General (scope, grounds for accelerated procedures, time limits)
Article 23 and 24 of the International Protection Act provides that applications should be examined under accelerated procedures when the application is manifestly unfounded.[1]
The definition of “manifestly unfounded applications” reflects the grounds for accelerated procedures laid down by Article 31(8) of the recast Asylum Procedures Directive. An application is considered manifestly unfounded where the applicant:[2]
- In submitting his or her application and presenting the facts, has only raised issues that are not relevant to the examination as to whether such applicant qualifies as a beneficiary of international protection;
- Is from a safe country of origin;
- Has misled the authorities by withholding relevant information or documents with respect to his or her identity and/or nationality that could have had a negative impact on the decision;
- Is likely, in bad faith, to have destroyed or disposed of an identity or travel document that would have helped establish his identity or nationality;
- Has made clearly inconsistent, contradictory, false, or obviously improbable representations which contradict sufficiently verified country-of-origin information, thus making the claim clearly unconvincing in relation to whether they qualify as a beneficiary of international protection;
- Has introduced a subsequent application for international protection that is not inadmissible in accordance with article 24(1)(e);
- Is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his removal;
- Has entered Malta unlawfully or prolonged his stay unlawfully and, without good reason, has either not presented himself to the authorities or has not made an application for international protection as soon as possible, given the circumstances of his entry;
- Refuses to comply with an obligation to have his or her fingerprints taken in accordance with the relevant legislation;
- May, for serious reasons, be considered a danger to the national security or public order, or the applicant has been forcibly expelled for serious reasons of public security or public order under national law.
Article 23(2) provides that if the IPA is of the opinion that an application is manifestly unfounded, they shall examine the application within three working days and the recommendation shall immediately be referred to the International Protection Appeals Tribunal, who will then also examine this within three working days.
Comprehensive statistical information is not available, as the IPA does not keep statistical data in relation to applications that have been processed under the accelerated procedure. However, NGOs assisting asylum seekers reported an increase in the number of cases processed under the accelerated procedure since 2018.
In 2020, 196 applications were deemed inadmissible and therefore channelled through the accelerated procedure and 238 cases were rejected as manifestly unfounded. For 2021, the IPA indicated that it does not keep statistical data pertaining to applications for international protection that are processed under the accelerated procedure, but the IPAT indicated that it carried out reviews for 482 applications, 114 inadmissible applications and 368 manifestly unfounded applications.[3]
Most applications deemed to be manifestly unfounded are from individuals coming from countries considered safe by the IPA Act. The IPA indicated it rejected 303 application on this basis in 2021. These number includes nearly all applicants from Bangladesh (127 applications out 130), Morocco (61 rejection out of 63 rejections), Ghana (12 rejections) and Egypt (77 rejections out of 79 rejections). These cases are channelled through the accelerated procedure while the applicants are held in detention, and receive at the same time the rejection decision, the confirmation by the IPAT and a return decision comprising of a removal order.
In 2021, the IPA started to evaluate as manifestly unfounded applications of some individuals from other countries of origin, such as Nigeria and the Ivory Coast.
Personal interview
No information is available regarding the IPA policy on personal interviews in case of accelerated procedures. However, applicants deemed to be coming from listed safe countries of origin are usually interviewed on the merits.
However, NGOs reported that applications tend to be systematically rejected on credibility issues rather than assessed on the merits. It is only mentioned in conclusion of the assessment that the case is manifestly unfounded as the applicant is coming from a safe country of origin and he has made “clearly inconsistent and contradictory, clearly false or obviously improbable representation which contradict sufficiently verified country-of-origin information, thus making the claim clearly unconvincing in relation to whether he qualifies as a beneficiary of international protection”.
Detainees who apply for asylum from detention are subject to the same asylum procedure as those who apply from the community. The IPA will proceed to examine the application of the detained asylum seeker in the same manner as those who are not deprived of their liberty. The main difference lies in that detainees are escorted to the IPA’s offices in Safi and are not informed in advance of the date of their interview. They are usually informed on the day that their presence is required. Detained asylum seekers do, however, face considerable difficulties in obtaining documents and compiling all the information which they might want to present in support of their application, as their means of communication are severely restricted. Very often, detained asylum seekers rely on support from NGOs to obtain documentation and any other information that might be required.
Appeal
At the stage of the appeal, two types of applications are channelled through the accelerated procedure, manifestly unfounded applications (Articles 23(2) and 23(3) of the International Protection Act) and inadmissible applications (Article 24(2) of the Act). Rejections channelled through the accelerated procedure are referred immediately to the International Protection Appeals Tribunal, which is provided three working days to examine the application. No further appeal is allowed.
The procedure is foreseen under the national law, which incorrectly transposes the recast Asylum Procedures Directive when it comes to the right to an effective remedy. As a consequence, practitioners and the UNHCR do not consider this review to constitute an effective remedy as laid out in Article 46 of the recast Asylum Procedures Directive.[4] Nevertheless, the 2017 amendment of the Refugees Act confirmed by the amendments in the new International Protection Act included a provision which specifies that “the review conducted by the Chairperson of the IPAT shall be deemed to constitute an appeal”.[5]
Yet, under Regulation 22 of the Procedural Regulations the applicant is able to appeal against a decision of inadmissibility on the basis of the safe third country if he or she is able to show that return would subject him or her to torture, cruel, inhuman or degrading treatment or punishment. In practice, this provision is not implemented.
Applicants do not have the possibility to send any submissions to the IPAT or raise any arguments to support an appeal. Moreover, applicants sometimes receive two simultaneous rejections (i.e., the IPA decision dismissing the application as inadmissible and the IPAT’s decision confirming the IPA decision) or receive the rejections within a timeframe that makes an appeal against the decision impossible.
Furthermore, the term “shall immediately” in Article 23(3) lacks legal precision, so the actual mandatory duration of the procedure is unclear. Some first instance rejections are taken months before the IPAT actually carries its review while some other are issued within 1 week of the rejection.
The majority of decisions taken by the IPAT are review decisions (contrary to appeal decisions) made in the accelerated procedure which consist of a mere confirmation of the decisions made in the first instance without any further assessment. In 2019, the amount of these decisions amounted to 55% of the total number. No data was provided for 2020. In 2021, the reviews amounted to more than 63% of the total number of decisions taken by the IPAT, with 482 reviews on 765 decisions.
Serious concerns exist regarding the actual quality of the review conducted by the IPAT and most commentators agree that this is not a full and ex nunc examination of both facts and points of law. Decision are not motivated and consist of a simple statement confirming the IPA’s recommendation, signed only by the Chairperson. The UNHCR observed in 2019 that the Tribunal tends to automatically confirm the IPA’s recommendation.[6] This has been the case ever since, as confirmed by the statistics provided by the IPAT. In 2021, 482 reviews were carried out by the IPAT, 478 of which were confirmed and 4 of which were remitted to the IPA for a new decision. As such, even when it does not confirm the decision of the IPA, the IPAT does not take a decision on the merits of the case on its own.
The incorrect transposition of the recast Asylum Procedures Directive in respect of an effective remedy was subject to a legal challenge before the civil court in the case of a Palestinian asylum seeker who was not allowed to appeal his inadmissible decision. In this case, the applicant claimed that Malta’s asylum legislation violates the recast Asylum Procedures Directive and that, as a consequence of this, his procedural rights were violated.[7] This being one of Malta’s first ever cases relating to state liability for incorrect transposition of EU asylum law, the court (and Government) was unsure how to proceed, inviting the parties to explain whether this case is one of judicial review or one of damages.
The civil court finally rejected the case on the basis that it concluded it was a judicial case, and, therefore, time-barred, as opposed to an action for damages on the basis of an incorrect transposition of EU law.[8] An appeal was filed and remains pending. In the course of the proceedings, the Office of the Attorney General confirmed that the Ministry was in dialogue with the EU Commission with a view to revising the accelerated procedure. The 2020 amendments to the Act did nothing to bring this procedure in line with the Directive.
On 2 March 2021, the Civil Court First Hall (Constitutional Jurisdiction) ruled that that there is an infringement of human rights in the accelerated procedures at appeal stage when an application is deemed as manifestly unfounded. The Court ordered for the case to be heard anew by the IPAT with the defendant given the minimum rights laid down in the Directive.[9]
On 28 July 2021, aditus foundation filed a case in front of the ECtHR for a rejected Bangladeshi applicant. The application concerns the procedure and the refusal of the applicant’s asylum requests. The applicant was a journalist in Bangladesh, who claims to have been the subject of persecution after he observed electoral irregularities carried out by the Awami League (currently the governing party) in the 2018 elections. In particular, he claims that he and his family had been beaten and threatened as a result of his reporting and that no action was taken by local authorities in fear of the ruling party.
He was channelled through the accelerated procedure and could therefore not appeal this decision since the International Protection Act provides only for a 3 days automatic review at the stage of the appeal. The applicant then filed a subsequent application with further evidence of his claim, which was rejected as manifestly unfounded and channelled again through the accelerated procedure. His lawyers appealed his removal order on the basis of the risks of inhuman or degrading treatment he would face upon return to Bangladesh. Following the rejection of the appeal and confirmation of the removal order, the applicant’s lawyers filed a request for interim measure to the ECHR on the basis of Article 3.
On 10 August 2021, the Court decided that, “in the absence of an adequate assessment, by the domestic authorities, of the applicant’s claim that he would risk ill-treatment if returned to Bangladesh based on his activity as a journalist, it was in the interests of the parties and the proper conduct of the proceedings before it to indicate to the Government of the Malta, under Rule 39, that he should not be removed to Bangladesh.” The applicant was then released from Safi Detention Centre after spending two years in detention.
The applicant fears return to Bangladesh and complains that the Maltese authorities failed to properly assess his claims, in particular, the risk he, as a journalist, would face upon being returned to Bangladesh, in violation of Article 3 of the Convention. He further considers that he had no effective remedy under Article 13 of the Convention, taken in conjunction with Article 3, in so far as the asylum procedure was lacking in various respects namely, he had no access to relevant information and legal services; there had been excessive delays in the decision-making process; there had been no serious examination of the merits and the assessment of the risk incurred; he had not been informed of the relevant decisions while he was in detention, nor had there been any interpretation of such decisions, and he had had no access to a proper appeal procedure. He further noted that the reviews by the International Appeals Tribunal and the Immigration Appeals Board had not been effective remedies in his case and that constitutional redress proceedings were also not effective in so far as they had no suspensive effect.
The case was communicated to the Court on 20 January 2022.[10]
Legal assistance
Article 7(5) of the International Protection Act provides for the right to free legal aid for all appeals submitted to the IPAT. However, as the recommendation channelling an application to the accelerated procedure is automatically and systematically referred to the IPAT, the appellant is not effectively able to participate in the review or to be represented.
[1] Article 23(1), (8) and (9) Refugees Act.
[2] Article 2(k) Refugees Act.
[3] Information provided by the IPAT, February 2022.
[4] Information provided by UNHCR, January 2019.
[5] Article 7(1A)(a)(ii) International Protection Act.
[6] Information provided by UNHCR, January 2019.
[7] Case no. 909/2018GM filed on 16 February 2018.
[8] Civil Court, First Hall, CHEHADE MAHMOUD vs L-AVUKAT GENERALI E, 909/2018, 28 January 2020, available at: https://bit.ly/2Vqn2CT.
[9] Information provided by Avv. Edward Camilleri, March 2022.
[10] S.H v. Malta, application no. 37241/21, available at https://bit.ly/3Ide96P.