Government's policy 'highly questionable'

A court decision declaring lawful the detention of one asylum seeker does not make detention of each and every immigration detainee the same, according to Jesuit Refugee Service Malta.

In a recent ruling, the Magistrates' Court rejected a request by an Ethiopian asylum seeker to declare his 10-month detention illegal. Such a decision could well be seen as a vindication of the current government policy of blanket and indefinite detention of asylum seekers found to be in breach of the Immigration Act.

However, JRS argued that this was far from being the case. "It must be said that just because detention was declared lawful in one case, it does not mean that, by extension, the detention of all detained asylum seekers is similarly lawful," JRS assistant director Katrine Camilleri said.

"The effects of the application of the provisions of the Immigration Act in the individual circumstances of each case must be examined in the light of the provisions of the said Act, the Constitution of Malta, the European Convention of Human Rights (ECHR) and other human rights instruments to which Malta is a party."

The court ruling against Napolean Mebrahtu has not shaken the conviction of JRS - shared by agencies working with asylum seekers worldwide - that immigration detention is an unnecessary evil causing severe harm to detainees. And in a report, JRS lays down the national and international law to prove it.

The report, "Detention of asylum seekers in Malta: a human rights perspective", comes to the conclusion that government policy is "highly questionable in the light of the ECHR and other international human rights instruments to which Malta is a party" and raises serious human rights concerns.

"An evaluation of the conditions in which asylum seekers and other immigration detainees are held in the centres in Malta can only lead to the conclusion that the measures adopted amount to a deprivation of liberty in terms of Article 5 of the ECHR," Dr Camilleri said.

"JRS believes that, in the light of international instruments to which Malta is a party, not only does the government have the authority to choose alternative methods of dealing with asylum seekers but it has the obligation to do so."

To date, Malta's policy of detention of asylum seekers for breaches of the Immigration Act has not been challenged by means of a constitutional application before the First Hall of the Civil Court, which is vested with jurisdiction to hear and decide applications based on the ECHR or before the European Court of Human Rights.

However, the recent decision by the Court of Magistrates noted that the national Immigration Act had already been scrutinised by the ECHR in Aslan vs Malta and found to be above reproach. But that case was rather different to Napolean's. The case before the ECHR concerned the 10-hour detention of a Turkish national refused admission into Malta at a border point of entry.

Napolean has already spent the past 10 months in detention as an asylum seeker who should, in terms of the national Refugees Act, "be allowed to enter and remain in Malta pending the final determination of his application".