Author
The procedure in place is a single procedure with the examination and determination of eligibility for refugee status, subsidiary protection and Temporary Humanitarian Protection (THP)[1] being undertaken by the International Protection Agency (IPA) within the context of the same procedure and at the same time. The language of the procedure is English. The IPA is the only entity authorised by law to receive applications for international protection. Should the individual express a need for international protection at the border, this information is passed on to the IPA for the necessary follow-up.
The registration process – whether undertaken by the IPA or EUAA – consists of collecting personal details and issuing a unique IPA number as well as the Asylum-seeker Document/Certificate. The lodging of applications consists of completing and signing an application form stating the reasons for seeking international protection, personal and family background information, memberships and affiliations and the travel route taken to reach Malta.
Immigration and asylum procedures only commence following confirmation by the Health Authorities that applicants have been screened and found not to suffer from any contagious disease (namely COVID-19 and tuberculosis). All those who apply for asylum are systematically fingerprinted and photographed by the immigration authorities for insertion into the Eurodac database. Applicants rescued at sea are immediately placed in detention (at either of the two Initial Reception Centres) on health grounds, and subsequently fingerprinted and photographed. Other applicants, namely persons who had entered Malta through other means than following a rescue operation, are directed to the health authorities following their initial contact with IPA, and in 2023 some applicants were detained following this initial contact on the basis of the Reception Regulations.
Once the Superintendent of Public Health medically clears applicants, the Principal Immigration Officer (PIO) decides whether the applicant should remain detained or be released, as described below in the relevant section on Legal framework of detention.
Dublin assessments are conducted for all cases and if necessary, an interview with the Dublin Unit is scheduled. If required, the examination of the application for protection is suspended pending the outcome of the Dublin procedure. The director of the IPA is designated as the head of the Dublin Unit.
Following the initial collection of information in the application form, and if Malta is deemed responsible for processing the application, the IPA schedules an appointment for an interview with the applicant. After the recorded interview takes place, the applicant is informed that he or she will be notified of the decision in due course. No interviews are scheduled for applicants claiming to be unaccompanied children until an age assessment procedure is finalised and, if necessary, a guardian is appointed. JRS reported that, in certain individual cases, the appeals stage of the age assessment procedure lasted for more than two years.
A more experienced officer or manager reviews the caseworkers’ decision on the application and the IPA makes the final decision.[2]
According to the amended Procedural Regulations, the IPA shall ensure that the examination procedure is concluded within six-months of the lodging of the application. The examination procedure shall not exceed the maximum time limit of twenty-one months from the lodging of the application.[3] However, most of the decisions by the IPA are, in practice, not taken before the period of time established by the Regulations.
The International Protection Act provides for a right of appeal against a negative decision in the regular procedure, within a two-week time period from the day of the notification of the decision.[4]. Appeals against negative decisions in the accelerated procedure are generally not possible, although in 2023 IPAT accepted as admissible a small number of appeal applications against such negative decisions.
Appeals are to be filed before the International Protection Appeals Tribunal (IPAT), an administrative tribunal which is currently operating in a one-chamber composition of three members and a secretary. Appeals to the Tribunal have suspensive effect, which guarantees that an asylum-seeker may not be removed from Malta prior to a final decision being taken on his or her appeal.[5] The Tribunal is empowered to regulate its own procedure, and its decisions are binding on the parties. Although the Act states that the Tribunal will not remit cases back to IPA to take a new decision, in 2023 IPAT referred six cases back to the IPA.[6] By law, the Tribunal must decide within a total of six months of the appeal, and this can only be extended for a further 6 months in exceptional circumstances.[7] In practice however, the IPAT takes on average more than two years to decide on appeals. It is noted that the IPAT is housed within the Home Affairs Ministry and its members are all effectively appointed by the Prime Minister.
The International Protection Act specifies that no appeal is possible from the decision of the IPAT[8], and the Home Affairs Minister has not yet brought the IPAT under the provisions of the Administrative Justice Act.[9] Procedural issues could be the subject of an application before the Civil Court (First Hall). A human rights claim to the Civil Court (First Hall) in its Constitutional jurisdiction alleging a violation of fundamental human rights in terms of the European Convention on Human Rights (ECHR) and/or the Maltese Constitution is available should the rejected appellant be faced with a return that is prejudicial to his or her rights. Finally, applications to the Civil Court (First Hall) for situations involving alleged breaches of the EU Fundamental Rights Charter should also be possible.
Accelerated procedures are also foreseen in national law for applications that appear to be prima facie inadmissible or manifestly unfounded.[10] In practice, most applicants are interviewed by the IPA although their case might be classified as being inadmissible or manifestly unfounded following an evaluation of their asylum claim.
In such cases, the decision of the IPA is automatically transmitted to the IPAT which must assess and review the decision of the IPA within three-days.[11]
Within the scope of this procedure, applicants are not entitled to appeal against the decision and no provision provides for the right to express their views by way of written or oral submissions. No hearing is held and the IPAT decision is generally taken before applicants are notified of their first instance rejection. The decision generally consists of a one-page document confirming the IPA’s decision. The law provides that when the IPAT does not confirm the decision, the case must be remitted back to IPA for a new decision to be issued, however this is a scenario that rarely happens. In the few instances this happens, the IPA does not review the case for a second time; instead, it simply amends its decision to issue a simple rejection which allows for an onward appeal according to the normal procedure mentioned above.
The asylum procedure and return procedures are not automatically linked. In practice however, it can be said that the accelerated procedure is linked to the return procedure since applicants are generally issued with a return decision and a removal order at the same time as the IPAT’s review and the entity notifying them is generally the PIO.
Applicants granted subsidiary protection or THP at first instance have the right to appeal this decision according to the normal procedure. [12] Additionally, rejected asylum-seekers can apply to THP within a separated procedure at any time[13] and their status will be considered as rejected asylum-seekers until a decision is issued. In that context, the law provides that no appeal lies against a decision of the IPA not to grant THP.[14]
The law foresees the possibility to file a subsequent application. Few subsequent applications pass the stage of admissibility, and most are rejected as inadmissible. Inadmissible subsequent applications are channelled through the accelerated procedure as presented above and the review of the IPAT generally confirms the IPA’s decisions. Since 2021, applicants with a subsequent application deemed inadmissible are not entitled to access the labour market.
IPA reports that in 2023 it received 600 asylum applications, of which 491 were first applications, 76 were subsequent and 33 were new applications. 833 cases remained pending at the end of the year. The majority of applicants were Syrian nationals, and of the IPA decisions: 18 recognised refugee status; 241 cases of subsidiary protection; 6 granted THP; 70 dismissed as inadmissible; and 616 rejected.
In 2022, protection was mainly granted to Eritreans (31%), Syrians (50%) and Libyans (6%) followed by Sudanese and Palestinians (2% each).[15] In 2023, eight Syrians, two Pakistanis and one Bangladeshi, Sudanese and Somali were recognised as refugees, whilst 161 Syrians, 51 Eritreans and 28 Somalis were granted subsidiary protection.
[1] THP is a form of national protection regulated by Article 17A of the International Protection Act and awarded to applicants for international protection who does not qualify for refugee status or subsidiary protection status, but who is deemed to qualify for protection on humanitarian grounds. The law lists several categories of persons eligible for such status: an unaccompanied minor who cannot return to his country of origin pursuant to the principle of the best interest of the child; a terminally ill applicant or one who suffers from a severe or life-threatening medical condition not treatable in his country of origin; and an applicant who cannot be returned for other humanitarian reasons which can include serious disability affecting the applicant’s normal life.
[2] ECRE, Asylum authorities: an overview of internal structures and available resources, October 2019, available at: https://bit.ly/2Ut8QIK, 55.
[3] Regulation 6(6) Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[4] Article 7(2) of the International Protection Act, Chapter 420 of the Laws of Mala
[5] Regulation 12 of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta
[6] Articles 7(9) and 7(11) of the International Protection Act, Chapter 420 of the Laws of Malta
[7] Article 7(7) of the International Protection Act, Chapter 420 of the Laws of Malta
[8] Article 7(10) International Protection Act, Chapter 420 of the Laws of Malta
[9] Administrative Justice Act, Chapter 490 of the Laws of Malta, available at: https://tinyurl.com/49j3d8nu.
[10] Articles 23 and 24 of the International Protection Act, Chapter 420 of the Laws of Malta
[11] Articles 23(3) and 24(2) of the International Protection Act, Chapter 420 of the Laws of Malta
[12] Article 17A (3) of the International Protection Act, Chapter 420 of the Laws of Malta.
[13] Article 17A (1) of the International Protection Act, Chapter 420 of the Laws of Malta.
[14] Ibidem.
[15] UNHCR, Malta Fact Sheet, December 2022, available at: https://bit.ly/3IZf2Ai.