Issue link: https://maltatoday.uberflip.com/i/1533839
10 maltatoday | SUNDAY • 30 MARCH 2025 ANALYSIS FROM PREVIOUS PAGE Italy's plan to send rescued migrants to Albania In February 2024, Italy and Albania signed an agreement to set up two deten- tion centres in Albania, fully funded by It- aly, to help implement fast-track asylum procedures. The agreement applies to migrants rescued in international waters by the Italian coast guard and navy. Crucially, eligibility for transfer is deter- mined aboard rescue ships. Only people from so-called "safe" countries are sent to Albania, except for vulnerable groups like children and pregnant women. Once in Albania, asylum seekers are first processed in a centre in Shengjin. Those denied asylum are then moved to a facility in Gjader to await repatriation. Unlike the UK's failed Rwanda migration plan, these centres will operate under Italian jurisdiction. Implementing the deal has not been smooth sailing. When the first group of 16 migrants were sent to Albania in Oc- tober 2024, four were quickly returned to Italy after authorities realised they were minors or had serious medical condi- tions. That same month, the Court of Rome ordered the return of all migrants trans- ferred to Albania, arguing that their coun- tries of origin – Egypt and Bangladesh – could not be deemed safe. The ruling cited a decision from the European Court of Justice (ECJ), an EU court unrelated to the ECHR, that said a country can only be deemed safe if it can be considered safe in its entirety. If a specific region is unsafe, the country cannot be considered safe for asylum purposes. The Italian government responded by issuing a decree listing 19 so-called safe countries, including Egypt and Bangla- desh, but this was also referred to the ECJ by the Bologna Court's immigration sec- tion, seeking clarification on the criteria for determining whether a country of ori- gin can be considered safe. Now, the ECJ is in the process of exam- ining whether Italy's agreement with Al- bania is in line with EU law. Italy's stance has been defended by the European Commission, which insists that EU law allows member states to designate coun- tries of origin as safe, and that a country does not have to be entirely safe, just safe for certain migrant categories. Malta's reality Malta has been using the "safe country" system for a while. The International Pro- tection Act lists 21 individual countries as safe for asylum purposes, as well as listing all EU and EEA members. If a person re- questing asylum in Malta is from any of these countries, their application will be considered "manifestly unfounded" and processed under an accelerated proce- dure. It will then be the chairperson of the In- ternational Protection Appeals tribunal who will decide on the request, and their decision will be considered final and con- clusive. The applicant cannot appeal, but they can file a human rights complaint of an application for judicial review before the Civil Court (First Hall). Among the list of safe countries is Bang- ladesh. This is a convenient designation for Malta as, in 2024, almost half of all sea arrivals to Malta were Bangladeshi. Since Malta considers Bangladesh a safe coun- try, half of arrivals to Malta will have their asylum request considered "manifestly unfound" simply because they were born in Bangladesh, regardless of any specific persecution they may be facing in their home country. However, this was challenged in the European Court of Human Rights by a Bangladeshi journalist who feared perse- cution in his home country. A landmark court case In 2019, a Bandlageshi journalist came to Malta by boat and requested asylum. In the year prior, he reported on the corruption and fraud committed by the Bangladesh Awami League (AL), which provoked them into attacking him while he was taking pictures. After their victory, the AL vandalised his house and support- ers of the AL threatened to kill him. No action was taken by the local authorities in fear of the ruling party. Since Bangladesh is considered a safe country of origin, his asylum request was considered manifestly unfounded and he was processed under the accelerated procedure. The International Protection Agency went on to reject his claim be- cause his submissions were "clearly in- consistent and contradictory, clearly false or obviously improbable", despite sub- mitting 40 pictures and documents, in- cluding first-hand accounts of the events that led him to flee his country. The IPA also said that his claim to be a journalist was not sufficiently credible because his explanation of his articles did not reach the expected level of detail, and many of them did not cover political issues. After the IPA's final decision, the jour- nalist took his case to the European Court of Human Rights. He argued that the IPA rejected him from the outset due to his nationality despite providing evidence that Bangladesh was unsafe for him based on his specific situation. He also argued that Malta's designation of Bangladesh as safe was not in compliance with EU law. His case was successful, as in May 2023, the European Court of Human Rights ruled against Malta and said that the deci- sion to deport the journalist violated Arti- cle 13 of the human rights convention in conjunction with Article 3. The 'safe country' concept: Safe for whom? Abela's stance on migration has always been clear – if you do not merit asylum, you get sent back to your country. There is little to argue against this. The status of refugee is clearly established in local and international law, and anyone who does not fit the criteria cannot be granted in- ternational protection. However, Abela made a small but signif- icant clarification to his argument when speaking with journalists last week. "Who merits asylum can stay here, unless they commit a crime. Who does not merit it has to go back to their country." He made it clear that people who commit crimes in Malta should be deported, but "a series of conventions create massive challenges to do that". Sending asylum seekers back to a place where they could face persecution vio- lates the principle of non-refoulement – a fundamental principle of international law that cannot be suspended or ignored. However, many countries are exploring the idea of a "safe third country" – a lo- cation that is neither the home country of the asylum seeker nor the country in which that person is seeking asylum, but that is considered safe for them to be re- moved to. In debates over the concept of "safe third countries," two key legal pillars come into play —the 1951 Refugee Convention and the principle of non-refoulement under Article 33. While the convention does not explicitly endorse the practice of trans- ferring asylum seekers to third coun- tries, states have often argued that such transfers are legally valid, provided that non-refoulement obligations are met. However, this interpretation is not with- out controversy. Critics, particularly from the human rights community, stress that states must ensure the receiving country fully upholds refugee rights under inter- national law. Without ironclad guaran- tees of protection, they argue, such trans- fers risk undermining the very principles the Refugee Convention was designed to uphold. A country 95% safe Another one of Abela's arguments to reform the human rights conventions is statistical. "If 95% of a country is deemed safe and 5% is not, the ECJ considers it unsafe," he told journalists. The 1951 Refugee Convention defines a refugee as someone with a well-founded fear of persecution. This may include LG- BTQI+ individuals or women at risk of gender-based violence. For such groups, countries deemed "safe" by a government may be anything but. The designation of a country as safe does not account for individual persecu- tion risks. Marginalised groups such as political dissidents, LGBTQI+ individuals or ethnic and religious minorities may face severe threats in countries deemed safe. Even when a country is broadly sta- ble, or "95% safe", state protection may be inadequate or nonexistent for vulnerable groups. Some countries have carved out ex- ceptions for specific regions or groups. Czechia, Denmark, and Finland, for in- stance, classify Georgia as safe but ex- clude South Ossetia and Abkhazia. Sim- ilar carve-outs apply to Ukraine, where Cyprus, Czechia, and Iceland exclude asylum seekers from Crimea, Donetsk, and Luhansk. Hungary considers the US a safe country, but only for states that do not enforce the death penalty. Luxem- bourg applies the safe designation to Be- nin and Ghana, but only for men. So far, Malta has made no such excep- tions for the countries in its "safe" list. While Malta prepares to lead the Coun- cil of Europe, Abela's push for human rights reform forces a critical discussion on where legal protections should be re- inforced or reinterpreted. His proposals reflect growing tensions between national migration policies and international legal standards, but they also raise uncomfort- able questions – who gets to decide what is 'safe,' and at what cost? The Gjader detention facility operated by Italy in Albania The European Court of Human Rights in Strasbourg Human rights activists protesting outside the Safi Detention Centre in Malta