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Akademische Arbeit, 2018
Convention Relating to the Status of Refugees
Being an asylum seeker in Malta
Forms of protection
The asylum procedure is a very complex thematic. The right to seek asylum, because a person is in need of protection, is settled down in the 1951 Refugee Convention. 147countries agreed that when a person’s life is in danger because of persecution, he/she deserves protection. If a country is not able to protect its citizens, or maybe the government itself is the cause of persecution, then another country is supposed to help people who flee. The right to seek asylum is even mentioned in the Universal Declaration of Human Rights.
Aim of this paper is to describe in detail the different forms of protection awarded to asylum seekers in Malta, including an analysis of the legal framework and a description of the similarities, differences and criteria, which must be fulfilled for each form of protection.
In the first part, the focus will be on the legal framework these different regimes are based on. Before analysing the forms of protections, as it is important to have an idea about what it means to be an asylum seeker in Malta, we will here provide some data about applications in Malta. However, the main part of this paper will concentrate on the three protection forms granted to asylum seekers in Malta.
There will be a discussion about the differences and similarities on these forms of protections before getting to a conclusion.
The Convention Relating to the Status of Refugees, even known as 1951 Refugee Convention, was approved in the year 1951. Sixteen years after an optional Protocol has been integrated. This protocol removed the time and geographical limits of the Convention whose scopes were initially limited to the refugees victims of events before 1951. (Hathaway, 2005: 111) The 1951 Refugee Convention was ratifies by 145 countries and it defines the term Refugee and the obligation of States to protect them, which is legally binding. Some countries signed only the Convention without the Protocol or only the Protocol without the Convention. Other countries like Libya, India or Cuba never signed either of them.
Although it was approved in Geneva, it is important not to confuse the 1951 Refugee Convention with the Geneva Convention, the latter refers to a treaty, which regulates armed conflicts.
The 1951 Refugee Convention was at the beginning a compromise among countries about the modalities of dealing with refugees. In fact the Convention puts some standards of treatments: the principle of non-refoulment; freedom from penalties for illegal entry and expulsion. (Hathaway, 2005: 111)
The historical context in which the Convention was approved was at the half of last century, immediately after the Second World War, refugees and displaced persons were at top of the international agenda. At its first session in 1946, the United Nations General Assembly recognized that something needed to be done. Important legal decisions which led to the 1951 Refugee Convention were: Charter of the United Nations, Article 2, which recognized that sovereignty, independence, and non-interference should be responsibility of internal jurisdiction in order to guarantee the success of the Organization; 1948 the Universal Declaration of Human Rights, which in article 14, paragraph 1, recognizes that, “Everyone has the right to seek and to enjoy in other countries asylum from persecution”. The Refugee Convention is based on the Article 14 of the 1948 Universal Declaration of Human Rights, which recognizes the right of a person to seek asylum in other countries. (Robinson, 1998)
When the Convention was approved, the General Assembly identified in the High Commissioner for Refugee an important partner; States who ratified the Convention agreed to cooperate with UNHCR in order to apply efficiently the Convention.
It is a priority for the EU to guarantee to all refugees high standards of protection, this is the basis for establishing a Common European Asylum System (CEAS). Member States (MS) have shared competence in receiving asylum seekers and ensure that they are treated fairly. The EU is working on a CEAS since 1999, between 1999 and 2005 aim of the EU legislations was to harmonise the common minimum standards in the field of asylum, empowering the financial solidarity by creating the European Refugee Fund. Two important mail stones in these years are the Family Reunification Directive, which is now applied even to refugees and the Temporary Protection Directive of 2001, which allows a European response to a mass influx of people. (European Commission, 2017) The time around 2007 is depicted from the Commission as reflection period until, after a Green paper and a public consultation, the Commission decides on a Policy Plan on Asylum which establishes the three pillars for CEAS: more harmonisation; effective cooperation; more solidarity and sense of responsibility between MS. (European Commission, 2017)
To push for stronger co-operation to ensure common treatment of asylum seekers – wherever they apply, the EU adopted following rules: revised Asylum Procedures Directive, the revised Reception Conditions Directive, revised Qualification, revised Dublin Regulation; revised Eurodac Regulation. (European Commission, 2017)
Since the CEAS complete harmonisation is not yet reached we have to analyse national Maltese law, in order to fully understand the procedure and the types of protections granted. The main Maltese legislative acts are: Refugees Act, Chapter 420, Immigration Act, Chapter 217; Children and Young Persons (Care Orders) Act, Chapter 285.
The Office of the Refugee Commissioner (RefCom) is the place where a citizen applies for asylum and the institution, which decides about the request. A preliminary interview takes place, here the finger prints are taken and introduced in the Eurodac system, where they are analysed. If it is not a Dublin case then Malta is the country responsible for the procedure. Another interview will find place (sometimes even more than one) and at the end the Office of the RefCom takes a decision, to grant or to reject protection. (AIDA, 2017)
According to UNHCR, after applying for asylum the person has the right to stay in Malta until the end of the procedure, access to UNHCR and information, right to confidentiality, the service of an interpreter and legal assistance. (UNHCR, 2010)
At the same time, the asylum seeker has following obligations: to cooperate with the authorities when identifying them; adhere the laws of Malta and cooperate with the Offices involved. (UNHCR, 2010)
According to the data of the Office of the Refugee Commission, the majority asylum seekers in Malta at the end of 2016 come from Libya, Somalia, Eritrea and Syria.
The 1951 Convention and its Protocol of 1967 was signed by Malta in 1971. Following the Malta's Refugees Act the RefCom can choose between two types of international protection: Refugee status (defined in the 1951 Refugee Convention) or Subsidiary Protection (defined in the EU Qualification Directive). (UNHCR, 2010) While according to its national policies, it can grant a humanitarian protection.
The 1951 Refugee Convention defines a refugee as:
"a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, as a result of such events is unable or, owing to such fear, is unwilling to return to it"
A very contemporary example of refugees are the Rohingya, which is a stateless persecuted minority in Myanmar. (UNHCR, 2017)
If the applicant suites one of these categories and protection is granted he is entitled, according to Act 14 of Legal Notice 243 of 2008 to the following rights: to stay in Malta (freedom of movement is included, the refugee can apply for a Convention Travel Document), to be granted personal documents (residence permit for three years), to have access to employment without restrictions, to apply for resettlement, to have access to social benefits and health care, appropriate accommodation, to access integration programs, state education and trainings. (AIDA, 2017) Moreover, if the refugee has other family member, which depend from him, they will enjoy the same rights.
These were the general rights, now we will have a look into specific rights.
In order to gain knowledge about their right, I here used the European Asylum Information Database (AIDA). First and very important right is education, this is compulsory up to the age of 16 and there is the possibility go further with tertiary education.
Concerning accommodation refugees have access to free accommodation at Open Centres, but the permission to stay there has to be renewed quite often (Separate open centres are available only for unaccompanied minors, vulnerable people, women and families), and generally the refugee is looking for better living conditions. If the refugee can prove that he/she has been living in Malta for 12 months at the income does not exceed the limit settled by the Maltese government there is the possibility to apply to the Maltese Housing Authority, also known as "Government Units for Rent". (AIDA, 2017)
The database proving this information compare the social assistance for Maltese citizen with the refugee, the latter is entitled of the same amount. (AIDA, 2017) When some criteria are filled, like living in Malta since two years and having a residence permit for more than one year and providing proves of the relationship, the refugee has the right to apply for family reunification. (AIDA, 2017) The right to reunify the family is one of the most important, unfortunately even one of the most discussed in the political arena. This specific topic is handled very differently among MS, the effect can be very restrictive regulations in one country and very easy criteria to achieve in the others, this represent an significant lack in the CEAS.
As soon as the asylum seeker gets the protection, he is released from detentionand is provided by RefCom with a copy of Article 14 of the Procedural Standards Regulations. Later on, the Agency for the Welfare of Asylum Seekers (AWAS) will inform refugees living in the open centre about the “service agreement”, which set out the basic regulations of the centre. (UNHCR, 2017) AWAS has several responsibilities, especially assisting vulnerable and unaccompanied minors, in fact, there are some open centres designed specifically for vulnerable persons and minors, it is important here to mention the role of the legal guardian, he assists personally the minor and is employed at the centre. (AIDA, 2017) When it comes to vulnerable persons and minors very often the major problem MS have to face is the lack of place, since the standards of services provided to this specific group and their costs are higher the offer was not able to manage the high influx of migrants coming from African or Arab countries to Europe.
The access to apply for citizenship is granted after ten years of living in Malta, here the Maltese government has discretional power, and citizenship is not directly granted to children born in Maltese territory. (AIDA, 2017)
It is important to mention all these rights in order to understand better the difference with the other types of protection, in fact we will see that people who have been granted subsidiary or humanitarian protection do not have so many rights as in the case of refugee status.
First of all, subsidiary Protection is granted to those persons who are at risk of serious harm in their country of origin, according to article 15 of the Council Directive 2004/83/EC:
“death penalty and execution; or torture or inhumane or degrading treatment or punishment; or serious and individual threat to a civilians life or person by reason of indiscriminate violence in situation of international or internal armed conflict”
There are substantial differences to the refugee status; this led to have different rights. A person enjoying subsidiary protection has the same rights as refugee status only in the following fields: removal and deportation; resettlement, vulnerable persons; unaccompanied children; education and freedom of movement.
While very important differences are: restricted access to employment and employment benefits, although they pay taxes, core state medical care and they cannot apply to the Maltese Housing Authority program mentioned before, less financial assistance and they have no right to apply for family reunification (AIDA, 2017)
If we think about the rights granted to a refugee according to 1951 Convention, it is clear that there is a significant distinction. Although the protection was granted in both cases for very serious threats to the person. At the same time, it is important to mention that they have the right to appeal to this decision.
It is important here to mention that some criteria have been established which may exclude an individual from international protection. As mentioned in Article 1F of the Refugee Convention: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”
This is the core principle of the Convention, which asserts that a refugee cannot be send back to a country where he/she faces threats to their life or freedom. (Goodwin-Gill, 1983: 69)
Since MS have limited instruments which allow to verify the truth of the applicant’s personal data.
Detention is now no longer either mandatory or an automatic consequence of the decision to issue a removal order. Only some years ago the majority of migrants who came illegally from Libya, were issued with a Return Decision and Removal Order and placed in detention, even if they applied for International protection, most asylum seekers were detained, the number now has decreased. (AIDA, 2017)
Which states the legal rights and obligations of those with protection.
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