Forced to flee his country or risk facing death for being gay

Bachir, Sudan*

Facts

Bachir, a sudanese gay young man, found himself forced to flee his country because of persecution due to his sexual orientation. After being surprised with his gay partner, their relation was made public and the couple had to face an armed mob chasing them. His partner died from being beaten up by the mob. The armed group of people also burned Bachir’s car, resulting in all his documents, including his university and high school degrees to be destroyed.

Being part of the LGBTI group in Sudan means being attacked on all sides. Legally, same-sex sexual activity and relations are criminalized, and if found guilty, punished with a long prison sentence. In some cases, the prison sentence might go up to life imprisonment or the death penalty. Furthermore, risks of societal stigmatization, violence and private justice targeting LGBTI people is tolerated – if not fueled – by the government and police forces. Fear of reprisals and harassment causes under-reporting of crimes committed towards LGBTI and due to this environment, access to healthcare for is also compromised.

After the incident, Bachir was rejected by his family and his last solution was to flee Sudan. He was facing a real risk of being killed by a mob meting out private justice, or facing a criminal trial, imprisonment and a possible death sentence. He did not have any form of support.

He fled Sudan through Libya, crossed the desert, boarded a small dinghy together with another 30 migrants and left the Libyan shores towards Europe. Quickly after departure, the boat ran out of fuel and was left drifting in the sea. After a number of hours with no fuel, water or food, the dinghy was finally rescued by an AFM rescue ship and was taken to Malta.

At arrival in Malta, Bachir was devastated as he had lost his partner, his family’s and friends’ support and his higher-education degrees. He had to leave everything behind: his home, his country, everything.

On arrival, Bachir applied for international protection in Malta. His application was rejected on the basis that the Refugee Commissioner was not convinced that he was gay.

Our Role

  • Our lawyers assisted Bachir with filing his appeal application in front of the Refugee Appeals Board.
  • The appeal’s procedure lasted approximately one year, in which our lawyers filed submissions and counter-submissions in response to the Refugee Commissioner’s responses.
  • In addition, our lawyers communicated with the UNCHR in relation to specific issues related to Bachir’s case.
  • Our lawyers attended the oral hearing with Bachir and defended his case in front of the Refugee Appeals Board.
  • In addition to assistance with the appeal’s procedure, we assisted him with other matters, such as access to education and social assistance.

Results

  • The Refugee Appeal’s Board overturned the Refugee Commissioner’s decision and granted Bachir refugee status.
  • Bachir has started out a new life in Malta and is studying at a higher-education institution and is motivated to find regular and stable employment.
  • Nonetheless, although feeling safe in Malta, he faces racial discrimination and still hides his homosexuality, fearing for more discrimination and harassment.

* Name and country been changed to protect his identity.


Walk for those who don’t dare walk themselves

Civil Society Statement regarding the ongoing detention of asylum seekers at Safi Barracks and the Initial Reception Centre


We are deeply concerned about the ongoing detention of hundreds of asylum-seekers – men, women and children – on medical grounds at the Initial Reception Centre and Safi Barracks. We believe that, in many cases, the detention is completely unlawful.

National law allows the health authorities to restrict an individual’s movement for medical screening for a period not exceeding four weeks, which may be exceptionally extended up to ten weeks for the purpose of finalising any tests that may be necessary. The European Court of Human Rights has repeatedly stressed that in order to be considered lawful, detention must always be justified on an individual basis, implemented in good faith, and used only for as long as strictly necessary.

At this point, there are asylum seekers who have been deprived of their liberty on the pretext of health checks – consisting essentially of a single test to screen for active TB – for periods ranging from a few days to 13 weeks from disembarkation. Several hundred of these, some of them children, have been detained for 8 weeks or more, which is way more than the time needed to conduct this test even for such a large number of people.
Possibly worse is the fact that no one has told them for how long they will be detained and that there are no accessible effective remedies to challenge their detention.

That they are being held in crowded, insanitary conditions, with almost no opportunity for recreation or constructive activity, hardly any contact with the outside world, limited access to open air, and a severe shortage of basic material necessities, makes their detention even harder to bear. In these conditions it is not surprising that tension is building in the centres, as people are worn down by the uncertainty and the strain
of their prolonged and arbitrary detention.

It would appear that in practice the main reason for their ongoing detention is the lack of space in the open centres. While we fully appreciate the strain that the large number of arrivals has placed on Malta’s reception system, resource constraints, no matter how severe, can and should never be used to justify deprivation of liberty.

In view of this we are calling on the government to ensure that all of the people currently being held on medical grounds are immediately released, unless their detention is clearly and objectively justified on health grounds in the individual case.

We are also calling on the government to allocate the resources necessary to strengthen our reception system and create sufficient reception spaces for asylum seekers to be hosted in accordance with Malta’s legal obligations. It is clear to us that the only way to do this is by creating new spaces, whether in existing facilities that are currently not in use, such as Hangar Open Centre, or in other facilities that may be available. There is absolutely no way that enough spaces can be created simply by pushing residents out of the open centres currently in use. More, in the current scenario, where access to decent and affordable housing is almost impossible, this measure is likely to create more problems than it solves.

In recent months Malta has shown leadership on migration issues, providing safe haven to migrants rescued from vessels in distress and brokering agreements between EU member states to share responsibility for disembarkations. The staff of state frontline migration and reception agencies have gone way beyond the call of duty, in spite of the limited resources at their disposal, to provide services and support to new arrivals.

While we appreciate all of this, as do the people whose lives were saved through Malta’s efforts, it is essential that concrete action is taken to strengthen our reception system in order to ensure that asylum seekers rescued are received with dignity and their rights are respected. On our part we affirm once more our willingness to support any and all initiatives aimed at improving reception conditions for asylum seekers in Malta.

September 6, 2019


This statement is endorsed by:

  1. aditus foundation
  2. African Media Association Malta
  3. Agara Foundation
  4. Catholic Voices
  5. Christian Life Communities (CLC)
  6. Cross Culture International Foundation (CCIF)
  7. Dar tal-Providenza
  8. Department of Gender Studies, Faculty for Social Wellbeing, University of Malta
  9. Drachma LGBTI
  10. Drachma Parents’ Group
  11. Fondazzjoni Sebh
  12. Foundation for Shelter and Support to Migrants
  13. Fundazzjoni Paci u Gid
  14. Integra Foundation
  15. Isles of the Left
  16. Jesuit Refugee Service (JRS) Malta
  17. Jesuits in Malta
  18. Kopin
  19. Kummissjoni Gustizzja u Paci
  20. Malta Emigrants Commission
  21. Moviment Graffiti
  22. Office of the Dean, Faculty for Social Wellbeing, University of Malta
  23. Office of the Dean, Faculty of Education, University of Malta
  24. Paolo Freire Institute
  25. Richmond Foundation
  26. Salesians of Don Bosco
  27. Segretarjat Assistenza Socjali Azzjoni Kattolika Maltija
  28. Solidarity with Migrants Group
  29. SOS Malta
  30. Spark 15
  31. St Jeanne Antide Foundation
  32. The Critical Institute
  33. Women’s Rights Foundation
  34. Youth Alive Foundation

NGOs commend Maltese Government and call on European Member States to do more

Joint NGO Press Release

The undersigned NGOs commend the decision taken by the Government of Malta to receive the 356 migrants and refugees saved at sea by the Ocean Viking.

For two long weeks, the rescued men, women and children were abandoned on a rescue vessel, forced to endure the scorching heat, uncertainty and ongoing precarity.

Once again, the European Member States have dragged their feet and unnecessarily prolonged human suffering. The principles of solidarity, considered to be a cornerstone of the Union, must take front and centre – first and foremost with those risking their lives to access protection, and also with the external border Member States who cannot be expected to continue carrying the consequences of political inadequacy and deadlock at the European level.

We remind the Member States of their legal, political and moral responsibilities and call on them to do much better.

24 August 2019


Statement issued by:

  1. aditus foundation
  2. African Media Association
  3. Catholic Voices Malta
  4. Department of Gender Studies, University of Malta
  5. Department of Youth & Community Studies, University of Malta
  6. Drachma LGBTI
  7. Drachma Parents Group
  8. Integra Foundation
  9. Jesuit Refugee Service (Malta)
  10. Kopin
  11. Malta Emigrants Commission
  12. Moviment Graffitti
  13. Office of the Dean Faculty of Education, University of Malta
  14. Office of the Dean, Faculty for Social Wellbeing, University of Malta
  15. Richmond Foundation
  16. SOS Malta
  17. Spark 15
  18. St. Jeanne Antide Foundation (SJAF)
  19. The Critical Institute
  20. Women’s Rights Foundation


Innocent Until Proven Guilty? – The Presentation of Suspects in Criminal Proceedings

aditus foundation invites the public to participate in an informal discussion on the importance of how suspects are presented in Court and in the media and the impact that this may have on the presumption of innocence.

This activity closes The Importance of Appearances: How Suspects and Accused Persons are presented in the Courtroom, in Public and in the Media project implemented by the aditus foundation, Hungarian Helsinki Committee and their partners. For further information on the project, visit our project page: Importance of Appearances.

Panel:

Justice Silvio Meli – retired judge with 29 years of experience in the Maltese courts
Dr. Arthur Azzopardi – practicing criminal lawyer in the Courts of Malta
Dr. Kevin Sammut Henwood – forensic psychologist & lecturer at UoM
Yannick Pace – Chairperson of the Institute for Maltese Journalists & journalist
Monique Agius – Journalist with Newsbook

The panelists will discuss the importance of how suspects are presented in court and in the media and the impact that these may have on the presumption of innocence.

When: Wednesday 26 June 2019 @ 16:00 – 17:30
Where: Valletta Campus, University of Malta Valletta

Participation is open to the public and free of charge. Refreshments will be served.

Measures of Restraint

This project is funded by the European Union’s Justice Programme (2014 – 2020)


5-year Schengen Entry Ban issued against a young mother for overstaying 21 days

Katerina’s Story

Facts

Katerina*, a Macedonian national and single mother of two young children, entered Malta legally and applied for a work permit in 2016. She was legally allowed to stay in Malta until a decision on her application and subsequent appeal was taken. Throughout that year, her two minor children aged four and six were attending school in Malta and finished their scholastic year in June 2017.

The whole process ended with a final rejection one year later in the beginning of July 2017, after which she voluntarily bought three plane tickets to return to her country mid-July. She overstayed in Malta for merely 21 days, in order allow her children to finish their scholastic year and to get things packed.

On the day of her flight, she was stopped by Immigration Police as she and her children were boarding the plane at Malta International Airport. An Immigration Police Officer issued a Return Decision accompanied by a Removal Order, together with a Schengen re-entry ban** of five years. She was then asked the by same Officer to sign a paper waiving her right to appeal as she was told that if she didn’t sign it then her return might be delayed.

At at that point, Katerina was being held by Immigration Police, pre-flight with her two minor children and was afraid of being held for longer periods of time at the airport. She was in an extremely vulnerable position. She signed the document and returned to Macedonia.

As a result of this, our client was banned from entering the European Union for 5 years, irrespective of the reason for travel. She was offered a web design job in Berlin which she had to decline due her ban and she could not travel even for tourist purposes with her children in Europe.

Our role

  • We filed an appeal with the Immigration Appeals Board (IAB) on the basis of the fact that our client was returning voluntarily, that there was no individual assessment that took into account that she only overstayed for a short period, and that she did not pose a public security risk. In our appeal we requested the IAB to withdraw the ban on re-entry. Our client received a negative decision from the IAB 15 months later.
  • We corresponded with Immigration Police for over 12 months, requesting a lifting of the ban. The ban was finally lifted by Immigration Police after two years.
  • We filed a complaint before the EU Commission for a breach of EU Law, namely Article 47, the right to an effective remedy, of the Charter of Fundamental Rights and Articles 7(1), 11(2) and 13(1) and (3) of the Returns Directive (2008/115/EC). This complaint is currently ongoing.

Results

  • Our client can now freely travel to and take up employment in all European Member States with her two minor children.
  • DG Migration and Home Affairs within the European Commission is examining the complaint in order to determine whether infringement proceedings should be opened against Malta.
email from client after lifting of the ban

* Her name has been changed to protect her identity.
**Schengen re-entry ban: a decision prohibiting entry into and stay in the territory of European Member States. 


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