What is THPN?
Temporary Humanitarian Protection New is a form of status created in 2010, by means of a policy decision of the Ministry for Home Affairs implemented by the Office of the Refugee Commissioner, in order to deal with the problem of ‘stranded’ migrants: rejected asylum seekers who had been in Malta for at least four years and who could not be returned to their country of origin because of reasons outside of their control.
The rules regulating the granting and withdrawal of this status and the benefits attached were contained in a written document entitled Administrative Procedure for granting Temporary Humanitarian Protection, first published in 2008 and subsequently updated to include THPN. Although the name suggests otherwise, THPN was essentially conceived as a form of regularisation granted in cases where a “former applicant for international protection cannot be returned to his/her country of origin due to legal or factual reasons and through no fault of his/her own”.
In order to qualify, applicants “would be required: to have lodged their application for international protection at least 4 years prior to the date of the submission of an application for Temporary Humanitarian Protection under the present procedure; and, to provide evidence that they have been staying in Malta”. Additionally, applicants were required “to provide relevant documentary evidence” of “their integration efforts and employment history in Malta”.
Those who showed they had made efforts to integrate were granted THPN, which gave them a 1-year residence permit, a travel document, a 1-year permit to work in Malta, free education up to the compulsory school age limit and free access to healthcare. THPN was renewed annually, provided the individual could show continued efforts to work and to integrate.
In 2012, the granting of THPN in new cases was suspended. For those already benefiting from THPN, their status continued to be renewed annually upon production of the required documentation, but asylum seekers arriving in 2008 or after whose asylum applications were rejected could no longer benefit from this status. This, even if they could not be returned through no fault of their own and had made significant integration efforts.
Who are the people with THPN?
According to the Office of the Refugee Commissioner, which is responsible for granting and renewing THPN, there are around 1,000 people – men, women and children – who today have THPN status.
All have lived in Malta for years – some for as long as 18 years and all for at least nine (since they arrived before 2008, when THPN was created). Most are from countries in Sub-Saharan Africa, including: Ivory Coast, Gambia, Mali, Nigeria, Ethiopia and Sudan. Among them are a number of families, including many with children born here in Malta.
All have had their asylum applications finally rejected at appeal stage and are still in Malta because the immigration authorities have not been able to return them, through no fault of their own.
Who is a rejected asylum seeker?
A rejected asylum seeker is someone whose claim for asylum was rejected by the authorities responsible for taking decisions on such cases. The law only grants refugee protection to people who will face persecution in their country on account of who they are or what they believe: their race, religion, nationality, membership of a particular social group or political opinion. People fleeing war or other serious violations of their rights are granted subsidiary protection. People forced to migrate by poverty, or by the impact of climate change on their livelihood, or by natural disasters, are not recognised as refugees, even if they were forced to migrate by circumstances that made life intolerable.
Why can’t people who have THPN just apply for a Single Permit?
The Single Permit is granted to migrants who come to Europe for employment purposes. To apply for a Single Permit applicants need to have a valid national passport – something which many rejected asylum seekers cannot bring. Also, a Single Permit is not granted for any job, but only to those for which a full-time vacancy cannot be filled by a Maltese national, an EU national or other non-Maltese with privileged access to the labour market (this is called the ‘labour market test’).
Many people who today have THPN only work part-time and do not have stable jobs that meet these strict requirements. Also, these changes do not take into account the fact that many people with THPN cannot work at all because of health reasons or because they need to take care of young children.
What are you referring to when calling for ‘a legal pathway to regularisation’?
To regularise means ‘to make regular’ – i.e. to make a situation that is irregular, or outside the law, regular. We usually talk about regularisation, for example, in the context of sanctioning building irregularities, in the context of unpaid vehicle road licences, or also in relation to undeclared income.
Through this campaign, what we are asking is that the government creates a system that will allow rejected asylum seekers who are stranded in Malta, because they cannot be returned through no fault of their own, to regularise their position and obtain a proper residence permit, a permit to work in Malta and the right to access basic services and support if they need it, so that they can live with dignity. THPN was one such form of regularisation.
Are you calling for all undocumented immigrants to be regularised and given a legal right to stay in Malta?
No, we believe that regularisation should be available only for those migrants who are ‘stranded’ in Malta through no fault of their own.
Here we are referring to a very specific group of migrants – those who have not been sent back home, although it is legally possible for the government to send them, on condition that this is not because of a lack of cooperation on their part. In other words, someone who goes into hiding to avoid being sent home or who does not report to the immigration authorities as required would not qualify for regularisation.
Why should the government regularise their immigration position if their asylum application has been rejected and it is legally possible to send them back?
Although it may be legally permissible to send an individual home, it is not always possible in practice. Often this is due to a lack of diplomatic relations with the migrant’s country, which leads to difficulties obtaining the documents needed to send them back.
When rejected asylum seekers are not returned they live in Malta with very limited rights. They have no stability as they do not know what the future will bring or how long they will be able to stay in Malta. They cannot open a bank account and obtaining documentation, like a driving licence, is often impossible. Although they can get a work permit it has to be renewed every three months, through a costly and bureaucratic procedure which makes employers unwilling to employ them legally. Because of this they are often abused and exploited, especially by unscrupulous employers who see them as a cheap and disposable workforce.
The net result of this is that rejected asylum seekers find themselves caught in a vicious cycle, where limited access to rights, including housing, employment, healthcare and education, leads to precariousness, material deprivation, insecurity and increased vulnerability to exploitation and abuse.
This is not good for migrants – living so precariously inevitably affects their mental health and puts them at risk of poverty and harm. It is also harmful for our society to have in our midst a group of people who are excluded, marginalised, placed at risk of destitution and forced to suffer injustice on account of their precarious legal status. If migrants are to stay then it is far better for Malta if they are integrated and able to contribute to our society.
Are you asking for all undocumented immigrants to eventually get Maltese citizenship?
We are not advocating for an automatic pathway to citizenship for all undocumented immigrants, what we are asking for is that those who are stranded here through no fault of their own are given a proper legal status.
We do believe that Malta should acknowledge the efforts made by undocumented migrants who cannot be returned to their countries of origin, who cooperate with the authorities and who have made Malta their home. Malta can do this by granting them a proper legal status and a residence permit, as this would allow them to live in dignity and build stronger ties with the nation and with the Maltese community.
Will they all be eligible to bring their families?
The rules on family reunification for migrants are quite strict – usually migrants working in Malta can only bring their families if they can show that they are able to support them.
It is important to underline that family unity is a fundamental human right – families strengthen societies and for migrants being with their family improves integration opportunities. So if migrants whose situation is regularised are able to support their families they should be allowed to bring them.
If they are given documentation it will encourage thousands more to come illegally.
This will not happen if return procedures work efficiently and if those who can be sent home are returned promptly and in conditions of dignity.
We are not advocating for automatic documentation/regularisation for all undocumented migrants. We are advocating for the creation of a regularisation process for those migrants who are stranded here – those who will be staying in Malta, whether or not we regularise their status, because we are unable to send them back. We want a system based on clear and fair eligibility criteria, not an unregulated and free-for-all system.
They are already taking our jobs.
Figures published regularly by Jobsplus confirm that Malta’s unemployment rates have not been affected by the arrival of refugees and asylum seekers. On the contrary, in February 2017 unemployment rates reached a record low, with only 2,766 persons registered as unemployed by Jobsplus compared to 4, 511 a year before.
On the other hand, we believe it is in the interests of Malta’s economy that rejected asylum seekers are able to work legally and contribute by paying taxes and National Insurance, thereby adding to Malta’s overall wealth and potential to create even more jobs.
If they are given documents they will all end up on social benefits and take money from our taxes?
If given documents, they will be in a much better position to find regular work as they will be more easily employable. We also understand that some undocumented migrants might be unable to work, or unable to find work that pays enough to ensure a dignified life, as is the case with some Maltese people. In such situations, we believe the authorities have a duty to provide support.
All these undocumented immigrants don’t pay taxes and burden the national economy.
We do not support work that is irregular and that violates Malta’s labour and tax laws. In fact, we wholly support initiatives that encourage regular work by undocumented migrants. This in their own interests, so that they can be better protected from abuse and exploitation, and also in Malta’s national interest to ensure compliance with labour, fiscal, health and safety, and other standards.
Data shows that the vast majority of persons with THPN in fact work regularly and do pay taxes and National Insurance. In fact, as mentioned above, persons applying for THPN had to show that they were engaged in regular employment or self-employment. However, they currently do not enjoy any of the social security benefits available for persons with subsidiary protection, refugee status or Maltese nationals.
They don’t want to integrate or learn Maltese. More immigrants’ segregation creates more crime and destabilizes our society.
Migrants acknowledge that being part of a community also requires effort on their part, and in fact many THPN holders do speak English or Maltese (if not both). Furthermore, to be eligible for THPN, they must have shown that they are renting their own homes, and therefore not living in a segregated environment. Many THPN holders have very strong ties with Malta: employers and colleagues, boyfriends and girlfriends, neighbours, friends, etc. Despite the challenges they face, many rejected asylum seekers are integrated into Maltese society and today consider Malta their home.
It is also important to understand that migrants are usually willing to integrate, and make concrete efforts to do so, when their host society shows at least a minimum level of openness towards them. If Malta choses to segregate and exclude migrants through policies, attitudes and language, migrants might be less inclined to interact with Maltese people.
We believe that integration efforts should be made by everyone!