Author
General (scope, criteria, time limits)
The International Protection Act provides for a new definition of “inadmissible applications”. The following grounds allow for deeming an asylum application inadmissible:[1]
- Another Member State has already granted the applicant international protection;
- The applicant comes from a First Country of Asylum;
- The applicant comes from a Safe Third Country;
- The applicant has lodged a Subsequent Application presenting no new elements;
- A dependant of the applicant has lodged a separate application after consenting to have his or her case made part of an application made on his or her behalf; and
- The applicant has been recognised in a third country and can avail him or herself of that protection or otherwise enjoys sufficient protection from refoulement and can be readmitted to that country.
The International Protection Act provides that inadmissibility is a ground for an application to be processed under the Accelerated Procedure.
Admissibility decisions generally concern applicants who are beneficiaries of international protection in another EU Member State and applicants who file a subsequent application where no new elements were presented (see Subsequent Applications). Practitioners observe that the number of applications deemed ‘inadmissible’ is increased, due to (a) being presented by applicants having family members, often spouses, enjoying international protection in Malta. This is particularly noted in respect of beneficiaries of subsidiary protection – granted by Malta – since they are not entitled to family reunification, often resulting in families based in Malta yet with a member – usually a spouse – not enjoying protection in Malta.
Practitioners also noted a practice adopted by IPA in relation to paragraph (a), meaning where an applicant in Malta had been recognised protection in another EU Member State. A number of situations arose there such applicants had been indeed granted international protection in other EU Member States, yet this protection was no longer valid, either due to expiration, revocation or other situations. The IPA automatically considered these applications inadmissible, without granting an Asylum-Seeker Document to the applicants.
The principles of Safe Third Country and First Country of Asylum are generally not applied by the IPA.
In 2023 the IPA issued 70 inadmissibility decisions, of which 18 applications were considered inadmissible on the basis of article 33(2)(a) of the Asylum Procedures Directive and 52 were closed inadmissible on the basis of article 33(2)(d) of the Asylum Procedures Directive.
Due to its close proximity to Italy, Malta has always seen individuals granted protection in Italy come and work in the country. However, these individuals generally do not lodge applications for international protection. Malta also regularly receives applications from individuals who were granted international protection in Greece, mostly Syrian nationals who moved in order to join relatives or simply due to the fact that Maltese is an easier language to learn for Arabic speakers.
The IPA’s current position on Greece is that beneficiaries of international protection enjoy sufficient guarantees in Greece and therefore all applications lodged by those applicants are generally rejected on admissibility. The application is immediately channelled through the accelerated procedure and there is no possibility for the applicant to file an appeal. In this context, the concerns expressed in relation to the accelerated procedure are applicable to the admissibility procedure and the conclusions of the ECtHR in S.H. v. Malta will be applicable (see Accelerated Procedure).
A case alleging violations of Article 3, Article 6 and Article 13 of the ECHR was recently filed before the First Hall Civil Court for a Syrian national who was granted protection in Greece.[2]
Personal interview
The International Protection Act provides that the IPA shall allow applicants to present their views before a decision on the admissibility of an application is conducted.[3] In practice, an interview is held in the vast majority of cases. It is assumed that applicants coming from a first country of asylum or a safe third country would be heard during an interview, however as stated above, the IPA generally does not apply these principles. Interviews for applicants already granted protection in another Member State are generally limited to a preliminary interview (i.e., the lodging of the application).
Despite the International Protection Act clearly stating that a personal interview on the admissibility of the application shall be conducted before a decision on the admissibility of an application has been taken,[4] applicants submitting a subsequent application where no new elements were presented are not given the opportunity to be heard during a personal interview. The procedure is in writing only, with the ability for the applicant to present submissions along with the application. In the (rare) event where the subsequent application is deemed admissible, the IPA will interview the applicants on the merits of their case with further questions on the new evidence provided (See Subsequent Applications).
Appeal
The International Protection Act provides that the provisions of the accelerated procedure “shall apply mutatis mutandis” to inadmissible applications (see Accelerated Procedure).[5] In short, this means that applications deemed inadmissible are immediately transmitted to the IPAT, the latter having 3 days to decide on the application. The applicant has no role in this accelerated procedure and has no legal or practical possibility to challenge the inadmissibility decision. The IPAT’s decision is final.
Although comprehensive data for 2023 is not available, the statistics provided by the IPAT show that the Tribunal considered 59 cases inadmissible and rejected 205 as manifestly unfounded.
Legal assistance
Norms and practice for legal assistance during the admissibility procedure are identical to those applicable in the regular procedure. Summarily, there is no right to free legal assistance, and this is not provided by the State. NGOs are the only entities providing free legal services, including interview preparation, for this procedure.
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 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 (See Accelerated Procedure).
In relation to applications deemed inadmissible due to protection granted in another EU MS or Associated Country, Malta has not formally suspended returns to any of these countries. Regular police raids on residences occupied by migrants, including protection beneficiaries are conducted. Following these raids and arrests, persons were detained and subsequently removed, largely to Italy.
[1] Article 24, International Protection Act.
[2] Information provided by the Daphne Caruana Galizia Foundation, January 2023.
[3] Article 24 (3) of the International Protection Act, Chapter 420 of the Laws of Malta.
[4] Ibid.
[5] Art. 24(2) of the International Protection Act, Chapter 420 of the Laws of Malta.