Dublin

Malta

Country Report: Dublin Last updated: 23/05/22

Author

aditus Visit Website

General

 

Dublin statistics: 1 January – 31 December of 2021

Outgoing procedure Incoming procedure
Requests Requests
Total 631 Total 1,947
Take charge 412 Take charge 1,198
Germany 141 Greece 68
France 112 France 61
Spain 81 United Kingdoms 28
Ireland 16 Germany 15
Italy 14 Belgium 15
Take back 219 Take Back 749
Italy 147 France 354
Germany 21 United Kingdoms 198
Greece 21 Germany 72
France 11 Netherlands 37
Netherlands 3 Ireland 7

 Source: Dublin Unit, January 2022.

Outgoing procedure Incoming procedure
Transfers Transfers
Total 249 Total 43
Germany 122 Greece 14
France 96 France 11
Italy 9 Germany 6
Luxembourg 6 Netherlands 3
Romania 4 Belgium 3

Source: Dublin Unit, January 2022.

 

Outgoing Dublin requests by criterion: 2021
Dublin III Regulation criterion Requests sent
Take charge”: Articles 8-15: 398
 Article 8 (minors) 1
 Article 9 (family members granted protection) 1
 Article 10 (family members pending determination) 2
 Article 11 (family procedure)
 Article 12 (visas and residence permits) 20
 Article 13 (entry and/or remain) 8
 Article 14 (visa free entry)
“Take charge”: Article 16
“Take charge” humanitarian clause: Article 17(2) 364
“Take back”: Article 18 219
 Article 18 (1) (b) 214
 Article 18 (1) (c)
 Article 18 (1) (d) 5
 Article 20(5)

Source: Dublin Unit, January 2022.

 

Incoming Dublin requests by criterion: 2021
Dublin III Regulation criterion Requests received
“Take charge”: Articles 8-15 231
 Article 8 (minors) 58
 Article 9 (family members granted protection) 16
 Article 10 (family members pending determination) 6
 Article 11 (family procedure) 9
 Article 12 (visas and residence permits) 39
 Article 13 (entry and/or remain) 95
 Article 14 (visa free entry)
“Take charge”: Article 16
“Take charge” humanitarian clause: Article 17(2) 8
Take back”: Articles 18 and 20(5) 340
 Article 18 (1) (b) 307
 Article 18 (1) (c) 3
 Article 18 (1) (d) 30
 Article 20(5)

Source: Dublin Unit, January 2022.

 

Average duration of the procedure from the outgoing request
<3 YEARS <2 YEARS <1 YEARS >1 YEAR
3 9 28 249
Average duration of the procedure from the acceptation of the request
<1 YEAR > 1 YEAR
18 244

Source: Dublin Unit, January 2022.

 

There is no specific legislative instrument that transposes 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]

EASO 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 and was upgraded to 1 administrative support, 1 Member state expert and 2 Dublin procedure assistants for the period covering 2022-2024.

The EASO 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.[2]

Regarding relocation operations, in addition to the same tasks as the ones for the outgoing cases, EASO 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.[3]

Application of the Dublin criteria

According to NGOs’ experience, there is no clear rule on the application of the family unity criteria as it usually depends on the particulars of the individual case. The Maltese Dublin authorities do not apply DNA tests but tends to rely on the documents and information immediately provided by the applicant. In some cases that regard children, the authorities can request additional information from UNHCR, IOM or AWAS when no documents are provided. All of the information available is usually put together as evidence. Matching information between members of the family can be relied on and may be enough for determining family links.

The visa and residence permit criterion is the most frequently used for outgoing requests (20 requests in 2021). For incoming requests, the most frequently used criteria are either the first EU Member State entered (95 requests),[4] or the EU Member State granting a Schengen visa (39 requests).[5]

 

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.

When migrants make attempts to avoid their fingerprints being taken using various means (such as applying glue to the fingertips), a note is taken and the migrant is recalled for fingerprinting at a later stage when the effects of the glue would have subsided. When persons have damaged fingerprints, measures, such as repeated attempts, are taken to ensure that a viable copy is available.

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.

Information is usually provided to the lawyer representing the applicant upon request. Where an applicant is detained, it is inherently more difficult for the individual to follow up on the Dublin case with information being obtained solely through the lawyer.

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.[6] Yet 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 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

In practice, no official statistics are available regarding the length of time it takes for a transfer to be effectuated after another Member State would have accepted responsibility. 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 2018, there were a number of cases where Malta was required to assume responsibility for applicants due to delays in processing the transfer, including in cases of possible chain refoulement.[9] 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 as well.

Moreover, asylum seekers in a Dublin procedure are not informed of delays in receiving responses from the responsible Member State. The number of outgoing transfers implemented in 2020 was 320 and 249 in 2021, the vast majority of them to Germany or France.

Dublin transfers were suspended in Malta for three months between mid-March and mid-June 2020 as a result of COVID-19. During this period, Malta continued to issue and send requests. The responsibility of applicants shifted back to Malta in cases where the transfer was not carried out within six months unless the applicant was recorded as having absconded.[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.

Dublin interviews are always carried out in person. They were suspended for two months from 18 March until 18 May 2020 as result of COVID-19. As of May 2020, interviews were carried out again in a face-to-face format.[12]

 

Appeal

Following an amendment to the Refugees Act in April 2017, appeals against decisions taken under the Dublin Regulation are now possible through the filing of an appeal before the Refugee Appeals Board –[13] now IPAT -, which has taken over responsibility from the Immigration Appeals Board.

The provisions of the amended Refugees Act, now International Protection Act, indicate that the appeal must be filed within two weeks from notification of the decision.[14] The Act does not specify whether such appeals have suspensive effect or otherwise. In practice, such appeals do have a suspensive effect.

There is no specific appeal procedure for Dublin cases, leaving such applications pending for several months or years with the Tribunal. NGOs report it is not rare to encounter individuals that have been waiting on a final decision on their Dublin appeal for more than 3 years. Another issue is that family cases are split, with family members receiving individual decisions months apart from each other, creating further delays in implementing transfers. Moreover, access to the files is problematic as NGOs assisting applicants report difficulties accessing the different documents, such as the transfer requests or Eurodac documents, because of the lack of clarity as to the authority in charge. The Tribunal has a very limited understanding of the procedure and will generally uphold the Dublin Unit’s decisions; hearings are rarely held. The Unit itself usually files submissions for these cases in the first weeks of the procedure.

Furthermore, the concerns expressed with regards to the IPAT’s composition in Appeal before the International Protection Appeals are also valid for what concerns the Dublin procedure.

 

Legal assistance

Following the transfer of jurisdiction from the Immigration Appeals Board to the Refugee Appeals Board, now International Protection Appeals Tribunal, applicants appealing a Dublin transfer are now entitled to legal assistance. According to the International Protection Act, legal assistance is provided under the same conditions applicable to Maltese nationals,[15] although the modalities, eligibility assessment, and application procedure are not publicly available. In practice, a legal aid lawyer is always provided to the appellant that express the wish to be assisted when filing his or her appeal at the Tribunal’s office in Valetta. However, it must be noted that legal aid lawyers often have a very limited understanding of the procedure, and will generally file very short submissions with few to no references to case law or the Dublin criteria.

 

Suspension of transfers

Following the ECtHR’s judgment in M.S.S. v. Belgium and Greece,[16] Malta suspended the transfers of asylum seekers to Greece although the police will still assist with the transfer should an asylum seeker voluntarily ask to be returned to Greece. When transfers are suspended, Maltese authorities then assume responsibility for the examination of the application and the asylum seeker is treated in the same way as any other asylum seeker who would have lodged the asylum application in Malta.

However, as of 15 December 2018, Dublin procedures to Greece of non-vulnerable asylum seekers were resumed. It appears that no transfers were carried out since 2019.[17]

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

 

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. If an asylum seeker leaves Malta without permission of the Immigration authorities, either by escaping from detention or by leaving the country irregularly, the IPA will usually consider the application for asylum to have been implicitly withdrawn, in pursuance of Regulation 13 of the Procedural Regulations, transposing the provisions of the recast Asylum Procedures Directive. Consequently, an asylum seeker who is transferred back will, in almost all cases, find that his or her asylum application has been implicitly withdrawn leaving him susceptible to return, and detention, by immigration authorities.

Indeed, in 2019 and 2020, NGOs assisting migrants such as aditus Foundation and JRS reported that most Dublin returnees who flee Malta were detained upon return, being usually detained under the Reception Conditions Directive as the authorities consider that elements of their claim could not be gathered without enforcing detention due to the risk of absconding.

As of 2021, there is no clear policy regarding Dublin returnees in Malta. NGOs are not currently in a position to comment regarding detention of Dublin claimants following their return to Malta due to their inability to monitor the situation of  detention centres, due to severe access restrictions. What can be said is that if detention of Dublin returnees occurs, such individuals are likely detained in the same facilities as other asylum seekers, and that Malta probably follows the same detention policy applied to first-time applicants. Hence, it is likely that detention will be based on the returnees’ countries of origin and the feasibility of their return in case of rejection rather than on other objective criteria. Some returnees from countries with a higher recognition rate such as Syria or Libya might therefore not be detained. On paper, the detention is likely to be based on the ground that elements of their claim cannot be gathered without enforcing detention due to the risk of absconding.

The Dutch Council of State (highest administrative court) ruled on 15 December 2021 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 mentions the structural detention of Dublin ‘returnees’ and finds these detention conditions to be a breach of article 3 ECHR and article 4 of the EU Charter. The court also specifically mentions 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. It is expected that this judgment will bring a halt to Dublin transfers to Malta from the Netherlands.[18]

Furthermore, persons stopped at the airport with forged documents run the risk of facing criminal charges, on the basis of the Immigration Act.

 

 

 

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

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

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

[4] Article 13 Dublin III Regulation.

[5] Article 12 Dublin III Regulation.

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

[7] Civil Court First Hall, EnasMhana 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] HavvalGamshid v the Commissioner of Police and the Attorney General, 15/2013, 27 January 2016.

[10] Information given by the Dublin Unit, February 2021.

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

[12] Information provided by the Dublin Unit, February 2020.

[13] Article 7(1) International Protection Act.

[14] Article 7(2) Refugees Act, as amended by 4(c) Act XX of 2017.

[15] Article 7(5) International Protection Act.

[16] ECtHR, M.S.S. v. Belgium and Greece, Application 30696/09, Judgment of 21 January 2011.

[17] Information provided by Dublin Unit January 2022.

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

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