National legislation literally transposes the recast Reception Conditions Directive regarding the definition of vulnerable applicants and provides that “an evaluation by the entity responsible for the welfare of asylum seekers, carried out in conjunction with other authorities as necessary shall be conducted as soon as practicably possible”.
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
The screening of vulnerability was previously conducted upon arrival when asylum-seekers were disembarked in Malta and accommodated at the Initial Reception Centre. According to the current practice, all asylum-seekers arriving irregularly in Malta are automatically and systematically detained without any form of assessment. The screening of any vulnerability will happen at a later stage, several weeks or months after the individual’s placement in detention. At disembarkation, only persons who are manifestly and visibly vulnerable (e.g. families with young children) are identified and flagged by AWAS.
AWAS is the agency in charge of conducting such screenings. They accept referrals for assessment from any and all the entities that come in contact with migrants. Referrals could be made on various grounds, including:
- Serious chronic illness;
- Psychological problems, stemming from trauma or some other cause;
- Mental illness;
- Unaccompanied minors (UAMs),
- Physical disability; and
- Age (where the individual concerned is over 60).
These referrals are done mainly by IPA or NGOs visiting people in detention or reception centres, by filing a form (basic information, reason for referral, type of vulnerability) to send to AWAS.
Since 2020, EASO 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. EASO 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, EASO personnel conducted 810 vulnerability assessments of asylum applicants during 2021.
The team operates both in reception centres and in detention centres, under the supervision of AWAS, and uses new and updated tools created by EASO.
Vulnerability is assessed on 4 levels:
- 1 being a very urgent support needed,
- 2 being in need of medical support,
- 3 being in need of medical but not urgent,
- 4 being a need in terms of housing and education.
Following the assessment, a report is produced, and a recommendation is made. If the assessment concludes the person is vulnerable, he/she should be automatically released from detention (if applicable) and transferred to the IRC where he/she is seen by the Therapeutic Unit. They are eventually transferred to an open centre. AWAS usually accommodates them close to the Administration Block so that they can receive better support. However, NGOs working with asylum seekers indicated that the assessments lack the necessary depth and often remain superficial in their identification. Lawyers reported that some assessment mentioned torture or inhuman and degrading treatment in Libya and concluded that “these events do not seem to impact the health of the PoC”, without further assessment.
Lawyers and NGOs also reported facing challenges to obtain the vulnerability assessments, that need to be requested from AWAS, which can take several weeks before sharing the report, 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 AWAS’ interventions in implementing the recommendations of the reports, as the date at which the conclusions are shared with the management of the Agency is unknown.
NGOs and lawyers reported that the assessment 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 recognised as vulnerable.
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. Where the case is being followed by a social worker, it is usually possible for the said professional to request and obtain information regarding the reasons for rejection on the client’s behalf.
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.
Since 2019, all applicants rescued at sea and disembarked in Malta have been automatically detained without any form of assessment on the need to detain them under the Reception Conditions Directive. Therefore, vulnerable applicants, including minors, are still de facto detained. Referrals to AWAS are possible by NGOs visiting detention and vulnerability assessments can be conducted by the AWAS/EASO team. Even when there is space in the open centres, NGOs reported that AWAS is known to be particularly slow in transferring vulnerable applicants to open centres. Due to severe overcrowding in 2019 and 2020, AWAS was only transferring people depending on the availability of space in open centres.
Asylum seekers arriving regularly, and therefore not accommodated in the IRC, may never be assessed and their vulnerability may never be identified.
A further concern is that, following their identification as vulnerable, individuals receive little or no support as they are required to access mainstream, and, therefore, non-specialised, support services as a matter of national policy.
Age assessment of unaccompanied children
Unaccompanied asylum seekers who declare that they are below the age of 18 upon arrival or during the competition of their Application Form are referred to AWAS for age assessment. The Minor Protection (Alternative Care) Act 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.
The age assessment procedure was developed and implemented with a view to assess claims of children. Although there are some references to this procedure in legal and in policy documents, the procedure itself is not regulated by law.
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.
According to the policy, irregular migrants who are undoubtedly children shall immediately be treated as such without recourse to any age assessment procedures. Age assessment shall be undertaken in all other cases.
The age assessment procedure was reviewed in late 2014, introducing a number of positive improvements by focusing on a holistic approach. It includes a greater integration of the benefit of the doubt in decision-making and reduces the timeframe of the procedure. However, lawyers and NGOs confirm that the procedure is still plagued by a lack of adequate procedural guarantees, including a lack of information about the procedure.
The first age assessment phase consists of an interview conducted jointly by an AWAS staff member and a transcultural counsellor. 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. Under the new procedure, there is no obligation to take into consideration any documentation provided by the person. At the end of the first phase, if the panel recommends that the person is a minor, the minor is referred to the Director responsible for child protection for a legal guardianship application to be filed before the Courts.
If the assessment is not conclusive at the end of the first phase, the person is referred for a further age assessment. This second phase consists of a more-in-depth interview with a team of social workers. This interview must be completed by the eighth working day after referral. Following the interview, the panel submits its recommendations, which are then presented to a Chairperson. The last phase consists of the decision taken by the Chairperson, after an examination of the recommendations and a reasoned analysis of the team. This determination must come by the tenth working day after referral.
At the end of this last phase, if the assessment is still not conclusive, the Chairperson can either refer the person for a second age assessment or for a bone density test, conducted by the Ministry of Health.
Under the amended procedure, a ‘Social Report’ is prepared by AWAS including the findings and the outcome of the assessment, this document is shared with the Department of Social Welfare Standards and then sent to the Ministry for Family and Social Solidarity.
The AA procedure now takes place in the Marsa Centre.
The Age Assessment Procedure has been improved but it is still plagued by a lack of adequate procedural guarantees, including a lack of information about the procedure. Moreover, since all people disembarked in Malta are automatically detained, minors who are not undoubtedly children are also detained pending age assessment which can be conducted months after their arrival. Minors receive very little information about the procedure and they are not supported by anyone during the process. NGOs reported that the legal guardian, or representative is never present at any stage the age assessment procedure and lawyers are not allowed to assist the minor as “they are not the legal representative” of the minor.
In 2017, UNHCR confirmed that authorities failed to apply the benefit of the doubt to persons declaring to be minors upon arrival (with very few exceptions), resulting in them being treated as adults until the age assessment outcome, which entailed detention together with other adult asylum seekers. The UNHCR Representative in Malta reiterated her concerns in February 2021, stating that “children are (still) being held in closed centres”.
The ECtHR criticised the length of the age assessment procedure in AbdullahiElmi 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.
Minors have limited understanding of the possibility to appeal the age assessment decisions and do not receive any legal support to appeal. Additionally, such appeals are to be filed before the Immigration Appeals Board (IAB), Division II, within three days. Such conditions usually do not allow the use of this legal remedy. AWAS started notifying the two NGOs providing free legal aid (aditus and JRS Malta) of the age assessment results. However, both NGOs reported difficulties to file appeals on time, as their access to detention centres is limited as also their available resources.
The procedure also raises a conflict of interest as age assessments are carried out by AWAS, which is also the responsible authority for providing accommodation and support to unaccompanied minors. As such, the very same social workers in charge of the assessments are the ones that are also in charge of the follow-up and care of the minors they identified as such. This creates confusing situations for the UAMs, especially those that are in an age assessment appeal and receive support from AWAS. Additionally, lawyers and NGOs working with minors are required to challenge the decisions of the same social workers that are following other of their clients, regardless of their age.
Furthermore, lawyers reported that the Immigration Appeals Board lacks the necessary expertise to evaluate appeals on age assessment. Despite that, the Board refuses to appoint or consult independent experts. The duration of age assessment appeals is significant, with nearly all cases filed in 2021 still pending in January 2022. This leads to situations where the appellants abandon their appeals or simply turn 18 before any decision is issued. Lawyers reported that so far, the only decisions taken by the IAB were rejections. Hearings are not always held, and the Board will not always see the appellants in person before it gives a decision. Moreover, the Board has at times issued decisions in the absence of the appellant.
There is no clear procedure 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.
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.
Reports were received by lawyers that persons claiming to be minors were told by Government officials to declare themselves as adults during the age assessment, in order to enter or facilitate the relocation scheme.
In 2020, AWAS established a UAM Protection Service in order to better assist UAMs in reception centres. Little is known about this unit and little information was given by AWAS since its creation. Minors seem to be allocated each a dedicated social worker, who will then act as a legal guardian and cater for their needs.
 Regulation 14 Reception Regulations.
 Only women and obvious minors will not be taken to detention centres.
 Information provided by EUAA, 28 February 2022.
 Strategy Document, November 2015, 11.
 Information provided by AWAS, 24 January 2017.
 The transcultural counsellors consist of a team of recent university graduates trained by JRS. They are not official AWAS employees but fall under its supervision and responsibility.
 Information provided by AWAS, January 2022.
 ECtHR, AdullahiElmi and Aweys Abubakar v. Malta, Application Nos 25794/13 and 28151/13, Judgment of 22 November 2016.
 Information provided by JRS, January 2019.
 Information provided by the Immigration Appeals Board, January 2022.
 Information provided by the Immigration Appeals Board, January 2022.
 Information provided by AWAS, January 2022.
 Information provided by AWAS, February 2021.