Malta stumps for Meloni challenge in ECJ over safe countries by floating Refugees’ Convention amendments

Malta’s sabre-rattling on Convention reform, whether it is even a real attempt or not, is there to aid Italy’s (and Fortress Europe’s) migration regime

Malta has not had an “asylum crisis” since the somewhat self-manufactured crisis of the COVID-19 refugees that were intercepted in the Maltese search and rescue area, then held in limbic detention at sea, in tourist boats hired from the Captain Morgan company.

With Italy long taking the bulk of rescued migrants at sea from the Libyan routes since the days of the Mare Nostrum humanitarian intervention, Malta has hardly had any reason to act combative towards the Geneva Convention, a hallowed set of rights that guarantees human beings’ right to international protection on specific grounds of persecution; as well as their right to seek protection, be it by informal or irregular means; as well as the principle of non-refoulement, that is: you cannot send back someone who requests asylum in your country to the country of origin where they are suffering persecution, until you conclusively determine whether they are indeed rightful claimants of international protection. In other words, you cannot send someone who files an asylum claim in Malta, back to Libya simply because they entered the island’s waters illegally. Their claim must be heard, analysed and determined by the Malta IPA (International Protection Agency).

The ‘domestic’ narrative (aka, not the real reason…)

So why does Malta prime minister Robert Abela seek a change to the Geneva Convention, right when Malta is assuming the chairmanship of the organisation that safeguards that treaty, the Council of Europe? MaltaToday has documented this sudden move by Abela, as something that might have also caught government colleagues who will be in Strasbourg more frequently in the coming months, by surprise.

At home Abela brandishes a very simplistic narrative: that failed asylum seekers (that is, asylum claimants who are not granted protection both at first instance and on appeal) should be deported. This might be right, but it is the State’s obligation or prerogative to remove people slated for deportation back to their country if there are no legal objections to such removal. It up to member states to petition for joint EU returns of failed asylum claimants.

Yet that alone does not infer that Geneva’s right to international protection is itself inherently flawed; the asylum determination process that filters claims that are either recognised for refugee protection, or not, is there to safeguard this international human right.

Abela’s riposte to questions as to why he seeks Convention reform in light of the decreased arrival numbers, sound weak and hollow, referencing “attacks” the Armed Forces and his government after the asylum seekers held on tourists boats in 2020 sued the state for human rights’ breaches - as is their right at law.

Italy: the international rationale for Malta’s Convention reform

If anything, Malta’s sabre-rattling on Convention reform, whether it is even a real attempt or not, is more useful to Italy’s migration management (and Fortress Europe) than anything else.

The case concerns far-right Italian prime minister Giorgia Meloni’s bid to have the European Court of Justice (the EU Court) recognise Italian national law as superseding EU law when it determines which countries can be deemed “safe” to return asylum seekers to – that is carry out deportation, specifically to Albania, before they apply for asylum in an EU member state like Italy.

Safe countries are found in each member state’s refugee protection law, determining whether asylum seekers hailing from a so-called “safe country”, might be given a fast-track asylum determination process. Malta can assume, if you do not have a reasonable claim for asylum, that an Egyptian national’s claim is inadmissible because Egypt is believed to be a safe country (that is, theoretically the government there will give the claimant protection). That does not preclude however, the fact that an asylum claim might be indeed justified, and lead to refuge protection, even if the claimant is from a safe country. Exceptions do exist.

The ECJ is examining the legality of the Italy-Albania Migration Deal to transfer migrants rescued in the Mediterranean to processing centres in Shengjin and Gjader. Italy insists Albania is a “safe third country” that allows it fast-track asylum claims. Originally, a Rome court questioned the legitimacy of this approach, which led to the referral to the ECJ, asking it to determine whether national law can label a country ‘safe’ despite threats to certain groups of people.

The European Commission – Ursula von der Leyen – is also backing Italy’s stance for the EU to allow states to designate countries as “safe” even if only for specific, well-defined migrant groups. The EC told the ECJ that EU law allows member states to designate countries of origin as ‘safe’ and furthermore that such countries don’t have to be entirely safe – just safe for certain migrant categories, as long as those groups are clearly defined.

But in October, the ECJ ruled that the designation of a third country as a “safe country of origin” for asylum purposes must apply to the entire territory of that country and not to specific regions. Since opening on 11 October the Albanian detention centres have been empty.

The Advocate General of the EU’s top court is due to deliver an opinion on 10 April, and often these conclusions guide the ECJ by suggesting a legal solution to the case. The European Court’s final ruling is expected in May or June.

If the ECJ leans towards the sovereignist argument, the European right and far-right will be surely emboldened, thanks to the Commission’s support, but also because the EU Council (of prime minister) has also endorsed the Albanian model. Von der Leyen, who wants Meloni as close to the European centre as possible, does not want to undercut the Council majority’s demand for a similar EU infrastructure in the future.

The Albania model responds to concerns by member states that asylum seekers often avoid deportation by disappearing into the borderless Schengen area. By detaining them outside the EU in an offshore facility, it deters them further from attempting to short-circuit the individual asylum protection systems managed by the EU’s border countries.

But this model endangers the lives of asylum seekers, especially vulnerable groups, who remain at the mercy of abusive border-control systems.

The problem with Italy’s arrangement with Albania is that the two detention centres built there were going to house migrants who had not yet been processed; who would not have had the opportunity of being heard and interviewed. What the European Commission is proposing when allowing countries to seek ‘innovative solutions’ is that rejected asylum seekers could be transferred to third countries under bilateral arrangements until they are repatriated. This strategy has its risks but is quite different from one where people are outright denied the opportunity to ask for asylum.

The International Rescue Committee said many questions remained unanswered, including how long people would be forced to stay in the centres and how the EU would ensure their rights were safeguarded in non-EU countries. “While it’s unclear exactly what form the EU’s proposed return hubs would take, we do know that its existing migration deals with non-EU countries have resulted in thousands of refugees and other migrants being exposed to violence, abuse, exploitation and death,” said Marta Welander, the EU advocacy director at IRC.

Last year, just over 1 million people sought asylum in Europe’s border-free Schengen area, an 11% decrease on the previous year, but the second straight year that asylum claims exceeded 1 million since 2015-16, according to the European Union Agency for Asylum. In 2024, only 42% of asylum claims were accepted.