Short overview of the asylum procedure

Malta

Country Report: Short overview of the asylum procedure Last updated: 23/05/22

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The procedure in place is a single procedure with the examination and determination of eligibility for subsidiary protection being undertaken by the International Protection Agency (IPA) within the context of the same procedure. 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. Since 2019, the IPA has been supported by EASO across asylum and reception-related activities.

The registration process – whether undertaken by the IPA or EASO – consists of collecting personal details and issuing a unique IPA number as well as the Asylum Seeker Document/Certificate. The lodging of applications consists in filling and signing an application form stating the basic reasons for seeking protection.

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. Those who enter Malta irregularly are now immediately placed in detention, and subsequently fingerprinted and photographed.

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 scheduled 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.

A more experienced officer or manager reviews the caseworkers’ decision on the application and the IPA makes the final decision.[1]

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.[2] However, most of the decisions by the IPA are, in practice, not taken before the period of time established by the Regulations.

National law specifies a two-week time period from when an applicant is notified of the decision of the IPA during which he or she may appeal to the International Protection Appeals Tribunal (IPAT). This administrative tribunal, whose function is enshrined in the International Protection Act and currently operating in a one-chamber composition, is entrusted to hear and determine appeals against decisions issued by the IPA. An appeal to the Tribunal has suspensive effect, which entails that an asylum seeker may not be removed from Malta prior to a final decision being taken on his or her appeal.[3] In the majority of cases, the decision given by the IPAT is binding on the parties and the Tribunal will not remit it back to IPA to take a new decision.

The International Protection Act specifies that no appeal is possible from the decision of the IPAT, although it is possible to submit a judicial review application to the First Hall of the Civil Court.[4] Notwithstanding this, no appeal lies on the merits of the decision except the possibility of filing a human rights claim to the Constitutional Court alleging a violation of fundamental human rights in terms of the European Convention on Human Rights (ECHR) and/or the Maltese Constitution, should the rejected appellant be faced with a return that is prejudicial to his or her rights.[5]

Accelerated procedures are also foreseen in national law for applications that appear to be prima facie inadmissible or manifestly unfounded. 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 accelerated procedure commences at the appeal stage. The decision of the IPA is transmitted to the IPAT with the Tribunal having a three-day time limit, specified in law, during which an examination and review of the IPA’s decisions to be carried out.[6]

Applicants whose application is rejected as manifestly unfounded or inadmissible, are not entitled to appeal against such decision. The IPA’s decision is automatically transferred to the IPAT for the three days review. Such reviews do not allow the applicant to express his/her views or to be heard. The decision generally consists of a one-sentence document confirming the IPA’s decision.

Applicants from countries of origin where returns are deemed feasible are systematically detained and their cases are usually processed through the accelerated procedure; the outcome of such procedure, in all cases registered in recent years, equalled to a reject decision. Overall, these applicants are registered and interviewed within the first 3 months of their detention and issued with the IPA’s rejection, the IPAT’s rejection a return decision and a removal order a couple of weeks after.

The asylum procedure and return procedures are not automatically linked. In practice, only detained applicants channelled through the accelerated procedure whose application is rejected are issued a return decision and a removal order at the same time as the IPAT review.

The amendments to the Refugees Act in 2020 also formalised the Temporary Humanitarian Protection (THP) status into legal norms. This status was before granted by the IPA to failed asylum-seekers who, for personal and specific reasons unrelated to international protection needs, were unable to return to their countries of origin. It was only a policy-based approach granting regularisation and a set of rights to the persons. Over the years, THP was granted to hundreds of people, including elderly persons, unaccompanied minors, and persons suffering from chronic illness. Being only policy-based, there was a broad margin of discretion and the set of rights attached to such status was not fully clear.

THP is now included in the International Protection Act, and it is granted to “an applicant 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”.[7] The law is listing several categories of persons eligible for such status: an accompanied 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. Applicants who committed crimes as defined in the International Protection Act are excluded from this status.

The decision concerning the granting of THP is now given in conjunction with the determination that the applicant does not meet the criteria of a refugee or a subsidiary protection beneficiary. THP may also be  considered  in  respect  of applicants whose application has been rejected through a final decision who make the request and fall within the grounds foreseen in the Act. The Act also clearly mentions that no appeal shall be made following a decision by the IPA not to grant THP. The set of rights granted by the THP are similar to those attached to the subsidiary protection status.[8]

NGOs reacted positively to the legalisation of such status but denounced the fact that the assessment of THP is now included in the interview for asylum, as the assessments of eligibility to these distinct statuses require entirely different approaches and a different set of elements, information, and documents to examine. The lack of possibility to appeal was also negatively highlighted, as it gives complete discretion to the IPA regarding the decision. The status can be withdrawn at any time by the IPA when it deems the beneficiary does not meet the requirements anymore, or can enjoy another status, for instance through family reunification. Until June 2021, the IPA would notify the withdrawal without giving any possibility to contest it. Subsequently, the IPA started to accord 10 days for the beneficiary of THP to submit his or her submissions explaining why the status should not be withdrawn.

In 2021, the International Protection Agency significantly reduced its backlog by massively discontinuing applications as implicitly withdrawn through a applying a very strict approach of the concept. Anybody who missed a call for an interview or a renewal of document saw his or her application systematically discontinued. Asylum seekers purging a sentence in prison also saw their application discontinued as the IPA could not reach them for the interview or an appointment.

Asylum seekers in detention were also impacted by this policy and many of them saw their application discontinued due to various miscommunication issues and their misunderstanding of the procedure or their refusal to carry the interview due to their health condition or simply due to the frustration and anger for being detained without any information or access to a lawyer. When this happens, the IPO directly issues a removal order and return decision and starts the process of removal.

These individuals then have to file a request to reopen their application with the help of a lawyer; however, it is unknown how many of them actually did find a way to file this request.

UNHCR reports that 2,400 decisions were issued at first instance in 2021, including 180 positive decisions (8% of the total). Out of these, 14 were recognitions of refugee status, 145 of subsidiary protection status and 21 of THP. There were 491 rejections (20%). The rest were 1,729 ‘closed’ cases (72% of the total), referring to applications that resulted in an administrative closure, Dublin closure, or applications that are explicitly withdrawn, implicitly withdrawn or inadmissible. A total of 1,190 first time applications were made in 2021.

In 2021, protection was mainly granted to Eritreans (37%), Syrians (30%) and Libyans (26%) followed by Sudanese and Palestinians (5% each).[9]

 

 

 

[1] ECRE, Asylum authorities: an overview of internal structures and available resources, October 2019, available at: https://bit.ly/2Ut8QIK, 55.

[2] Regulation 6(6) Procedural Regulations.

[3] Regulation 12 Procedural Regulations.

[4] This is the Chamber of general jurisdiction. For further information on the First Hall of the Civil Court see the website of Malta’s judiciary, available at: http://bit.ly/1ds58HF.

[5] Article 7(9) International Protection Act.            

[6] Articles 23 and 24 International Protection Act.

[7] Art 17A International Protection Act.

[8] Art 17A (1) International Protection Act.

[9] UNHCR, Malta Fact Sheet, December 2021, available at: https://bit.ly/3IZf2Ai.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation