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]
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).
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 arriving irregularly in Malta are automatically and systematically detained on health grounds on the first weeks of their arrival – save for persons who are manifestly and visibly vulnerable (e.g. families with young children) – without any form of assessment, the AT is likely to intervene at a later stage, after clearance from the health authorities and the transfer of those who are to be detained to the Safi Detention Centre.
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.[3] As of January 2023, the AT is only composed of AWAS staff as the EUAA support in that area ended in December 2022 (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 by the EUAA.
Vulnerability is assessed on 4 levels:
- being a very urgent support needed,
- being in need of medical support,
- being in need of medical but not urgent,
- being a need in terms of housing and education.
Following the assessment, a report is produced, and recommendations are made. If the assessment concludes the person is vulnerable, they should be automatically released from detention and transferred to the IRC. They are eventually transferred to an open centre. AWAS usually accommodates them close to the Administration Block so that they can receive better support.
Lawyers and NGOs reported facing challenges to obtain the vulnerability assessments from AWAS, this can take several weeks, usually right after the individual is provided with the appropriate care. As such, NGOs and lawyers are unable to monitor or assess the effectiveness of the authorities in implementing the recommendations of the reports.
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).
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. It is unclear whether a possibility to challenge such assessments exist in law and in practice.
The length of time taken to conclude assessment procedures varies. As a rule, cases concerning referrals on grounds of mental health or chronic illness are likely to take longer to determine than cases where vulnerability is immediately obvious, e.g., in the case of physical disability.
As previously mentioned, all applicants rescued at sea and disembarked in Malta are automatically detained on health grounds. Therefore, vulnerable applicants, including minors, are de facto detained at least for the weeks of their arrival and this can be prolonged if the PIO decides to issue a Detention Order to the applicant.
The referral system between governmental entities is generally lacking in all aspect and characterized by a state of generalised apathy and neglect, with individuals regularly falling though the gaps. Minors can remain detained with adults for months before the competent authorities act, oftentimes on the request of an NGO or following a Court procedure.
On 21 January 2022, five children were released following a Court application. They had been detained with adults for approximately 58 days and three of them were confirmed as minors by AWAS the day before the hearing before Court of Magistrates, 57 days after their arrivals.[4]
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.[5]
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 request to be provided with it.[6] 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.[7]
Asylum seekers arriving regularly, and therefore not accommodated in the IRC, may never be assessed and their vulnerability may never be identified.[8]
A further concern is that, following their identification as vulnerable, individuals receive little or no support other than psycho-social services from the AWAS Therapeutic Team. There is no facilitated or supported access to public services.
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[9] provides that, upon their identification, minors should be referred to the Head of the Child Protection Services who is responsible for filing a request for a provisional care order to the Maltese Courts which should be issued within 72h. The care order will generally provide that the Head of AWAS should be the legal guardian and the minor will be put in the care of social workers of the UMAS Protection Unit at AWAS.
The only references to age assessment procedures in law are found in Regulation 17 of the Procedural Regulations, which deals with the use of medical procedures to determine age, within the context of an application for asylum and Article 21(5) of the Minor Protection Act, wherein the Director responsible for child protection may refer the minor to appropriate agencies to verify whether the person is in fact an unaccompanied minor.
Until recently, age assessments were carried out by the UMAS Protection Unit at AWAS and the unit was also in charge of the care of all minors, those confirmed to be minors by the Unit, those awaiting the Unit’s assessment, and those assessed to be adults by the Unit but pending appeal, provided referrals were made in a timely manner and a care order was issued by the Juvenile Court. This created a major conflict of interest and confusion since social workers of the team were both assessors and carer of the minors, including those they rejected, while the team leader was also the appointed legal guardian.
AWAS however recently reviewed the age assessment procedure in order to take the above into account. Age Assessments were shifted to the Assessment Team (AT) who is in charge of vulnerability assessments and the 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 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 workers of the team.
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. It 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.
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.[10]
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.
The ECtHR criticised the length of the age assessment procedure in Abdullahi Elmi v. Malta, holding that the number of alleged minors per year put forward by Malta does not justify an age assessment procedure duration of more than seven months; in this case, the applicants were detained for eight months pending the outcome of the procedure.[11] The initial procedure is still plagued by delays with NGOs reporting that minors have to wait on average at least 2 months until they receive a decision, with a substantial number of them being kept in detention in the meantime (see Identification). To this must be added the duration of a potential appeal which is likely to last at least 3 months.
NGOs reported the following shortcomings in the age assessment procedure;
- Conflict of interest within AWAS, the Agency being both assessor and carer.
- No best interest assessment is carried out before the age assessment procedure;
- Minors are not informed of the procedure prior the interview;
- Minors are not asked for their full and informed consent to undertake the age assessment prior the interview or the bone test;
- Lack of legal representation and legal assistance during the age assessment process;
- The age assessment process is undertaken while minors are detained and no consideration is given to such for the purpose of the assessment;
- The age assessment interview only consists of a 30min to 1h interview where basic questions are asked to the minor;
- The benefit of the doubt is not applied to the minor;
- The margin of error is not indicated in the conclusions of the panel of the doctor in charge of the bone test.
- The decision is mostly based on the physical appearance of the minor
It appears that AWAS has recently changed the procedure to take into account some of the above remarks. After being referred by for age assessment, a social worker from the UMAS Protection Team is appointed to the minor following the issuance of the provisional care order. The social worker reportedly meets with the minors before the age assessment interview in order to provide information on the procedure and gather the consent of the applicant and will attend any interview with the minor.
NGOs however reported that lawyers are not allowed to be present during the age assessment interview as “they are not the legal representative” of the minor.[12]
NGOs further pointed out that the UMAS Protection Team and the Assessment Team still report to the same Senior managers and that ultimately AWAS still 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).
In 2021, AWAS issued 228 decisions on age assessment. 111 applicants were declared to be adults, 117 as minors and 9 were still in the procedure at the end of the year.[13]
Age Assessment Appeals before the Immigration Appeals Board
The Receptions Regulations provide that applicants who feel aggrieved by a decision in relation to age assessment in accordance with regulation 17 of the Procedural Regulations, shall be entitled to an appeal to the Immigration Appeals Board in accordance with the provisions laid down in the Immigration Act.[14]
The Immigration Appeals Act provides that appeals must be filed within 3 days of the notification of the decision[15] and this stringent deadline is strictly adhered to by the Board. Age assessments 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.[16]
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 Order 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.[17]
Such objection was raised in a recent case and Division II recognised there was a conflict of interest and therefore ordered the case to be heard before Division I which has not yet pronounced itself on its own potential conflict of interest at the time of writing.[18]
No clear procedure is established: 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.[19]
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. Until 2022, AWAS generally notified the two NGOs providing free legal aid aditus and JRS of negative age assessment results since legal aid was rarely provided, the NGOs would distribute the cases according to their capacity. The NGOs lack of access to detention remained an obstacle to file appeals on time (See Access to detention).
Lawyers reported 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 which 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 and this obviously falls outside the remit of legal aid lawyers who also have limited capacity to deal with numerous appeals.[20] According to both aditus and JRS, the Board either waits until the person comes of age to throw the case or, when a decision cannot be avoided, systematically rejects the appellant on dubious grounds after several months of procedure. Both NGOs criticised the Board for issuing stereotyped 2 pages 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 no 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” and declaring “we remit ourselves to the wise and superior judgement of this Board”.
Aditus foundation reported that none of the 21 age assessments appeals filed between 2021 and the beginning of 2022 were successful. The NGO reported that only 11 decisions were issued, 4 were decided inadmissible since they were filed beyond the 3 days deadline and 7 were rejected on the merits. 7 appeals which had been pending for more than 6 months were put sine die as the lawyers lost contact with the client. 1 appeal was withdrawn by the appellant. The NGO indicated that the appellants were Bangladeshi (11), Ghanaians (6), Gambians (2) and Ivorians (2).
JRS reported that none of its appeals were successful with most appeals filed in 2021 still pending or put sine die in 2022.
According to the data gathered by aditus, it takes on average 134 days for the Board to decide on an age assessment appeal, the fastest one having been decided in 71 days and a substantial number of them are kept in detention by the PIO for the whole duration of the proceedings.
In February 2022, aditus foundation made the difficult choice to discontinue its assistance for age assessment appeals as its lawyers refused to take part in appeals proceedings which offer no chances of success to young and vulnerable appellants. JRS continued to offer this service.
The Ministry for Home Affairs, under which the Board falls, has consistently refused to provide any data pertaining to the decisions of the Board, including through a Freedom of Information Request (FOI) filed by aditus foundation in mid-2022. NGOs could confirm that 129 appeals were lodged between the 1st of January 2021 and the 31st December 2022 (104 in 2021 and 25 in 2022). It appears that the Board has not issued any positive decision on any of these appeals, save for two cases which were won on a point of procedure after AWAS unilaterally decided to amend its previous positive decision and to decide the minors were adults.[21]
Additionally, concerns have been expressed in relation to the independence of specialised tribunals such as the Board[22], 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 and not publicly available.
Legal Assistance
As previously mentioned, lawyers 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.
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.[23]
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. NGOs are aware of 104 appeals lodged in 2021 with only one of them undertaken by a legal aid lawyer. Aditus foundation indicated that it filed 19 appeals and the Legal Clinic and JRS filed the rest of the appeals, with most appeals being filed by JRS. NGOs indicated being aware of 25 appeals lodged in 2022, most of them being followed by a legal aid lawyer.
As such, 2022 has seen some positive improvements and minors have now full access to the legal aid lawyers provided by the Ministry for Home Affairs.
According to the Ministry for Home Affairs[24], 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] Information provided by EUAA, 28 February 2022.
[4] aditus foundation, Three Children Released from Illegal Detention Following Court Action, 25 January 2022, available at https://bit.ly/3wCsuXr.
[5] Aditus foundation, European Human Rights Court orders Malta to release children from detention, 12 Janaury 2022, available at http://bit.ly/3j3aVeM
[6] See ECtHR, A.D. v. Malta, no 12427/22 (Communicated Case), 24 May 2022, available at: https://bit.ly/3mjiOOB
[7] Immigration Appeals Board (Div.II) in Reagan Jagri v. the Principal Imigration Officer, 7 April 2022 (unpublished).
[8] A.D. v. Malta, No. 12427/22, communicated on 24 May 2022, available at: https://bit.ly/3mjiOOB
[9] Minor Protection (Alternative Care) Act, Chapter 602 of the Laws of Malta.
[10] 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
[11] ECtHR, AdullahiElmi and Aweys Abubakar v. Malta, Application Nos 25794/13 and 28151/13, Judgment of 22 November 2016.
[12] Information provided by AWAS, January 2022.
[13] Information provided by AWAS, January 2022.
[14] Article 16(1) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.
[15] Article 25A(7) of the Immigration Act, Chapter 217 of the Laws of Malta.
[16] See https://bit.ly/3KXft28
[17] Immigration Appeals Board (Div.II), R.M v. the Principal Immigration Officer, 24 March 2022, available at https://bit.ly/3KVfl36
[18] Information provided by aditus foundation, January 2022.
[19] Information provided by the Immigration Appeals Board, January 2022.
[20] Information provided by the Immigration Appeals Board, January 2022.
[21] Immigration Appeals Board (Div.II), Applicant v, the Agency for the Welfare of Asylum Seekers, 14 July 2022, available at http://bit.ly/3U2UVGf ; Aditus foundation, immigration Police arrests two minors hosted in shelter for children, 26 July 2022, available at http://bit.ly/3JdLOk4
[22] EC, Rule of Law Report, Country Chapter on the rule of law situation in Malta, 13 July 2022, pp. 5-6, available at https://bit.ly/3XRYS2D
[23] Article 16(1) of the Reception Regulations, Subsidiary Legislation 420.06 of the Laws of Malta.