News • February 1 2004

Bill proposes restrictive refugee laws, not in spirit of Geneva Convention

Matthew Vella

A proposed bill to amend the Refugee Act aims to expedite the procedures for processing refugee applications, but not in the spirit of the 1951 Geneva Convention on the Status of Refugees, according to the Jesuit Refugee Service.
One of the amendments to the current legislation proposes that applications for refugee status will not be considered valid unless made within the first two weeks of arriving in Malta. This would spell an end to the right to asylum seekers living lawfully or unlawfully in Malta, to apply for refugee status at any time.
Another amendment awards greater political powers to the Minister of Home Affairs to refuse applications from nationals, citizens or residents hailing from countries which the Minister "may from time to time prescribe as a safe country of origin."
Spokespersons from the Jesuit Refugee Service told MaltaToday yesterday they were unaware of the proposed bill, which also includes creating a larger Refugee Commission and releasing detainees who have been detained for an excessive and unreasonable period of time.

Concern
Dr Katrine Camilleri expressed concern about the introduction of the two-week time limit from the date of arrival in Malta for the application for refugee status:
"There could well be valid reasons for a person failing to file an application upon arrival or shortly after. A person could start needing protection years after he arrives in Malta, due to a change of circumstances in his country of origin. In practice, the introduction of a rule to this effect could result in a refugee being pushed back into the arms of his persecutors.
"This would clearly be a breach of the 1951 Convention on the Status of Refugees, to which Malta is a party, and which obliges state parties to recognise and protect all refugees within their territory from forced return to a country where they could face a threat to their life or liberty."
Camilleri said the inclusion of a ban on applications from nationals of so-called ‘safe countries of origin’ was also another area of concern:
"The notion of ‘safe country of origin’ may be used as a procedural tool to channel applications into accelerated procedures, provided these contain proper procedural safeguards. This is the current situation under the Refugees Act. However, this notion should not be used as an automatic bar to access to asylum procedures.
"UNHCR has stated this would be contrary to the 1951 Convention, which necessitates an individual examination of each claim to refugee status. It categorically states it is impossible to exclude, as a matter of law, the possibility that an individual could have a well-founded fear of persecution in any particular country however great its attachment to human rights and the rule of law."

The positive side
The proposed bill also seeks to strengthen the Refugee Commission, currently headed by Curia PRO Charles Buttigieg, to increase the number of chambers of appeal for asylum seekers who have been refused refugee status by the Refugee Commission. These will be headed by assistant commissioners appointed by the Prime Minister.
Another amendment, this time to the Immigration Act, proposes the release from custody of asylum seekers whose "continued detention" is deemed unreasonable in duration or "because there is no reasonable prospect of deportation within a reasonable time."
The JRS have welcomed both positive developments as efforts addressing "some of the inadequacies of the current system." Dr Katrine Camilleri said that provided there were adequate safeguards in place to ensure uniformity and consistency of decision making within these institutions, the JRS welcomed the amendments to strengthen the structures which process refugee applications.
Camilleri, however, said there was need for clear rules regulating the detention of asylum seekers, "which establish beyond doubt the circumstances in which detention of asylum seekers may be resorted to…these rules should ensure there is a clear presumption against detention of asylum seekers, and that detention is only resorted to in individual cases for minimal periods, where the authorities can demonstrate that non-custodial measures have proved ineffective."
Camilleri said there should be a maximum period beyond which no individual may be detained, clearly established by law. JRS Europe’s position on this issue is that detention should never exceed a total time period of two months, be it in one or multiple periods of detention even after release or transfer to another centre.

matthew@newsworksltd.com