With enlargement, the EU’s external borders will be pushed further East and South, and Malta will become the Union’s southernmost border. In practice, this means that after May 2004, migrants and asylum seekers intending to enter the EU will no longer have to travel as far as Italy to reach EU territory.
Legislation in action
A Commission report in 2002 praised Malta with regard to its protection of human rights and minorities, and expressed satisfaction with Malta’s progress in the realm of Justice and Home Affairs: alignment of visas with the EU, Schengen /EU requirements and border controls, asylum law, reception centres, and the Refugee Commissioner’s office. The only negative comment in the report was that staff numbers at the office of the Refugee Commissioner responsible for processing asylum applications need to be increased.
Asylum seekers within Malta are governed by the Refugees Act 2000, legislation which created the Refugee Commissioner’s Office to deal with asylum applications, and a Refugee Appeals Board to hear appeals concerning the Commissioner’s decisions. The Act also outlines the procedure for dealing with asylum applications and lists the rights to which asylum seekers and refugees are entitled. This all sounds very nice, but there is a problem with this picture: the Act has not managed to ensure that asylum seekers have access to the rights bestowed upon them in practice.
Human resources crisis
Firstly, the Act states that a person seeking asylum in Malta should apply to the Commissioner who will ask the applicant to attend an interview within one week. In reality, however, applicants wait for months before being called for interview. Most asylum seekers arrive in boats in big groups and apply for asylum on the same day. This means that the Commissioner is suddenly flooded with applications and does not have the staff to deal with these sudden influxes. The people who pay the price for this administrative problem are, of course, the asylum seekers. Strictly speaking, Malta is not in breech of any international obligations but it is possible that the absurd length of time it takes the Refugee Commissioner to process applications is in breech of the right to due process.
Asylum seekers and refugees are granted free education and health services in Malta but, whereas refugees are entitled to work, asylum seekers are not and no social assistance is given to them. In practice, therefore, asylum seekers have to live on the charity of the Maltese people and predominantly Church oganisations. The government’s position as regards asylum seekers is understandable because their status is not yet determined but denying people the right to earn a living does not make sense.
Finally, although the Act created an Appeals Board, in the past few years no appeal has ever been successful. The Refugee Commissioner does his work meticulously and is respected by everyone who works within the system but is he really so infallible?
The way forward?
Malta, and the EU at large, should not be satisfied with what is achieved when the Schengen and Dublin measures are strictly adhered to. Yes, it is true that they provide a measure of internal security in the interests of the Union, and that they limit the proliferation of ‘asylum shopping’ (lodging multiple applications in different States) and ‘refugee-in-orbit’ (where no one State takes responsibility for examining an asylum application), but they do nothing to harmonize substantial procedural rules on asylum or to establish criteria and time-frames for determining refugee status within Member States.
The fact that each Member State is allowed discretion in establishing criteria for determining refugee status reflects confidence in one another’s laws but such a system can only encourage asylum seekers to try and lodge their application for asylum within the territory of the State with the most generous laws. It is true that all Member States, and all accession countries are bound by obligations under the Geneva Convention (1951) and its Protocol (1967) with no geographic reservations but more harmonization is definitely needed. It does not take a lot of imagination to guess how National Governments would react if asylum seekers developped a pattern of trying to lodge their applications in the country with the most generous laws – they would naturally try to restrict access to their system, thus refusing access to those for whom it was created in the first place.
It will not be easy to reach an agreement on common criteria for asylum within the Union, especially after enlargement. Until such a time, the Union could create a set of criteria for determining refugee status and set up a supervisory body at European level to monitor Member States’ behaviour. States which do not comply with the criteria could be fined. Such a method would be nothing new to the Union as non-compliance with European environmental regulations already involves fines.
I would give more powers to a special Committee to get things started. Afterall, asylum laws govern people, vulnerable people, who need solutions now, not tomorrow.