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Adequate support during the interview
The law does not define the notion of “adequate support” contained in Article 24(3) of the recast Asylum Procedures Directive. The Procedural Regulations provide that the IPA must assess within a reasonable period of time after an application for international protection is made whether the applicant is in need of special procedural guarantees and lay down a procedure with a view to determining whether a person is in need of special procedural guarantees.[1]
The Regulations further provide that the IPA must ensure that where an applicant has been identified as an applicant in need of special procedural guarantees, such applicant will be provided with adequate support throughout the whole procedure[2] and that the need for special procedural guarantees shall also be addressed even if such need becomes apparent at a later stage and even without the necessity of initiating new procedures.[3]
Fast Tracking Procedure
The IPA established a special fast-track procedure for applicants identified as vulnerable and in need of special procedural guarantees. Substantiated referrals may be made by any entity, following which the IPA will assess the alleged vulnerability and proceed accordingly.[4]
According to the IPA guidance note on the procedure, 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.
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 EUAA, 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.
If 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. For 2021 and 2022, the IPA indicated that it does not keep records of this procedure and therefore cannot provide data on it.
Survivors of Female Genital Mutilation (FGM)
On the 8 March 2021, the IPA and AWAS signed a Memorandum of Understanding on procedures regarding medical referrals of applicants for international protection with FGM-based claims. The MOU establishes an automatic referral mechanism whereby the IPA can refer female asylum applicants, who base their protection claim on FGM grounds, to AWAS for onward referral to national health authorities. According to the IPA, the aim is to obtain a medical assessment resulting in a certificate documenting whether or not FGM has been performed on the applicant.
Referrals shall only be made if the applicant gives her consent in writing to be referred to AWAS and the national health service for the purposes of a medical examination related to FGM and the applicant may withdraw her consent at any time during the referral procedure.
If the applicant gives her consent the IPA refers the case by email to the AWAS Care Team Units Leader and the Senior Manager Services. Upon receipt of the referral, AWAS will liaise with the applicant and facilitate the applicant’s access to a medical doctor at the respective health centre in order to obtain a Ticket of Referral for the Department of Obstetrics and Gynaecology at Mater Dei Hospital (MDH). Where required, AWAS will subsequently liaise with the Department of Obstetrics and Gynaecology at MDH in order to facilitate and explain to the medical consultant what is required, including the importance of using the standard form certificate provided by the IPA. The medical certificate is to be given to the applicant in original format, and it is be the responsibility of the applicant to present this medical certificate to the IPA for the purposes of the examination of her application for international protection. Should the applicant not provide the IPA with the medical certificate, this will of course be taken into account during the examination of the application. IPA will only accept medical certificates in the prescribed format and signed by a medical professional from the Dept of Obstetrics and Gynaecology at MDH.
The number of referrals is unknown. NGOs indicated that very few women claim to be survivors of FGM as they generally escaped their country of origin before being subjected to it. According to lawyers, the credibility assessment is extremely difficult to pass and such claims are generally rejected.
Victims of Human Trafficking
The IPA also has a referral mechanism with Agenzija Appogg[5] for applicants who are identified as potential victims of human trafficking. However, various stakeholders, including Appogg reported that the IPA rarely makes use of this referral mechanism.
Unaccompanied Minors
Recent amendments to the Act and the Procedural Regulations aimed to enhance the guarantees for minors. The Act now provides that any child or young person below the age of 18 years falling within the scope of the Act who is found under circumstances which clearly indicate that he is a child or young person in need of care, shall be allowed to apply for international protection, and for the purposes of this Act, shall be assisted by a representative appointed by the Chief Executive Officer of AWAS. The International Protection Agency shall immediately inform the competent authorities once an unaccompanied minor makes an application for international protection.[6]
The Regulations now provide that the following actions must be taken as soon as possible, and no later than thirty days from the issuance of the care order by the Juvenile Court;[7]
- The unaccompanied minor shall be represented and assisted by a person appointed by the CEO of AWAS, during all the phases of the asylum procedure;
- The unaccompanied minor must be informed immediately of the appointment of the representative who shall perform their duties in the best interests of the child and shall also have the necessary knowledge of the special needs of minors. The representative shall be changed only when necessary.
- The representative must be given the opportunity to inform the minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself for the personal interview. The representative must be present at the interview and may ask questions or make comments within the framework set by the person who conducts the interview;
- The minors shall be provided with legal and procedural information, free of charge, in accordance with the general rules on legal assistance;
- The asylum interview must be conducted and the decision prepared by a person who has the necessary knowledge of the special needs of minors.
NGOs expressed concerns on AWAS’ ability to carry out its mission with sufficient independence from the other State entities falling under the Ministry for Home Affairs and its capacity to cater for the minors, considering the Agency’s other responsibilities (see Identification and Legal Representation of Minors).
With respect to the 2022 amendment, NGOs also questioned whether AWAS enjoys sufficient technical capacity in asylum matters to assist UAMs throughout the procedure.[8]
Exemption from special procedures
According to the Procedural Regulations, the accelerated procedure shall not be applied in case it is considered that an applicant requires special procedural guarantees as a consequence of having suffered torture, rape, or other serious form of psychological, physical, or sexual violence.[9]
In practice, this provision is largely ignored and individuals claiming to have suffered such treatments will be channelled through the accelerated procedure if possible.
The International Protection Act provides that unaccompanied children may only be subject to the accelerated procedure where:
- they come from a safe country of origin;
- have introduced an admissible subsequent application; or
- present a danger to national security or public order or have been forcibly expelled for public security or public order reasons.[10]
In practice, asylum applications of unaccompanied minors were not processed until the end of 2022. AWAS confirmed that unaccompanied minors were called for their interviews and that the social worker appointed as the representative attends the interviews with them. NGOs are unaware of any decision issued by the IPA but it is likely that the IPA will apply the above provision to all unaccompanied minors coming from countries of origin listed as safe by the Act. [11]
This means that unaccompanied minors will likely be deprived of the possibility to appeal their rejection according to the normal procedure and will instead see their application automatically forwarded to the IPAT for the so-called review, which is likely to confirm the first instance decision as practice indicates (see Accelerated Procedure).
It is worth mentioning that the Regulations under the Immigration Act provides for the possibility to carry forced return of unaccompanied minors if sufficient guarantees exist[12] but it is unknown whether the PIO will take such risk.
[1] Regulation 7(1) of the Procedural Regulations, Subsidiary Legislation 420.07 of the laws of Malta.
[2] Regulation 7(2) of the Procedural Regulation, Subsidiary Legislation 420.07 of the laws of Malta.
[3] Regulation 7(4) of the Procedural Regulation, Subsidiary Legislation 420.07 of the laws of Malta.
[4] IPA, Guidance Note on the Fast-tracking of Applications Submitted by Vulnerable Persons, 2 September 2020 (unpublished).
[5] See https://bit.ly/3SPm2FB
[6] Article 13(3) and 13(4) of the International Protection Act, Chapter 420 of the Laws of Malta as amended by Act XIX of 2022.
[7] Regulation 18(1) of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta as amended by Legal Notice 273 of 2022.
[8] Aditus foundation, Technical Comments on Bill No. 2 of 2022, June 2022, p.11, available at https://bit.ly/3IHYzBy
[9] Regulation 7(3) of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[10] Article 23A of the International Protection Act, Chapter 420 of the Laws of Malta.
[11] Article 24 of the International Protection Act, Chapter 420 of the Laws of Malta.
[12] Regulation 8 of the Return Regulations, Subsidiary Legislation 217.12 of the Laws of Malta.