Author
General (scope, criteria, time limits)
The International Protection Act provides for a new definition of “inadmissible applications”. The following grounds allow for deeming an asylum application inadmissible:[1]
- Another Member State has already granted the applicant international protection;
- The applicant comes from a First Country of Asylum;
- The applicant comes from a Safe Third Country;
- The applicant has lodged a Subsequent Application presenting no new elements;
- A dependant of the applicant has lodged a separate application after consenting to have their case made part of an application made on their behalf; and
- The applicant has been recognised in a third country and can avail him or herself of that protection or otherwise enjoys sufficient protection from refoulement and can be readmitted to that country.
Although inadmissible applications are not formally deemed to fall within the accelerated procedure, the International Protection Act provides that inadmissibility is a compulsory ground for an application to be processed under the same rules as the Accelerated Procedure. The Act further specifies that, prior to deciding on admissibility, applicants are to be granted a full interview and the possibility to present their views on the above-listed grounds of inadmissibility. Yet, in view of the grounds’ compulsory nature, the relevant of the possibility of presenting views has been questioned by practitioners.
Admissibility decisions generally concern applicants who are or were beneficiaries of international protection in another EU Member State, and applicants who file a subsequent application where no new elements are presented (see Subsequent Applications). Practitioners observe that the number of applications deemed ‘inadmissible’ has increased due to these being presented by applicants having family members, often spouses, enjoying international protection in Malta. This is particularly noted in respect of spouses of beneficiaries of subsidiary protection – granted by Malta – since these are not entitled to family reunification. This often results in families based in Malta yet with a member – usually a spouse – not enjoying protection in Malta. Practitioners commented that IPA relies on ground (a) above, further stating that the Directive and national rules do not require that the protection that had been granted by another MS be still active but merely that it had been granted.
Practitioners also noted a practice adopted by IPA in relation to paragraph (a), i.e. situations where an applicant in Malta had been recognised protection in another EU Member State. There were a number of situations where applicants had been indeed granted international protection in other EU Member States, but this protection was no longer valid, either due to expiration, revocation or other situations. Nevertheless, the IPA automatically considered these applications inadmissible, without granting an Asylum-Seeker Document to the applicants.
The principles of Safe Third Country and First Country of Asylum are generally not applied by the IPA and in 2024 no applications were deemed inadmissible on these grounds.
In 2024 the IPA issued 88 inadmissibility decisions, of which 55 applications were considered inadmissible on the basis that another Member State had granted international protection and 38 were closed inadmissible on the basis that the application is a subsequent application with no new elements.
Due to its close proximity to Italy, Malta has always seen individuals granted protection in Italy come and work in the country. However, these individuals generally do not lodge applications for international protection.
The IPA’s current position on Greece is that beneficiaries of international protection enjoy sufficient guarantees in Greece and therefore all applications lodged by those applicants are generally rejected on admissibility. The application is immediately channelled through the accelerated procedure provisions, which provides for an automatic review by the chairperson of the IPAT within 3 working days, and there is no possibility for the applicant to file an appeal. In this context, the concerns expressed in relation to the accelerated procedure are applicable to the admissibility procedure and the conclusions of the ECtHR in S.H. v. Malta are applicable (see Accelerated Procedure).
Applicants were usually not provided with an ASD pending admissibility decisions in 2024. There were a few cases of first time subsequent applicants receiving ASDs in 2024 but this was not standard practice and it remains to be seen if it will become standard practice in the future.
Personal interview
The International Protection Act provides that the IPA shall allow applicants to present their views before a decision on the admissibility of an application is conducted.[2] In practice, an interview is held in the vast majority of cases. However, one exception is applicants coming from a first country of asylum or a safe third country, who generally do not benefit from an interview, as stated above. Interviews for applicants already granted protection in another Member State are generally limited to the preliminary interview (i.e., the lodging of the application).
Despite the International Protection Act stating that a personal interview on the admissibility of the application shall be conducted before a decision on admissibility is taken, without distinguishing between first and subsequent applications,[3] applicants submitting a subsequent application where no new elements were presented are not given the opportunity to be heard during a personal interview. The procedure is in writing only, with the ability for the applicant to present submissions along with the application. In the (rare) event where the subsequent application is deemed admissible, the IPA will interview the applicants on the merits of their case with further questions on the new evidence provided (See Subsequent Applications).
Appeal
The International Protection Act provides that the provisions of the accelerated procedure “shall apply mutatis mutandis” to inadmissible applications (see Accelerated Procedure).[4] In short, this means that applications deemed inadmissible are immediately transmitted to the IPAT, the latter having 3 days to decide on the application. The applicant has no role in this accelerated procedure and has no legal or practical possibility to challenge the inadmissibility decision. The IPAT’s decision is final.
Legal assistance
Norms and practice for legal assistance during the admissibility procedure are identical to those applicable in the regular procedure. Summarily, there is no right to free legal assistance, and this is not provided by the State. NGOs are the only entities providing free legal services, including interview preparation, for this procedure. Applicants are entitled to seek private legal services.
Article 7(3) of the International Protection Act provides for the right to free legal aid for all appeals submitted to the IPAT. However, as inadmissible applications are automatically referred to the Tribunal in accordance with the accelerated procedure, the appellant is not able to participate in the review or to be represented (See Accelerated Procedure).
Suspension of returns for beneficiaries of protection in another Member State
In relation to applications deemed inadmissible due to protection granted in another EU MS or Associated Country, Malta has not formally suspended returns to any of these countries. Regular police raids on residences, workplaces and also roadblocks, are conducted.
Following these raids and arrests, persons were detained and subsequently removed, largely to Italy.
[1] Article 24, International Protection Act.
[2] Article 24 (3) of the International Protection Act, Chapter 420.
[3] Ibid.
[4] Art. 24(2) of the International Protection Act, Chapter 420.