Identification

Malta

Country Report: Identification Last updated: 30/11/20

Author

JRS Malta Visit Website

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

 

According to the current policy, during their stay at the Initial Reception Centre (IRC), migrants shall be assessed by professionals from AWAS with a view to identifying possible vulnerabilities through the Vulnerable Adults Assessment Procedure (VAAP), also known as the Adult Referral Assessment Tool. AWAS accepts 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 usually accompanied by medical certificates or other supporting documents.

According to AWAS, an Initial Assessment is done by social workers for every migrant the day they arrive at the IRC. This basic assessment is designed to collect basic information about the applicant. It is supposed to help the care team and can be used as a base for the vulnerability assessment.[2]

According to the policy, the vulnerability assessment procedure shall take into account potentially traumatic experiences undergone by the individual migrant. If necessary, AWAS professionals may call on the assistance of other specialised professionals whilst conducting vulnerability assessments.[3] In practice, AWAS conducts these assessments with a social worker and a coordinator.[4]

Like the Age Assessment Procedure discussed below, the VAAP 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 ever 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.

Where the applicant is detained, the VAAP allows for the possibility of review of a decision not to recommend release at any point during an individual’s detention, usually upon presentation of new evidence.

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.

When an applicant is deemed to be vulnerable, the result shall be communicated to the police authorities so that the applicant in question shall not be subject to a detention decision according to the amended legislation (see Detention of Vulnerable Applicants).[5] Instead, they are to be immediately accommodated in open centres. According to the authorities, in those cases where vulnerability emerges only after an asylum seeker has been detained, the result shall be communicated to the police authorities so that the detention order is withdrawn with immediate effect. The applicant shall then be released from detention and offered accommodation at an open centre.

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

A persisting issue is that the reception system is only tailored to people arriving in Malta irregularly and referred to the IRC. 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.

Since 2017, the Refugee Commissioner has started carrying out a preliminary vulnerability assessment in relation to all new applicants for international protection upon the lodging of the application. This assessment is based on readily apparent signs or the applicant’s own declarations and is done by non-medical practitioners for the sole purpose of identifying vulnerable persons for possible procedural guarantees that might be needed.[6]

 

Age assessment of unaccompanied children

 

Unaccompanied asylum seekers who declare that they are below the age of 18 upon arrival or during the filling in of the Preliminary Questionnaire are referred to AWAS for age assessment.

The age assessment procedure was developed and implemented with a view to assessing 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 reference to age assessment procedures in law is found in Regulation 17 of the Procedural Regulations, which deal with the use of medical procedures to determine age, within the context of an application for asylum.

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, a ‘Care Order’ is issued and the minor is transferred to an open reception centre where the asylum procedure resumes.

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 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, a ‘Care Order’ is issued and the minor is transferred to an open centre where the asylum procedure resumes.

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 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. According to NGOs' experience, only negative decisions were delivered and often with considerable delays.[11] 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]

Furthermore, 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 in the IRC together with other adult asylum seekers.[13]

Age assessment decisions may be appealed before the Immigration Appeals Board. However, the decisions lack proper reasoning and individual assessment. The Board has received 12 appeals against age assessment decisions. All these appeals are still pending.

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.[14] 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.[15] One of the main issues in 2019, beyond the waiting time to conduct an age assessment, is the delay in appointing legal guardians (see Legal representation of unaccompanied children).

In 2019, AWAS conducted 410 age assessment (up from 330 in 2018). Out of the 410 applicants assessed, 102 were declared minors and 175 applicants were considered as adults. Also, in a number of cases, applicants declared that they were adults but were still channelled through an age assessment by AWAS. In 133 of such cases, the age assessment confirmed them as being adults.[16] The number of age assessments still pending is unknown.

 


[1] Regulation 14 Reception Regulations.

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

[3] Strategy Document, November 2015, 15.

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

[5] Regulation 14(3) Reception Regulation.

[6] Information provided by the Refugee Commissioner, 12 January 2018.

[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 JRS, January 2019.

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

[15] Information provided by JRS, January 2019.

[16] Information provided by AWAS, 2020.

 

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