The Malta Independent 5 December 2020, Saturday

Children’s Commissioner remarks on pushbacks; children in detention

Malta Independent Saturday, 13 July 2013, 15:53 Last update: about 8 years ago

In a statement released to the media this afternoon, the Children’s Commissioner said the pushback policy was in violation of children’s rights adding that the Office is also apprehensive about the situation of irregular migrant children in detention.

In the light of media reports in the media that the government was considering the adoption of a pushback policy in respect of irregular immigrants, the Office of the Commissioner for Children formally expressed its concern to the Home Affairs and National Security Minister, in a letter dated 9 July, 2013, that such a policy was in violation, amongst others, of Article 22 of the said Convention, which guarantees the right of “a child seeking refugee status….to receive appropriate protection and humanitarian assistance…”, and in breach of Malta’s non-refoulement obligations deriving from international human rights, humanitarian and refugee law.

 “Although Malta has a policy of non-detention of migrant children or migrant families with children, the reality is that children are kept in detention pending the outcome or completion of administrative procedures and medical clearances, which can take several days,” it said.

Through its press statement, the Office of the Commissioner for Children said it wanted to contribute to the public debate that has developed around the issue of irregular migration by adding its children’s rights perspective to the debate and highlighting its concerns also in the light of the United Nations Convention on the Rights of the Child that Malta ratified in 1990.

It highlighted that the rights of children are fundamental and universal. This means that these rights have no boundaries and that children carry their rights with them wherever they go irrespective of their status. Moreover, the responsibility for the realisation of these rights lies with the state in whose jurisdiction the children may happen to be.

The Commissioner voiced her concerns to the Minister for Health in a letter dated 12 July, 2013 about this situation in the light that at present there are four families in detention with the children’s age varying between three months and seven years as well as a number of unaccompanied minors.    While Detention Services are doing their best in the circumstances, detention is intrinsically harmful to children and so the Office requested that the required health checks are speeded up in the best interest of children. The families with children and the unaccompanied minors cannot be released until health clearance is obtained. The Office’s proposals for this sector can be seen in the Manifesto for Children 2013 that was sent to political parties prior to the General Election.

Another issue of concern is that regarding the statelessness of migrant children who are born at sea due to the fact that the sea vessel on which they are born is unregistered.  Together with the Office of the Ombudsman the Children's Commissioner's Office had already made representations to the Ministry for Justice for an amendment to the law that would allow such children to be registered at the first port of call. In the absence of such a registration, the risk of trafficking of children is increased. The Office recently made this same proposal to the Commission for Justice Reform as well as to the Parliamentary Secretary for Justice. Such a proposal was also made to political parties through the Manifesto for Children 2013.

"In closing, it is very important that throughout the public debate, the problem of irregular migration is not to be identified with the people who migrate irregularly, a mindset that invariably fuels resentment against migrants, but with the phenomenon of irregular migration and its root causes," it said. "Irregular migrants, including children, should not be seen as problems but should be seen primarily as human beings and holders of rights that Malta is duty-bound to uphold and promote. The phenomenon of irregular migration is undoubtedly a challenge given its scale relative to the size of our country. However, any solutions that are adopted in respect of this phenomenon can never run afoul of the fundamental and inalienable rights of the children who are the hapless victims of this phenomenon and its complex social and political causes".   

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