Differential treatment of specific nationalities in the procedure

Malta

Authors

aditus
JRS Malta

In the past, the Office of the Refugee Commissioner granted some groups of applicants a “Provisional Humanitarian Protection” (PHP) pending a final decision on their application, until a recommendation on protection or return from UNHCR is issued. It was used in case of mass influx or sudden increase of certain groups of asylum seekers coming from countries that prima facie were more liable to be given protection. “Provisional Humanitarian Protection” is essentially a form of temporary protection status pending full determination of the individual case. It is not contained in any law, so quite dependent on the Refugee Commissioner’s discretion. Provisional Humanitarian Protection also lacks clarity as to the content of associated rights and obligations but in general beneficiaries of PHP are treated in the same manner as asylum seekers. In recent years this form of protection was granted to groups of Eritreans, Libyans and Syrians.  This is no longer the case for these groups.

 

Syria

Prior to the start of the Syrian conflict, Syrian asylum applicants constituted only a small proportion of those seeking international protection in Malta. In the large majority of cases, those Syrians who requested asylum would not have arrived by boat from Libya but applied after being apprehended for having overstayed their permission to stay.

In the initial months of the conflict, Syrian asylum seekers were being granted “Provisional Humanitarian Protection” pending a final determination of their need for international protection. This provided protection from forced removal yet applicants were still considered as being asylum seekers, and were only entitled to the rights of the latter category.

Some months later when the conflict intensified and it seemed unlikely that the situation would be resolved swiftly, applications made by Syrian nationals were finally concluded. At this point a distinction was made between those Syrians who arrived in Malta following the start of the conflict and those who had been in Malta for a number of years and/or months and applied for protection after the start of the conflict.

Those who arrived in Malta and applied for asylum immediately following the start of the conflict had their claims examined in accordance with the normal procedure and were subsequently granted refugee status, or subsidiary protection on account of the serious harm they would face if sent back to Syria at that point in time. The applications of those who had been in Malta for some time and who only applied for asylum after the start of the conflict were also examined in line with the normal procedure, yet if it was found that they were not eligible for refugee status, instead of being granted subsidiary protection they were granted “Temporary Humanitarian Protection” on the same ground that return to Syria would put them at risk because of the nature of the conflict. Temporary Humanitarian Protection, which is to be distinguished from provisional humanitarian protection as discussed above, is a domestic form of protection which, while still providing protection from forced return and a selection of the same rights of beneficiaries of subsidiary protection, is not set out in law and is granted on a discretionary basis.

In 2013 the Refugee Appeals Board disagreed with the assessment that the harm feared by Syrian asylum seekers on account of the civil war rendered them eligible only for Provisional Humanitarian Protection. First-instance decisions were therefore overturned and the asylum seekers concerned granted subsidiary protection. At around this same time, all Syrian applicants who had been granted PHP had their protection changed to subsidiary protection; currently, all Syrian applicants who prove their Syrian nationality are granted, as a minimum, subsidiary protection. A number of persons have also been recognised as refugees.

In 2017, 437 Syrian nationals applied for international protection in Malta. The majority of applicants (168) were granted subsidiary protection while 74 applicants were recognised as refugees. One rejection decision was adopted.

Syrians arriving through resettlement

In 2017, 17 Syrian nationals were resettled from Turkey to Malta under the 1:1 resettlement scheme agreed as part of the EU-Turkey statement. Upon arrival, these persons were granted a renewable “local subsidiary protection” permit for one year.

The resettlement process triggers concerns as this local protection, allegedly negotiated at EU level, is not an international protection status foreseen by law. Asked by NGOs assisting these resettled families to clarify the situation, the Refugee Commissioner informed that these resettled persons are allowed to apply for international protection in Malta. In that case they will be channelled into the normal asylum procedure but they will still retain their status as beneficiaries of local subsidiary protection. However, the Refugee Commissioner confirmed that in case of a negative decision based on the non-establishment of their nationality, then local subsidiary protection would not be retained.1

 

Libya

In 2014, applicants from Libya were granted as a minimum a Temporary Humanitarian Protection (THP) until they could safely return to Libya. This protection was granted to ensure that applicants, who did not qualify for refugee status or subsidiary protection, would be protected against refoulement. At that time, the Refugee Commissioner did not consider the situation in Libya was reaching the threshold of indiscriminate violence in terms of Article 15(c) of the recast Qualification Directive.

In January 2015, the Refugee Commissioner conducted a review of the situation in Libya to assess whether the security situation reached that threshold. The Office identified a number of indicators to measure the level and nature of indiscriminate violence and based its reasoning on European case law, UNHCR guidelines and up-to-date country of origin information. RefCom came to the conclusion that “the armed conflict in Libya meets the threshold of an indiscriminate violence since it is of such intensity that any person, only by returning to the country, would be at risk simply on account of his/her presence there”. As a consequence, the status of all the beneficiaries of THP who RefCom felt did not originally qualify for refugee status or subsidiary protection based on Article 15(b) of the recast Qualification Directive, was revised and changed to subsidiary protection under Article 15(c) of the recast Qualification Directive.

In 2017, the Refugee Commissioner received 409 applications from Libyan nationals. 265 were grated subsidiary protection and 51 were recognised as refugees. 2 applications were rejected.

Policy has not changed in 2017 as the Refugee Commissioner still considers the security situation in Libya to be unsafe and recommends that Libyans, whose nationality is established, and who do not meet the criteria to be granted refugee status, be granted subsidiary protection.

 

  • 1. Information provided by the Refugee Commissioner, December 2017.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti