Issue link: https://maltatoday.uberflip.com/i/758493
14 THE Office of the Refugee Com- mission in Rue d'Argens, Msida, is not difficult to find. It is often identifiable from afar by large queues of asylum seekers spill- ing out onto the pavement. Once inside, the first sight to greet the eye is a vast wall-unit reaching up to the ceiling, each pigeon- hole densely packed with files upon files of documents... so many, that a moveable ladder is needed to reach the uppermost stacks. Application numbers may have dropped in recent years, but the place is still a hive of bureau- cratic activity. And in a country where all things immigration-re- lated quickly become embroiled in controversy, the nature of the Commission's work also often places it directly in the firing line. This is what seems to have happened in the last two weeks, after a change in asylum proce- dure was announced... followed almost immediately by the arrest and detention of 32 rejected asy- lum-seekers from Mali, to await deportation as part of an EU re- patriation programme. The incident exposed various misconceptions regarding the asylum application procedure it- self. Some of the detained Mali- ans had been living and working (legally, it would seem) for years before their arrest; technically their status as rejected asylum seekers did not change in the last two weeks alone. It remains unclear why they were even ar- rested, and what their arrest had to do with the bureaucratic changes. Moreover, the role of the Com- mission seems to be widely mis- understood. As Dr Martine Cas- sar will constantly point out, it is not her office that decides whether someone's status is legal or otherwise. So it seems logical to begin by asking for a clarifi- cation of what it is, exactly, that the Commission decides. "Primarily, this office is re- sponsible for receiving asylum applications, and determining what form of protection is avail- able, if any, to the applicants," Cassar begins. "This is because there are different forms of protection that can be granted: namely, refugee status; subsidi- ary protection; temporary hu- manitarian protection; and – up to 31 October, 2017 – we will continue to give out 'temporary humanitarian protection new' [THP-n]." Of these, refugee status is the hardest to achieve in practice. "All four forms of protection differ, and the difference comes out from the law. Refugee Pro- tection comes from the 1951 Convention, and is enshrined in Chapter 420 of the laws of Malta. It's based on the fear and risk of persecution, according to five limited grounds. These are clearly stipulated in the conven- tion: race, religion, nationality, affiliation with a particular po- litical group, and membership of a particular social group... for instance, LGBTI." Originally, refugee status was the only form of protection available. "It was felt through- out that this was insufficient: other categories were being con- sidered, and eventually came through via European Direc- tives. This includes subsidiary protection. Chapter 15 of the Qualification Directive states that protection should not be limited to the identity of the per- son concerned. If the situation in a country of origin is so bad that returning would be a danger, that person should be entitled to subsidiary protection, even if ineligible for refugee status. It would be a case that he or she had to flee to survive..." Yet isn't this traditionally the definition of a refugee... some- one who had to flee from dan- ger? If we took the example of a Syrian asylum seeker... wouldn't someone fleeing from a civil war be entitled to refugee status, without having to create a whole new form of protection? "It depends on the individual case. You can't make sweeping statements like 'all Syrians qual- ify for refugee status', because for a claim to be successful it has to be based on personal danger. Let me give the best example I can think of. You're a journalist: you write against your govern- ment, and as a result your life is in danger. They want to kill you. It doesn't matter if your country is being bombed or not, or if it is safe for anyone else. You, per- sonally, are under threat. If you are returned to your home coun- try, you still risk being killed even during peacetime. A case like that would be eligible for refugee status." Needless to say, it is a restricted category: by far the majority of people fleeing war zones would not consist of individuals singled out for extermination. It was to cater for the broader category that subsidiary protection was devised. "More general statements can be made about subsidiary pro- tection, because it is related to the state of the country, not the individual applicant. If a per- son's life is in danger because of the situation in the country, he or she would not technically be a refugee according to the defi- nition, but would still be recog- nised as eligible for protection." Next on the list is THP. "This comes out from an administra- tive procedure. It's a local form of protection given to individu- als who neither have a situation in their country of origin, nor fall within any of the categories specified by the convention.... but who still need to be pro- tected for other reasons. These might include people with medi- cal issues, or unaccompanied migrant children who come here without families. There are also various other genuine humani- tarian grounds..." In terms of the remit of the Ref- ugee Commission, those three statuses represent the extent of the possibilities on offer. And Malta has not been niggardly in awarding protection in all three categories. Cassar produces sta- tistics for the past years to show that around 86% of all applicants do in fact come away with one of the three forms of protection. It is the remaining (roughly) 14% of rejected asylum seekers who have traditionally posed something of a conundrum for the system, and who account for the existence of a fourth (more controversial) option. "Lastly, we have the very infa- mous 'THP-n' [Temporary Hu- manitarian Protection – New']. Now, THP-n is given to rejected asylum seekers. It is important that this is understood. It's why I don't really agree that this form of protection should be given by the Refugee Commission. Failed asylum seekers would have gone through the whole process, and found not to qualify for any of the other three forms. However, THP-n was created in 2010 for people who gave sufficient proof that they were living in Malta, and working legally..." This raises the first of several apparent anomalies. How could rejected asylum seekers work le- gally, if their status has no legal validity? "This is a common misconcep- tion. You can work legally as a rejected asylum seeker. It is im- portant that we clarify this, as the misunderstanding is causing a lot of harm. The man in the street is now even scared to em- ploy a rejected asylum seeker on the basis that it is illegal... but it isn't. JobsPlus [formerly the Em- ployment and Training Corpora- tion] allows for this..." But this seems to contradict the situation whereby 32 re- jected asylum seekers from Mali were arrested and detained. If it is legal to live and work here without any form of protection – not even THP-n – then why were they arrested? "I'm not the one who carries out arrests... I feel I must stress that the Refugee Commission had nothing to do with this in- cident. I find it unfair that this office was in any way associated with the deportation issue. Some people even seem to think that the arrests happened here, when this was not the case at all..." Granted, but from what Dr Cas- sar has just told me, the question is not so much 'who carried out the arrest', but why they were ar- rested. It can't have been for lack of any official documentation... seeing as how none is apparently needed. And the question is rele- vant for another reason, too. The Geneva Convention (Article 31) specifies that ordinary immigra- tion laws should not be applied to persons fleeing their home countries who enter a country illegally, under circumstances where legal entry was difficult or impossible. This applies specifi- cally to asylum seekers at a point before their application is even processed, still less determined. Apply that to the 32 Malians, and how can their arrest be jus- tified? Interview By Raphael Vassallo maltatoday, SUNDAY, 4 DECEMBER 2016 If a person's life is in danger because of the situation in the country, he or she would not technically be a refugee, but would still be recognised as eligible for protection They are rejected asylum seekers. What are the implications of being rejected? Part of the implications is that the host country does have the right to deport you PROTECTION DEPORTATION When is a refugee