Dublin

Author

aditus Visit Website

Visit Website

General

Dublin statistics: 1 January – 31 December of 2023

The Dublin Unit, within IPA, provided the following information:

NB: Transfers refers to the number of transfers actually implemented, not to the number of transfer decisions. If only the number of transfer decisions are available add these numbers and specify that it only concerns transfers decisions, and that the number of actual transfers is not available

NB: Transfers refers to the number of transfers actually implemented, not to the number of transfer decisions. If only the number of transfer decisions are available add these numbers and specify that it only concerns transfers decisions, and that the number of actual transfers is not available

Country Codes

European Union (EU)

European Free Trade Association (EFTA)

There is no specific legislative instrument that incorporates the provisions of the Dublin Regulation into national legislation. The procedure relating to the transfers of asylum-seekers in terms of the Regulation is an administrative procedure, with reference to the text of the Regulation itself. The IPA is the designated head of the Dublin Unit and, since 2017, is implementing the procedure in practice. This brought positive changes in terms of organisation, access to information and procedural safeguards. The Immigration Police is in charge of the Eurodac checks and the rest of the procedure, including transfer arrangements, is handled by the Dublin Unit.[1]

EUAA started providing support to IPA in the Dublin procedure in October 2019 in the form of Member State expert deployment within the Dublin Unit. In 2021, the support consisted of 2 Dublin procedure assistants. This support was increased to 1 administrative support, and 3 Dublin procedure assistants for the period covering 2022-2024 and until the end of the second quarter of 2023.[2] The end of 2023 marked the beginning of EUAA’s phasing out of its Malta operational support.

The EUAA deployed staff is in charge of examining which asylum applications are subject to a Dublin procedure or not, drafting take charge/back requests or info requests for applications in a Dublin procedure and drafting the decision documents or office note following the final reply from Member States. The staff is also in charge of drafting submissions at the appeal stage.[3]

Regarding relocation operations, in addition to the same tasks as the ones for the outgoing cases, EUAA personnel deployed at the Dublin Unit is also responsible for notifying the applicant of the Dublin transfer decision, drafting the transfer exchange form, creating their laissez passer, and updating the internal records.[4]

According to NGOs’ experience, there is no clear rule on the application of the family unity criteria as it usually depends on the particular circumstances of the applicant. NGOs report a 2023 case where IPA rejected the asylum application of a child who had earlier been transferred to Malta through Dublin’s family reunification procedures.

NGO observations note that visa and residence permit criterion is the most frequently used for outgoing requests whilst, for incoming requests, the most frequently used criteria are either the first EU Member State entered or the EU Member State granting a Schengen visa.

Procedure

All those who apply for asylum are systematically fingerprinted and photographed by the Immigration authorities for insertion into the Eurodac database. Those who enter Malta irregularly are immediately taken to detention and they are subsequently fingerprinted and photographed. Asylum-seekers who are either residing regularly in Malta or who apply for international protection prior to being apprehended by the Immigration authorities, are also sent to the Immigration authorities to be fingerprinted and photographed immediately after their desire to apply for asylum is registered. Where the Police considers that the applicant ought to be detained on the basis of their identity not being confirmed as, for example, due to use of false documents, they will detain the applicant.

In registering their intention to apply for international protection, asylum-seekers are also asked to answer a ‘Dublin questionnaire’ wherein they are asked to specify if they have family members residing within the EU. Should this be the case, the examination of their application for protection is suspended until further notice. It is up to the IPA to then contact the asylum-seeker to request further information regarding the possibility of an inter-state transfer, such as the possibility of providing documentation proving familial links.

Individualised guarantees

No information is provided by the Dublin Unit on the interpretation of the duty to obtain individualised guarantees prior to a transfer, in accordance with the ECtHR’s ruling in Tarakhel v. Switzerland[5], yet Malta rests on EU Commission Communications to rebut the presumption of compatibility of other MS with the Reception Conditions Directive.[6] Lawyers report that since 2018 there were a number of cases wherein the IPAT commented that it is not its duty to explore the treatment the appellant would be subjected to following the Dublin transfer.

 In the only relevant case on the matter, in September 2019, an asylum-seeker filed an application for a warrant in front of the Civil Court to stop a Dublin transfer to Italy before individual guarantees are actually provided by the Italian authorities. The Court declared itself competent to review the application without entering into the merits of the case. It did not find there was an obligation for the Italian authorities to present individual guarantees before executing an accepted transfer. It held that the socio-economic conditions of the applicant in Italy are irrelevant to the matter of the case and that in case of further issues to be raised in Italy, the applicant could address them to the Italian judicial system. Consequently, the Court rejected the application.[7]

Transfers

According to the authorities, the transfer arrangements start immediately if the person accepts to leave and most of the transfers are carried out within a year, with a few cases requiring more than a year.[8] In the case of appeals, the transfer is implemented when a final decision is reached. NGOs have reported that in practice transfers can be implemented several weeks or several months after the final decision taken by the IPAT.

The length of the Dublin procedure remains an issue since applicants are kept waiting for months, sometimes more than a year, before receiving a decision determining which Member State is responsible for their application. In 2020, there were applicants who were not transferred within the Regulation’s deadlines, yet who were not taken up by the IPA as falling under its responsibility and left without any documentation or information about their status. NGOs encountered a few individuals in this situation in 2021, 2022 and 2023.

According to the Dublin unit of IPA, there were 4 cases where the discretionary clause pursuant to Article 17(1) Regulation 604/2013 (“sovereignty clause”) was applied.^[10]

Personal interview

Upon notification that an asylum-seeker might be eligible for a Dublin transfer, he or she will be called by IPA operating the Dublin Unit to verify the information previously given and will be advised to provide supporting documentation to substantiate the request for transfer. These interviews always take place at the Dublin Unit premises.

Appeal

The responsibility to hear and determine appeals filed against a decision taken under the Dublin Regulation was shifted from the Immigration Appeals Board to the IPAT in 2017.[11]

Dublin appeals are heard by the IPAT in a similar manner as appeals filed against a decision of the IPA taken under the Regular Procedure and the comments made therein are also relevant for Dublin appeals (see Regular Procedure). Appellants are invited to submit written pleadings substantiating their appeal, followed by IPA’s opportunity to also submit written observations. An oral hearing may be held on the party’s request, and in 2023 lawyers confirmed that they did attend a number of Dublin appeal hearings.

Legal assistance

 Following the transfer of jurisdiction from the Immigration Appeals Board to the International Protection Appeals Tribunal, applicants appealing a Dublin transfer are entitled to legal assistance in the same manner as for appeals filed under the Regular Procedure (see Regular Procedure).

Suspension of transfers

Malta has not suspended transfers as a result of an evaluation of systemic deficiencies in any EU Member State.

However, Government also confirmed that “(I)n practice, transfers to Greece rarely take place since the Greek authorities do not provide assurances pertaining to reception conditions.”[12]

The situation of Dublin returnees

The main impact of the transfer on the asylum procedure relates to the difficulties in accessing the procedure upon return to Malta.

Asylum-seekers leaving Malta pending the procedure run the risk of having their applications closed as ‘implicitly withdrawn’, in terms of Regulation 13 of the Procedural Regulations. In 2023, IPA considered 271 cases as being implicitly withdrawn, although the available data does not clarify the specific factual basis for this conclusion.

In 2023, cases were reported where the IPAT closed as implicitly withdrawn asylum applications where the applicants had – subsequent to their applications in Malta – made further applications in other EU MS. The IPAT considered that the appellants had failed to inform the Tribunal of this detail – being the application in another EU MS – and proceeded to close the appeal. The statistics provided by the IPAT do not make any reference to these cases.

Furthermore, persons stopped at the airport with forged documents run the risk of facing criminal charges (see Access to Territory).

As of 2023, there seems to be no clear policy regarding Dublin returnees in Malta and NGOs are unable to confirm whether Dublin claimants are systematically detained following their return to Malta. Whilst a number of returnees were in fact detained followed their return to Malta, authorities also confirmed that there is no blanket policy of detaining Dublin returnees.

Practitioners also report that returning applicants were granted accommodated in the open centres, particularly where AWAS was alerted to the return by NGOs. In view of Malta’s strict policy of cutting off reception conditions after six months, including accommodation in the open centres, it is unclear whether time spent benefitting from reception conditions prior to the departure from Malta is counted as part of this six-month limit.

Regarding the first instance procedure, applicants will not be provided with state sponsored legal assistance for the first instance procedure and are likely to undergo their whole procedure without any legal assistance considering the limited capacity of the few NGOs providing this service (see Legal Assistance).

Applicants from countries of origin listed as safe[13] will be automatically channelled through the accelerated procedure and barred from filing an appeal against their negative decision. Furthermore, observations made in relation to applications deemed ‘manifestly unfounded’ – consequently not rejected on the merits and denied an appeal – are also relevant for applications by Dublin returnees. (see Accelerated Procedure).

The concerns expressed in relation to the effectiveness of the appeal remedy within the regular procedure are applicable to Dublin returnees (see Regular Procedure).

On 15 December 2021, the Dutch Council of State (highest administrative court) ruled that the Dutch immigration authorities can no longer rely on the principle of mutual trust for Dublin transfers to Malta. If immigration authorities wish to proceed with Dublin transfers to Malta, they are required to prove that the transfer will not result in a breach of article 3 ECHR. The court specifically mentioned the structural detention of Dublin ‘returnees’ and found these detention conditions to be a breach of article 3 ECHR and article 4 of the EU Charter. The court also specifically mentioned the lack of effective remedy against detention because of the lack of access to justice, which is deemed a breach of article 18 of the RCD and article 5 of the ECHR.[14]

On 7 April 2022, The Tribunal of Rome annulled a Dublin transfer to Malta for a Bangladeshi applicant. The applicant claimed that during his stay in Malta, he was detained for 16 months and, due to inhumane and degrading conditions of the detention centre, he fell ill and spent two months in hospital. The Tribunal of Rome noted that the risk of inhumane and degrading treatment upon transfer to Malta is well-founded, taking into consideration reports from the European Council for Refugees and Exiles (ECRE), Amnesty International, the US Department of State, and UNHCR. The Tribunal noted that the transfer was in violation of Articles 3.2, 4, 5 and 17 of the Dublin III Regulation and ruled to annul the decision. [15]

On 14 November 2022, the Austrian Constitutional Court quashed a decision of the Federal Administrative Court regarding a Dublin return to Malta of a Syrian national. In its decision, the Constitutional Court looked at living conditions of applicants returned to Malta and ordered a reconsideration of the decision based on a closer assessment of the applicant’s situation should he be returned to Malta.[16]

[1] Information provided by the Dublin Unit, February 2021.

[2] EUAA, 2022-2024 Operational plan agreed by EUAA and Malta, Amendment 1, April 2022, available at:  https://bit.ly/3ZqIEiX, p. 4.

[3] Information provided by the Dublin Unit, January 2022.

[4] Information provided by the Dublin Unit, January 2022.

[5] ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014.

[6] Ministry for Home Affairs, Security, Reforms and Equality, Feedback on the 2022 AIDA Country Report on Malta, shared with ECRE in January 2024.

[7] Civil Court First Hall, Enas Mhana vs Hon Prime Minister, Minister for Home Affairs and National Security, Attorney General and the Office of the Refugee Commissioner, 2019/118742, 18 October 2019, available at: https://bit.ly/2XE0t06.

[8] Information provided by the Dublin Unit, January 2022.

[9] Information provided by the IPA Legal Unit, November 2020.

^[10] Request 315240564265 for Information Form for Dublin Unit (under IPA)

[11] Article 7(1) of the International Protection Act, Chapter 420 of the Laws of Malta, as amended by Act XX of 2017.

[12] Ministry for Home Affairs, Security, Reforms and Equality, Feedback on the 2022 AIDA Country Report on Malta, shared with ECRE in January 2024.

[13] Article 24 of the International Protection Act, Chapter 420 of the Laws of Malta.

[14] Dutch Council of State, 15 December 2021, available in Dutch at: https://bit.ly/3JPAFUz.

[15] Italy, Civil Court [Tribunali], Applicant v Dublin Unit of the Ministry of the Interior (Unita di Dublino, Ministero dell’Interno), R.G. 4597/2022, 07 April 2022, available at https://bit.ly/3kKXOzy.

[16] Austrian Constitutional Court, Decision Number E622/2022, 14 November 2022, available at: https://bit.ly/3MDkU73