Author
The Reception Regulations provide for the possibility for asylum-seekers to be granted free legal assistance and representation only during the first review of the lawfulness of detention.[1] Free legal assistance and representation entails preparation of procedural documents and participation in any hearing before the Immigration Appeals Board.
According to the calls issued by the Ministry for Home Affairs, legal aid lawyers must provide legal assistance and representation entailing preparation of procedural documents and participation in any hearing before the Immigration Appeals Board. They must undertake to examine the grounds of appeal and present, in writing, the appellant’s case before the Immigration Appeals Board to attend, if required, to sessions of the Immigration Appeals Board to explain case submissions and provide other general assistance to respondents during their appeal. They must carry out administrative work related to the preparation and presentation of the cases as well as in relation to the overall management of the caseload indicated by the Ministry. They must report on the outcomes of interviews held with appellants and bring to the Ministry’s attention any pertinent matters which may arise. The appointment of legal aid and first hearing shall be carried out within 7 working days of the issuance of Detention Order. Payment fee in detention appeals is €40 (inc. VAT) per case submission.[2]
NGOs report that throughout 2023, legal aid lawyers were indeed generally appointed for the first detention review, when this happened. In most cases, NGO lawyers took over applicants’ issues after this first review, also due to their impossibility of actually meeting newly-arrived applicants during these initial days. Legal aid is not provided for the second or subsequent reviews.
Regulation 11(5) of the Returns Regulations provides that within the context of an application to the Board to review decisions related to return, a legal adviser shall be allowed to assist the third-country national and free legal aid will be provided where the individual meets the criteria for entitlement in terms of national law.
In 2023, detained applicants were not provided with information and contact details about NGOs providing legal services with the Ministry arguing that the legal aid service sufficiently meets applicants’ demands. Furthermore, NGOs reported that they aware of instructions given to public officers to refrain from referring to NGOs applicants requiring or requesting legal information and services, including vulnerable persons, but to limit referrals to the Ministry’s legal aid system.
[1] Regulation 6(5) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.