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Duncan Lewis Public Law team visit to Malta – Fact finding on returns to Malta for refugee (18 January 2013)

Date: 18/01/2013
Duncan Lewis, Public Law Solicitors, Duncan Lewis Public Law team visit to Malta – Fact finding on returns to Malta for refugee

We write this as a follow up to an article we wrote earlier this year:
https://www.duncanlewis.co.uk/publiclaw_news/Returns_To_Malta_Under_The_Dublin_Convention_(28_June_2012).html

Asylum seekers who enter Europe and move from one country where they have sought asylum to another will, in general, be returned to that initial country. Duncan Lewis is currently challenging the UK’s decision to remove people to Malta. We challenge on the basis that removal would be breaching their human rights.

“We are living like animals. We have no food. We are stuck here as there is nothing for us out there”

Ali Mohamed is a refugee from Somalia. He fled Somalia sometime in 2009 and after a gruelling journey through Ethiopia, Sudan and the Sahara desert, he managed to get on a boat full of other refugees on its way to what he thought was freedom: Europe.

He never really had a plan to go to Malta, but he ended up there nonetheless. On arrival to the island – a Mediterranean tourist haven steeped in ancient history with mediaeval walled cities, cathedrals and stunning UNESCO World Heritage sites scattered around the island; Ali would have seen none of those things. On arrival he was detained and thrown into a closed detention facility. A journalist we met described that facility as a horrific cage.

Ali spent several months in that closed detention. He said he was finally given ‘freedom’ and released with ‘subsidiary protection’. He generously showed us his papers. He was allowed to work and live freely in Malta. In reality however, Ali, like thousands of other refugees have no realistic chance to work. In reality, they are sent to Open Centres – several around the island. Most are pushed to the ‘middle of nowhere’ as a NGO lawyer described it. The Refugee Commissioner described them as a ghetto.

We met Ali on our visit to Hangar Open Centre (HOC) in a province in Malta called Halfar. The area was well away from the tourist bustle of Valletta and the picturesque sea front. It was past the airport. It didn’t show up on our GPS. We had to look out for signs to Halfar once we passed the airport – and no one really passed the airport. It seemed from general opinion that HOC was the most notorious and shocking of all the centres. We visited ‘HOC’ and witnessed a very sad and shocking reality. Ali’s home was a metallic container. He shared with 15 other men. The container was dirty and flee infested. He spoke of rats in the night. He showed me a food container that he said some of them would be given once a day. The manager of the centre had earlier confirmed that 200 meals are provided a day (there were 530 residents in that centre). Ali and the residents had to sort out their own food. When asked what this would mean, we were told that there was a shopping market in the nearest town – 4kms away. Refugees like Ali are given 4 Euros or so a day. Those like our clients who we represent (if they are to be returned) will get even less money a day-punishment for having tried to leave the island.

The bus ride to the town costs around 1.5 Euros. We witnessed hunger and desperation and these people were actually recognised refugees or those with some kind of protection. Failed asylum seekers would in addition face the uncertainty of deportation.

As we drove away from the Centre en route to another one, we saw a Church charity worker handing out old clothes and other things to the residents. We met a number of men at that centre like Ali with similar stories. They had fled from persecution straight into mandatory detention and then released to open detention. Hope had left them in Halfar.
Our next stop was Halfar Reception Centre. Malta’s history included Britain having a Navy presence there in the Second World War. The woman only centre was a former prison and naval barracks. The entire building looked like an old prison. There were bars around the building and the rooms and corridors were dilapidated. This building housed several Somali, Eritrean and other women from Sub Saharan Africa.

Six women shared a small room with bunk beds and not much else. They had to cook for themselves. The gates were locked after dark for security. They could leave if they wished – if they could speak English, find a job in the towns of Malta and pay private rent. None did. They were refugees. Experience indicated that sadly a high number of these women were victims of torture, rape and/or other forms of inhuman and degrading treatment. They were brave in attempting to cross borders and deserts. They never thought they’d get to Europe and end up in detention. We knew Malta’s mandatory initial detention policy meant that all of these women – victims of rape or not – would be detained for anything up to 12 months. They would be then released to the open centre such as the one we had visited. There did not seem to be any kind of mental health assessment for these women. It will be very unlikely that any of them would leave the centres and find work within the community. There also seemed absolutely no progress towards family reunification with children or husbands.

On our trip, we visited four or five of these open centres. We were not given permission to visit the closed detention centres (where refugees are initially and mandatorily held). We met several men, women and children. We met pregnant women in these open centres. We spoke to refugees who were in the main towns, looking for work or waiting for documentation to leave Malta. We met failed asylum seekers and returnees under the Dublin Convention who had no regular work and lived unsettled and in desperate circumstances.
We met with several organisations and people who have a major part to play in Malta’s asylum procedure. We sat down with the Refugee Commissioner who was responsible for all asylum applications in Malta. He proudly told us that a high number of ‘boat people’ would be given some form of status.

This is statistically true. Malta’s rate of successful initial asylum applications was much higher than the European average and certainly much higher than the UK. But worryingly – those whose claims were rejected stood realistically no chance of appeal success. We met an Advocate who said he, in several years of practice, had never won an appeal.

Our meeting with a journalist who covered this area in Malta confirmed to us that the situation was desperate. That open or not, the centres housing refugees were prisons. We met the chief official of Malta’s UNCHR at their offices. He confirmed that UNHCR’s position was that detention policies here were wrong. That Malta’s detention policy was not in accordance with UNHCR’s guidelines. He agreed with what we had seen in the open centres. UNHCR were working closely with the government to push for change.

We sat down with a JRS advocate. JRS is a NGO that works and helps refugees in Malta. She told us of a recent case where she had filed an action before the European Court in relation to unlawful detention. Her client was a pregnant woman – detained and ill-treated. When we asked why more people didn’t challenge the detention policy in Malta while languishing in detention centres – the advocate simply said her experience is that people were too scared to challenge the government. That all they prayed for was freedom one day and no trouble. This is certainly the impression we got speaking to migrants.

There has been much litigation over the last few years all over Europe developing jurisprudence in relation to returning people from one Member State to the other under what is called the Dublin Convention. The UK will not return our clients if the Courts ultimately decide that return would breach their human rights. We argue that the Article 3 and 5 rights will be breached. We argue that the real risk of being forced to reside in the open centres will result in inhuman and degrading treatment. We argue that Malta’s detention policies mean that there is a real likelihood of re-detention or imprisonment which is unlawful.

We were told of over 2000 refugees who are ‘stuck’ in Malta. The Boat people they are called. Pushed out into the uninhabited areas of the small island. Ghettoised and ignored by most people. Told to fend for themselves; provided with no practical realistic social welfare or integration within the communities. The UNCHR fact sheet stated 43% of Malta residents had not met a refugee. Well in the short time we were there, we did meet enough of them to understand their suffering and we most certainly share what the International Commission of Jurists1 and Human Rights Watch2 say in their respective reports.

These refugees need to be heard. The misery there is not some far off refugee camp in war torn Africa – it’s in Europe.

Toufique Hossain and Adam Spray from Duncan Lewis’ Public Law team visited Malta in November 2012. The High Court Judicial Review cases considering whether it is lawful to remove asylum seekers to Malta under the Dublin Regulations is due to be heard in January 2013.


1 http://www.hrw.org/sites/default/files/reports/malta0712ForUpload.pdf


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