The procedure in place is a single procedure with the examination and determination of eligibility for subsidiary protection being undertaken by the Refugee Commissioner within the context of the same procedure. The Refugee Commissioner 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 Refugee Commissioner for the necessary follow-up. Since 2019, RefCom is now supported by EASO registration assistants in the registration process.
The registration process – whether undertaken by RefCom or EASO – consists of collecting personal details and issuing a unique RefCom number as well as the Asylum Seeker Document/Certificate. It also consists in lodging applications wherein asylum-seekers are requested to fill in the application form stating the basic reasons for seeking protection.
The majority of applications for international protection are processed through the regular procedure. 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 immediately taken into the custody of the immigration authorities and are subsequently fingerprinted and photographed.
The initial stages of the procedure require the filling in of a form known as the Preliminary Questionnaire (PQ) which asylum seekers are asked to complete. The PQ is considered to be the registration of the asylum seeker’s desire to seek international protection. If, at this stage, an individual provides information that, prima facie, renders him or her eligible for a transfer to another EU Member State in terms of the Dublin III Regulation, the examination of the application for protection is suspended pending the outcome of the Dublin procedure. The Refugee Commissioner is designated as the head of the Dublin Unit.
Following the initial collection of information in the PQ, an appointment is scheduled by RefCom for an interview with the applicant. Once the applicant is called for the interview, he or she is first asked to fill in an application form that contains questions similar to those previously answered in the PQ. The application form is considered to be the official application for international protection – meaning that the application has been lodged. The recorded interview then takes place and the applicant is informed at the end of the interview that he or she will be notified of the decision in due course. Since EASO staff directly operates within Safi premises, where most asylum seekers are initially held upon arrival, the registration and the lodging of the application usually happens on the same day. When asylum-seekers are registered directly by RefCom they usually need to be taken to the Office of the Refugee Commissioner to finalise the application.
The caseworkers’ decision on the application is reviewed by a more experienced officer or manager and the Refugee Commissioner takes the final decision.
According to the amended Procedural Regulations, the Refugee Commissioner 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. However, most of the decisions taken by the RefCom are, in practice, not taken before the lapse of six months.
National law specifies a two-week time period from when an applicant is notified of the decision (referred to in the Refugee Act as a “recommendation”) of the Refugee Commissioner, during which he or she may appeal to the Refugee Appeals Board (RAB). This Board, an administrative tribunal set up in terms of the Refugees Act, which is currently made up of three chambers, is entrusted to hear and determine appeals against recommendations issued by the Refugee Commissioner. The Refugees Act specifies that the Minister may also lodge an appeal against the recommendation at first instance. An appeal to the Board has suspensive effect such that an asylum seeker may not be removed from Malta prior to a final decision being taken on his or her appeal. In the majority of cases, the decision given by the RAB is binding on the parties and the Board will not remit it back to RefCom to take a new decision.
The Refugees Act specifies that no appeal is possible from the decision of the Refugee Appeals Board, although it is possible to submit a judicial review application to the First Hall of the Civil Court. 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.
Accelerated procedures are also foreseen in national law for applications that appear to be prima facie inadmissible or manifestly unfounded. All applicants for asylum are interviewed by the Refugee Commissioner although their case might be classified as being inadmissible following an evaluation of their asylum claim. In such cases, the accelerated procedure kicks in at the appeal stage. The recommendation of the Refugee Commissioner is transmitted to the RAB with the Board having a three-day time limit, specified in law, during which an examination and review of the Refugee Commissioner’s recommendation is to be carried out.
The procedure for determining applications for international protection from detained applicants is identical to that for applicants who are not detained. Asylum seekers who arrive in Malta without the required documentation, therefore being classified as “prohibited immigrants”, can be detained upon arrival in immigration detention facilities following an assessment of the need to detain based on a limited list of grounds. In such cases, their application for protection starts to be examined while they are in detention.
 Regulation 6(6) Procedural Regulations.
 Article 7 Refugees Act.
 Regulation 12 Procedural Regulations.