Dublin statistics: 2020
|Outgoing procedure||Incoming procedure|
|Take charge||410||–||Take charge||238||–|
|Take back||220||–||Take back||745||–|
Source: Dublin Unit, February 2021.
|Outgoing Dublin requests by criterion: 2020|
|Dublin III Regulation criterion||Requests sent|
|“Take charge”: Articles 8-15:||410|
|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 17(2) “Take charge” humanitarian clause||378|
Source: Dublin Unit, February 2021.
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.
In 2017, changes were brought about to the Dublin procedure in Malta. As a result of these changes and the increased capacity of the Dublin Unit, applicants have better access to information on their cases and procedural safeguards are better respected. The Immigration Police is still in charge of the Eurodac checks but the rest of the procedure, including transfer arrangements, is now handled by the Dublin Unit of the Office of the International Protection Agency. Within this more coordinated procedure, access to information regarding an applicant’s status is generally less complicated and, overall, the entire process operates in a more organised manner.
As indicated, 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. Their support consists of deploying 6 caseworkers and is limited to outgoing requests and support to relocation exercises.
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.
Regarding the relocation exercise, in addition to the same tasks as the ones for the outgoing cases, EASO personnel deployed at the Dublin Unit are 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.
This support measure is being renewed for 2021.
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 tend to rely on the documents and information immediately provided by the applicant. In some cases which 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 family unity criterion is the most frequently used in practice for outgoing requests. 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.
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.
According to the authorities, no force or coercion is required to take the fingerprints of asylum seekers. When migrants make attempts to avoid their fingerprints being taken by 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 good copy is available.
In registering their desire to apply for international protection, asylum seekers are also asked to fill in 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.
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. 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. As a consequence, the Court rejected the application.
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. 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 Refugee Appeals Board, now 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. 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.
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.
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.
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 from May, interviews were carried out again in a face-to-face format.
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, 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. 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 with the Tribunal. 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.
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, although the modalities, eligibility assessment, and application procedure are not publicly available.
Suspension of transfers
Following the ECtHR’s judgment in M.S.S. v. Belgium and Greece, 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 in 2019 and 2020.
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 by the immigration authorities.
Indeed, in 2019 and 2020, NGOs assisting migrants reported that most Dublin returnees who flee Malta were detained upon return. They are 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.
Furthermore, persons travelling from Malta in an irregular manner – namely using false documents – run the risk of facing criminal charges upon being returned, on the basis of the Immigration Act. Upon return, the person would probably be arrested and brought before the Court of Magistrates (Criminal Jurisdiction) to face charges. During this time, pending the case, the asylum seeker would be remanded in custody at Corradino Correctional Facility for the entire duration of the criminal proceedings, which generally last for about one to two months from the date of institution of proceedings. The asylum seeker will be entitled to request the appointment of a legal aid lawyer, or to avail him or herself of a private lawyer should he or she have access to one. If found guilty, the Court may sentence the asylum seeker to either a fine of not more than around €12,000 or a maximum imprisonment term of two years, or for both the fine and imprisonment. It is noted that decisions are largely unpredictable, as some individuals have also been sentenced to imprisonment yet with a suspended sentence for a number of years.
 Information provided by the Dublin Unit, February 2021.
 Information provided by the Dublin Unit, February 2021.
 Information provided by the Dublin Unit, January 2021.
 Article 13 Dublin III Regulation.
 Article 12 Dublin III Regulation.
 ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014.
 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.
 HavvalGamshid v the Commissioner of Police and the Attorney General, 15/2013, 27 January 2016.
 Information given by the Dublin Unit, February 2021.
 Information provided by the IPA Legal Unit, November 2020.
 Information provided by the Dublin Unit, February 2020.
 Article 7(1) International Protection Act.
 Article 7(2) Refugees Act, as amended by 4(c) Act XX of 2017.
 Article 7(5) International Protection Act.
 ECtHR, M.S.S. v. Belgium and Greece, Application 30696/09, Judgment of 21 January 2011.
 Information provided by Dublin Unit, Office of the Refugee Commissioner, January 2019.