When is a refugee not a refugee? | Martine Cassar

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

Refugee Commissioner Martine Cassar
Refugee Commissioner Martine Cassar

The Office of the Refugee Commission in Rue d’Argens, Msida, is not difficult to find. It is often identifiable from afar by large queues of asylum seekers spilling out onto the pavement. Once inside, the first sight to greet the eye is a vast wall-unit reaching up to the ceiling, each pigeonhole 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 bureaucratic activity. And in a country where all things immigration-related 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 procedure was announced... followed almost immediately by the arrest and detention of 32 rejected asylum-seekers from Mali, to await deportation as part of an EU repatriation programme.

The incident exposed various misconceptions regarding the asylum application procedure itself. Some of the detained Malians 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 arrested, and what their arrest had to do with the bureaucratic changes.

Moreover, the role of the Commission seems to be widely misunderstood. As Dr Martine Cassar 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 clarification of what it is, exactly, that the Commission decides.

“Primarily, this office is responsible for receiving asylum applications, and determining what form of protection is available, if any, to the applicants,” Cassar begins. “This is because there are different forms of protection that can be granted: namely, refugee status; subsidiary protection; temporary humanitarian 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 Protection 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 convention: race, religion, nationality, affiliation with a particular political group, and membership of a particular social group... for instance, LGBTI.”

Originally, refugee status was the only form of protection available. “It was felt throughout that this was insufficient: other categories were being considered, and eventually came through via European Directives. This includes subsidiary protection. Chapter 15 of the Qualification Directive states that protection should not be limited to the identity of the person 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... someone who had to flee from danger? 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 qualify 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 government, 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, personally, are under threat. If you are returned to your home country, 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 protection, because it is related to the state of the country, not the individual applicant. If a person’s life is in danger because of the situation in the country, he or she would not technically be a refugee according to the definition, but would still be recognised as eligible for protection.”

Next on the list is THP. “This comes out from an administrative procedure. It’s a local form of protection given to individuals 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 protected for other reasons. These might include people with medical issues, or unaccompanied migrant children who come here without families. There are also various other genuine humanitarian grounds...”

In terms of the remit of the Refugee 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 statistics 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 infamous ‘THP-n’ [Temporary Humanitarian 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 legally, if their status has no legal validity?

“This is a common misconception. You can work legally as a rejected asylum seeker. It is important that we clarify this, as the misunderstanding is causing a lot of harm. The man in the street is now even scared to employ a rejected asylum seeker on the basis that it is illegal... but it isn’t. JobsPlus [formerly the Employment and Training Corporation] allows for this...”

But this seems to contradict the situation whereby 32 rejected 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 incident. 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 Cassar has just told me, the question is not so much ‘who carried out the arrest’, but why they were arrested. It can’t have been for lack of any official documentation... seeing as how none is apparently needed. And the question is relevant for another reason, too. The Geneva Convention (Article 31) specifies that ordinary immigration 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 specifically 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 justified?

“This office is only concerned about whether people qualify for any form of protection according 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 immigrants’, when their status isn’t even illegal?

“I don’t go into the state of illegality or not. We will ask questions 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 Refugee’s remit actually begin and end in the case of an asylum application? How does it pan out in practice?

“Let’s take a hypothetical example. A person is arrested for entering the country with a false passport. It doesn’t have to be the case of a migrant from Africa. It could be from Turkey, or anywhere else. He or she says: ‘I claim asylum... I need protection’. 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 Commission. 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 application 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 sometimes 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 smuggler... 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 evaluation. 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 October 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 conditions... 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 important, 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 permit 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 actually change the holder’s status. Protection – for want of a better word – was being given, but the person’s status didn’t change. They would still be rejected asylum seekers. What sort of protection 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 question of what would happen in similar circumstances after October 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 JobsPlus 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 protection, but you’re still rejected. Here is protection, but you can still be deported. And you can still work without this card anyway.’ So what is the value of the THP-n card? Close to none...”

Nonetheless, a few issues have already been flagged by the removal 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 account. However, as confirmed at the meeting between the minister and NGOs, the ministry will be engaging in discussions in order 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 asylum seekers were in a state of illegality...

“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 Commission’s opinion in the matter? Are they illegal or not?

“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...”

Then on what grounds is this right being enacted in some cases, 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 difficulty with deportation. It is often very difficult, even in cases where the person wants to go back. The problem might concern 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. Having said that, deportation is not within my remit, so I’d much rather you take this up with the police...”