52 asylum seekers take government to court over delayed rescue and pushback

A group of 52 would-be asylum seekers who had been pushed back to a grim fate in Libya by the Maltese authorities on the fishing vessel Dar al Salaam have filed a court application demanding to be allowed to make their asylum applications and seeking damages.

In the application filed before the First Hall of the Civil Court by lawyer Paul Borg Olivier and Evelyn Borg Costanzi, the migrants called upon Prime Minister Robert Abela, National Security and Law Enforcement Minister Byron Camilleri and AFM Brigadier Jeffrey Curmi to remedy their situation.

The case is being funded by NGO Repubblika.

They are claiming to have been pushed back to Libya in April whilst on an overloaded dinghy in Malta’s Search and Rescue zone. In an inquiry into the incident, it had transpired that not only had the NGO AlarmPhone informed the Maltese authorities of the overloaded vessel approaching Malta’s SAR zone, but a Frontex aircraft had also spotted it in the sea there.

On April 12, 24 hours after the AlarmPhone call, it had been tracked to the border of Malta’s SAR zone. A further 10 hours elapsed before the AFM engaged a private fishing vessel, the Dar al Salaam to pick up the migrants. The rescue took place around 39 hours after they entered the Maltese SAR, reads the court application.

They argue that despite knowing of the deteriorating conditions on board the dinghy, as well as the overstretched capacity of the AFM, Brigadier Curmi had waited over 24 hours to engage the private vessel to conduct the rescue.

The lawyers argued that as an agent of the State, the Dar Al Salaam had a duty of non-refoulment and could not be sent back to its home port as described by the Prime Minister. This went contrary to the European Convention on Human Rights, the lawyers added.

The migrants on board suffered dehydration and malnutrition, as well as psychological trauma as a result of the delays to their rescue. They also had to see their friends die and were returned to Libya where they were tortured and subjected to degrading treatment.

They argued that they were asylum seekers, each with a UNHCR-issued certificate attesting to this, but they had still been deprived of the opportunity to request asylum in Malta. Instead they were returned to Libya where they were placed in a detention centre at Tarik al Sikka, they said.

In the application, it was also stated that the State’s actions amounted to collective deportation, in violation of the EU’s Charter of Human Rights, which protected their asylum requests.

Two of the asylum seekers, Fthawi Tesfamichael Welday and Asfaha Letenugus Amelesom, died in a rescue operation involving a Libyan-flagged vessel and coordinated by the Maltese authorities during the same period, reads the application, holding the State responsible for their deaths.

Malta’s actions that day violated the European Convention on Human Rights, the Constitution of Malta, the Charter of Human Rights of the European Union and the Geneva Convention, argued the lawyers.

The application asks for the court to declare that Malta violated several of the asylum seekers’ human rights and award pecuniary and non-pecuniary damages to the applicants.

It also asks that they be allowed to make their asylum requests according to international, European and Maltese laws.

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