A study on the right of family life of refugees and persons with subsidiary protection in Malta

Abstract

The right to family life for refugees and for PSP’s in Malta is with in the study from the perspective of local legislation, transposed EU laws and from the international legal instruments which lead to the discourse on human rights. This approach has resulted in a comparative exercise of refugee laws which apply to asylum seekers on the one hand and human rights laws with universal application. The Maltese situation has been studied within the EU context in particular the directives and the Dublin system of which Malta forms a part. The legal situation of refugees is compared to that of PSP’s since the two categories might have factually similar circumstances and undergo very similar experiences but have very different rights. The three research questions ask whether the right to family life for refugees and PSP’s is being respected in Malta, which begs the question of why do these two categories of persons receive different treatment with regards to this right and finally what is the interplay between immigration laws, refugee law and human rights. The legal analysis and comparative exercise within the first chapter highlight the legal regimes governing refugees and PSP’s, the relevance of human rights law and the state obligations stemming both from international conventions and from their own national laws. The latter involve a balancing act between refugee-related laws and immigration laws which theoretically can be diametrically opposite. Chapter 2 studies the literature review on the issues of definition of a person seeking protection, the concept of family and the issue of state prerogative. Authors attempt to reconcile national sovereignty with human rights concerns in the refugee context. At times though it is not even the case of lex specialis derogate lex generalis, even laws which are very specific in scope are superseded by generic immigration rules. Chapter 3 explains the methodologies mainly in-depth interviewing and desk research through scholarly writings and case law. I had decided upon the methodologies at the outset wishing to present an original approach to the subject and wishing to present at the end, original findings and possibly even recommendations based on same findings. Chapter 4 is exclusively the interviews: the expert interviews with government entities and NGOs and the subject interviews. Having perused the authors on the topic of interviewing in chapter 3, I felt quite adequately equipped to carry them out, transcribe, analyse and connect the findings with the scholarly writings, with the laws and with the jurisprudence. Chapter 5 presents recommendations which are possible suggestions for change, on a large scale and on a smaller scale, proposals for better working of the system and most of all, recommendations on how the laws can serve their purpose better. At the end of the day, the laws being quoted to the refugees and PSP’s determine what happens to them and to their families. It is not only laws which are involved in effecting change however. Other factors such as a less blinkered attitude, forward thinking administrative planning and lateral solutions would also be effective without impinging on or compromising the right of states to decide on their own matters mainly their borders, their national security and their very identity.