Issue link: https://maltatoday.uberflip.com/i/758493
maltatoday, SUNDAY, 4 DECEMBER 2016 15 "This office is only concerned about whether people qualify for any form of protection accord- ing to legal criteria. In the case of the 32 Malians: when I heard about the arrest – because I found about it after it happened – we called to enquire whether any of them benefited from any protection given by this office. It turned out that one did – THP-n – and he was released within five minutes of our phone-call." But that's precisely the point: if THP-n is not even needed, why were the others not also released? How, in a word, can people be arrested as 'illegal im- migrants', when their status isn't even illegal? "I don't go into the state of il- legality or not. We will ask ques- tions of that nature in the course of the process; but only to help us get a clear idea of the story..." OK, let's take a step back for a second. Where does the Refu- gee's remit actually begin and end in the case of an asylum ap- plication? How does it pan out in practice? "Let's take a hypothetical ex- ample. A person is arrested for entering the country with a false passport. It doesn't have to be the case of a migrant from Af- rica. It could be from Turkey, or anywhere else. He or she says: 'I claim asylum... I need protec- tion'. The minute they say that, a legal obligation is triggered off. Within three working days – which is not very long – that person's application has to be received by the Refugee Com- mission. The moment he or she comes here, we issue an asylum- seeker document. And when they come in handcuffs, to be very honest with you... handcuffs are removed in here..." From that point on, the applica- tion will be processed through a number of interviews handled by case workers. Asked for a rough timeframe, Cassar explains that her office aims to conclude each individual application within a maximum of six months... though the process may some- times be delayed or prolonged. "Once the process is started, we would want to know why that person fled their country of origin, or if they really did flee from where they claimed to have fled... these are the sort of issues we would be interested in. If it transpired, for instance, that an applicant had paid a smug- gler... which is an illegal act... the information would help us to get a clearer picture, yes, but it wouldn't be a factor in the evalu- ation. As a Commission, we only look at whether they are eligible for protection, and if so, what type of protection..." Meanwhile, there is another controversy surrounding THP- n... the previous policy has been changed, and this form of status will no longer be issued after Oc- tober 2017. What was the official reason for this policy change? Cassar again points out that she is not directly responsible for the formulation of policy, and cannot answer on behalf of the ministry or anyone else. She does however consent to give her own opinion. "Because it should not be in the remit of the Refugee Commission to grant additional protection, over and above the three forms I mentioned earlier. If a person does not qualify for either refugee status, subsidiary protection, or THP – all of which arise from laws and treaties, and are based on specific condi- tions... why should the Refugee Commission give out THP-n on the basis of whether that person has a job or not? I'm not saying such considerations are not im- portant, but they are not within the remit of this office." Perhaps not, but we are not talking merely about a change of office handling THP-n... the per- mit itself will no longer be issued at all after October 2017. Why was it decided to discontinue this system? "I would say the reason was that THP-n, in itself, didn't actu- ally change the holder's status. Protection – for want of a bet- ter word – was being given, but the person's status didn't change. They would still be rejected asy- lum seekers. What sort of pro- tection is that?" Better than no protection at all, some might argue. After all, it meant the difference between freedom and detention in the case of that one Malian THP-n holder... which raises the ques- tion of what would happen in similar circumstances after Oc- tober 2017. If THP-n is no longer given, what system, if any, will replace it? "After that date, there will be a different procedure in place. The THP-n permit will no longer be issued by this office, and such cases will be handled by Job- sPlus and Identity Malta. Under the new system, rejected asylum seekers who have a document from their country of origin, and who can prove they can work, will get a residence permit like any other third country national. The difference will be that they no longer get a card saying 'THP- n'... which in practice meant very little. It meant: 'Here is protec- tion, but you're still rejected. Here is protection, but you can still be deported. And you can still work without this card any- way.' So what is the value of the THP-n card? Close to none..." Nonetheless, a few issues have already been flagged by the re- moval of this document. One purpose it did seem to serve – whether intentional or not – was that banks would accept THP-n as official documentation for the purpose of opening an account... "Yes, that is an issue that might arise. If a person no longer has this card, in addition to difficulty in attaining a travel document and a residence permit, it might be difficult to open a bank ac- count. However, as confirmed at the meeting between the minis- ter and NGOs, the ministry will be engaging in discussions in or- der to address this issue." Coming back to the incident that prompted all this discussion in the first place: we are still no nearer an answer to the question of whether those 32 rejected asy- lum seekers were in a state of il- legality... "I never said they were..." The Prime Minister did, the Home Affairs Minister did... and while Cassar is not answerable for their opinions, her position does entitle her to one of her own. What is the Refugee Com- mission's opinion in the matter? Are they illegal or not? "They are rejected asylum seekers. What are the implica- tions of being rejected? Part of the implications is that the host country does have the right to deport you..." Then on what grounds is this right being enacted in some cas- es, but not in all? "That's something you'd need to ask the police. But I can tell you it will boil down to – we see this all over Europe – the diffi- culty with deportation. It is of- ten very difficult, even in cases where the person wants to go back. The problem might con- cern lack of agreements with the countries of origin, and other complications. Today, more agreements exist at European level, so it may be more possible in some cases than others. Hav- ing said that, deportation is not within my remit, so I'd much rather you take this up with the police..." Interview Some asylum seekers seem to be more equal than others; but Refugee Commissioner Dr MARTINE CASSAR argues that the basic asylum process remains the same for all applicants not a refugee? PHOTOGRAPHY BY JAMES BIANCHI