Short overview of the asylum procedure

Malta

Country Report: Short overview of the asylum procedure Last updated: 19/05/21

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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. It also consists in lodging applications wherein asylum-seekers are requested to fill in the application form stating the basic reasons for seeking protection.

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 are subsequently fingerprinted and photographed.

The initial stages of the procedure requires completion an application form which asylum seekers are asked to fill in and sign. This constitutes the lodging of the application.[1]

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 CEO 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, an appointment is scheduled by the IPA 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.

The caseworkers’ decision on the application is reviewed by a more experienced officer or manager and the final decision is made by the IPA.[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 taken by the IPA 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 of the IPA during which he or she may appeal to the International Protection Appeals Tribunal IPAT (as established by the International Protection Act and replacing the Refugee Appeals Board (RAB)). This Tribunal, an administrative tribunal set up in terms of the International Protection Act and which is currently made up of three chambers, is entrusted to hear and determine appeals against decisions issued by the IPA. An appeal to the Tribunal 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.[4] 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.[5] 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.[6]

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 kicks in 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.[7]

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”, are automatically and systematically detained upon arrival in immigration detention facilities. In such cases, their application for protection starts to be examined while they are in detention and interviews are also now conducted in detention.

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”.[8] 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.

THP is now included in the asylum procedure in the sense that the Act specifies that the decision concerning the granting of THP will be given in conjunction with the determination that the applicant does not meet the criteria of a refugee or a subsidiary protection beneficiary. The Act also clearly mentions that no appeal shall be made following a decision by the IPA not to grant THP.[9] THP set of rights will be similar to those attached to the subsidiary protection status.

NGOs reacted positively to the legalisation of such status but deplored 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 all discretion to the IPA.  6 temporary humanitarian statuses were granted in 2020.

 

 

[1]  Information provided by the International Protection Agency, September 2020.

[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.

[4] Regulation 12 Procedural Regulations.

[5]  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.

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

[7] Articles 23 and 24 International Protection Act.

[8] Art 17A International Protection Act.

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

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