Author
General (scope, grounds for accelerated procedures, time limits)
Article 23 (1) of the International Protection Act provides that a person seeking international protection in Malta interns shall be examined under accelerated procedures in accordance with this article when his application appears to be manifestly unfounded and as previously stated Article 24 (2) of Act provides that applications decided as inadmissible shall also be examined under accelerated procedures (see Admissibility Procedure).[1]
The definition of “manifestly unfounded applications” reflects the grounds for accelerated procedures laid down by Article 31(8) of the recast Asylum Procedures Directive. An application is considered manifestly unfounded where the applicant:[2]
- In submitting his or her application and presenting the facts, has only raised issues that are not relevant to the examination as to whether such applicant qualifies as a beneficiary of international protection;
- Is from a safe country of origin;
- Has misled the authorities by withholding relevant information or documents with respect to his or her identity and/or nationality that could have had a negative impact on the decision;
- Is likely, in bad faith, to have destroyed or disposed of an identity or travel document that would have helped establish his identity or nationality;
- Has made clearly inconsistent, contradictory, false, or obviously improbable representations which contradict sufficiently verified country-of-origin information, thus making the claim clearly unconvincing in relation to whether they qualify as a beneficiary of international protection;
- Has introduced a subsequent application for international protection that is not inadmissible in accordance with article 24(1)(d);
- Is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his removal;
- Has entered Malta unlawfully or prolonged his stay unlawfully and, without good reason, has either not presented himself to the authorities or has not made an application for international protection as soon as possible, given the circumstances of his entry;
- Refuses to comply with an obligation to have his or her fingerprints taken in accordance with the relevant legislation;
- May, for serious reasons, be considered a danger to the national security or public order, or the applicant has been forcibly expelled for serious reasons of public security or public order under national law.
Article 23(2) of the Act provides that when the IPA is of the opinion that an application is manifestly unfounded, it shall examine the application within three working days and shall, where applicable, decide that the application is manifestly unfounded.
Article 23(7) of the Act further provides that where the application is considered not to be manifestly unfounded such application shall be examined under normal procedures. As an exception, regulation 7(3) of the Procedural Regulations provides that whenever it is considered that an applicant requires special procedural guarantees as a consequence of having suffered torture, rape or other serious form of psychological, physical or sexual violence, the accelerated procedure shall not be applied. However, this requires the IPA to promptly identify and recognise the vulnerability of the applicant which is unlikely considering the lack of appropriate referral mechanisms between Agencies and the fact that the IPA does not appears to consider itself to be bound by the conclusions of AWAS ont he vulnerability of the applicant. NGOs confirmed that survivors of violence were still channelled through the accelerated procedure despite mentioning these episodes of violence during their interview and that no apparent effort was made to ensure these individuals are not channelled through the accelerated procedure, adding that ultimately the claim that they have suffered il-treatment is likely to be rejected as non credible(see Procedural Guarantees).
NGOs noted that the Act makes a confusion between inadmissible applications, manifestly unfounded applications and accelerated procedures. According to the APD, the consideration that an application is manifestly unfounded does not entail procedural consequences. However, in the Act, the qualification “manifestly unfounded” entails very serious consequences which concretely means that there will be no personal interview, no full assessment of the application and no effective remedy. At no point the applicant will be allowed to present his/her claim. They furthermore consider that this constitutes a clear and serious breach of the APD which foresees an obligation for Member States to lay down reasonable time limits for the adoption of a decision in accelerated procedures. Such time limits should not only be reasonable, but also proportionate. They should provide for a realistic opportunity for both the applicant to present the case as well as for the determining authority to assess the application. Moreover, the APD provides for the possibility to exceed the time limits necessary in order to ensure an adequate and complete examination of the application.[3]
Comprehensive statistical information is not available, as the IPA does not keep statistical data in relation to applications that have been processed under the accelerated procedure. However, NGOs assisting asylum seekers reported an increase in the number of cases processed under the accelerated procedure since 2018. In 2020, 196 applications were deemed inadmissible and therefore channelled through the accelerated procedure and 238 cases were rejected as manifestly unfounded. For 2021, the IPA indicated that it does not keep statistical data pertaining to applications for international protection that are processed under the accelerated procedure, but the IPAT indicated that it carried out reviews for 482 applications, 114 inadmissible applications and 368 manifestly unfounded applications.[4]
Most applications deemed to be manifestly unfounded are from individuals coming from countries listed as safe in the Act.[5] The IPA indicated it rejected 303 applications on this basis in 2021. These number includes nearly all applicants from Bangladesh (127 applications out 130), Morocco (61 rejection out of 63 rejections), Ghana (12 rejections) and Egypt (77 rejections out of 79 rejections). These cases are channelled through the accelerated procedure while the applicants are held in detention, and generally receive the rejection decision, the review of the IPAT and a return decision and a removal order at the same time.
All rejected applications from individuals coming from a country of origin listed as safe will be considered to be manifestly unfounded on above ground (b), independently of the claim raised by applicants. In the past and until 2022, the IPA generally refrained to make this finding when applicants from a safe country of origin claimed to be LGBTI, thus offering them the possibility to file an appeal against the first instance rejection in accordance with the regular procedure. However, it seems like IPA changed this policy and the IPA now strictly applies this determination to all applications, including those made by individuals claiming to be LGBTI. Article 23 (1) of the Act provides that the application “shall” be examined under accelerated procedures where the application appears to be manifestly unfounded. Therefore all applicants coming from a country listed as safe are channelled though the accelerated procedure and their application is automatically decided as manifestly unfounded if rejected. This is the case despite the provision which states that applications may only be determined to be manifestly unfounded if the applicant is found not to be in need of international protection.
In 2022, the IPA increasingly resorted to accelerated procedures and found a substantial number of applications to be manifestly unfounded for any of the above reasons.
NGOs reported that applications from Nigerians Ivorians and Lebanese nationals are likely to be deemed manifestly unfounded on above grounds (a) or (e). In at least one case, the IPA rejected the application of a Sudanese non Arab Darfuri as manifestly unfounded on ground (a) despite the applicant raising the risks of persecutions in relation to his ethnicity.
Furthermore, applications from individuals who applied for asylum following the expiry of their visa are generally found to be manifestly unfounded independently of their claim for international protection. In one case, the IPA rejected the application of a Chinese national who raised risks of persecution on grounds of religion as manifestly unfounded on above grounds (g) and (h). In another case, the IPA rejected the application of a Turkish national who raised a claim of persecution on the basis of his political affiliation with the Ghulenist movement as manifestly unfounded on above ground (g).
In November 2022, aditus foundation launched the #Safe4All legal initiative advocating for the removal of countries of origin which criminalise criminalise LGBTIQ+ identities and/or behaviour from the safe countries list of the International Protection Act. The NGO gathered data on the designation of safe countries of origin across all EU member states and found that Malta ranks second in terms of the percentage of its designated safe countries that criminalise LGBTIQ+ identities and/or behaviour which means that Malta designates as ‘safe’ a relatively high number of countries that are dangerous for LGBTIQ+ persons. The NGO found that 45% of the countries listed in the International Protection Act criminalise LGBTIQ+ identities and/or behaviour against a European average of 21%. aditus also found that only a couple of other EU MS include the countries of origin Malta designates as safe, in their own lists of safe countries which means that other EU Member States do not consider these countries to be safe countries of origin.[6]
Personal interview
All applicants are interviewed according to the regular procedure (see Regular Procedure) and no substantial difference was noted with regard to the way the interview is conducted although it can arguably be said that the case officer would presume the applicant not to be worthy of protection and this may affect the way the interview is carried out.
NGOs reported that when applicants raise a material fact which would require careful examination on the needs for international protection, this is systematically dismissed as non credible.
The quality of the credibility assessment conducted within the accelerated procedure was severely criticised by the ECtHR in S.H. v. Malta which found that the first instance assessment of the IPA was “disconcerting”. The Court considered that “From an examination of the interview of the applicant, during which he was unrepresented, it is apparent that the inconsistencies and lack of detail highlighted in the report are not flagrant, as claimed by the Government. For example, it would appear that the authorities expected the applicant, a 20-year-old Bangladeshi who claimed to be a journalist and whose journalistic academic studies consisted of two trainings of three days and three months respectively, to cite the titles of relevant laws, as the reference to the relevant provisions and their content had been deemed insufficient. Also, the authorities seem to have expected the applicant to narrate election irregularities which were mentioned in COI documents, despite the applicant not having witnessed them. Normally detailed descriptions were repeatedly considered brief and superficial and even the applicant’s replies about his very own articles (concerning other matters of little interest) were deemed insufficient. Clearly spelled out threats were also considered not to be detailed enough”.[7]
Additionally, any evidence which would be provided to substantiate a material fact is generally dismissed without any assessment in a clear violation of the principles established by the ECtHR in M.A. v. Switzerland. In S.H. v. Malta, the Court noted that “no reasoning was provided as to why the evidence presented by the applicant (press card, copies of articles, and other evidence of the applicant performing as a journalist) had not been taken into account. Importantly, at no point did the authorities express the view that the material was false, they limited themselves to noting that their authenticity had not been established as they were only copies”. The Court further noted that “the authorities did not proceed to a further verification of the materials or give the applicant the possibility of dispelling any doubts about the authenticity of such material (compare, Singh and Others v. Belgium, no. 33210/11, § 104, 2 October 2012, and M.A. v. Switzerland, cited above, § 68). Indeed, they had not questioned the applicant’s identity or nationality (which had also been based on copies of identity documents), or the fact that the applicant, who was present before them, was the person in the pictures”.[8]
As was the case for S.H., almost all applicants channelled through the accelerated procedure see their application rejected as manifestly unfounded on the basis that the applicant made “clearly inconsistent and contradictory, clearly false or obviously improbable representation which contradict sufficiently verified country-of-origin information, thus making the claim clearly unconvincing in relation to whether he qualifies as a beneficiary of international protection” and that the applicant is from a safe country of origin.
Applicants from countries of origin where returns are carried out are generally detained for the whole duration of the first instance procedure. At the moment this includes applicants from Bangladesh, Ivory Coast, Ghana, Egypt, Morocco, Nigeria, Algeria and Lebanon (See Fast Tracking). The IPA generally prioritises these applications and interviews are caried out within the EUAA facilities in the Safi Detention Centre. Those applicants are not informed in advance of the date of their interview and generally come unprepared. Detained asylum seekers face considerable difficulties in obtaining documents and compiling all the information which they might want to present in support of their application, as their means of communication are severely restricted. Very often, detained asylum seekers rely on the support from NGOs to obtain documentation and any other information that might be required (see Detention).
Appeal
At the stage of the appeal, two types of applications are channelled through the accelerated procedure, manifestly unfounded applications, as per Articles 23(2) and 23(3) of the International Protection Act, and inadmissible applications, as per Article 24(2) of the Act. Rejections channelled through the accelerated procedure are referred immediately to the Chairperson of the International Protection Appeals Tribunal, who shall examine and review the decision of the International Protection Agency within three working days.
The decision of the Chairperson of the International Protection Appeals Tribunal on whether the application is manifestly unfounded or inadmissible is final and conclusive and no appeal or form of judicial review lies before the Tribunal or before any other court of law.[9]
This is without prejudice to the right of the applicant to file a human rights complaint or an application for judicial review (see Judicial Review) before the Civil Court (First Hall).
It is to be noted that the term “shall immediately” in itsef lacks precision and it appears and practice shows that some first instance rejections are taken months before the IPAT actually carries its review while some other are issued within a few days of the rejection. It is assumed that detained applicants and applicants are prioritised as they tend to receive their rejections faster than the others.
Practitioners and the UNHCR do not consider this review to constitute an effective remedy as laid out in Article 46 of the recast Asylum Procedures Directive.[10] Nevertheless, the 2017 amendment of the Refugees Act confirmed by the amendments in the new International Protection Act and included a provision which specifies that “the review conducted by the Chairperson of the IPAT shall be deemed to constitute an appeal”.[11]
Yet, under Regulation 22 of the Procedural Regulations the applicant is able to appeal against a decision of inadmissibility on the basis of the safe third country if he or she is able to show that return would subject him or her to torture, cruel, inhuman or degrading treatment or punishment. In practice, this provision is not implemented. [12]
The manifestly unfounded or inadmissible decisions of the IPA do not contain any information on, or reference to, the possibility to participate in the appeal nor the right to free legal assistance. In some cases, applicants receive the IPA decision and the IPAT confirmation of the decision on the same day. In other cases, the confirmation from IPAT is received within a few days from receiving the IPA’s decision.
Legal practitioners observed that since the IPAT review is carried out within 3 days from receipt of the IPA decision and that the applicant cannot submit any pleas, the obligation to provide free legal assistance at appeal stage under the Directive and the right to participate in appeals although mandated by law is legal fiction.[13]
The majority of the decisions taken by the IPAT are review decisions (contrary to appeal decisions) made within the accelerated procedure which consist of a mere confirmation of the decisions made in the first instance without any further assessment. In 2021, the reviews amounted to more than 63% of the total number of decisions taken by the IPAT, with 482 reviews on 765 decisions.
IPAT decisions on manifestly unfounded or inadmissible ‘appeals’ are not motivated and generally only contain a simple statement confirming the IPA decision. It is argued by commentators[14] that this does not constitute a full and ex nunc examination of both facts and law before a court or tribunal of first instance, as required by the Procedures Directive despite the recent introduction of this mention in the Act.[15]
Decisions are not motivated and consist of a simple statement confirming the IPA’s recommendation, signed only by the Chairperson. The UNHCR observed in 2019 that the Tribunal tends to automatically confirm the IPA’s recommendation.[16] This has been the case ever since, as confirmed by the statistics provided by the IPAT. In 2021, 482 reviews were carried out by the IPAT, 478 of which were confirmed and 4 of which were remitted to the IPA for a new decision. In all these cases, the IPA did not further investigate the case and amended the decision to issue a “simple” rejection which was then appealed by the applicant in accodance with the normal procedure.
The incorrect transposition of the recast Asylum Procedures Directive in respect of an effective remedy was subject to a legal challenge before the civil court in the case of a Palestinian asylum seeker who was not allowed to appeal his inadmissibility decision in Chehade Mahmoud vs L-Avukat Ġenerali et filed in 2018.[17] In this case, the applicant claimed that Malta’s asylum legislation violates the recast Asylum Procedures Directive and that, as a consequence, his procedural rights were violated. This being one of Malta’s first cases regarding state liability for incorrect transposition of EU asylum law, the court (as well as the Government) was unsure how to proceed, inviting the parties to explain whether the case was one of judicial review or one of damages.
The Civil Court finally rejected the case on the basis that it concluded it was a judicial case, and, therefore, time-barred, as opposed to an action for damages on the basis of an incorrect transposition of EU law. An appeal was filed and remains pending. In the course of the proceedings, the Office of the Attorney General confirmed that the Ministry was in dialogue with the EU Commission with a view to revising the accelerated procedure. The 2020 amendments to the Act did nothing to bring this procedure in line with the Directive.
In Parsons Mariama Ngady vs L-Aġenzija Għal Protezzjoni Internazzjonali et,[18] filed on 28 December 2020 and decided on 1 March 2022 by the Civil Court (First Hall), Ms Parsons was handed down a decision that her application was manifestly unfounded by the IPA, followed by a confirmation of such decision by the IPAT 7 days later. The applicant claimed a breach of the right to a fair trial under Article 32(a) and Article 39(2) of the Constitution Malta, a violation of Article 47 of the Charter of Fundamental Rights, and of Articles 6 and 13 of the European Convention for Human Rights. The Court observed that the Appeals Tribunal’s role in the accelerated procedures is not that of an appeal stricto iure, as an appeals process is one where there is equal access to both parties in a case. The Court noted the lack of further appeal and the “strange and byzantine” decisions which lack motivation, and concluded by stating that the denomination of ‘Appeals Tribunal’ in these circumstances is a “misnomer”.[19] The Court found that Article 23 of the International Protection Act breaches the rights protected in Article 39(2) of the Constitution and Article 6 of the European Convention on Human Rights. It therefore ordered the International Protection Tribunal to re-examine the decision relating to the applicant in accordance with the principles guaranteed by the Directive. On 25 January 2023 the Constitutional Court, following an appeal filed by the Maltese authorities, overturned the first decision. In its decision, the Constitutional Court relied on ECtHR jurisprudence stating that asylum procedures are not covered by Article 6 of the Convention.[20]
In S.H. v. Malta,[21] filed before the ECtHR on 28 July 2021 and decided on 20 December 2022, the Bangladeshi applicant was channelled through the accelerated procedure despite providing evidence that he was a jounalist persecuted by the ruling party in his country of origin and could therefore not appeal his rejection decision which was confirmed by the IPAT within 1 day. The applicant then filed a subsequent application with further evidence of his claim, which was rejected as inadmissible and channelled again through the accelerated procedure and again confirmed by the IPAT. In the meantime, he had appealed his removal order before the Immigration Appeals Board on the basis of the risks of inhuman or degrading treatment he would face upon return to Bangladesh. Following the rejection of the appeal and confirmation of the removal order, the aditus foundation filed a request for interim measure to the ECHR on the basis of Article 3.
On 10 August 2021, the ECtHR decided that, “in the absence of an adequate assessment, by the domestic authorities, of the applicant’s claim that he would risk ill-treatment if returned to Bangladesh based on his activity as a journalist, it was in the interests of the parties and the proper conduct of the proceedings before it to indicate to the Government of the Malta, under Rule 39, that he should not be removed to Bangladesh.” The applicant was subsequently released from the Safi Detention Centre where he had been held for two years. The case was communicated to Malta on 20 January 2022.
The applicant argued that he fears return to Bangladesh and complained that the Maltese authorities failed to properly assess his claims, in particular, the risk he, as a journalist, would face upon being returned to Bangladesh, in violation of ECHR Article 3. He further argued that he had no effective remedy under Article 13 of the Convention, taken in conjunction with Article 3, in so far as the asylum procedure was lacking in various respects namely, he had no access to relevant information and legal services; there had been excessive delays in the decision-making process; there had been no serious examination of the merits and the assessment of the risk incurred; he had not been informed of the relevant decisions while he was in detention, nor had there been any interpretation of such decisions, and he had had no access to a proper appeal procedure. He further noted that the reviews by the International Appeals Tribunal and the Immigration Appeals Board had not been effective remedies in his case and that constitutional redress proceedings were also not effective in so far as they had no suspensive effect.
On 20 December 2022, the ECtHR found in favor of the applicant. With regard to the accelerated procedure, the Court noted that it took seven months for the authorities to render a first-instance decision following the applicant’s interview, but a mere twenty-four hours for the Tribunal to reassess the claim and while the Court reiterated that there exists a legitimate interest in maintaining a system of accelerated procedures in respect of abusive or clearly ill-founded applications, the Court found “it hard to believe that anything but a superficial assessment of all the documentation presented could have been undertaken by the Tribunal within such a time-frame. The brief stereotype decision, confirming the incongruous conclusions reached at first instance and providing no further reasoning, support such a conclusion.”
The ECtHR further observed that the Government was able to rely on only one situation (three decisions in respect of different family members affected by the same situation) whereby the Tribunal overturned the Agency’s decision and, referring to the AIDA report, noted that in the remaining 478 reviews undertaken in 2021 the Tribunal confirmed the first-instance decision. The Strasboug Court therefore found it reasonable to conclude that at the time relevant to the case, the Tribunal tended to automatically confirm the Agency’s decision within a short timeframe. The Court concluded that “the first asylum procedure undertaken by the applicant and examined under the accelerated procedure, ab initio, did not offer effective guarantees protecting him from an arbitrary removal.” and found a violiation of Article 3 taken in conjunction with Article 13.[22]
Furthermore, the ECtHR considered that “the present case has identified various failures in the domestic procedures, in particular in relation to the failures in the communication system, the provision of legal assistance and particularly the procedure and scope of the Tribunal’s review in accelerated procedures, in the light of which general measures could be called for. However, bearing in mind that this is the first of such cases and that the parties have referred to legislative amendments in process, which may improve the system and ensure the existence and effectiveness, in practice, of a remedy for the purposes of Article 13 in conjunction with Article 3 in the context of asylum requests, the Court will stop short of indicating general measures at this stage.”[23]
With respect to constitutional proceedings before the FHCC, the ECtHR considers that this remedy does not provide applicants with an automatic suspensive effect and therefore falls short of this effectiveness requirement. In coming to this conclusion, the Court noted that it is possible to seek a provisional measure from the FHCC but that such a request does not itself have an automatic suspensive effect either, and the relevant decision depends on an assessment on a case-by-case basis.[24] This means that applicants alleging a breach of Article 3 on the basis of the principle of non refoulement are not required to exhaust the remedy offered by the FHCC.
On 10 August 2022, an appellant assisted by aditus foundation filed a request for a preliminary reference before the CJEU to the IPAT in the context of an appeal filed following the rejection of his application as manifestly unfounded. The appellant contends that Article 23 of the International Protection Act is contrary to EU law and that therefore he should be allowed to appeal according to the normal procedure. In view of such claim which raises issues of interpretation of EU law, the appellant requested the IPAT to file a request for a preiminary reference before the CJEU. A hearing was held on 11 October 2022 and the request is still pending, more than 6 months after it was filed.
Legal assistance
Article 7(3) of the International Protection Act provides for the right to free legal aid for all appeals submitted to the IPAT. However, as manifestly unfounded, and inadmissible applications are automatically referred to the Tribunal in accordance with the accelerated procedure, the appellant is not able to participate in the review or to be represented.
[1] Article 23(1) and 24 (2) of the International Protection Act, Chapter 420 of the Laws of Malta.
[2] Article 2 of the International Protection Act, Chapter 420 of the Laws of Malta.
[3] Aditus foundation and JRS Malta, Comments on Bill No. 133: Refugees (Amendment) Bill, July 2020, available at https://bit.ly/3SNgMSQ
[4] Information provided by the IPAT, February 2022.
[5] Article 24 of the International Protection Act, Chapter 420 of the Laws of Malta.
[6] Aditus foundation, Safe4All legal initiative – practice in other EU Member States, November 2022, available at https://bit.ly/3ZzRD0j
[7] ECtHR, S.H. v. Malta, application no 37241/21, 20 December 2022, § 84.
[8] Ibid., § 86.
[9] Article 23(4) of the International Protection Act, Chapter 420 of the Laws of Malta.
[10] Information provided by UNHCR, January 2019.
[11] Article 7(1A) (a)(ii) International Protection Act, Chapter 420 of the Laws of Malta.
[12] Regulation 22 (1) of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[13] Carla Camileri, Accelerated procedures in Maltese asylum law: Making Violations of Fundamental Rights the order of the day, Id-Dritt XXXII (2022), available at https://bit.ly/3IP8y8d
[14] Carla Camileri, Accelerated procedures in Maltese asylum law: Making Violations of Fundamental Rights the order of the day, Id-Dritt XXXII (2022), cited above.
[15] Article 7(1A) of the International Protection Act, Chapter 420 fo teh Laws of Malta as amended by Act XIX of 2022.
[16] Information provided by UNHCR, January 2019.
[17] Civil Court (First Hall), Chehade Mahmoud vs L-Avukat Ġenerali et,, 909/2018, 28 January 2020, available at: https://bit.ly/2Vqn2CT.
[18] Civil Court (first Hall), Parsons Mariama Ngady vs L-Aġenzija Għal Protezzjoni Internazzjonali et, 318/2020, 1 March 2022.
[19] Carla Camileri, Accelerated procedures in Maltese asylum law: Making Violations of Fundamental Rights the order of the day, Id-Dritt XXXII (2022), cited above.
[20] Constitutional Court, Parsons Mariama Ngady vs L-Aġenzija Għal Protezzjoni Internazzjonali et, No. 18, 5 January 2023, available at: https://bit.ly/3ApAL1I
[21] ECtHR, S.H v. Malta, application no. 37241/21, 20 December 2022.
[22] ECtHR, S.H v. Malta, application no. 37241/21, § 90-93.
[23] ECtHR, S.H v. Malta, application no. 37241/21, § 108.
[24] ECtHR, S.H v. Malta, application no. 37241/2, § 53.