Admissibility procedure

Malta

Country Report: Admissibility procedure Last updated: 30/11/20

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General (scope, criteria, time limits)

Article 24 of the Refugees Act provides for “inadmissible applications” under Part V of the Act, in the provisions related to the accelerated procedures. The following grounds allow for deeming an asylum application inadmissible:Article 24 Refugees Act.

  1. Another Member State has already granted the applicant international protection under the Dublin III Regulation;
  2. The applicant comes from a First Country of Asylum;
  3. The applicant comes from a Safe Third Country;
  4. The applicant has lodged a Subsequent Application presenting no new elements;
  5. A dependant of the applicant has lodged a separate application after consenting to have his or her case made part of an application made on his or her behalf; and
  6. 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.
  7. The applicant comes from a Safe Country of Origin.

According to the Refugees Act, inadmissibility is a ground for an application to be processed under the Accelerated Procedure. It should be noted that the inclusion of the “safe country of origin” concept as a ground for inadmissibility in Article 24 of the Refugees Act is incompatible with Article 33(2) of the recast Asylum Procedures Directive.

As the law mentions the inadmissibility of an application for recognition of refugee status, only the Refugee Commissioner can decide upon the admissibility of the application.Court of Appeal, Paul Washimba v Bord tal-Appelli dwar ir-Rifugjati, 28 September 2012.

532 asylum applications were deemed inadmissible in 2018, although no information is available on the grounds under which these applications were considered inadmissible.Information provided by the Office of the Refugee Commissioner, January 2019. This number constitutes a substantial increase compared to the 246 inadmissible decisions in 2017.

However, these inadmissible applications may not have been processed through the accelerated procedure as some cases were deemed inadmissible following a regular procedure. In 2018, the Refugee Appeals Board received 12 cases through accelerated procedures, out of which 1 was decided on.  

According to NGOs’ experience, applications submitted by individuals deemed to be coming from a safe country of origin or applicants having lodged a subsequent application presenting no new documents are considered inadmissible and usually processed under the accelerated procedure. NGOs expressed concerns over the application of inadmissibility procedures in 2018.

 

Personal Interview

According to Regulation 5(5) of the Procedural Regulations, the interview may be omitted if the application is unfounded. In practice, most asylum seekers have access to a personal interview but some applicants who are classified as coming from safe countries of origin and whose applications were deemed inadmissible reported interviews limited to identity, nationality and travel route. Cases were also reported of applicants undergoing full interviews, receiving an in-depth assessment of their asylum claims and then being informed that their applications were considered inadmissible or manifestly unfounded and channelled to the accelerated procedure.    

 

Appeal

Article 23(3) of the Refugees Act foresees that inadmissible applications “shall immediately be referred to the Chairman of the [Refugee Appeals] Board who shall examine and review the recommendation of the Commissioner within three working days.”

Indeed, the recommendation taken by the Refugee Commissioner does not mention the possibility for the applicant to challenge the inadmissibility decision. Therefore, applicants do not have the possibility to send any submissions to the Refugee Appeals Board or raise any arguments to support an appeal. Moreover, applicants sometimes receive 2 simultaneous rejections (i.e. the RefCom decision dismissing the application as inadmissible and the Refugee Appeal Board’s decision confirming the RefCom decision), or otherwise within a timeframe that makes an appeal against inadmissibility decision impossible.

Moreover, the review conducted by the Refugee Appeals Board is not a full and ex nunc examination of both facts and points of law, as the decision is not motivated and consists of a simple statement confirming the Refugee Commissioner’s recommendation. According to the UNHCR’s observations, the Board tends to automatically confirm RefCom's recommendation.Information provided by UNHCR, January 2019. Furthermore, the term “shall immediately” lacks legal clarity so the actual mandatory duration of the procedure is unclear.

Such procedure is foreseen under the national law, which transposes incorrectly the APD when it comes to right to effective remedy. As a consequence, practitioners and UNHCRInformation provided by UNHCR, January 2019. do not consider this review to constitute an effective remedy as laid out in Article 46 of the recast Asylum Procedures Directive. This is currently subject to a legal challenge in court in the case of a Palestinian asylum seeker.

Nevertheless, the 2017 amendment of the Refugees Act included a provision which specifies that “the review conducted by the Chairperson of the Refugee Appeals Board shall be deemed to constitute an appeal.”Article 7(1A)(a)(ii) Refugees Act, as amended by Article 4(b) Act XX of 2017.

 

Legal Assistance

Article 7(5) of the Refugees Act provides for the right to free legal aid for all appeals submitted to the Refugee Appeals Board. However, as the recommendation deeming an application inadmissible is automatically and systematically referred to the Board, the appellant is not effectively able to participate in the review or to be represented.

 

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