Author
In terms of the Reception Regulations, vulnerable individuals include minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms or psychological, physical or sexual violence, such as victims of female genital mutilation.[1]
The Regulations provide that the identification of vulnerable applicants must be carried out by the Agency for the Welfare of Asylum-seekers (AWAS) in conjunction with other authorities as necessary and that the vulnerability assessment must be initiated within a reasonable period of time after an application for international protection has been lodged.[2] AWAS’ assessment of vulnerability does not occur in the context of the asylum procedure but rather for the purpose of identifying suitable reception conditions, particularly in relation to detention and provision of psycho-social support.
The amendments of December 2021 (Legal Notice 487 of 2021) introduced new provisions for vulnerable applicants to the Reception Regulations, which now transposes the Directive more faithfully, as they include a more comprehensive implementation of provisions related to the material reception conditions of vulnerable individuals and the guardianship and care of minors (see Special Reception Needs of Vulnerable People and Legal Representation of Unaccompanied Minors).
According to information provided by the IPA, in 2023 it identified three applicants as being vulnerable: 1 male and 2 females but their ground of vulnerability is unknown since such data are not collected for statistical purposes. The Government indicated that “the IPA carries out an initial vulnerability screening on all asylum seekers. This screening is done during the lodging of the application by non-medical practitioners and is based on readily apparent signs or the applicant’s oral declarations.” [3]
Screening of vulnerability
Vulnerability assessments and age assessments are carried out by the Assessment Team (AT) of AWAS, The AT will carry out assessments on referral from other governmental entities and NGOs, including for people in detention.
Considering that all asylum-seekers rescued at sea are automatically and systematically detained for at least a number of days without any form of assessment, the AT is likely to intervene at a later stage. This usually happens after clearance from the health authorities. Applicants who are manifestly vulnerable and clearly unaccompanied minors are generally detained in the Marsa Initial Reception Centre (MIRC) during these early stages. AWAS representatives are also present at the moment of disembarkation and are able to immediately identify evidently vulnerable persons, yet in all cases every person is detained immediately upon arrival.
The AT will undertake an assessment whenever a person who potentially falls within the vulnerable profiles referred to in the Regulation is referred to them. These referrals can be done by the IPA, the PIO or NGOs visiting people in detention or reception centres. A referral form is made available to NGOs.
Since 2020, EUAA deployed experts in order to support AWAS with vulnerability screenings. The ‘vulnerability assessment response team’ assesses potential vulnerable applicants both in reception and detention centres. EUAA deployed a total of 22 vulnerability assessors throughout 2021, out of which 6 were still present on 13 December 2021. According to information provided by the Agency, in line with the support of the Maltese authorities towards enhanced compliance with reception standards, EUAA personnel conducted 810 vulnerability assessments of asylum applicants during 2021.[4] As of January 2023, the AT is only composed of AWAS staff as the EUAA support in that area ended in December 2022, mainly due to the commencement of the Agency’s exit process from Malta. Throughout 2023, EUAA worked closely with AWAS to further develop structural elements such as Standard Operating Procedures, Guidelines, reception assessments and other internal mechanisms. (see Number of staff and nature of the determining authority).
The team operates both in reception centres and in detention centres. It uses new and updated tools created jointly with the EUAA.
Vulnerability is assessed on 4 levels:
- being a very urgent support need, L1: Urgent (immediate follow up/on the spot) – Risk of self-harm, Risk of harm to others, Suicidal Ideations, Life-threatening issues;
- being in need of medical support, L2: high priority (within 0-3 days) – Severe Trauma, Victims of THB, Urgent medical attention;
- being in need of medical but not urgent, L3: medium priority (within 2 weeks from the date of assessment) – Important medical appointments and other medical issues, counselling, psychologist;
- being a need in terms of housing and education, L4: low priority (within a month from the date of referral) – Issues of employment, education and housing.
Following the assessment, a report is produced, and recommendations are made in relation to the need or otherwise of special reception conditions or procedural guarantees in the asylum procedure. It is noted that the AWAS assessments and recommendations are not binding for the PIO and the IPA.
Lawyers and NGOs reported that throughout 2023 they faced serious challenges to obtain the vulnerability assessments from AWAS, despite these being shared with other Government entities such as the Immigration Police and the IPA.As such, NGOs and lawyers are unable to monitor or assess the effectiveness of the authorities in implementing the recommendations of the reports and are unable to effectively refer to relevant vulnerability issues in the context of the asylum procedure.
NGOs and lawyers reported that the assessments do not always mention clearly whether the individual is considered to be vulnerable and AWAS is generally reluctant to clarify. This leads to situations where vulnerable individuals are kept in detention despite clearly belonging to one of the categories above.
In 2021, the agency conducted 823 assessments, including 610 in open centres, 174 in closed centres and 39 in private accommodation. 159 individuals were considered as vulnerable: 29 were deemed “very urgent” (level 1) and 130 “urgent” (level 2).
In 2023, AWAS received a total of 91 referrals out of which 35 were female and 56 were male. Such referrals were received either internally or by DSA, NGOs, IPA or by other stakeholders. The agency assessed a total of 77 referrals as 14 did not attend the assessment. The assessments were carried out in Reception Centres, Closed centres and/or in their community. From these referrals 1 was deemed “urgent” (L1), 13 as high priority (L2), 35 as medium priority (L3) and 28 as low priority (L4).[5]
The vulnerability screening is not regulated by clear and publicly available rules. Where a referral is rejected, the individual concerned is not always informed of the decision; where the decision is communicated, it is rarely communicated in writing and no reasons are given to the individual concerned. In terms of Regulation 16 of the Reception Regulations, an appeal against a vulnerability assessment procedure should be available to applicants, yet in the absence of the Agency’s reports and conclusions this is difficult to implement. According to the Home Affairs Ministry, there is indeed no positive or negative decision following a vulnerability screening, but migrants are asked if they would like to receive further support, and, if they agree, they are referred to the psychosocial unit within AWAS.
The length of time taken to conclude assessment procedures varies.
As previously mentioned, throughout 2023 all applicants rescued at sea and disembarked in Malta were automatically detained on public health grounds. Therefore, vulnerable applicants, including minors, were de facto detained for a number of days or weeks following their arrival. Once medical clearance is provided by the public health authorities, an applicant’s detention – including that of vulnerable persons – may be prolonged if the PIO decides to issue a Detention Order to the applicant. In 2023, it was noted that an applicant’s country of origin often over-rode their vulnerability, resulting in their continued detention. Whilst these applicants might have been provided with psycho-social care by either AWAS or the medical team established in the detention centres, NGOs commented that this treatment was undignified and inhumane. They also noted that attempts to have an applicant’s disability confirmed by the Commission for the Rights of Persons with Disability (CRPD)[6] did not have any significant impact on the applicant’s situation, formally due to a conflicting vulnerability report prepared by AWAS or the detention medical team yet probably due to the applicant’s nationality.
NGOs confirmed that in 2023, the PIO was more reluctant to release vulnerable applicants from detention, seemingly due their increased efforts at promoting voluntary return or at implement forced returns to specific countries, particularly Bangladesh. They also noted that 2023 saw a revision of AWAS’ remit to exclude rejected asylum-seekers, effectively leaving this group of persons without the possibility to have their needs assessed and, if vulnerable, to receive any form of support or care.
On 12 January 2023, following an application filed by aditus foundation, the ECtHR issued an interim measure ordering Malta to ensure that six applicants claiming to be minors are provided “with conditions that are compatible with Article 3 of the Convention and with their status as unaccompanied minors”. The six minors had been detained with adults in the so-called China house since their arrival on 18 November 2022, some 50 days after their arrival and AWAS was not aware of their existence before they were referred by aditus foundation in January 2023 and despite a disconcerting decision of the Immigration Appeals Board, dated 6 December 2022, confirming the detention of the minors but ordering the PIO to refer these applicants to AWAS.[7] This case was still pending before the ECtHR at the end of 2023.
In another case, AWAS failure to act in a timely manner resulted in a minor LGBTI applicant being physically abused and humiliated by his co-detainees. On another occasion, an applicant suffering from tuberculosis claiming to be minor was kept in detention despite a vulnerability report mentioning that he was exhibiting clear signs of mental distress, and that detention had a detrimental impact on his health. The report was only shared with his lawyers following his release, some 4 months after the initial assessment, despite the lawyers numerous requests to be provided with it.[8] In yet another case concerning a LGBTI applicant, the PIO claimed that AWAS failed to inform them that a report had concluded that the applicant should be transferred to an open centre on account of his vulnerability as an LGBTI individual.[9]
Asylum-seekers arriving regularly, and therefore not accommodated in the IRC, may never be assessed and their vulnerability may never be identified unless referred by NGOs.[10]
Age assessment of unaccompanied children
Unaccompanied asylum-seekers who declare that they are below the age of 18 upon arrival or during the asylum procedure are referred to AWAS for age assessment. Persons claiming to be adults but who, in the opinion of AWAS on first encounter, appear to be children are also referred to the age assessment procedure. The Minor Protection (Alternative Care) Act[11] provides that persons claiming to be unaccompanied minors should be immediately referred to the PIO for onward referral to the Director of the Child Protection Services.
The Director is responsible for filing a request for a provisional Care Order to the Maltese Courts, which should be issued within 72 hours. The Care Order stipulates that the Head of AWAS is responsible for the care and custody of the minors. The Unit Leader of the Unaccompanied Minors Services within AWAS assigns the representative, who in turn delegates the responsibility to the social workers within the same unit. The Act further specifies that the Director should refer the applicants to age assessment procedures and other investigations in order to ascertain whether they really are unaccompanied children. Throughout 2023, NGOs received several queries from the Director’s office enquiring about individual applicants, in particular inviting the sharing of information of possible family members and other elements relevant in the assessment as to whether the applicant is indeed an unaccompanied minor.
If, following these procedures, it transpires that the child is indeed found to be an unaccompanied minor, the Director will file applications before the Court for the issuance of the Care Order and for the appointment of a legal guardian.
After years in which practitioners and NGOs lamented the fact that AWAS lacked independence in the way it simultaneously conducted age assessments, provided legal guardianship and secured accommodation for UAMs, it can be observed that currently there is a higher degree of separation of these responsibilities amongst the Agency’s various units.
Age Assessments are conducted by the AWAS’ Assessment Team (AT), also responsible for vulnerability assessments. AWAS’ UMAS Protection Unit is now strictly responsible for the care of minors confirmed as such by the AT and those who are pending age assessment decision either from the AT or at appeal. The team leader of the UMAS Protection Team is the appointed legal guardian for all minors, with each minor being also appointed a social worker of the team. NGOs remain concerned at the lack of independence of the legal guardian, being a public offer engaged by AWAS.
The age assessment consists of an interview conducted at the Marsa IRC by three social workers of the AT team of AWAS and an interpreter, if required. For persons visibly under the age of 14, AWAS begins this first phase on the day immediately following their arrival. For other claims, AWAS begins two working days later and this phase must be completed by the sixth working day. If the age assessment is inconclusive, the minor may be referred for a medical examination which is a bone density test of the wrist by X-Ray carried out by the Ministry for Health according to the Greulich and Pyle method. If the panel recommends that the person is a minor, the minor is referred to the Director responsible for child protection who will file an application before the Juvenile Courts for the issuance of a Care Order and appointment or confirmation of the legal guardian.
AWAS stated that they take into account any documentation provided by the applicant or third parties, including the PIO.
In of K.J. and K.B.D., the Bangladeshi appellants challenged AWAS’ decision, which reversed a previous decision of the Agency to declare the appellants as minors, following the submission of a “photo of documentation” by the PIO which allegedly showed that the appellants were adults. The Immigration Appeals Board declared both appeals closed, noting that the Principal Immigration Officer has no locus standi in age assessment procedures and that AWAS has no competence to review its own decisions on age assessment. The Board concluded that the appellants are minors, as originally concluded by the AWAS and that they must be released and returned to the Dar Il-Liedna open shelter for unaccompanied children.[12]
Since this decision, the PIO systematically submits pictures of passports which are found in the confiscated phone of the applicants before AWAS decides on the age assessment procedure and AWAS appears to give significant weight to this evidence.
The Age Assessment Tool filled by the panel and the transcript of the interview is not provided to applicants unless they file an appeal against the decision declaring them as adults. The decision provided to applicants is a one-page document in English mentioning the date of birth the panel decided to attribute to the applicant.
Whilst NGOs acknowledge the significant improvements in the age assessment system, they flagged the following shortcomings:
- Conflict of interest of the legal guardian, who remains a Government employee engaged by AWAS;
- No best interest assessment is carried out before the age assessment procedure;
- No sufficient information is provided to those undergoing age assessments;
- Lack of legal representation and legal assistance during the age assessment process;
- The age assessment process is generally undertaken while minors are detained, and no consideration is given to such for the purpose of the assessment;
Essentially, NGOs pointed out that the UMAS Protection Team and the Assessment Team still report to the same Senior Managers and that, since ultimately AWAS falls under the Ministry for Home Affairs, interference is inevitable.
Moreover, a substantial number of applicants are kept in detention by the PIO for the whole duration of the procedure (see Detention of vulnerable applicants). NGOs report that, in such cases, vulnerable persons face difficulties in having their vulnerability recognised and their specific needs met.
In 2023, AWAS stated that 80 persons underwent age assessment procedures, and it issued 79 decisions: 43 applicants were declared to be adults, 34 as minors, 2 declared to be adults and 1 was still in the procedure at the end of the year. In the case of the 34 minors, 21 are unaccompanied minors and 12 are separated children.
Age Assessment Appeals before the Immigration Appeals Board
Regulation 17 of The Receptions Regulations provides that applicants who feel aggrieved by a decision in relation to age assessment are entitled to appeal before the Immigration Appeals Board in accordance with the provisions laid down in the Immigration Act.[13]
The Immigration Appeals Act provides that appeals must be filed within 3 days of the notification of the decision[14] and this stringent deadline is strictly adhered to by the Board. Age assessment appeals are generally heard by Division II of the Board since the Chairperson of Division I has declared a conflict of interest in relation to her position of Chairperson of the Minor Care Review Board.[15]
However, it must be noted that Division II also has a conflict of interest when the appellant is detained since they also hear appeals and reviews of Detention Orders issued under the Reception Regulations (see Judicial review of the detention order). Division II recognised that a conflict of interest may arise when they are also responsible to decide on the legality of the appellant’s detention and confirmed that appellants are entitled to raise an objection.[16] At the end of 2023 a new IAB Division was established, yet it is still premature to assess how cases will be internally allocated amongst the three Divisions.
No clear procedure is established for these appeals: the first stage of the proceedings includes questions to be sent by lawyers to AWAS about the age assessment report. Then, unless the appellant’s lawyer requires to ask further questions, they will be invited to send their final notes of submissions. The appellant’s lawyer may request the IAB to hold a hearing with the appellant and the social worker in charge of the assessment.[17]
According to NGOs, minors have a limited understanding of the possibility to appeal the age assessment decisions and do not receive any legal advice prior to the appeal stage. The short deadline to appeal makes this remedy difficult to access, especially for minors who are detained. In 2023 AWAS amended its notification procedures and now delivers the decision to the applicants, together with an interpreter. The decision is explained in detail and information is provided about the possibility of file an appeal. The 3-day time limit to file an appeal remains a serious challenge, particular for children in detention at the time of the negative decision. If they would have had a lawyer, generally an NGO lawyer, during the age assessment procedure, it would be easier for them to file the appeal, yet this would require them to contact the lawyer before the lapse of the mandatory time limit. Applicants without a lawyer during the procedure would need to identify one in order to file the appeal in time (See Access to detention facilities). NGOs confirmed that in the vast majority of cases, applicants provided with negative decisions inform AWAS right away of their decision to appeal, and a legal aid lawyer is appointed to handle the case.
For 2023, lawyers continued to report that the Immigration Appeals Board lacks the necessary expertise to evaluate appeals on age assessment with no member having any background on the matter. Despite this, the Board refuses to appoint or consult independent experts and these must be brought at the own cost of the appellants if they so wish. This has never been attempted since NGOs do not have the capacity and financial means to bring these experts. Legal aid lawyers have also not attempted to do this as such activities seem to fall outside their remit.[18] According to both aditus and JRS, the Board either waits until the person comes of age in order to then close the case or, when a decision cannot be avoided, systematically rejects the appeal after several months of procedure. Both NGOs criticised the Board for issuing stereotyped two-page decisions which do not address any of the arguments raised by the appellant and make no reference to any law, jurisprudence or standards, only referring to the initial age assessment decision. Both NGOs declared that their lawyers usually filed several pages of submissions generally highlighting the shortcomings reported above.
The NGOs reported that this situation leads AWAS to make little effort to address the appellant’s pleas during the proceedings. According to them, the Agency’s lawyer usually files a one-page note of submissions generally stating that the arguments put forth by the appellant “have been amply responded to in the course of the proceedings”, declaring “we remit ourselves to the wise and superior judgement of this Board”.
Additionally, concerns have been expressed in relation to the independence of specialised tribunals such as the Board[19], as its members are appointed through a procedure involving the executive power and do not enjoy the same level of independence as that of the ordinary judiciary (see Composition of the Board).
As per the Immigration Act, the decisions of the Board are final and cannot be challenged before any Court of law, save for human rights complaints before the Civil Court (First Hall). The Decisions of the Board are not published by the Board and not publicly available. aditus foundation at times publishes significant decisions relating to its clients.[20]
For 2023, aditus and JRS (representing children appealing negative age assessment decisions) confirmed that no positive decisions were given by the IAB. They also reported that the appeals stage of this procedure often lasted longer than two years.
Legal Assistance
Following the referral by AWAS to the Child Protection Directorate, provisional case orders are issued, and representatives – AWAS social workers – are appointed for each person. This representative is also present during the age assessment process. Furthermore, according to the Home Affairs Ministry, before starting the process of assessing an applicant’s age, relevant information on the process is provided to the applicant in a language they understand, with the support of interpreters where necessary.
Nonetheless, lawyers representing unaccompanied minors observed that they are not allowed to be present during the interview carried out by AWAS and the appointed legal guardians are mostly absent from the procedure, beyond having a clear conflict of interest since they are employed by AWAS itself.
The procedure generally happens while the minor is being detained and the observations made on the access to legal assistance in detention are applicable to age assessment procedures (see Legal Assistance). As such, unaccompanied minors are deprived of legal assistance during the initial age assessment procedure.
With regard to the appeal, the Reception Regulations provide that appellants who lack sufficient resources to appeal from an age assessment decision are entitled to free legal assistance and representation which must entail free legal assistance and representation, the preparation of the required procedural documents and participation in the hearing before the Immigration Appeals Board.[21]
Until 2022, legal aid for these cases was almost always provided by aditus foundation, JRS and the Legal Clinic of the Faculty of Laws since the provision was not fully implemented.
Since 2022 and throughout 2023, minors have full access to the legal aid lawyers provided by the Ministry for Home Affairs.
According to the Ministry for Home Affairs,[22] legal aid lawyers are to provide the following assistance:
- Prepare procedural documents and participate in any hearing before the Immigration Appeals Board.
- Examine the grounds of appeal and present, in writing, the appellant’s case before the Immigration Appeals Board.
- Attend, if required, sessions of the Immigration Appeals Board to explain the case submissions and provide other general assistance to respondents during their appeal.
- 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 MHSE.
- Report on the outcomes of interviews held with appellants and bring to MHSE’s attention any pertinent matters which may arise.
- Make sure to file the appeal within the deadline prescribed at law (3 days) and failure to do so might lead to the termination of the contract.
Legal Aid lawyers perceive a fee of 80 euro (inc. VAT) per case submission.
However, it must be noted that very few lawyers apply to be legal aid lawyers in this field, presumably due to insufficient fees and a lack of interest or specialisation in this field. It is worth noting that the rejection rate of age assessment appeals further demotivates lawyers to involve themselves more than the minimum required. As a result, at the moment only one legal aid lawyer appears to be currently working on age assessment appeals.
The mere fact that legal aid lawyers are employed by the Ministry for Home Affairs, under which AWAS and the Immigration Appeals Board also fall, raises serious concerns with regard to the level of independence enjoyed by legal aid lawyers assisting applicants and very limited safeguards exist against direct interference from the Ministry.
[1] Regulation 14(1) (a) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[2] Ibid.
[3] Ministry for Home Affairs, Security, Reforms and Equality, Feedback on the 2022 AIDA Country Report on Malta, shared with ECRE in January 2024.
[4] Information provided by EUAA, 28 February 2022.
[5] Information provided by AWAS on the 11th of April 2023.
[6] See: https://tinyurl.com/2pvkc28v.
[7] aditus foundation, European Human Rights Court orders Malta to release children from detention, 12 January 2022, available at http://bit.ly/3j3aVeM
[8] See ECtHR, A.D. v. Malta, no 12427/22 (Communicated Case), 24 May 2022, available at: https://bit.ly/3mjiOOB
[9] Immigration Appeals Board (Div. II) in Reagan Jagri v. the Principal Immigration Officer, 7 April 2022 (unpublished).
[10] A.D. v. Malta, No. 12427/22, communicated on 24 May 2022, available at: https://bit.ly/3mjiOOB
[11] Minor Protection (Alternative Care) Act, Chapter 602 of the Laws of Malta.
[12] Immigration Appeals Board, Div. II., K.J. and K.B.D. (Bangladesh) vs. the PIO and AWAS (AA/11/22/DO), 14 July 2022, available at: https://bit.ly/3U2UVGf and the press release from aditus foundation at: http://bit.ly/3Ess4Fm.
[13] Article 16(1) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[14] Article 25A(7) of the Immigration Act, Chapter 217 of the Laws of Malta.
[15] See https://bit.ly/3KXft28
[16] Immigration Appeals Board (Div. II), R.M v. the Principal Immigration Officer, 24 March 2022, available at https://bit.ly/3KVfl36
[17] Information provided by the Immigration Appeals Board, January 2022.
[18] Information provided by the Immigration Appeals Board, January 2022.
[19] EC, Rule of Law Report, Country Chapter on the rule of law situation in Malta, 13 July 2022, 5-6, available at https://bit.ly/3XRYS2D.
[20] Under ‘Our Cases’, https://tinyurl.com/yc8jeb82.
[21] Article 16(1) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.