Identification

Malta

Country Report: Identification Last updated: 19/05/21

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Identification

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”.[1]

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.[2] Therefore, there is no systematic screening of vulnerability anymore.

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;
  • 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.

In 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 14 vulnerability assessors throughout 2020, out of which 11 were still present on 14 December 2020. According to information provided by EASO, a total of 206 vulnerability assessments of asylum applicants were conducted from September to December 2020.[3]

The team operates both in reception centres and in detention centres, under the supervision of AWAS.

Assessors use 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.

This team started to operate in September 2020 and conducted 136 assessments in detention. An additional 84 assessments were conducted at the end of the year in the reception centres.

According to AWAS, plans are made to create more space dedicated to vulnerable people and space accessible for disabled.[4]

Like the Age Assessment Procedure discussed below, 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.

There is no possibility to challenge such assessments.

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.

In 2019 and 2020, 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. Depending on the availability of space in open centres, vulnerable applicants can be released from detention.

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.

The International Protection Agency recently set up a fast-track procedure for vulnerable persons.[5] The purpose of this fast-track process is to have the possibility to prioritise and quickly process applications for international protection submitted by particularly vulnerable individuals, who may be at risk of further psychological or other harm if their asylum determination procedure is protracted for a period of time.

According to IPA, a vulnerable applicant can be a minor, an elderly person, a pregnant woman, single parents with minor children, victims of human trafficking, persons with serious illnesses or medical conditions, persons with disabilities, persons with mental health issues or mental disorders, survivors of torture or rape, female genital mutilations survivors, persons who have been subjected to other serious forms of psychological, physical or sexual violence, and LGBTIQ persons.

To be considered vulnerable and to benefit from this fast-track procedure, an asylum-seeker must be referred to IPA by AWAS or by external entities such as EASO, UNHCR, NGOs or lawyers. Such referrals must be accompanied by a medical, social, psychological, or psychiatric report signed by a professional attesting the applicant’s vulnerability.

Approval for the fast-tracking must be given by the Chief Executive Officer, who reserves the discretion not to grant approval and process the case through the regular procedure.

In case the case is fast-tracked, the applicant will:

  • Receive information in a manner which is sensitive and relevant to his/her needs;
  • Be offered referral for free legal assistance to relevant NGOs or lawyers;
  • Be offered the possibility for a support person to accompany them and be present during the personal interview;
  • Be informed of the personal interview date well in advance;
  • Be interviewed over more than one time if needed;
  • Be assessed by a case worker and an interpreter duly briefed about the applicant’s individual situation;
  • Be offered the possibility to choose the gender of the case worker and interpreter whenever possible;
  • In the event that the applicant is an unaccompanied minor, the interview will be conducted in a child-friendly manner taking into account the individual experiences and circumstances of the applicant;
  • In case of an unaccompanied minor under 16 years old, effort shall be made to fast-track the processing of the application after a legal representative is formally appointed;
  • The personal interview shall be prioritised and the examination of the application shall be concluded within two weeks from the date of the personal interview, the decision shall be taken within four weeks following the personal interview.

The IPA indicated that 8 persons were fast-tracked through this internal procedure in 2020. However, lawyers assisting asylum-seekers in these cases noticed that decisions were not taken within the time limits indicated in the 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 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[6] wherein the Director responsible for child protection may refer the minor to appropriate agencies to verfiy 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.[7]

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. No real changes have taken place in practice since the reform, however.[8]

The first age assessment phase consists of an interview conducted jointly by an AWAS staff member and a transcultural counsellor.[9] 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 three transcultural counsellors. 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. If the person is found to be a minor, they are referred to the Director responsible for child protection for a legal guardianship application to be filed before the Courts.

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.[10]

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 assisting asylum-seekers in detention noticed that when assessed as adults, applicants are usually not notified of the outcome of the assessment and of the decision, leaving them thinking the procedure is still open. AWAS acknowledged some issues with the notification process and indicated that it is being reviewed.[11]

Moreover, minors are usually not informed of the possibility to appeal age assessment decisions and do not receive any legal support to appeal. Such appeals are to be filed before the Immigration Appeals Board within three days. Such conditions usually do not allow them to make use of this legal remedy.

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.[12]

As already mentioned, 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.[13] The UNHCR Representative in Malta reiterated her concerns in February 2021, stating that “children are (still) being held in closed centres”.[14]

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.[15] In 2019, there have been significant delays in conducting age assessments with unaccompanied minors being kept in detention in the closed section of the IRC and Safi barracks for several weeks whilst waiting for such assessments to be conducted. The age assessment procedure was extended to last a maximum of 21 days but with the large number of applicants and alleged unaccompanied minors (UAM), the procedure is currently taking much longer. When space is available for minors who are recognised as such, AWAS tries to accommodate them in a dedicated centre.

Moreover, significant delays in the transfer to open centres of persons found to be minors and in the issuance of ‘Care Orders’ were observed.[16] One of the main issues in 2020, beyond the waiting time to conduct an age assessment, is the delay in appointing legal guardians (see Legal representation of unaccompanied children).

The Minor Protection (Alternative Care) Act was recently amended and came into force on 1 July 2020.

It replaced earlier legislation on the protection of children in need of care and support, including unaccompanied minors and/or separated children. The Act establishes the position of the Director (Protection of Minors) within the Foundation for Social Welfare Services, Malta’s welfare entity, who is responsible for protecting minors. It introduces the duty for all persons to report any minor who is at risk of suffering or being exposed to significant harm and establishes various forms of protection orders the Juvenile Court may impose, including care orders.

In relation to UAMs, the Act introduces a judicial procedure where the Director files an application for the issuing of a care order. It is also the Court that appoints a legal guardian and a child advocate, in order to secure the child’s best interests. Age assessments may be requested by the Director as part of the Court application process. Being the Act’s first year of implementation, 2020 saw a number of practical challenges. The vast majority of minors did not have any legal guardian appointed to them, mainly due to shortcomings in the new judicial procedure. This resulted in minors having their asylum procedures put on hold, as well as the issuing of documentation attesting their status as asylum-seekers.

In 2020, AWAS indicated that 580 people claimed to be minors upon arrival. 430 age assessments were conducted, 161 applicants were declared adults, 101 were declared minors and 165 were finally declared to be adults as they changed their declaration during the procedure.

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. No more information is available at that stage as it was created very recently.[17]

 

 

[1] Regulation 14 Reception Regulations.

[2]  Only women and obvious minors will not be taken to detention centres.

[3] Information provided by EASO, 26 February 2021.

[4] Information provided by AWAS, February 2021.

[5] Information provided by the IPA, October 2020.

[6] Minor Protection (Alternative Care) Act, CAP 602 of the Laws of Malta, 2020, available at: https://bit.ly/3twoeUI.

[7]  Strategy Document, November 2015, 11.

[8]  Information provided by AWAS, 24 January 2017.

[9]The transcultural counsellors consist of a team of recent university graduates trained by JRS. They are not official AWAS employees but they fall under its supervision and responsibility.

[10] aditus foundation, Unaccompanied minor asylum-seekers in Malta: a technical report on age assessment and guardianship procedures, October 2014, available at http://bit.ly/1W5M0Pq.

[11]  Information provided by AWAS, January 2021.

[12] Information provided by JRS, January 2019.

[13] UNHCR – Left in Limbo, UNHCR study on the implementation of the Dublin III Regulation, August 2017, available at: https://bit.ly/2TQRLas, 68.

[14] The Times of Malta, Migrant detention numbers shrink, fears about child detainees remain, 7 February 2021, available at: https://bit.ly/3cP8Mwj.

[15] ECtHR, AdullahiElmi and Aweys Abubakar v. Malta, Application Nos 25794/13 and 28151/13, Judgment of 22 November 2016.

[16]  Information provided by JRS, January 2019.

[17]  Information provided by AWAS, February 2021.

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