Dublin

Malta

Authors

aditus
JRS Malta

General 

Dublin statistics: 1 January – 31 December 2016







Outgoing procedure

Incoming procedure

 

Requests

Transfers

 

Requests

Transfers

Total

146

12

Total

481

40

Italy

38

5

Germany

149

10

Germany

17

5

Sweden

71

12

France

17

2

France

69

:

Source: Dublin Unit, data provided by upon request, September 2016.

There is no specific legislative instrument that transposes the provisions of the Dublin Regulation into national legislation. The procedure relating to the transfers of asylum seekers in terms of the Regulation is an administrative procedure, with reference to the text of the Regulation itself. The Refugee Commissioner is the designated head of the Dublin Unit with the Immigration Police implementing the procedure in practice.

 

Application of the Dublin criteria

According to NGOs’ experience, there is no clear rule on the application of the family unity criteria as it usually depends on the particulars of the individual case. The Maltese Dublin authorities do not apply DNA tests but tend to rely on the documents and information immediately provided by the applicant. In some cases regarding children, when no documents are provided, the authorities can request additional information from UNHCR, IOM or AWAS. They usually put together all the information available as evidence. Matching information between members of the family can be relied on, and may be enough for determining family links.  

The family unity criterion is the most frequently used in practice for outgoing requests. For incoming requests, the most frequently used criteria are either the first EU Member State entered (Article 13), or the EU Member State granting a Schengen visa (Article 12).

 

The discretionary clauses

There is no information available on the use of the humanitarian or the sovereignty clauses, although the Refugee Commissioner has indicated that there are cases where the humanitarian clause is used and Malta takes charge of the applicant on account of health reasons.

 

Procedure

All those who apply for asylum are systematically fingerprinted and photographed by the Immigration authorities for insertion into the Eurodac database. Those who enter Malta irregularly are immediately taken into the custody of the Immigration authorities and are subsequently fingerprinted and photographed. Asylum seekers who are either residing regularly in Malta or who apply for international protection prior to being apprehended by the Immigration authorities, are also sent to the Immigration authorities to be fingerprinted and photographed immediately after their desire to apply for asylum is registered.

According to the authorities,1 no force or coercion is required to take the fingerprints of asylum seekers. When migrants make attempts to avoid their fingerprints being taken by various means such as applying glue to the fingertips, a note is taken and the migrant is recalled for fingerprinting at a later stage when the effects of the glue would have subsided. When persons have damaged fingerprints, measures, such as repeated attempts, are taken to ensure that a good copy is available.

In previous years, NGOs working with asylum seekers confirmed a trend of individuals refusing to be fingerprinted. Migrants arriving in Malta are usually reluctant to be fingerprinted as this identification could prevent them to move beyond Malta. In 2014, individuals claimed that they saw persons being harassed or physically abused following their refusal to have their fingerprints taken. The Special Rapporteur on the human rights of migrants also reported that a degree of force was sometimes used.2

In registering their desire to apply for international protection, asylum seekers are also asked to fill in a “Dublin questionnaire” wherein they are asked to specify if they have family members residing within the EU. Should this be the case, the information is passed on to the Immigration Police Office responsible for Dublin transfers and the examination of their application for protection is suspended until further notice. It is up to the Immigration Police to then contact the asylum seeker to ask for further information regarding the possibility of an inter-state transfer, such as the possibility of providing documentation proving familial links.

Information is usually provided to the lawyer representing the applicant upon request. Where an applicant is detained, it is inherently more difficult for the individual to follow up on the Dublin case with information being obtained solely through the lawyer.

 

Individualised guarantees

No information is provided by the Dublin Unit on the interpretation of the duty to obtain individualised guarantees prior to a transfer, in accordance with the ECtHR’s ruling in Tarakhel v Switzerland.3

 

Transfers

In practice, no official statistics are available regarding the length of time it takes for a transfer to be effected after another Member State would have accepted responsibility.

Over the course of 2016, NGOs providing legal aid to asylum seekers have noticed an increase of cases where persons were not informed about the status of their application and the ongoing Dublin procedure. As of the end of the year, RefCom provides a standard information sheet explaining that the Dublin procedure is applied and that the examination of the application is put on hold (see Information on the Procedure).

 

Personal Interview

Upon notification that an asylum seeker might be eligible for a Dublin transfer, he or she will be called by the Immigration Police operating the Dublin Unit to verify the information previously given to the Refugee Commissioner or to the legal representative and will be advised to provide supporting documentation to substantiate the request for transfer. These interviews take place at the Police General Headquarters wherein the asylum seekers are escorted from the detention centre to be questioned by the police. Although the Immigration Police stated that interpreters are provided at the interview stage, legal practitioners who have assisted a number of asylum seekers within the Dublin procedure stated that no cultural mediators4 are available at this point, although at times an English-speaking detainee might provide interpreting services. Moreover, the interview is not recorded nor is a transcript available.

  

Appeal

Appeals against decisions taken under the Dublin Regulation are possible through the filing of an appeal to the Immigration Appeals Board.5

The provisions of the Immigration Act indicate that the appeal must be filed within 3 working days from when the individual is notified with the decision.6 Immigration legislation regulating procedures before the Immigration Appeals Board does not specify whether such appeals have suspensive effect or otherwise, yet may be interpreted as implying such a suspensive effect if requested, even verbally, by the appellant.

There is no specific appeal procedure for Dublin cases, leaving such applications pending for several months with the Board.       

   

Legal assistance

No provision is made for the availability of free legal assistance. Instead, if the asylum seeker is in detention, legal assistance is provided by an NGO that is regularly present in detention and offers professional legal services. If the asylum seeker is not detained, he or she can seek the services of a lawyer at his or her own expense or through the services offered by NGOs. In practice, the only way in which an asylum seeker pending a Dublin transfer can obtain consistent information about the stage of the proceedings is through the assistance of a lawyer who is able to follow up with the competent authorities. 

 

Suspension of transfers

Following the ECtHR’s judgment in MSS v Belgium and Greece,7 Malta suspended the transfers of asylum seekers to Greece although the police will still assist with the transfer should an asylum seeker voluntarily ask to be returned to Greece. When transfers are suspended, Maltese authorities then assume responsibility for the examination of the application and the asylum seeker is treated in the same way as any other asylum seeker who would have lodged the asylum application in Malta.

Apart from these situations, Malta has not suspended transfers as a result of evaluation of systemic deficiencies in any EU Member State.

 

The situation of Dublin returnees

The main impact of the transfer on the asylum procedure relates to the difficulties in accessing the procedure upon return. If an asylum seeker leaves Malta without permission of the Immigration authorities, either by escaping from detention or by leaving the country irregularly, the Refugee Commissioner will consider the application for asylum to have been implicitly withdrawn, in pursuance of Regulation 13 of the Procedural Regulations, transposing the provisions of the Asylum Procedures Directive. Consequently, an asylum seeker who is transferred back will in almost all cases find that his or her asylum application has been implicitly withdrawn leaving him susceptible to return by the Immigration authorities.

Furthermore, persons travelling from Malta in an irregular manner run the risk of facing criminal charges upon being returned, on the basis of the Immigration Act. Upon return, the person would probably be arrested and brought before the Court of Magistrates (Criminal Jurisdiction) to face charges. During this time, pending the case, the asylum seeker would be remanded in custody at Corradino Correctional Facility for the entire duration of the criminal proceedings, which generally last for about 1 to 2 months from the date of institution of proceedings. The asylum seeker will be entitled to request the appointment of a legal aid lawyer, or to avail him or herself of a private lawyer should he or she have access to one. If found guilty, the Court may sentence the asylum seeker to either a fine of not more than around €12,000 or a maximum imprisonment term of 2 years, or for both the fine and imprisonment. It is noted that decisions are largely unpredictable, as some individuals have also been sentenced to imprisonment yet suspended for a number of years.

 

Suspension of transfers to Malta

In September 2016, the UK Upper Tribunal found that the return of a Sudanese applicant for international protection to Malta under the Dublin Regulation was lawful.8 The applicant was challenging, through judicial review, the decision to transfer him to Malta, arguing that such a transfer would violate his rights under the Article 18 of the EU Charter. He was arguing that his asylum application would not be determined within a reasonable time and on the basis of a fair procedure considering the shortcomings of the Maltese asylum system which provides for slow and pro forma procedures. The Tribunal concluded that there was no risk of the violations of the procedural rights granted under Article 18 and that was no risk of any unlawful refoulement. The Tribunal noted that the applicant’s experience as an asylum-seeker in Malta, where he was detained for more than a year, occurred several years ago and that significant changes have occurred since then in the Maltese reception system as a result of the transposition of the recast Asylum Procedures and Reception Conditions Directives. Moreover, regarding the claim that the applicant would probably have to submit a new application in Malta upon transfer, the Tribunal noted that the right to pursue a subsequent asylum application or to have an asylum application determined without a preliminary admissibility examination was not contained in Article 18 of the EU Charter.

The Federal Administrative Courts of Austria and Switzerland also upheld decisions to transfer asylum seekers to Malta in February 2017. The Austrian court found that the applicant, a pregnant woman, could access the necessary health care in Malta and therefore could not establish a violation of Article 3 ECHR.9 For its part, the Swiss Federal Administrative Court noted that, following the change of detention policy under the 2015 Strategy Document, it could not be established that asylum seekers would be at risk of ill-treatment due to imminent detention upon return.10

In January 2016, the Council of Aliens Law Litigation in Belgium suspended the decision of the Belgian authorities which issued an order to leave the territory taken against a Somali asylum-seeker, in order for him to be transferred to Malta which had been determined as the State responsible for his application for international protection under the Dublin Regulation.11 The applicant argued that he had been detained in Malta for several months in poor conditions, that receptions conditions in Malta were inadequate and that he was not provided with legal assistance during the first instance asylum procedure. The Court decided in favour of the applicant and reasoned that he had supported his claim with sufficient evidence, corroborated by several NGO reports available (AIDA) and that the State did not undergo through a rigorous and thorough examination of the risk under Article 3 ECHR.

  • 1. European Migration Network, Ad-Hoc Query on EURODAC Fingerprinting, 22 September 2014, available at: http://bit.ly/1PBRfaP.
  • 2. UN General Assembly, Report by the Special Rapporteur on the human rights of migrants, François Crepeau, Mission to Malta, May 2015.
  • 3. ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014.
  • 4. Different to interpreters, as cultural mediators play a more active role in ensuring culturally appropriate language and communication.
  • 5. Regulation 3 IAB Dublin Regulations.
  • 6. Article 25A Immigration Act.
  • 7. ECtHR, MSS v. Belgium and Greece, Application 30696/09, Judgment of 21 January 2011.
  • 8. UK Upper Tribunal, R (Hassan) v Secretary of State for the Home Department [2016] UKUT 00452 (IAC), Judgment of 28 September 2016, available at: http://bit.ly/2layekL.
  • 9. Austrian Federal Administrative Court, Decision W192 2142903-1, 6 February 2017.
  • 10. Swiss Federal Administrative Court, Decision E-850/2017, 14 February 2017.
  • 11. Belgian Council of Aliens Law Litigation, Decision No 161122, 29 January 2016, available at: http://bit.ly/2kMIjTP.

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