The new migration strategy is a “welcome step in the right direction” but excludes the increasingly common scenario of those who enter the country regularly and go on to seek asylum, NGOs have pointed out.

Released last week, the strategy puts an end to automatic detention and for the first time lists four alternatives to detention and lays down six specific grounds under which migrants may be detained.

So far, all those who enter the country irregularly are detained. Asylum seekers must be released after 12 months of detention but irregular migrants who do not seek asylum can be detained up to 18 months. The detention requirement is waived with respect to vulnerable people.

The new strategy introduces the creation of an initial reception facility where migrants will be medically screened and interviewed by pertinent authorities. The stay at the facility will be limited to no more than seven days while standards will be equivalent to those provided in detention centres.

Following the stay, migrants will be directed towards one of three options. Asylum seekers who fall under one of the six grounds laid down in the Reception Conditions Directive and migrants who are handed a return decision will be detained.

If the principal immigration officer still has concerns of asylum seekers absconding they should be placed under one of the four alternatives to detention, namely: reporting at an assigned location within specified timeframes; residing at an assigned place; depositing or surrendering documents; or placing a one-time guarantee or surety.

Vulnerable people, minors and other asylum seekers who carry no risk of absconding will be directed towards open centres.

“It is positive to see Malta finally moving from a system of automatic detention to one based on individual assessments of each case,” human rights lawyer Neil Falzon said, speaking on behalf of an informal coalition made up of 14 NGOs.

“These assessments, apart from being required by human rights law, also provide Malta the opportunity to identify vulnerable people at early stages, ensuring their appropriate care and support from as early on as possible.”

However, the strategy fails to clearly state how the new policy will apply in the case of asylum seekers who do not reach Malta by boat but who fly in and subsequently seek asylum.

It is positive to see Malta finally moving from a system of automatic detention to one based on individual assessments

In 2015, the top three nationalities of asylum seekers coming to Malta were Libyans, Syrians and Ukrainians.

It could not be assumed that asylum seekers flying to Malta all had sufficient means to sustain themselves and their families – an assumption often experienced by NGOs – Dr Falzon pointed out.

The strategy was unclear on how vulnerable people who entered regularly would be identified and referred to appropriate services and how those alleging to be unaccompanied minors would access the age assessment process.

The strategy also specified that, upon arrival, migrants would be detained at the initial reception facility for the purpose of preventing the spread of infectious diseases.

Since asylum seekers reaching Malta in a regular manner would not be required to pass through the facility, NGOs have questioned whether the entire initial reception facility process was discriminatory and based on the assumption (without evidence) that irregular boat arrivals were at a higher risk of contracting and transmitting infectious diseases.

“Malta remains under the impression that all asylum seekers are carriers of terrible diseases. While we do not underestimate public health concerns, we caution the Home Affairs and Health ministries against the blanket detention of all people on the basis of health fears that are not necessarily based on factual evidence or reasonable suspicions.

“Human rights law does allow states to detain people on public health concerns, but there are extremely strict safeguards that must be provided at all costs. You simply cannot detain an entire boatload of people because you suspect that there might be a TB sufferer.”

The strategy also confused the concept of “alternatives to detention”, Dr Falzon pointed out.

Under EU law, a person could only be detained if there were legal grounds to do so. The State must assess whether it was reasonable and necessary to apply those grounds or whether other forms (the alternatives to detention) could be applied.

“This is essentially a case of: ‘We may detain you, but we don’t need to.’ The policy, however, states that alternatives may be applied to people where no grounds to detain them exists, becoming: ‘We cannot detain you, so we will require you to pay €1,000 instead.’

“This just doesn’t make sense and needs to be amended.”

The informal coalition is made up of Aditus foundation, African Media Association Malta, Foundation for Shelter and Support to Migrants, Integra Foundation, International Association for Refugees, JRS Malta, Kopin, Malta Emigrants’ Commission, Migrants’ Network for Equality, Migrant Women Association, Organisation for Friendship in Diversity, Peace Lab, People for Change Foundation and SOS Malta.

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