The RefCom is a specialised authority in the field of asylum. However, it falls under the Ministry responsible also for Police, Immigration, Asylum, Local Government, Correctional Services and National Security.
According to the amended Procedural Regulations, the Refugee Commissioner shall ensure that the examination procedure is concluded within 6 months of the lodging of the application. The Commissioner may extend this time limit for a period not exceeding 9 months for limited reasons, when complex issues are involved, when a large number of third-country nationals simultaneously apply for international protection or when the delay can clearly be attributed to the failure of the applicant to comply with his obligations.1
The examination procedure shall not exceed the maximum time limit of twenty-one months from the lodging of the application.2
When a recommendation cannot be made by the Refugee Commissioner within six months, the applicant concerned shall be informed of the delay and receive information on the time frame within which the decision on his application is to be expected. However, such information does not constitute an obligation for the Commissioner to take a decision within that time frame.3
Most of the decisions taken by the RefCom are, in practice, taken before the lapse of 6 months. The average length of the asylum procedure at first instance is not available for 2016.
The Refugee Commissioner may decide to prioritise an examination of an application for international protection only when the application is likely to be well-founded and when the applicant is vulnerable or is in need of special procedural guarantees, in particular unaccompanied minors.4
In the past, as a matter of practice, certain caseloads were by the RefCom. The types of cases which were prioritised included cases involving particular vulnerable persons who, on a prima facie basis, were likely to be given protection, cases involving persons who were in closed centres over those who were in open centres and, in the case of mass influx, preference was given to those coming from countries whose nationals are, prima facie, more liable to be given protection.5 However, in 2015 due to the very few arrivals and asylum applications, no cases were prioritised by RefCom. No information is available for 2016.
The amended Procedural Regulations now provide for a systematic personal interview of all applicants for international protection but foresee a few restrictive exceptions. The grounds for omitting a personal interview are the same as those contained in the recast Asylum Procedures Directive, namely: (a) when the Commissioner is able to make a positive recommendation on the basis of evidence available; or (b) when the applicant is unfit or unable to be interviewed owing to enduring circumstances beyond his control.6
In practice, all asylum seekers are interviewed. The interviews are conducted by the RefCom or by one of his representatives, which means that the interviews are conducted by the same authority that takes the decision on the application.
The presence of an interpreter during the personal interview is required according to national legislation.7 Interpreters for Somalis, Eritreans, Syrians or Libyans, that constitute the main nationalities of asylum seekers in Malta, are largely available. However, interpreters for other languages are not always readily available. Complaints as to the quality and conduct of the first instance interpreters are at times raised with legal representatives at the appeal stage, with the possibility of these being included in the appeal submissions. It is possible for interview procedures to be gender sensitive by appointing an interpreter and interviewer of the gender preferred by the applicant. However, this is not automatic, and requests to this end have to be made either by the applicant him or herself or by his or her legal assistant before the interview is carried out.
The amended law now provides for the possibility of audio or audio-visual recording of the personal interview. Regulations state that when such recording is made, the Commissioner shall ensure that the recording (or transcript) is available in connection with the applicant’s file.
In practice, interview notes are taken during the personal interview whilst the interviewer is asking the questions, as well as the responses provided by the interpreter (if any). However, there is no indication that the consent of the asylum seeker is obtained for the audio recording of the interview and it appears, from several case files of applicants for asylum, that asylum seekers are simply informed of the fact that the interview will be audio recorded. As a matter of standard practice, all interviews are recorded. It is uncertain whether an audio/video recording is admissible in the appeal procedure as there are no known cases wherein the Refugee Appeals Board made use of such recording material.
Interviews can and have been conducted through video conferencing. According to the Refugee Commissioner, interviews through video conferencing are considered to be essential in situations where there is a lack of interpreters available in order to proceed with the interview of an asylum seeker. To date, three asylum interviews have been conducted through video conferencing and, it seems, these were carried for the purpose of interpretation.8
The applicant is usually granted a copy of the Interview Notes with a first instance negative decision. However, this is not always the case, and the applicant would have to make a separate request to be granted such a copy in preparation for his or her appeal. Unfortunately, the applicant is only granted the opportunity to make corrections to the content of the application form and not to the content of the Interview Notes of the personal interview, as a copy of the former is granted to the applicant before the first instance decision is taken. In practice, the quality of the Interview Notes may not be fully ascertained since these are taken during the interview itself and based on the responses provided by the interpreter. The audio recording is hardly ever made available to applicants or their lawyers and, if so, only following a formally reasoned request to RefCom.
An appeal mechanism of the first instance decision is available before a board known as the Refugee Appeals Board. Following the March 2015 amendments to the Refugees Act, the Board consists of 3 separate chambers, each made up of 4 persons - a chairperson and an additional 3 members.9 It is an administrative review and involves the assessment of facts and points of law. An asylum seeker has 2 weeks to appeal and these 2 weeks start to run from the day the asylum seeker receives the written negative decision of the Refugee Commissioner.10 The Refugee Appeals Board does not accept late appeals. There is no time limit set in law for the said Board to take a decision. Nevertheless, the appeal has suspensive effect.
In practice, asylum seekers can face obstacles in appealing a decision. First of all, the decision containing the reasons for the rejection of the application at first instance is always written in English, hindering an asylum seeker who does not understand English from appealing the decision. Moreover, asylum seekers in detention can face obstacles in appealing because there are no clear and established procedures in place for them to lodge an appeal. For instance, standard appeal forms are not always available to asylum seekers in detention as such forms are mostly provided by NGOs who are not present in detention on a daily basis. Regarding the processing time at the appeal stage, information provided by the Refugee Appeals Board refers to 2 months on average, however experience by NGOs providing legal aid to asylum seekers has shown that the waiting time may vary a lot depending on the Chamber to which the case is assigned, ranging from a couple of months to a couple of years. There are no time limits foreseen in national legislation.
Usually, the appeal takes the form of written submissions to the Refugee Appeals Board, however, the Board can, where appropriate, hold an oral hearing and it shall only hear new evidence which was previously unknown or which could not have been produced earlier when the case was first examined by the Refugee Commissioner.11 As a result, asylum seekers can be heard in practice at the appeal stage but only on a discretionary basis. Some Chambers systematically call for hearings in all cases when others appoint hearings on specific cases. The past few years have shown an increase in the number of oral hearings held by the Board, a significant increase in the proportion of first-instance decisions which have been overturned at appeal stage and lengthier decisions referring to EU and national legal norms, country of origin information and jurisprudence of the ECtHR and the CJEU. Hearings of the Refugee Appeals Board are not public and its decisions are communicated only to the applicant concerned, their legal representative, if known, the Refugee Commissioner, the Minister concerned and the High Commissioner i.e. UNHCR.12 In 2016, 68 oral hearings have been held.
One of the main concerns expressed by NGOs regarding the appeal stage remains the lack of asylum-related training and capacity of the Board Members. The quality of the decisions also varies substantially amongst Chambers, with some more effective than others and little coordination amongst them all. The consequences include inconsistency in procedures, process and decisions, as well as the lack of coherent case law.13 While some decisions include a comprehensive examination of the elements of fact and law of the case, others do not include any reasoning at all, rejecting the case on the basis of one sentence.
An onward appeal is not provided in the law in case of a negative decision from the Refugee Appeals Board. However, judicial review of the decisions taken by the Board is possible and several cases to this effect have been filed in the past couple of years.14 No information on judicial reviews is available for 2016. Unfortunately, judicial review does not deal with the merits of the asylum claim but only with the manner in which the concerned administrative authority reached its decision. Moreover, such cases would not automatically have suspensive effect. Judicial review is a regular court procedure, assessing whether administrative decisions comply with required procedural rules such as legality, nature of considerations referred to and duty to give reasons. Applicants could be granted legal aid if eligible under the general rules for legal aid in court proceedings.
National legislation states that at first instance an applicant is allowed to consult a legal adviser at his or her own expense. However, in the event of a negative decision at first instance, free legal aid shall be granted under the same conditions applicable to Maltese nationals.15 In the case of Maltese nationals, legal aid is available for all kinds of cases. However, legal aid for civil cases is subject to a means test whilst legal aid for criminal cases is not.16 According to the office responsible for the provision of free legal assistance within the relevant Ministry, such legal assistance is usually not subject to a means test for asylum seekers. In practice, the appeal forms the applicants fill in and submit to the Refugee Appeals Board contain a request for legal aid. Unless an applicant is assisted by a lawyer working with an NGO, this request is forwarded to the office responsible for the provision of legal aid within the Ministry, which will distribute the cases amongst a pool of asylum legal aid lawyers. One appointment with the applicant is then scheduled. To date, legal aid in Malta for asylum appeals has been financed through the State budget.17
The only free legal assistance available to asylum seekers at first instance is that provided by lawyers working with NGOs. These services are regularly provided by a small group of NGOs as part of their on-going services and are funded either through project-funding or through other funding sources. It is to be noted that funding limitations could result in the services being reduced due to prioritisation. Generally, such lawyers provide legal information and advice both before and after the first instance decision, including an explanation of the decision taken and, in some cases, interview preparation. They can also attend personal interviews whenever the asylum seeker requests their presence. However, this is at the discretion of the Refugee Commissioner and their contribution throughout the interview is limited.18 The main obstacle with regard to access to this kind of assistance is that there are a limited number of NGO lawyers who are able to provide such a service in relation to the number of asylum seekers requiring it. There are no known private lawyers providing free legal assistance to asylum seekers at first instance.
Legal assistance at the appeal stage is not restricted by any merits test or considerations, such as that the appeal is likely to be unsuccessful. There are, however, some restrictions in national legislation and in practice that can impinge on the ability of lawyers to effectively assist applicants for asylum at the appeal stage. Such restrictions relate to access to the applicants’ files as well as the applicants themselves. For instance, in practice, lawyers that assist applicants for asylum at the appeal stage are requested to go to RefCom’s office where they can manually copy the relevant information contained in their clients’ files in preparation for the appeal. This situation might further discourage more lawyers from assisting, or assisting effectively, asylum seekers.
On the other hand, the law states that access to information in the applicants’ files may be precluded when disclosure may jeopardise national security, the security of the entities providing the information, and the security of the person to whom the information relates.19 Moreover, access to the applicants by the legal advisers or lawyers can be subject to limitations necessary for the security, public order or administrative management of the area in which the applicants are kept.20 In practice, however, these restrictions are rarely, if ever, implemented. Usually, the appeal takes the form of written submissions to the Board by a stipulated time. Thus, it is not a very complicated procedure in practice. Nevertheless, the assistance of lawyer is essential for an effective appeal.
According to a local legal aid lawyer, the amount of €70 paid to a legal aid lawyer for every appeal is not enough to cover the preparatory work (reading the interview notes and decision as well as manually copying the contents of the appellant’s file at the Refugee Commissioner’s office and preparing questions to ask the appellant), the meeting with the appellant and the writing of the submissions. Meetings with appellants who are in detention can be particularly problematic for practical and logistical reasons that can be of detriment to both the appellants and the lawyers. For instance, at the entrance of the detention centres, legal aid lawyers have to show their identity cards and be given a pass. Sometimes this is a cumbersome procedure because the lawyer’s name could not be on the list of people authorised to enter the detention centre. Also, there is rarely an adequate place for the lawyer to discuss the case with his or her client in detention. According to the legal aid lawyer, they sometimes had to speak to their clients in corridors or sitting on crates. As a result, the financial remuneration does not compensate for the amount of work as well as the practical and logistical obstacles involved in effectively representing asylum seekers at the appeal stage.
- 1. Regulation 6(4) Procedural Regulations.
- 2. Regulation 6(6) Procedural Regulations.
- 3. Regulation 6(7) Procedural Regulations.
- 4. Regulation 6(8) Procedural Regulations.
- 5. Communication from Refugee Commissioner to Dr Neil Falzon, aditus foundation, 2013.
- 6. Regulation 10 Procedural Regulations.
- 7. Regulations 4(2)(c) and 5(3) Procedural Regulations.
- 8. Communication from Refugee Commissioner to Dr Neil Falzon, aditus foundation, 2013.
- 9. Article 5(1) Refugees Act.
- 10. Article 7 Refugees Act.
- 11. Regulation 5(1)(h) RAB Procedures Regulations.
- 12. Regulation 5(1)(n) RAB Procedures Regulations.
- 13. UN General Assembly, Report by the Special Rapporteur on the human rights of migrants, François Crepeau, December 2014.
- 14. The judicial review process is regulated by Article 469A of the Code of Organisation and Civil Procedure (COCP), Chapter 12 of the Laws of Malta. he These cases include: Court of Appeal (Civil, Superior), Washimba Paul v Bord Ta’ L-Appelli Dwar ir-Rifugjati Et, Reference No. 65/2008/1, Judgment of 28 September 2012; Civil Court First Hall, Gebremariam Teshome Tensea K/a Teshome Baerhanu Asbu v Bord Ta’ L-Appelli Dwar ir-Rifugjati Et, Reference No. 65/2010, Judgment of 10 July 2012; Civil Court First Hall, Saed Salem Saed v Bord Ta’ L-Appelli Dwar ir-Rifugjati Et, Reference No. 1/2008, Judgment of 3 November 2009.
- 15. Regulation 7(1)-(2) Procedural Regulations.
- 16. The Judiciary Malta, Frequently Asked Questions, available at: http://bit.ly/1FJWCug.
- 17. Ibid.
- 18. Regulation 7(4) Procedural Regulations.
- 19. Regulation 7(2) Procedural Regulations.
- 20. Regulation 7(3) Procedural Regulations.