The government stood by its mandatory detention policy for asylum seekers yesterday in spite of recommendations by the Council of Europe’s Human Rights Commissioner to abolish it.

The government maintained that detention was a necessity “in view of Malta’s geo-social realities and the fact that the identity of irregular migrants cannot be ascertained upon arrival”.

In a report, COE Human Rights Commissioner Thomas Hammarberg strongly criticised the detention policy as “irreconcilable” with the European Convention on Human Rights and case law of the Strasbourg Court. This was especially so since, last July, the Court had found Malta guilty of violating the right to liberty and security of Louled Massoud, an asylum seeker whose claim had been rejected.

The Maltese authorities were encouraged by the commissioner to bring their procedure in line with the judgment and to provide for the presumption in favour of liberty under national law by establishing a framework for alternatives to detention.

However, in its reply, the government maintained that alternatives to detention were not feasible in Malta because migratory influxes were disproportionate to the country’s size and capacity.

The 17-page report follows the commissioner’s visit to Malta in late March. It not only speaks about detention problems, which many human rights organisations have long criticised, but also recommends changes in living conditions for migrants, lack of opportunities for long-term livelihood and asylum procedures, among others.

The Ħal Far tent village, it said, was “clearly inadequate” as larger open centres posed difficult conditions for migrants living there. Moreover, since specialised facilities for vulnerable groups had a limited capacity, these often ended up in the bigger open centres “that are totally inadequate for this purpose”.

Moreover, vulnerable persons, including pregnant women, unaccompanied minors and persons with disabilities, were also subject to mandatory detention although they were released earlier, Mr Hammarberg said.

Refugee determination procedures also needed to be improved by including the need to provide access to a legal aid, among other recommendations.

The government’s stand was that efforts had consistently been made to provide the best possible reception conditions, further to providing detainees with all relevant rights, including the right to challenge their detention decision.

“However it has to be recognised that the consistently large number of migrants residing at the centres imposes limitations vis-à-vis refurbishment initiatives,” the government said. Moreover, Malta’s ability to absorb migrants over the long-term remained limited, especially in view of its small labour market.

The commissioner’s recommendation to close the Ħal Far tent village was not realistic because Malta’s reception facilities remained overstretched and appeared likely to experience more pressures in the near future, the Justice and Home Affairs Ministry said.

The COE report concludes that the system in place to support migrants “currently perpetuates their social exclusion and leaves them at serious risk of destitution”.

Mr Hammarberg recommended that the system that made financial support for migrants dependent on residence in open centres be discontinued to favour migrant’s self-reliance and integration into society.

He also encouraged the Maltese authorities to keep the country’s borders open for people in need of international protection forced to flee from Libya.

However, he stressed the need for international solidarity to relocate and resettle migrants.

Mandatory detention

The United Nations High Commission for Refugees and human rights group Aditus did not agree with the government’s insistence on mandatory detention procedure.

The UNHCR continues to advocate a review of the policy. It encouraged the authorities to explore alternatives to the system including through arrangements such as semi-open centres and early release for a broader group of vulnerable individuals.

Aditus strongly criticised the “effectively dismissive” stand by the authorities with regard to Mr Hammarberg’s recommendations.

Malta’s size or the ministry’s lack of knowledge of the asylum-seekers’ identities were not criteria enough to deprive a person of his/her liberty, according to international human rights law, it said.

“Furthermore, since all persons are, anyway, released after a number of months, Aditus would like the ministry to explain the actual and continued benefits achie-ved from detaining them throughout those months,” it added.

The ministry also failed to justify the locking up for weeks, if not months, of children, babies, pregnant wo­men, persons with disabilities, elderly persons and other vulnerable persons, group chairman Neil Falzon said.

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