cleaning for themselves so why not give them the chance? Why does the country have to use it’s resources to do these simple tasks for them?

On behalf of the international community – the UN and UNHCR are spineless! They need to start making diplomatic pressure on governments whose country has signed the 1951 Refugee Convention but are undermining it’s value. Governments that abuse the liberty of the 1951 Refugee Convention and break human rights, e.g. sending people to countries where they are persecuted, should be prosecuted.

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