Integration of immigrants - legal and institutional aspects

The subject is sensitive, but of course real. We have immigrants in Malta and we are talking about the illegal immigrants that come here without regular immigration papers, and without leave from the Immigration Officer in terms of the local law.(1)

Had the case been different, then the paper I am reading would be out of place. Malta has hundreds of illegal immigrants who are all detained, except for a handful of cases that somehow manage to obtain refugee status, or are given some other very special leave by the authorities from the strict procedure that have to undergo.

This is a problem that my country has had to face seriously in the last few years where a large number of illegal immigrants started arriving on our shores.

There are two main concerns in the matter. The human trafficking of these people and their integration in our or another society. The first one is today an international crime and we believe that every effort must be made to bring every person connected with trafficking to the courts of justice and punish them with imprisonment.

It is not the first time that Malta and Maltese nationals2 have been named in such human trafficking of illegal immigrants, and the latter were arraigned both locally and abroad.

There is no doubt that in this field much more needs to be done. The local police I am sure are doing their best, yet is it the very best in the circumstances?

Considering that the number of persons charged in court and the witnesses of these illegal immigrants is so small, as a percentage, no one can actually boast that we are making any real headway.(3)

Are we doing enough, in real terms, with our neighboring states to curb this crime, even collectively? Personally, I feel that we can always do more!

From the law enforcement standpoint, the focus must be on criminals, not on the crime. Hence intelligence-led policing, which requires the skills, equipment and systems to manage and analyse crime and criminal information. This requires an improvement in the methods used, till now, by the local police.

The places of detention in Malta are, like most places abroad, not adequate and were the subject of criticism on several occasions by the Opposition both in Malta and abroad. (4)

The centres were also the subject of controversy when several numbers of illegal immigrants managed to escape! Should these centres be improved to at least be in line with the basic requirements as imposed by international standards?

Riots and hunger strikes are becoming a regular occurrence in these centres. The detention policy, although the Opposition agrees with it to a certain extent, never justifies inhumane conditions that raise serious suspicions of breaches of human rights!

We believe that the detention centres should not breed more hatred between detainees and the authorities, or even worse, the local population.

We should do more to change things round. I strongly believe that the role of NGOs should be encouraged and that the private sectors should be involved in helping them, wherever possible.

This would lighten the cruelty of detention. "Whatever the immigra-tion problem is, without the private sector's involvement, international conventions, national legislation, and efforts directed towards training and awareness raising, were not sufficient," said Ambassador Daan Everts, OSCE Personal Representative of the Netherlands Chairman-in-office, when discussing this problem, and he one has to move from rhetoric to results.

The truth of the Malta experience is that we were forced to face the rapid expansion of illegal immigration in the recent past, overnight.

Contrary to what used to be the normal procedure, an illegal immigrant can only be given leave to stay either by the Immigration Officer, which is never done when the detainee does not have the relative papers and visas (the majority reach our shores without any documents at all),(5) or if s/he is considered as a refugee under the UN convention on refugee status.

If that is refused it can be appealed by the Commissioner for Refugees to, what now appears under a special procedure included in our law, the Immigration Appeals Board.(6)

During the parliamentary debate on the amendments to this Act, the Opposition criticised this procedure as the members of this board are all appointed on the advice of a political person, the minister involved, or the Prime Minister, and the sitting members do not have security of tenure.

Hence, the actual composition of the board is not up to the elementary rules of natural justice as expected in a court of law.

Cases in reality are very bizarre. I refer to a case in point among the very many, that I became aware of the other day when I was preparing this article.

After nearly two years of detention, a Libyan seeking refugee status appeared before this board last October. He presented all the papers he was requested to present, which he managed to bring from his native country.

He was then asked to bring a copy of his brother's judgment, who is in prison in his country. But all his family, except for his imprisoned brother, have left Libya as they are known for their opposition to the Gaddafi government. So how can he produce this document? He was also told that the Commissioner for Refugees had refused him since when he came to Malta he did not apply for such status immediately.

A court of law would normally have given more weight to the applicant's plea. An appeal in this case is expected to be filed.

Ideally the immigrants should return to their home country if the place is safe. Many problems crop up in determining such delicate situations and decisions.

One still questions, for example, the present government's decision, which over a year ago repatriated a group of illegal Eritrean immigrants even though the human rights situation in their country is atrocious.

The Opposition had at the time shown its concern and NGOs also exerted pressure to stop such a forced expulsion of these people.(7)

Do we even know whether these Eritreans have resumed a normal life, or whether they are still alive?

However, even where international organisations (UN, OSCE, and others) are present in countries like Kosovo, we are still experiencing problems in ensuring the safe return of refugees.

All political and financial support has to be made here in conjunction with solidarity aimed to foster the return process. One question always has to be addressed. Is the immigrant's home country safe for that particular immigrant?

If the question cannot be answered in the best interest of that immigrant then all other decisions are based on adventure.8 The case of Gojko Jasnic, a 67-year-old ethnic Serb, is a case in point. (Jasnic was one of the countless refugees who were displaced by the bloody conflict that engulfed the former Yuguslavia in the 1990s.)

The integration of immigrants is an international affair and it can never be addressed solely by the receiving state, but should ideally be handled by the co-operation of the international community, or at least by regional concrete approaches.

Still there is no specific international instrument that gives clear solutions to practical integration of immigrants with the entire correlative legal and its institutional aspects.

At the domestic level, the law does not provide for easy integration of immigrants. Those who are illegal now just simply remain in detention.

This unless they are granted refugee status by the Commissioner for Refugee or the Immigration Appeals Board in terms of the Immigration Act.

Or there are those who are given a working permit issued at the administrative discretion of the government. There are no grounds of appeal if a working permit is refused to any immigrant.

Hence, here we are roaming in the wilderness of a very strict policy against actual integration of immigrants. This problem clearly shows that there is no practical methodology regarding the integration of immigrants in Malta.

Rather the message behind the present policy is to ignore the reality of the situation. Can we continue detaining illegal immigrants for an unspecified period?

If the detained person cannot be blamed for the non-production of papers as evidence of his identity etc, is it justified to keep him in detention when such a person can somehow be temporarily integrated in our society?

Other relative problems with the present detainees all point to one direction. Both main political parties have to give their future policies on the integration of immigrants, serious thought, especially since it is expected that the immigration problem is to remain with us for the coming years. This is a social problem of today's age. On the other hand cross-border co-operation on labour migration has to be intensified.

The challenges are there for all of us - politicians, activists, volunteers or NGOs. Such a phenomenon cannot continue to be faced with traditional approaches, or worse, ignored! Broader and humane policies are always in the best interests of the human race. Malta is no exception.

References

1. Immigration Act, Chapter 217 of the Laws of Malta.

2. Recent cases 2002, 2003, Maltese detained in Italy.

3. Recent study confirms this truth of meagre prosecutions. Paul Homes, consultant to the International Organisation for Migration (of which Malta is a member) stated in a recent report (OSCE publication 2003).

4. Opposition spokesman for Home Affairs Gavin Gulia press releases 2003.

5. Police report 2002.

6. Chapter 217 of the Laws of Malta, section 25A.

7. Pope John XXIII Peace Laboratory, Hal Far.

8. OSCE newsletter September/October 2003 p. 9.

Dr Farrugia is the Malta Labour Party's representative in the OSCE Parliamentary Assembly as well as shadow Minister of Justice