Alarming Proposal by the Maltese Presidency: Can we question non-refoulement?

In a document recently obtained by POLITICO, the Maltese presidency of the Council of the EU called on the European Commission to ‘explore legal ways to send more migrants and refugees back’. Today a number of domestic and international organisations in Malta responded to the Maltese presidency’s request through a joint press statement, making an appeal to the Commission avoid taking any action related to the request. As their statement concluded: “Anything short of an absolute and clear non-engagement will inevitably result in complicity in flouting the Union’s values and making these Europe’s darkest days.”

So what are the legal and humanitarian implications of the Maltese presidency’s request? Does the request merit such a brisk reaction from humanitarian organisations even without the details of the request being known?

The short answer is yes.

More specifically, the fundamental principle of refugee law, enshrined in the 1951 United Nations Convention relating to the Status of refugees, is the principle of non-refoulement. Put simply, this principle signifies that no state can return refugees to a territory where their life or freedom would be threatened, whether based on their race, religion, nationality, membership of a particular social group or political opinion. Hence, if such a basic principle is called into question, it challenges all other standards and obligations the EU and member states have set in place or are trying to implement.

For example, in December 2016, UNHCR provided recommendations to the Maltese presidency to cooperate and enable dialogue with African partners, notably at the Senior Officials Meeting which is to be held in Valletta on 8-9 February this year. In this context, dialogue on ‘fair and efficient procedures, refugee rights and durable solutions’ appears complex enough, but what if the most elementary element of international refugee law is called into question? Given the response of the Migration Commissioner Dimitris Avramopoulos, who emphasised that the Commission “will stick to the international law”, it appears unlikely that the Maltese request will have bearing on future asylum dialogue. However, it remains to be seen if we are entering into dangerous waters just by considering the option of questioning non-refoulement.

As a recent CEP insight explained, one of the priorities of the Maltese presidency is the reform of the Common European Asylum System, a tedious task which requires aligning different sets of priorities across member states and EU decision-making bodies, most notably aligning the need for respecting human rights with growing security concerns. Given this alarming recent step of the Maltese presidency, CEP will continue closely following the actions that the current presidency takes in the context of migration and asylum. Keep reading!