Organisation of Asylum and Migration in Malta (EMN) · EMN study 2008 -The Organisation of Asylum and Migration Policies in Malta 5 1. INTRODUCTION The present study constitutes the

National Contact Point of the

EUROPEAN MIGRATION NETWORK

Malta

The Organisation of Asylum and Migration Policies in Malta

Authors Joseph St. John Martha Delicata Mario Azzopardi

National Report 2008

EMN study 2008 -The Organisation of Asylum and Migration Policies in Malta

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TABLE OF CONTENTS

Executive Summary 3 1. Introduction 5 2. Overview of Organisation of Political, Legislative and

Institutional Framework in Malta 6 3. Development of asylum and migration systems 11

3.1. Introduction 11 4. Organisation of Policy 14

4.1. Asylum and Migration 14 4.1.1. Entry Procedures 14 4.1.2. Admission Conditions 17 4.1.3. Legal Residence 21 4.1.4. Access to the Labour Market 23 4.1.5. Return 25

4.2 Links with other Policy Areas 30 5. Analysis of asylum and migration systems 31 6. ANNEX 33 7. Bibliography 37

TABLES

Table 1: Persons granted Refugee and Subsidiary Protection 19 Table 2: Work permits issued - January 2004 - December 2008 25 Table 3: Total number of illegal immigrants apprehended at the border and within the territory

26 Table 4: Top five Nationalities and Number of Arrivals 26 Table 5: Deported Immigrants 28


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EXECUTIVE SUMMARY

The study The Organisation of Asylum and Migration Policies in Malta, is the first contribution of the National Contact Point Malta, within the European Migration Network. The study overviews the manner Migration is organised in a small densely populated country at the periphery of the EU. Migration in Malta has been associated with emigration but with recent developments coinciding with the enactment of the Refugees Act in the year 2002 and connected with Malta’s geographic position illegal immigration from Africa and requests for asylum increased dramatically to unprecedented highs and Malta became suddenly faced with major political and organisational challenges. In this scenario, the Ministry for Justice and Home Affairs (MJHA) leads on Asylum and Immigration while other migration responsibilities are carried by the Ministry for Social Policy, the Ministry of Finance and the Ministry of Foreign Affairs. The enactment of the Refugees Act (Cap 420) in the year 2002 paved the way for the creation of the two governing bodies in the area of asylum; The Commissioner for Refugees who is responsible for registering of asylum applicants, and examining admissibility and the merits of applications in relation to eligibility for protection. The Refugee Appeals Board, an administrative tribunal that examines applications for suspensive appeal against rejection decisions of the Commissioner for Refugees.

Responsibility for overseeing the provisions of the Immigration Act (Cap 217) and the control of illegal immigration is associated with the Police Special Branch which screens and registers all immigrants. However, as a greater emphasis on maritime border surveillance and rescue had to be made to meet the growing and complex challenges posed by marine immigration, the Armed Forces which falls under the responsibility of the Office of the Prime Minister became more actively involved in Maritime Surveillance. The creation of further specialised bodies was felt and in 2005 the Detention Services was created to manage the closed reception centres. In order to address evolving pressures on existing welfare support services the then Ministry for the Family and Social Solidarity set up, in 2006, the Organisation for the Integration and Welfare of Asylum Seekers (OIWAS), which in 2008 shifted under MJHA responsibility. The Organisation provides accommodation for immigrants, language training and assessment of skills and other services meant to facilitate their integration into mainstream society. The Ministry for Social Policy, now plays a major role in both legal and illegal forms of migration through the provision of Community Welfare, Health, Social Security and Employment in relation to the main legislative frameworks such as the Social Security Act (Cap 318), the Employment and Training Corporation Act (Cap 343) and Employment Act (Cap. 452).

New concepts in citizenship, residency and work rights were introduced for Third Country nationals parallel with reorganisation of existing structures and new entities within the span of the last four years. Government entities traditionally active in the field of legal migration such as the Citizenship and Expatriate Affairs Department now incorporated within the Ministry of Foreign Affairs have widened their focus in relation to new residency scenarios. The Central Visa Unit assumed responsibility for the issue of visas. The CVU is responsible for the processing and forwarding of visa requests and the facilitation of networking between all of Malta’s diplomatic missions and consular posts. Subsidiary legislation or amendments to main legislative instruments such as the


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Immigration Act and the Citizenship Act (Cap 188) were introduced to reflect this new emphasis. The National Statistics Office (NSO) within the Ministry of Finance now collects and compiles a wide range of migration statistics also in reflection of new EU legislative frameworks in this connection.

The UNHCR became more actively present assuming new roles since 2004 while at the same time international organisations such as the IOM and MSF became active in Malta in co-operation with Government and other long standing voluntary organisations such as the Emigrants’ Commission and the Red Cross Jesuit Refugee Services.

Despite the intense activity that has taken place in recent years to put in place adequate organisational set ups relation to the developments in migration, the challenges posed by mixed migration flows place huge strains on the capacity of a small country. At the same time the integration of third country nationals remains limited in relation to the country’s size and limitations. Moreover, the return of illegal immigrants remains problematic in relation to certain third countries.


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1. INTRODUCTION The present study constitutes the first for Malta as a participant in an enlarged EMN. This report is based on recent information available at the national level up to the end of 2008 and is the result of the main findings emerging from a desk analysis of official documents, current publications and statistics, as well as the internet, and other media documents. This study is an opportunity for the Malta EMN NCP to familiarise itself with the preparation of such reports for comparative use by the Commission. The co-operation of Government experts and officials involved in the area of migration and asylum was sought in the production of this National Report. In this regard the compilers of this study consulted the Immigration Police, the Department of Citizenship and Expatriates Affairs, the Central Visa Unit, the Organisation for the Integration and the Welfare of Asylum Seekers, the Office of the Refugee Commissioner, the Refugee Appeals Board and the Employment and Training Corporation. The study is expected to contribute to a wide understanding of migration and asylum structures in Malta and may in time be regarded as a reference point for practitioners and researchers. The study will be updated as necessary to reflect ongoing developments. Where possible, use has been made of primary sources. An overview of the annual reports of the relevant Government departments was undertaken as these provide factual information on operational aspects, the challenges faced and the achievements of the respective departments. Studies regarding the organisation of Migration in Malta are generally found in the form of brief introductory descriptions in reports for and by government and international bodies. Publications dealing specifically with migration and asylum in Malta, particularly with reference to the local organisational setup are not available. However government has published a policy document titled ‘Irregular Immigrants, Refugees and Integration’ in 2005. This document featured information in relation to the existing setups at the time; however there have since been changes and developments in Ministerial portfolios and other matters. Entries on these subjects in international publications on Malta are also few, the most informative publicly available being the IOM handbook ‘Informed Migration’. The compilers of this study did not encounter any particular difficulties to collect the relevant information which was generally available although not collected in a single document. For this reason the present study is considered useful in that it would facilitate the conducting of migration and asylum studies in the near future.


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2. OVERVIEW OF ORGANISATION OF POLITICAL, LEGISLATIVE AND

INSTITUTIONAL FRAMEWORK IN MALTA

MINISTERIAL RESPONSIBILITY

The Malta Government administration is organised under nine Ministries. The Ministry of Justice and Home Affairs is the major player in respect of illegal immigration and asylum, and it is also responsible for border control issues. In the field of Asylum, the Office of the Refugee Commissioner, and the Refugee Appeals Board, the asylum determination bodies, fall under this Ministry’s portfolio. Irregular Immigration and border control are managed by the Police Immigration Department within the Police Special Branch. A Detention Service under the Ministry’s responsibility has been set up in August 2005 with a view to manage the reception of persons who entered the country illegally. As of March 2008 the Organisation for the Integration and Welfare of Asylum Seekers (OIWAS) was incorporated within the Ministry’s responsibilities. The Ministry for Justice and Home Affairs houses the Minister’s Secretariat and the Office of the Permanent Secretary, which is the Ministry’s administrative wing. Within this Secretariat the Director General (Operations) coordinates operational matters with respect to migration issues among other tasks. Moreover, a Committee presided by the Minister for Justice and Home Affairs, on which the main Government entities involved in the sector are represented, has been established. This is a central decision making body that discusses the operational aspects of immigration. The Ministry of Foreign Affairs is involved in the migration process in view of its responsibility for consular matters and the Central Visa Unit, as well as in view of its responsibility for the Citizenship and Expatriate Affairs Department, which issues Residence Permits. The Ministry for Social Policy is responsible for the Employment and Training Corporation, which issues work permits and regulates the employment sector, as well as for health-related provisions and social security. Other Ministries are involved in the sector in relation to specific areas, such as the Ministry for Education and Culture, which is responsible for academic and technical training, as well as matters relating to recognition of qualifications. The Ministry for Communications and National Projects is involved in the sector in view of its responsibility for Civil Registration, Identity Management and the Passports Office. Another Ministry involved in the sector is the Ministry of Finance, in view of its responsibility for the National Statistics Office.


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GOVERNMENT DEPARTMENTS AND ENTITIES

MINISTRY OF FOREIGN AFFAIRS

Department of Citizenship and Expatriate Affairs

The Department of Citizenship and Expatriates Affairs is responsible for the implementation of policy in relation to the admission and residence of non-nationals to Malta and the granting where appropriate of Maltese citizenship. The Department deals with citizenship issues in accordance with the Maltese Citizenship Act (Cap 188) and applies the relevant provisions of the Immigration Act (Cap. 217) in relation to residence permits.

Central Visa Unit

The Central Visa Unit is responsible for processing and forwarding of visa requests, and facilitates networking between all of Malta’s diplomatic missions and consular posts thus playing a key role in application and authorisation procedures.

MINISTRY FOR SOCIAL POLICY

Appogg (Welfare Agency)

Appogg is the national social welfare agency set up in the year 1994 for children and families in need offering more than 25 specialised services for the community. The Agency is one of the three main agencies within the Foundation for Social Welfare Services (FSWS) under the Ministry for Social Policy that offer comprehensive programmes of prevention, support and treatment services, for children, families and adults in need both on residential and community settings. Immigrants in the care of OIWAS can be referred and may access these Community Services. The main specialized social work services offered by Appogg to children and families include Childcare, a Fostering service, Looked after Children service, a Family Support Centre, psychological and Family Therapy Services and Domestic Violence Services. The Children and Young Persons' Advisory Board is of particular relevance to unaccompanied minors placed under a Care Order. The service provides care to these vulnerable children through the High Support Service launched in 2002 for children under a care order who due to their emotional and psychological needs require high support within a residential service. Another area of social work intervention by APPOGG is within the area of Human Trafficking, jointly with the Malta Police Force and the Ministry for Social Policy for the provision of social support services in cases of potential victims of human trafficking

Employment and Training Corporation

The Corporation set up by an Act of Parliament in 1990 to provide and maintain an employment service; find suitable employment and to assist employers to find suitable

http://www.msp.gov.mt/


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employees and provide training service to jobs seekers and to employees wanting to improve their knowledge and skills. It is primarily responsible for providing a public employment service, managing state-financed vocational training schemes and maintaining labour market information, employment registration and employment permit schemes. Migrants have access to the services provided at the national level.

MINISTRY OF FINANCE

The National Statistics Office

The National Statistics Office (NSO) is responsible for the collection, compilation and statistical output and its importance in the area of migration has assumed greater emphasis in relation to the new EU Migration statistics framework set by regulation EC 862/2007. The National Statistics Office was officially set up in March 1947 and produces analysis and publication of a wide range of statistical information and related matters of which the most important in relation to this study are the population statistics. Furthermore the entity has central importance in this are in relation to its mission of driving the harmonisation of Maltese statistics on Migration with European standards.

MINISTRY FOR JUSTICE AND HOME AFFAIRS

Office of the Refugee Commissioner

The Office of the Refugee Commissioner is responsible for the determination of first instance asylum applications. This Office has been established as an independent body in the year 2002 by virtue of the Refugees Act (Cap. 420), whereby responsibility for refugee determination passed from UNHCR to this entity. The Office of the Refugee Commissioner is a thirteen-strong team made up of case officers, case workers, who are led by the Refugee Commissioner, and an Assistant Refugee Commissioner.

Refugee Appeals Board

The Refugee Appeals Board is the decision making authority established by the Refugees Act (Cap. 420) to receive and determine appeals lodged against a negative decision of the Refugee Commissioner. The Board is composed of two separate chambers. Each Chamber has a Chairman and two other members. Free legal aid is provided at the appeals stage. The provision of this service is organised by the Third Country Nationals Unit under the direct responsibility of the Ministry. Asylum seekers have access to free legal assistance and counselling during the appeals stage within asylum procedure.

Immigration Appeals Board

The Immigration Appeals Board is a decision making body or tribunal set up by virtue of the Immigration Act (Cap. 217) and is composed of a single chamber having three


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members one of whom is required to have a legal background and acts as a Chairman. The Board has the power to hear and determine appeals in relation to detention and removal orders.

Detention Service

The Detention Service is the government structure developed in 2005 to run all detention facilities. Currently, this organisation employs 114 casual Detention Service Officers. The Service accommodates all illegally arriving immigrants catering for an average total of over 2000 detainees. The Detention Service is responsible for three Closed Centres.

Immigration Police (Special Branch)

The Immigration Police is responsible for border control at all of Malta’s border points. Moreover, the Immigration Police manage the SIRENE Unit and have responsibilities related to Dublin II and Eurodac. This unit is also responsible for the apprehension, investigation, identification and removal of illegally staying foreigners.

Organization for the Integration and Welfare of Asylum Seekers - OIWAS

The Organisation for the Welfare and Integration of Asylum Seekers (OIWAS) was officially set up in June 2007 to respond to the new and ever growing needs of asylum seekers and protected persons in particular vis-à-vis accommodation, social welfare and integration. In March 2008 this organisation has been incorporated within the Ministry for Justice and Home Affairs. The organisation is entrusted with the implementation of Government obligations and offers professional social welfare services in specialised areas; providing support to asylum seekers and protected persons generally in the context of open centres, assistance with accessing community services and providing the basic tools to enable participation in society of persons under protection involving training, financial support and links with education and employment. The organisation is also involved in the social welfare situation of closed centres. OIWAS also caters for the needs of vulnerable persons. OIWAS manages directly or through contractual arrangements eight Open Centres.

NON-GOVERNMENTAL ORGANISATIONS The main International Non–Governmental actors active in this area are the following: UNHCR, IOM, and Médicins sans Frontiers among others. The main Local Non-Governmental stakeholders are the Emigrants Commission, Jesuit Refugee Service and the Malta Red Cross Society.


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THE GENERAL STRUCTURE OF THE LEGAL SYSTEM IN THE AREA OF MIGRATION AND ASYLUM.

Immigration

The principal legal instrument is the Immigration Act, Chapter 217 of the Laws of Malta and subsidiary legislation there under. The Act features provisions relating to the border control, illegal entry, readmission of illegally present Third Country Nationals and the issuance of residence permits. Several amendments to this Act were effected over recent years with a view to transpose EU Directives such as the long term residence Directive and introduce measures such as the Uniform Residence Permit. The full list of the relevant laws is provided in the Annex.

Asylum

Relevant Maltese legislation is the Refugees Act (Cap. 420) of 25 July 2000, which introduced a national asylum system in Malta, by providing for a local asylum determination procedure. This Act has recently been amended to transpose the provisions of the Qualification and Procedures Directive. The Immigration Act also features provisions relevant to asylum seekers, such as those relating to reception conditions.

Citizenship

In the area of Citizenship the applicable national legislation is the Maltese Citizenship Act (Cap. 188) which provides for registration/naturalisation of persons as citizens of Malta, confirmation of dual citizenship cases and deprivation of Maltese citizenship.

Employment

Employment is regulated by the Employment and Training Corporation Act (Cap. 343) and the Employment Act (Cap. 452).


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3. DEVELOPMENT OF ASYLUM AND MIGRATION SYSTEMS

3.1. INTRODUCTION Malta’s history in the area of migration is characterised by particularly large emigration flows in between the mid-Fifties and the 80’s mainly to Australia, the United States, Canada and the United Kingdom and on the other hand, immigration inflows from Yugoslavia, Iraq and Albania in the early nineties. Boat people from Africa started entering Malta illegally in large numbers as from 2002.

3.2. HISTORICAL OVERVIEW OF ASYLUM AND MIGRATION SYSTEMS The Minister for Justice and Home Affairs in post is the Hon Dr. Carmelo Mifsud Bonnici who took over from his predecessor the Hon. Dr. Tonio Borg (Deputy Prime Minister) after the election in March 2008. The Ministry is responsible for immigration matters. The Ministry for Justice and Home Affairs has since the year 1998 been dealing with asylum issues under its remit, and in particular commissioning new asylum legislation. In the absence of a national refugee status determination mechanism, applications for refugee status submitted in Malta, prior to 2002, were carried out under the UNHCR mandate and were received, processed and determined by UNHCR (Rome) while the relative decisions were subsequently implemented by Malta. The national asylum determination structures, the Office of the Refugee Commissioner and the Refugee Appeals Board, were set up on the entry into force of the Refugees Act (Cap 420) on 1st October 2001. It should be noted that during 2001 less than 100 persons entered the island irregularly; however in 2002, the figure increased exponentially to 1,686. 1822 reached Malta illegally in 2005, whereas the figure for 2008 stands at 2636. In total between 2002 and this year Malta received 11,512 boat immigrants. These figures demonstrate the considerable impact of present migration pressures on Malta.

3.3. INSTITUTIONAL DEVELOPMENTS

With the publication of the Refugees Act in 2000 the Ministry for Justice of Home Affairs assumed official responsibility for Asylum. The year 2000 marks an important milestone for asylum in Malta as a legal instrument on asylum had been introduced for the first time. By the end of the year 2001 the Ministry, completed the setting up of the Office of the Refugee Commissioner and the Refugee Appeals Board. No sooner has these structures started to function that an unprecedented high influx of boat immigrants arrived in the year 2002 most of whom applied for asylum and put the system to the test. The Ministry of Justice and Home Affairs from that time onwards became vigorously active in the area of migration asylum. Since the start of its operations the Refugee Commissioner’s Office processed the asylum application of over 8000 asylum seekers by end of October of this year (2008), 212 (3 % of submitted applications) being granted Refugee Status and 3882 (48%) enjoying Subsidiary Protection. In this context, Malta emerges as a European country with one of the highest acceptance rates.


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A Detention Service under the Ministry’s responsibility has been set up in August 2005 with a view to manage the reception of an increasing number of persons who entered the country illegally. The Detention Centres receive an average of 2000 residents yearly. Malta decriminalized illegal entry in December 2002. However, such migrants are subject to administrative detention. The Organisation for the Welfare and Integration of Asylum Seekers (OIWAS) was officially set up in June 2007 to respond to the new and ever growing needs of asylum seekers and protected persons in particular vis-à-vis accommodation, social welfare and integration. The OIWAS manages eight Open Centres with a population exceeding 1900 immigrants. In March 2008 this organisation has been incorporated within the Ministry for Justice and Home Affairs. The Central Visa Unit was set-up in 2006 following a Cabinet decision to, in line with the Schengen Acquis, set up an authority within Malta in the meaning of Article. 17 paragraph 2 of the 1990 Schengen Convention. The responsibility for the issue of visas was subsequently transferred from Immigration Police to the Central Visa Unit. Following the Evaluations of the Schengen Information System that was successfully carried out in September 2007 in full compliance with the relevant Schengen evaluation procedures by a Council Decision on the lifting of controls at land and sea borders with and between the new Member States adopted on 6 December 2007 the dismantling of air borders was completed on 31 March 2008 and Malta joined the Schengen area in December 2007.

Citizenship

When Malta became an Independent State on the 21st September 1964, the Independence Constitution established who should become a citizen of Malta automatically by birth and who could be registered as a citizen of Malta under the provisions of the same Constitution. Maltese citizenship was established when Malta became an independent State on the 21 September 1964. Chapter III of the Constitution of Malta was then totally dedicated to citizenship matters. Amongst other things, the provisions thereof regulated how citizenship was obtained by descent (birth abroad) or by birth in Malta (before and after Independence), loss of Maltese citizenship and the acquisition of such citizenship by registration. The Maltese Citizenship Act Cap 188, which was enacted in 1965, complemented the provisions of the said Chapter of the Constitution and provided also, amongst other matters, the mechanism for the acquisition of citizenship by naturalization, for the renunciation/loss of Maltese citizenship and for the deprivation of Maltese citizenship. For almost twenty five years after Maltese citizenship had been established on Malta’s attainment of statehood in 1964, the few amendments effected to citizenship legislation were of relatively minor importance. The concept of single nationality and provisions that allowed the possibility of the transmission of Maltese citizenship to first generation children born abroad only through the father, were then the dominant features in Maltese citizenship legislation. Dual citizenship was allowed only until the person concerned was nineteen years of age. In order to retain their Maltese citizenship beyond this date such


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persons had to renounce any foreign citizenship they then held, before their nineteenth birthday. The main changes to Maltese citizenship legislation from such a position were initiated with amendments which were effected to the original principles in August 1989, followed by other radical amendments in February 2000, which came into force on 1 August 2007.

Family Reunification

During 2007 the publication of Legal Notice 150 set down access to family reunification entitlements for legally resident non-EU migrants. A separate provision for Refugees is also in place. The Citizenship and Expatriate Affairs Department was assigned responsibility for the management of family reunification.


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4. ORGANISATION OF POLICY

4.1. ASYLUM AND MIGRATION

4.1.1. ENTRY PROCEDURES In December 2007 Malta lifted its sea border to join the EU borderless area, the Schengen. In March 2008 Air Borders were lifted. Third Country Nationals may enter and travel within the territory of the Member States applying the Schengen provisions for a period of up to three months, provided they fulfil the entry conditions laid down in the Schengen acquis now integrated into the EU. Third Country Nationals must upon entry have a valid passport, a valid visa, provide documents showing the purpose and conditions of their visit prior to entry in Malta, show that they have sufficient means to support themselves during their stay in Malta, have not been prohibited to enter through an alert on the Schengen Information System, and are not a threat to public policy, international security, public health or the international relation of any Member State. The main task of the Immigration Branch of the Malta Police Force is to control Malta’s points of entry, which include the application of the Eurodac and checks to prevent illegal entry of foreigners and detection of forged documents. It has entry points at the airport, seaport and yacht marina as well as a seasonal port at Mġarr, Gozo. Police and civilian personnel man entry points at the airport. The Central Immigration Office, which also forms part of the Malta Police force, is responsible for all the administrative tasks related to temporary residence in Malta.

The Principal Immigration Officer is appointed by the Prime Minister and has the power to grant leave and entry and remain in Malta to any person arriving in Malta for a period of up to three months. In addition the Principal Immigration Officer can impose conditions of stay in Malta, grant extensions with regard to the period of stay and impose further conditions as deemed proper and necessary. According to Article 5 and Article 8 of the Immigration Act (CAP 217) persons may be refused entry by the Principal Immigration officer or by any officers to whom such powers have been delegated. Nationals of more than 100 countries or territories who wish to come to Malta must obtain entry clearance before they travel, whatever the purpose of their visit. Committed to ensuring all those who have a genuine reason to come to Malta to do so with as little inconvenience as possible, the Central Visa Unit, within the Ministry of the Foreign Affairs is an effective and professional immigration control authority and was set up in 2006. This Unit is responsible for ensuring the proper functioning of the visa issuing procedures in all of Malta’s diplomatic missions and consular posts. As Malta’s central authority, the CVU is equipped to forward and process visa requests rapidly, via the Visa Management System, which together with the networking facilitation between all of Malta’s diplomatic missions and consular posts, plays a vital role in the acceleration of application and authorisation procedures.

The Visa Management System is a web browser driven application and accessed via intranet, by all of Malta’s diplomatic missions and consular posts, which are connected to the Government network via a VPN (Virtual Private Network) connection, using high encryption levels.


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Recognising the need to process applications in a timely manner, the CVU faces daily challenges in managing the competing priorities of service, delivery and control. It responds to an increasing demand for Schengen visas and a rapidly changing visa policy environment and changes to the nationalities that require such entry clearance. The CVU is responsible for:

- the monitoring of the visa process;

- ensuring that the application of the “Common Consular Instructions on Visas” is properly applied in all of Malta’s diplomatic missions and consular posts;

- consultation/s with central authorities of other Schengen Member States through the Schengen consultation network - VISION;

- the training of all Consular Staff; and

- the preparation of Training Manuals for all MFA Consular Staff

Visas may be individual – issued to an individual applicant and apposed to an individual passport – or group visas – issued to a group of third country nationals, all having the same nationality of the passport –issuing country, and provided that the document is expressly and formally recognised by Malta. Group visas are valid for stays of up to 30 days. Visas are divided into 3 main categories:

1. Schengen Visas – valid for entry in the territory of all the Schengen Member States

2. Limited Territorial Validity Visas – valid for the Schengen state whose

representative issued the visa without any possibility of access to or transit through

the territory of any other Schengen State

3. Long stay or national visas –visas valid for stays of 90 days or more, with one or

more entries in the territory of the Schengen State whose diplomatic representative

issued the visa, and to transit the territory of the Schengen states for a period of not

more than five days.

The possession of a visa does not entitle the holder to automatic right of entry, as the holder is still requested to prove that he or she meets the conditions of entry. Border authorities may refuse entry or annul the visa, if it is subsequently established that:

- the person is not in possession of adequate means of subsistence;

- the data submitted during the visa application procedure were incorrect of falsified;

- The person is unable to provide details regarding the circumstances of the stay in Malta.

- Border authorities may refuse entry also for reasons of public security or public policy.

If a person desires to stay in Malta for a longer period, he or she is required to apply for an


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extension of stay to the Principal Immigration Officer. Such requests are acceded to provided, amongst other conditions, that the person concerned provides evidence that he or she has sufficient means of subsistence. The foreign national concerned would have to follow this procedure each time he or she wishes to extend his or her stay in Malta.

ILLEGAL IMMIGRATION AND ASYLUM

The Immigration Police is also in charge of investigations linked with arrivals of illegal immigrants many of whom apply for asylum. On arrival the Armed Forces of Malta hand over the illegal immigrants to immigration Police who are responsible for ensuring that registration and necessary screening including Eurodac entries are conducted in a timely manner. They are also informed of their rights of asylum. Following their placement in detention illegal immigrants are then screened for socially communicable infectious diseases. While in Detention they are under the care of the Detention Service personnel made up of the AFM Commander for Detention Service; one Police Inspector and 19 Police Officers; four AFM officers and 114 soldiers; and 98 Casual Detention Service Officers (ex-Police, ex-AFM or other similarly disciplined corps). These are deployed at the three Closed Accommodation Centres.

Procedure related to unaccompanied minors Vulnerable persons including minors are not subject to the detention requirement. The freedom of such persons is restricted only until such time as the pertinent medical results are out. Immigration Police refers unaccompanied minors to the Director of Social Welfare Standards together with the Organization for the Integration and Welfare of Asylum Seekers. This Organization is under the Ministry for Justice and Home Affairs and is in change of the welfare of all vulnerable groups including unaccompanied minors. Pregnant women, families with children, over age persons and persons with special needs are also referred to OIWAS. The Age Assessment Team within OIWAS is responsible for assessing this person in order to establish his age. If following a structured and rigorous assessment it is concluded that the person is under the age of 18, an application for the issue of Care Order would be done to the Minister of Social Policy. This means that ones the allegation of minor age is established as genuine, the responsibility for the TCN minor falls under the Minister for Social Policy according the Children and Young Persons (Care Orders) Act, Chapter 285.


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4.1.2. ADMISSION CONDITIONS

MIGRATION

Admission to Malta, through the external borders of the Schengen area is, only permitted to Third Country Nationals who are:

- in possession of a valid travel document (passport) or recognized equivalent travel

document permitting them to cross the border;

- in possession of documents substantiating the purpose and the conditions of the planned visit to Malta and have sufficient means of support, both for the period of the planned visit and return to their country of origin (or to travel in transit to another Third State);

- in possession of valid entry or transit visa if required;

- not prohibited to enter through an alert on the Schengen Information System; and

- not considered to be a threat to public policy, national security or the international relations of any other Schengen State, under Maltese law or the law of another Schengen State.

If any one of the aforementioned conditions is not met, the third-country national may be denied entry by the border authorities even if in possession of a valid entry or transit visa. The rights of non-EU nationals legally residing in the territory of a Member State to travel within the European Union are also outlined in the EU Charter of Fundamental Rights. The charter asserts the right of every European citizen to move and reside freely within the territory of the Member States. It adds that these rights may be granted to Third Country Nationals. Nationals of certain third countries may enter the Schengen area on presenting their passports, provided they fulfil the relevant entry conditions specified above. Nationals of certain third-countries are required to have a visa in accordance with the Common Visa Policy. Following the practice of Schengen Member States, Malta entered into representation agreements with other Member States in order that a visa application for Malta can be filed in countries where Malta does not have a diplomatic mission or consular post. The consular post of the country representing Malta will issue visas for entering Malta according to the common Schengen visa policy as if issuing visas for entering their own country. In case none of the above options exist in the migrant’s country of origin or residence the applicant may request for the visa by downloading the visa from [email protected] and faxing it, with a copy of the passport and other requested documents to the Central Visa Unit. All applications for entry into Malta are entered into a computerized system. Gazetted Officers within the Police Immigration Branch assess the applications and comments submitted by the Central Visa Unit and may in turn submit their own comments and recommendations with regards to the issuance/refusal of visas. If the family members of an EU national are third-country nationals, the EU Member State(s) to or through which travel is intended may require an entry visa, depending on their nationality. This visa should be granted free of charge. These freedoms apply to

http://[email protected]/


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non-EU national family members only when they accompany the EU national. When travelling alone, family members who are not EU nationals are not entitled to the visa arrangements mentioned above. Non-EU nationals who wish to travel alone within the EU have to comply with the normal visa requirements for their nationality. A Third Country National shall only be entitled to reside in Malta if a uniform residence permit for a specific purpose is issued in this regard. This does not apply for persons seeking asylum or for those who have made an application for a uniform residence permit. In the case of third country nationals seeking employment in Malta they will be admitted to Malta and authorized to reside in presentation of a copy of a work permit for employment and a copy of work permit or trading licence for self-employment. The admission of a Third Country National for the purposes of studies shall be subject to the conditions laid down in the Legal Notice 29 of 2008 on the Conditions of Admission of Third-Country Nationals for the Purposes of Studies where the applicant is to submit

- a valid passport;

- a parental declaration;

- proof that he/she is covered by a sickness insurance;

- proof that he/she has been accepted by an educational establishment to follow a full-time course of study recognized by the Malta Qualification Recognition Centre;

- provide evidence that he/she will have sufficient funds to cover subsistence;

- provide evidence of sufficient knowledge of the language of the course to by followed and;

- provide proof that the payment of the fees charged by the relative educational establishment has been effected.


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ASYLUM

The Refugees Act Chapter 420 of the Laws of Malta, places an obligation on the Principal Immigration Officer to inform asylum seekers of their right to apply for protection and of the procedures that must be followed to do so. Third Country Nationals who enter Malta legally/ illegally and who apply for asylum are not removed from Malta, but are allowed to remain pending a final decision on their asylum application. The office responsible for these applications is the office of the Refugee Commissioner. The Refugee Commissioner is either a public officer or a person who in the opinion of the Prime Minister has knowledge and experience in matters relating to refugees. At the application stage, the Office of the Refugee Commissioner informs that asylum seeker that:

a). all information provided by him/her will remain confidential;

b). an applicant is entitled to the assistance of a lawyer throughout all the asylum

procedures;

c). an applicant is entitled to contact UNHCR who may also be present during the

interview;

d). an applicant is entitled to present his/her case fully and to make any submissions to

the Refugee Commissioner;

e). an applicant has the obligations to cooperate fully and to furnish any information

relevant to his/her application.

The Office of the Refugee Commissioner provides rejected asylum seekers with a written motivation. They are also informed in writing that:

a). they have the right to enter an appeal against the recommendation;

b). they have the right to consult the UNHCR and have legal assistance subsists

throughout the appeal procedure;

c). at the appeal stage they have the right to legal aid.

2002 -2007 No. of Persons involved

Granted Refugee Status 193 Granted Subsidiary Protection 2625 Table 1: Persons granted Refugee and Subsidiary Protection

The Refugee Appeals Board is composed of three members including a Chairperson. They are all appointed by the Prime Minister amongst persons of known integrity who have experience in refugee-related matters. The role of the Board is to hear and determine appeals against recommendations to the Minister made by the Refugee Commissioner. According to the Refugee Act, 2000 the Refugee Commissioner may recommend that, in


20

spite of the fact that a person does not satisfy the requirements to be recognized as a refugee, such persons should be granted subsidiary protection. The Office of the Refugee Commissioner is also in charge of issuing renewable certificates to recognized refugees and persons granted subsidiary protection. According to Article 24 of the Refugees Act an application shall be inadmissible if:

1. Another Member State of the EU has granted refugee status or is obliged to examine

the claim in question in application of Council Regulation (EC) 343/2003 of 18

February 2003 establishing the criteria and mechanisms for determining the Member

State responsible for examining an asylum application lodged in one of the Member

States by a third country national (Dublin Regulation);

2. A country not a Member State of the EU is considered as a first country of asylum

for the applicant;

3. A country not a Member State of the EU is considered as a safe third country for the

applicant;

4. The applicant is allowed to stay in Malta on some other grounds and as a result of

this he has been granted a status comparable to the rights and benefits of the refugee

status;

5. The applicant is allowed to stay in Malta on some other grounds which protect him

against refoulement pending the outcome of a procedure for the determination of his

status;

6. The applicant has lodged an identical application after a final decision;

7. A dependant of the applicant lodges an application after consenting to have his case

be part of an application made on his behalf, and there are no facts relating to the

dependant person’s situation which justify a separate application;

8. Has been recognised in a country which is not a Member State of the EU as a

refugee and can still avail himself of that protection or otherwise enjoys sufficient

protection in that country, including benefiting from the principle of non-

refoulement, and such person can be re-admitted to that country; or

9. Is a national or citizen of any safe country of origin listed in the Schedule or, if he is

not a national or citizen thereof, he has a right of residence therein.

The Refugees Act, through its Regulations of 2008, Article 4 (4) also provides that ‘an application shall not be valid unless made within sixty days of the arrival of the applicant in Malta: provided that an application may be allowed by the Commissioner, for special and exceptional reasons after the lapse of sixty days’. When a claim is deemed manifestly unfounded, it will be examined using the accelerated procedure.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:050:0001:0010:EN:PDF


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MIGRATION AND ASYLUM (UNACCOMPANIED MINORS)

As has been stated before Unaccompanied minors are first referred to the Director of Social Welfare Standards and then to OIWAS. All unaccompanied minors wanting to apply for asylum can fill a Preliminary Questionnaire independently if they have a guardian or not. The guardian would have to be present during the interview which is held at the Office of the Refugee Commissioner. The guardian is assigned to the minor after the results of the Age Assessment Team confirms the age of the minor.

4.1.3. LEGAL RESIDENCE The Department for Citizenship and Expatriates Affairs is directly involved in the management of the legal migration process by the function assigned to it in implementing legislation and policies regarding immigration matters. The Department for Citizenship and Expatriate Affairs has been entrusted with the responsibility of issuing uniform residence permits to Third Country Nationals in terms of Article 4A of the Immigration Act (Cap 217).Council Regulation (EC) No. 1030/2002 which came into force on 15 June 2002 stipulates that such permits should be in a specific format throughout all Member States of the European Union. As from 1st December 2006 the Department assumed the responsibility for the issue of residence permits to third country nationals; whilst as from September 2007 the Department was given the responsibility for the issue of registration certificates to EU nationals and residence cards to their family members who are third country national. The Department also has the responsibility for the confirmation of the entitlement to ‘exempt person’ and ‘freedom of movement’ to the foreign spouses and children of citizens of Malta. Residence permits are issued to Third Country Nationals who have been authorized to reside in Malta for a specific purpose. In this regard such persons are required to submit an appropriate application to the Department for processing. Residence permits are in the form of a sticker affixed in the holder’s passport. The purpose for requesting a residence permit could be:

- Employment

- Self-employment

- Health reasons

- Economic self-sufficiency

- Retirement

- Study

- Family Reunification

- Long-term residence

- Partner

- Exemption under national legislation

- Other reasons


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Such permits are granted in terms of the Immigration Regulations, 2004 and on the basis of national legislation or policy and, in certain cases, in accordance with the provisions of specific EU Directives transposed into Maltese legislation. Applications for residence permits have to be made on specific forms designed for such a purpose. Form CEA/20 entitled: Application for a Residence Permit for Non-EU/EEA Nationals is the appropriate form that has to be completed by a Third Country National when applying for a residence permit or a long-term resident residence permit.

VALIDITY PERIOD OF RESIDENCE PERMITS

Residence permits are issued for a validity period of one year unless the Third country national concerned is an exempt person or a long term resident. The duration may be less if the purpose for which a permit has been requested has a specific time-limit (such as a work permit required for a period of 10 months) or in the case when the passport is to expire before the period of one year. Renewal of residence permits is discretionary. If the purpose of the stay is not justified a renewal will not be issued.

- Applications may be submitted by post as long as they are correctly and completely filled in and all necessary documents and appropriate fees are submitted.

- In certain cases additional documents to the ones indicated may have to be presented.

- Applicants for long-term resident status are advised to consult the Status of Long-Term Residents (Third Country Nationals) Regulations, 2006 (Legal Notice No. 278 of 2006) which contains much more information than that featured in this leaflet. This can be accessed on:

http://www.doi.gov.mt/EN/legalnotices/2006/default2.asp

- As regards documentary evidence for sickness insurance, those persons who are residing in Malta on the strength of a work permit and pay social security contributions in Malta need not comply with this requirement. Those workers, however, who are exempted from the payment of social security contributions in Malta, have to comply with this requirement.

- Residence permits will be issued only when the person concerned is actually residing in Malta and calls personally to collect the permit.

- In the case of persons who are permanently housebound and who present a medical certificate in confirmation of such infirmity, the residence permit may be collected by a person who has a specific power of attorney for such purposes, from the Third Country National concerned.

Before 1989 Maltese citizenship was acquired automatically by birth in Malta. The entity giving this right is the Department of Citizenship and Expatriate Affairs. As from this date onwards persons born in Malta acquire Maltese citizenship only if one of the parents is a citizen of Malta. As from this date persons born outside Malta of a father or mother, who is a citizen of Malta by birth in Malta acquires, Maltese citizenship automatically at birth. Third Country Nationals can acquire Maltese citizenship by registration or naturalization (Citizenship Act chapter 188). In the case of registration it is of right. Spouses of citizens of Malta or persons who are of Maltese descent have the right to be registered as citizens


23

of Malta if they fulfil the conditions laid down in Maltese citizenship legislation, for example, spouses of citizens of Malta can apply for citizenship only after 5 years of marriage and provided that they have lived together for the said five years. In the case of such spouses, citizenship is granted by registration if it is not against the public interest that they should be so registered. Persons, who have resided continuously in Malta for a continuous period of five years, may apply for a certificate of naturalization. However, the grant of citizenship in this case is discretionary and the Minister responsible for citizenship normally accedes to such requests if they fall within the parameters of the current citizenship guidelines, where the person concerned unless he is of Maltese descent, must have resided in Malta for a considerable number of years. The five year period mentioned before only refers to eligibility to apply and does not mean that citizenship is granted automatically after five years. In this regard there are specific policy guidelines and unless the application concerned falls within the parameters of such guidelines, it will not be acceded to. One of such guidelines is residence in matter for a period of 15 to 20 years depending on the case.

4.1.4. ACCESS TO THE LABOUR MARKET Third Country Nationals wishing to work in Malta have to contact the Employment and Training Corporation (www.etc.gov.mt). The Employment and Training Corporation (ETC) was set up by an Act of Parliament on August 7, 1990 to act as the public employment service in Malta as well as a training agency for those seeking employment.

MIGRATION

Third Country Nationals wishing to seek employment in Malta are required to submit an application form requesting the issue of an employment licence to the relevant authorities at least three months before he/she is due to undertake employment in Malta. As a matter of policy, third country nationals will only be granted an employment license in circumstances where no suitable EU citizen is available to fill the vacancy. It is important to emphasize that the employment licence is obtained by the candidate before he/she actually undertakes employment in Malta, as any detected breaches of this legal requirement are liable to substantial fines.

All applications relating to third country nationals are also cleared through the Immigration Office and any other departments as the authorities may consider appropriate before a final determination is given as to the granting or refusal of the employment license is granted. As a general guideline third country nationals are usually issued employment licenses where such employment may be justified on the basis of particular skills possessed by the candidate, which are not available from candidates being EU citizens. The issue of such permits also depends largely on whether or not the prospective employer wishes to pursue the application. Work permits for Third Country Nationals are issued for highly skilled individuals and persons investing substantial amount of money in their business in Malta. At the moment, work permits in the construction sector for steel fixers/form work erectors are also being issued as there is a shortage of local personnel. For all other occupations, each application is examined on its own merits and the applicant

http://www.etc.gov.mt/


24

organization has to justify the employment of a Third Country National.

A Third Country National who wants to base himself in Malta and run a corporate business for international trade can incorporate and manage a company registered in Malta. These companies attract very advantageous tax regimes (5% effective tax) and the EU national who acts as director of such a company can reside in Malta if he so wishes. The director would require a work permit from the local authorities.

Each application for the employment of a third country national must include the application form, copy of ID/passport, CV, job description, one photo, qualifications, covering letter by employer, and copy of VISA. Work permits are issued against a fee and if there is security clearance from the Police. Once a job offer has been secured, the employer will provide the employee with all the relevant documents for signature. Third Country Nationals are requested to produce the following documents:

1. Passport photo;

2. A copy of the passport (details);

3. A copy of the passport (valid VISA if expatriate is in Malta);

4. CV;

5. Covering letter from employer;

6. Certificates and Reference from past employment;

7. Position Description.

A fee has to be paid with the issue of the application and the issue of the permit.

Work permits are currently issued for up to three years. A residence permit is automatically granted with the approval of a work permit for the applicant and his/her spouse. However, this does not entitle the spouse to work or automatically qualify for an employment license unless demand for work is felt in the respective field. Where the person is an investor in the manufacturing or financial services sector and holds substantial shareholding (40%) in the enterprise, the relative license may be issued indefinitely.

After obtaining a job offer - applicants will need to have the same documents to hand as those outlined for nationals of EU Member States.

ASYLUM

Refugees and persons enjoying subsidiary status have a full right to work in Malta and are issued with a permit automatically. The work permits are issued to the individuals themselves. Illegal immigrants, particularly rejected asylum seekers may be issued with temporary renewable work permit – 3 month work permit pending repatriation. In the case of these categories employers are requested to apply for a work permit. These permits are not subject to a labour market test and are issued to the employer.

http://www.linguasnet.com/Work_Malta2.php


25

Third Country Nationals 11110Third Country Nationals Dependents 75

Asylum Seekers 1875 Refugees 200 Persons with Subsidiary Protection 2840

Non EU irregular 897 Table 2: Work permits issued - January 2004 - December 2008

In case of refugees/subsidiary protection/asylum seekers/third country national - if they are already in Malta they need to fill in the Health Immunisation Form and present it together with a free form infection certificate and chest x-ray to the Qormi Health Centre. This form will be mailed from ETC once the application form has been submitted to ETC. The form is subsequently referred to the applicant.

4.1.5. RETURN In order to better explain the current situation vis-à-vis effected repatriations in Malta, it is imperative to have knowledge on the history of past procedures and problems encountered. It is also necessary to mention the legislation that covers this aspect of Immigration enforcement. Prior to the amendments effected in 2002, Chapter 217 of the Laws of Malta, better known as the Immigration Act, was in force since 1970. It criminalized the act of illegal entry into Malta and illegal stay in the country. Therefore, a natural consequence of this legislation was numerous court cases presented whereby the accused would be foreigners who would have entered/stayed in Malta illegally. The Law also envisaged that the Court, upon finding the accused guilty, may have imposed a term of imprisonment for a maximum period of 6 months. At the same time, the Court, upon a request filed by the prosecuting officer, who also represented the Principal Immigration Officer, would issue a Removal Order by means of which the accused would be declared as a prohibited immigrant. This order would empower the Immigration authorities to keep the person found guilty detained in an assigned place of custody for reasons of repatriation. No limit was placed on the time the foreigner was to spend in detention. However, the Immigration authorities were obliged by Law to have this person removed as soon as possible and therefore repatriations were effected as early as possible after the termination of the Court procedures. The detention was only prolonged in cases where the repatriation could not be effected for practical reasons such as lack of proper documentation or lack of flight availability. Foreigners being caught in Malta illegally were never detained because they lacked funds for them to buy their own flight ticket. After the Court proceedings terminated, the Immigration Authorities assess each case and should it be required, the funds for the return ticket would be issued by the department. Since the visa regime was different than it is now, the main nationalities found on the Island illegally were Libyans, Egyptians, Moroccans and other North African nationalities. The vast majority of these nationals would have been in possession of a passport and a return flight ticket to their homeland and therefore no major problems were encountered. It is also a fact that they would not object to leave Malta once caught as their main intention would have been to spend some time working in order to make some money to


26

be able to go back home in a better financial position than they would have arrived. Moreover, direct flights to Egypt, Morocco, Tunisia and a daily ferry to Tripoli made the repatriation exercise a fairly easy task.

Problems were however being experienced with the outset of the phenomenon of the boat people who arrived as from early 2002. The nationalities of these migrants included Eritrean, Ethiopians, Somali, Sudan and Ivory Coast. In December 2002, the amendments to the Immigration Act came into force and the whole procedure for repatriating illegally staying foreigners changed. Illegal entry and unauthorized stay was decriminalised. Upon apprehension, the Principal Immigration Officer would issue a Removal Order administratively upon the foreigners deemed to be in Malta illegally. The migrant is informed in a language he is reasonable supposed to understand, of his right to appeal from this decision before an independent body, which is the Immigration Appeals Board. The latter has competence to hear all grievances against any decision taken by the Principal Immigration Officer and is also authorized by Law to grant provisional liberty to any migrant detained by the Principal Immigration Officer except in very few circumstances which are clearly outlined in the same Immigration Act. The procedure followed in order to arrive to the state when repatriation can be considered is the same for all migrants caught illegally on the Island. Any claim for asylum stalls the procedure as the immigrant will have his status changed from that of a prohibited immigrant to that of an asylum seeker. He will only be listed for repatriation after a final decision has been taken on the asylum application. The success of repatriations depends on a lot of factors. Primarily, it depends on the quantity of documented migrants apprehended. As stated above, the migrants most easily repatriated are those that enter Malta legally and overstay.

2003 2004 2005 2006 2007 n/a 521 579 404 331

Table 3: Total number of illegal immigrants apprehended at the border and within the territory

Repatriation of the arriving boat people on the other hand proves to be a far more difficult proposition. There are over 35 different claimed nationalities among illegal immigrants which include: Afghanistan, Algeria, Benin, Burkina Faso, Cameroon, Chad, Congo, Egypt, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea Bissau, India, Iraq, Ivory Coast, Kenya, Liberia, Mali, Morocco, Mauritania, Niger, Nigeria, Pakistan, Palestine, Senegal, Sierra Leone, Somalia, Sudan, Syria, Togo, Tunisia and Zimbabwe. Only two of the above countries have any local representation in Malta.

2007 2008

Somalia 613 Somalia 1443

Eritrea 211 Nigeria 213

Ivory Coast 162 Mali 187

Nigeria 136 Ivory Coast 159

Mali 123 Eritrea 152

Table 4: Top five Nationalities and Number of Arrivals


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It is a known fact that out of the 8880 migrants that have arrived in Malta by boat in the period between 2002 and 2007, very few were documented. The statistics show that insofar as Egyptians or Tunisians are concerned, the repatriation efforts yield the most expeditious results. Illegal immigrants of other nationalities such as Moroccans, Tunisians and Nigerians have also been repatriated.

Country 2003 2004 2005 2006 2007

Albania 1 4 0 0 1

Algeria 6 4 8 7 5

Armenia 2 0 0 0 0

Australia 0 1 1 0 1

Bangladesh 0 0 0 0 0

Belarus 12 3 0 0 0

Belgium 1 0 0 0 0

Bosnia 1 1 1 0 1

British 7 0 0 0 0

Bulgaria 54 49 22 9 0

Cameroon 0 0 1 1 1

Canada 1 0 0 0 0

Chad 5 0 0 0 0

China 19 57 17 8 3

Columbia 0 1 2 0 0

Croatia 0 1 103 0 1

Czech Republic 2 0 0 0 0

Ecuador 0 0 1 0 0

Egypt 256 212 426 309 3

Eritrea 0 0 0 0 0

Estonian (Aliens) 0 0 2 0 0

Ethiopia 1 0 0 0 0

Ghana 0 0 0 0 2

Georgia 2 0 3 13 10

Germany 5 0 0 0 0

India 0 0 0 1 2

Israel 0 0 0 0 2

Italy 1 0 0 0 0


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Jordan 0 3 0 1 6

Kyrgyzstan 0 0 3 0 0

Latvia 1 0 0 0 0

Lebanon 3 0 0 0 0

Libya 412 190 233 232 187

Macedonia 0 0 0 0 4

Mali 1 0 0 0 0

Mauritania 1 0 0 0 0

Moldavia 28 3 3 11 1

Mongolia 2 0 0 0 0

Morocco 15 4 22 120 5

Nigeria 12 7 5 3 20

Pakistan 49 0 1 1 0

Peru 0 0 0 0 0

Philippines 1 1 1 0 5

Portugal 0 0 0 0 0

Romania 8 5 15 6 0

Russia 29 15 20 2 10

Serbia 0 8 1 1 2

Singapore 0 0 1 0 0

Slovakia 1 0 0 0 0

Somalia 0 6 0 0 0

Sudan 18 0 1 0 0

Switzerland 3 0 0 0 0

Syria 30 17 14 13 20

Thailand 0 1 0 0 0

Tunisia 29 5 27 15 5

Turkey 21 7 3 1 4

Ukraine 42 73 10 10 11

USA 1 0 0 0 0

Uzbekistan 2 2 0 1 8

Yugoslavia 21 23 7 15 18

Zimbabwe 0 1 0 0 0

TOTAL 1106 704 954 780 338

Table 5: Deported Immigrants


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Efforts to obtain travelling documents for these nationals who have no local representations are made with the assistance of the Ministry of Foreign Affairs. All available information including photographs and fingerprints are sent to the Ministry in an effort to have these people properly identified. This documentation is in turn relayed to the respective Embassy which caters for nationals in Malta. Feedback is however lacking in the majority of cases. When successful relations with these Embassies are established and a consular officer is sent over to Malta in order to assist, the problems are far from over. The migrants in many cases refuse to co-operate with their consul and fail to give any details when faced with queries in order to avoid being properly identified. Even if the consul is forthcoming and documents are issued, the Immigration authorities are still faced with other obstacles. Direct flights from Malta to the Third Country route are extremely limited and for the vast part of the year include only Dubai, Libya and occasionally Egypt. Therefore, when the immigrants refuse to be repatriated and police escorts are required to accompany the deportee, legal restrictions make it impossible for the repatriation to be effected on scheduled flights. On the other hand, charter flights have been organized by the Maltese Immigration Authorities; however this is a very costly exercise especially when the amount of deportees is relatively small. The assistance of other EU Member States in effecting repatriations has proved to be an asset in overcoming this hurdle. Planned joint repatriation flights are communicated to all MS, sometimes with the assistance and co-ordination of FRONTEX and whenever Malta has had documented migrants bound to the same destination the authorities have always participated. The deportees are often taken to the EU MS from where the flight is due to leave and on another occasion the flight stopped over in Malta and deportees were boarded locally.


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4.2 LINKS WITH OTHER POLICY AREAS

Immigration and asylum policy is clearly linked to Malta’s policies relating to Social Security, Health and Labour. In accordance with the Refugee Act (Cap 420) Refugees and beneficiaries of Subsidiary protection are eligible to various rights.

- A refugee shall be entitled to have access to employment, social welfare, appropriate accommodation, integration programs, State education and training, and to receive State medical care especially in the case of vulnerable groups of persons.

- A person enjoying subsidiary protection shall be entitled to have access to employment, subject to labour market considerations, core social welfare benefits, appropriate accommodation, integration programs, State education and training, and to receive core State medical care, especially in the case of vulnerable groups of persons.

In terms of the Social Security Act, persons who are given refugee status become entitled to benefits provided in the Act. The Ministry for Social Policy, through the Department of Social Security processes refugees’ claims for entitlements and benefits under the Act in the shortest time possible subject to their eligibility; and ensures the timely issue of Social Security payments to refugees provided that they furnish the Department with the required documentation and information. Moreover illegal immigrants and asylum seekers are provided with all required assistance at the Detention Centres. The international humanitarian aid organization Médecins Sans Frontiers (MSF) signed a Memorandum of Understanding with the Maltese Government this year for the purpose of providing free medical aid to illegal immigrants reaching Malta, thus complementing the service already provided by the Government. As already mentioned in the relevant section of this document (4.1.4), Malta’s Labour Policy has been adapted to the specific circumstances of refugees and persons with subsidiary protection.


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5. ANALYSIS OF ASYLUM AND MIGRATION SYSTEMS The Ministry for Justice and Home Affairs and the other organisations concerned underwent a steep learning curve since the year 2002 in the areas of illegal immigration and asylum due to the high demand placed its relatively small organisations and the significant influx of illegal immigrants many of whom apply for asylum. In the asylum sphere area, the Ministry for Justice and Home Affairs has been engaged in a constant administrative challenge to keep the doors of the Office of the Refugee Commissioner open and sufficiently staffed. Equally, the appeals structure in the first two years of operation had faced daunting administrative challenges and Ministry for Justice and Home Affairs paid particular attention to apply the lessons learnt to improve the provision of free legal aid by creating a specialised pool of private lawyers as a result of which the adjudication of cases increased considerably. Government also provided for an increase in the resources available to the asylum decision-making bodies and re-structured the Refugee Appeals Board by increasing a chamber, set up an Immigration Appeals Board for residents of detention centres and created a Visitors Board to monitor the conditions of reception and address complaints from residents. Following amendments to the Refugee Act in February 2005, third country nationals in detention have been given the facility to submit an application for release to the Immigration Appeals Board on the basis of unreasonable duration of their detention. The Maltese authorities have also reviewed the detention period to a maximum of 12 months for asylum seekers who entered the country illegally and 18 months for illegal immigrants. However, enhancement of the administrative set-up relating to the asylum determination process has enabled the release of most asylum seekers granted protection well before the 12-month maximum detention period. It is considered that this arrangement constitutes best practice in that it enables early release from detention of persons granted protection. In reaction to the various experiences that the Ministry had in this area the Board of Visitors for Persons in Detention was established by virtue of a legal instrument to monitor detention centres and to investigate any claims of maltreatment made by immigrants. The structure gives detainees a voice and provides for the proper management of complaints. In the area of illegal immigration, the Maltese authorities seek to return migrants who do not wish to seek asylum, or who are found not to qualify for international protection. While the expeditious return in safety and dignity is the preferred response, one of the major difficulties encountered is that immigrants are often reluctant to consider voluntary return. In this regard, Malta has experienced extremely difficult circumstances in managing returns, in particular with regard to countries of origin that are not represented in Malta. Recent attempts to narrow the gap through international organisation or bi-lateral co-operation have achieved results, but ongoing effort is clearly essential. In this regard it is likewise important for the EU to take action as a whole by means of EC re-admission agreements, particularly with African countries. The early experience with AVR initiatives emphasized the need for an enhanced framework for voluntary returns in Malta. It is understood that voluntary and enforced return are interlinked and have a mutually reinforcing effect, but are also determined by


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policy factors. In this respect the need to reinforce the complementarities of the two forms is necessary for an integrated migration system. Migration management needs to be based on a comprehensive and carefully structured set of country-specific interests, objectives, policies and procedures. To this effect the Government has promoted and been engaged in a dialogue and with non-government stakeholders as much as possible in committees and various fora, in particular the Conference held in 2004 regarding the policy document ‘Irregular immigrants, Refugees and Integration’. In view of the magnitude of the task of integration, Government also set up an organisation (OIWAS) whose remit covers integration of beneficiaries of international protection. One should also acknowledge several integration-related initiatives and projects which over the past few years sprung from civil society Malta is relatively new to large scale integration of Third Country Nationals. The effective integration of first generation immigrants of widely different cultures is a major challenge. At the same time Malta has taken the first steps towards facilitating integration through the provision of free education at State schools, access to employment and Community Services among others. For Malta the main issue will remain, for a considerable time, increasingly focused on dealing with the huge burden caused by illegal immigration flows, in particular to deal with the immediate effects concerning admission, reception, the asylum procedure, integration and the effective return of failed asylum seekers and other illegally residing third country nationals. Within the EU framework Malta actively seeks to promote the importance of burden sharing between Member States as well as stronger ties between the EU and third countries known to be a source of or transit countries for irregular migration, in particular Libya. Co-operation with other EU Member States in the development of administrative migration set ups has been very useful particular through Twinning Light and intra-European projects. Furthermore, as the challenges arising form migration grew sharply the development of the systems and administrative structures to cope with them became dependent on factual indicators that underpin and steer direction. The need to develop varied and more detailed statistics has become the order of the day and quickly posing further challenges to the small administrative capacity. The need to develop reliable information management support and ITS mechanisms became increasingly important in order to enable the collection of relevant data to perform operational procedures more effectively, engage in realistic continuous assessment, monitoring and evaluation in all elements of the asylum, migration and labour management system. However, the priorities in the area of asylum and illegal immigration lean towards infrastructural work, upgrading of the structures dealing with the reception, joint actions at the border, resettlement and return possibilities.


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6. ANNEX

LIST OF LEGISLATION IN THE AREA OF ASYLUM, IMMIGRATION AND MIGRATION

MALTESE CITIZENSHIP ACT CAP 188 http://www2.justice.gov.mt/lom/chronological_index.asp]

L.N. 106 of 1989; Citizenship Regulations, 1989 Amended by: L.N. 16 of 1993; L.N. 232 of 1997; L.N. 26 of 2000; L.N. 188 of 2007; L.N. 410 of 2007 S.L.188.01 EMPLOYMENT AND TRAINING SERVICES ACT (CAP 343) ACT XXVIII of 1990, as amended by Acts XV of 1995, XVI of 1997, II of 2005, VII of 2006 and XXXII of 2007; and Legal Notice 424 of 2007 http://docs.justice.gov.mt/lom/legislation/english/leg/vol_8/chapt343.pdf L.N. 40 of 1991 Deprivation of Maltese Citizenship (Committee of Inquiry) Rules, 1991 S.L.188.02 IMMIGRATION ACT CAP 217 – http://www2.justice.gov.mt/lom/chronological_index.asp S.L 217.03 Immigration Regulations L.N. 15 of 1993; Immigration (Residence Permits and Employment Licences) (Fees) Regulations, 1993 Amended by: L.N. 32 of 1995; L.N. 233 of 1997; L.N. 267 of 2006; L.N. 411 of 2007S.L.217.01 L.N. 20 of 1994 Notice by the Minister of Justice, 1994 S.L.217.02 L.N. 21 of 1994 Detention of Person (Savio College) Regulations, 1994 Consolidated in S.L.217.02 L.N. 30 of 1995 Place of Detention Designation Order, 1995 S.L.217.03 L.N. 193 of 1996 Places of Detention Designation (Immigration Act) Order, 1996 Consolidated in S.L.217.03

http://www2.justice.gov.mt/lom/chronological_index.asp

http://docs.justice.gov.mt/lom/legislation/english/leg/vol_8/chapt343.pdf



34

L.N. 76 of 1999 Places of Detention Designation (Immigration Act) Order, 1999 Consolidated in S.L.217.03 L.N. 65 of 2002 Place of Detention Designation (Immigration Act) Order, 2002 Consolidated in S.L.217.03 L.N. 152 of 2002 Place of Detention Designation (Immigration Act) (No. 2) Order, 2002 Consolidated in S.L.217.03 L.N. 205 of 2004; (see L.N. 191 of 2007) Immigration Regulations, 2004 S.L.217.04 L.N. 278 of 2006 Status of Long-term Residents (Third Country Nationals) Regulations, 2006 S.L.217.05 L.N. 150 of 2007 Family Reunification Regulations, 2007 S.L.217.06 L.N. 175 of 2007 Permission to reside for Victims of Trafficking or Illegal Immigration who co-operate with the Maltese Authorities Regulations, 2007 S.L.217.07 L.N. 266 of 2007 Board of Visitors for Detained Persons Regulations, 2007 S.L.217.08

L.N. 29 of 2008 Conditions of Admission of Third-country Nationals for the purposes of Studies Regulations, 2008 S.L.217.09 L.N. 102 of 2008 Third Country Nationals for Scientific Research Purposes (Specific Admittance Procedure) Regulations, 2008 S.L.217.10 REFUGEES ACT CAP 420 – http://www2.justice.gov.mt/lom/chronological_index.asp L.N. 252 of 2001; (see L.N. 255 of 2001) Refugees Appeal Board (Procedures) Regulations, 2001 S.L.420.01



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L.N. 253 of 2001; (see L.N. 256 of 2001) Asylum Procedures (Application for a Declaration) Regulations, 2001 S.L.420.02 L.N. 254 of 2001; (see L.N. 257 of 2001) Asylum Procedures (Means of Facilitating Identification of Applicant) Regulations, 2001 S.L.420.03 L.N. 47 of 2005 Refugees Appeals Board (Chambers) Rules, 2005 S.L.420.04 L.N. 131 of 2005 Temporary Protection for Displaced Persons (Minimum Standards) Regulations, 2005 S.L.420.05 L.N. 320 of 2005; (see L.N. 383 of 2005) Reception of Asylum Seekers (Minimum Standards) Regulations, 2005 S.L.420.06 ACT No. VII of 2008 AN ACT to amend the Refugees Act, (Cap. 420). 29th July, 2008 L.N. 191 of 2007; Amended by: L.N. 427 of 2007 Free Movement of European Union Nationals and their Family Members Order, 2007 S.L.460.17 http://doi.gov.mt/EN/legalnotices/2007/default1.asp http://doi.gov.mt/EN/legalnotices/2007/default4.asp L.N. 29 of 2008 IMMIGRATION ACT (CAP. 217) Conditions of Admission of Third-country Nationals for the purposes of Studies Regulations, 2008 Government Gazette of Malta No. 18,178 - 25.01.2008 http://www.doi.gov.mt/EN/legalnotices/2008/01/LN%2029.pdf L.N. 36 of 2008 MUTUAL RECOGNITION OF QUALIFICATIONS ACT (CAP. 451) Notice of coming into force of the Recognition of Professional Qualifications Regulations, 2007 Government Gazette of Malta No. 18,180 - 29.01.2008 http://www.doi.gov.mt/EN/legalnotices/2008/01/LN%2036.pdf L.N.102 of 2008 IMMIGRATION ACT (CAP. 217) Third Country Nationals for Scientific Research Purposes (Specific Admittance Procedure) Regulations, 2008 Government Gazette of Malta No. 18, 203 - 07.03.2008 http://www.doi.gov.mt/EN/legalnotices/2008/03/LN%20102.pdf

http://doi.gov.mt/EN/legalnotices/2007/default1.asp


http://www.doi.gov.mt/EN/legalnotices/2008/01/LN 29.pdf




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L.N.243 of 2008 REFUGEES ACT (CAP. 420) Procedural Standards in Examining Applications for Refugee Status Regulations, 2008 Government Gazette of Malta No. 18,316 - 03.10.2008 http://www.doi.gov.mt/EN/legalnotices/2008/10/LN%20243.pdf L.N.244 of 2008 FEES ORDINANCE (CAP. 35) Fees (Passport and Visas) (Amendment) Regulations, 2008 Government Gazette of Malta No. 18,316 - 03.10.2008 http://www.doi.gov.mt/EN/legalnotices/2008/10/LN%20244.pdf EUROPEAN UNION ACT (CAP 460)– http://www2.justice.gov.mt/lom/chronological_index.asp L.N. 40 of 2007 Assistance in the Case of Transit for the Purpose of Removal by Air Order, 2007 S.L.460.14 http://doi.gov.mt/EN/legalnotices/2007/default.asp L.N. 86 of 2007 http://doi.gov.mt/EN/legalnotices/2007/default.asp Equal Treatment in Self-Employment and Occupation Order, 2007 S.L.460.16 L.N. 85 of 2007; Amended by: L.N. 267 of 2007; L.N. 427 of 2007 http://doi.gov.mt/EN/legalnotices/2007/default.asp http://doi.gov.mt/EN/legalnotices/2007/default2.asp http://doi.gov.mt/EN/legalnotices/2007/default4.asp Equal Treatment of Persons Order, 2007 S.L.460.15 L.N. 291 of 2001. SOCIAL SECURITY ACT. (CAP. 318). Social Security (U.N. Convention relating to the Status of Refugees) Order, 2001 http://docs.justice.gov.mt/lom/legislation/english/subleg/318/16.pdf




http://doi.gov.mt/EN/legalnotices/2007/default.asp






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7. BIBLIOGRAPHY IOM (International Organisation for Migration) (2003) Informed Migration, IOM Rome (Co-funded by the Odysseus Programme).

Annual Reports of Government Departments (2007), Department of Information, Office of the Prime Minister, Valletta, Malta Irregular Immigrants, Refugees and Integration -Policy Document - Ministry for Justice and Home Affairs & Ministry for the Family and Social Solidarity, 2005

WEB-SITES REFERENCES

Ministry of Foreign Affairs - http://www.mfa.gov.mt (Visa- residence and Citizenship)

Ministry for Social Policy - http://www.msp.gov.mt (Ministry’s Web site)

http://www.appogg.gov.mt Employment Training Corporation -http://www.etc.gov.mt

Ministry for Justice and Home Affairs - http://www.mjha.gov.mt

http://www.mfa.gov.mt/

http://www.mfa.gov.mt/

http://www.appogg.gov.mt/

http://www.mjha.gov.mt/

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