US law expert calls for end to immigrants' detention

The detention of asylum seekers in Malta was "shocking", immigration law expert Anna Marie Gallagher said.

"Malta has signed most of the human rights treaties but, unfortunately, it is violating its international obligations, despite the fact that Malta is not traditionally a human rights violator," she told The Times.

The American professor explained that under international law, asylum seekers who come to Malta have the right to an individual hearing to establish whether they should be detained.

"The United Nations says asylum seekers should generally not be detained unless there are security issues or for short periods to establish identity. But Malta just picks them up and puts them in detention," she said.

Prof. Gallagher was basing most of her comments on the recently published report by the Council of Europe's Human Rights Commissioner, Alvaro Gil-Robles, following his visit to Malta last October.

Prof. Gallagher, who was in Malta last week, said she understood that when big groups of asylum seekers started arriving in Malta this was a big emergency for the country. However, she said, this was in 2002, and now, two years later, the situation was still alarming.

"People are still crammed in small places; women and men have been held together, which violates procedures under international law; and they are handcuffed."

She said there have also been issues of privacy and violations of children's rights.

"Initially, Malta might have had the excuse that it was not prepared for such an emergency. But two years later it should be able to address the situation," she said.

Prof. Gallagher said Malta would join the EU in a few weeks and, apart from having international obligations, it would also have to abide by EU regulations.

"If the arrival of asylum seekers is such a huge burden to Malta, then it is time for the authorities to talk to their EU counterparts. The government must state that it wants to abide by the regulations and ask other countries to share the responsibility, or provide funding for accommodation and housing for asylum seekers."

She also said that the currently used modus operandi was an expensive one.

"In addition to violating human rights and treating detainees worse than criminals, detention is expensive and there are alternatives to it."

Prof. Gallagher said asylum seekers did not have to be detained. She said the authorities could work together with NGOs, the Church and people in the community to devise an alternative plan.

"Detention is not a deterrent to people seeking asylum because the reasons pushing them out of their country are much stronger than the fear of detention," she said.

Asked whether she thought the number of asylum seekers arriving on Maltese shores might increase with EU membership, Prof. Gallagher said she did not think so. She said that asylum seekers tended to arrive in Malta by mistake or by chance. A person who had been detained for 17 months told her he had been afraid of coming to Malta because of the country's deportation policy.

"I think they do not feel protected here, which is a shame," she said, adding that this particular detainee had spent 17 months in "jail", despite having a strong asylum claim.

"It is just so sad. I have represented asylum seekers in the United States and worked with refugees in Central America and this is just one of hundreds of stories. What makes me so sad is that western countries, like Malta and other European countries, are sometimes very stingy when dealing with asylum seekers and look for ways to avoid their obligations," she said.

Prof. Gallagher praised the work of the refugee commissioner but expressed concern about the appeals system, which, she said, had never reversed a denial of asylum. She said there was also a violation of the proper process as the people involved were only given a one-sentence decision, whereas they had the right for a full description of what was examined by the appeals body, the standard used and why the decision was being upheld or reversed.

"There is much of an 'us-against-them' mentality and all this talk about the invasion of immigrants. But in fact they are people who can bring riches to our shores in terms of their abilities and cultures," she said.

Prof. Gallagher stressed the need to start looking at asylum seekers as human beings.

Asked whether detention was conducive to depression and might give rise to riots, Prof. Gallagher said this was a natural psychological process. She said these people were really desperate and most of them suffered from both psychological as well as physical repercussions, like hair and weight loss.

"Detention is harmful. There are other ways to deal with the situation. What we are doing now is violating international law as well as human rights," she said.

Asked about the situation in Spain, where she is chair of Migration and Refugee Law at the University of Deusto in Bilbao, Prof. Gallagher said there was a 40-day detention maximum, even though Spain was a southern border of Europe and there was quite a flow of immigrants. She explained that it was during these 40 days that the authorities had to decide whether a person could stay or if they should be removed. If a decision was not reached within that time frame, the people were placed in the community until a decision was reached.