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.
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.
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.
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.
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. The Maltese Dublin Unit does not require DNA tests and tends to rely on the documents and information immediately provided by the applicant. It will take into account DNA results from another member state. 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.
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.
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.
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 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.
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. 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 and 2022 as well.
The number of outgoing transfers implemented in 2020 was 320 and 249 in 2021, the vast majority of them to Germany or France.
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. Starting in May 2020, interviews were carried out again in a face-to-face format.
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.
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).
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
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 since 2019.
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 their asylum application has been implicitly withdrawn leaving them susceptible to be detained and potentially returned by immigration authorities under the Immigration Act. Furthermore, persons stopped at the airport with forged documents run the risk of facing criminal charges (see Access to Territory).
As of 2021, there is 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. However, the observations made in relation to the detention policy of the Government are applicable and individuals from these countries of origin (Morocco, Egypt, Algeria, Bangladesh, Ghana, Ivory Coast, Lebanon, Nigeria, Serbia) are at risk of being detained (see Detention).
Applicants who will not be detained will face tremendous obstacles to access dignified reception conditions as they are likely to be impacted by the eviction policy of the Government and will have difficulties securing employment (see Reception Conditions).
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 will be automatically channelled through the accelerated procedure and barred from filing an appeal against their negative decision. It must be noted that while the IPA does not automatically process applicants from Ivory Coast, Nigeria and Lebanon through the accelerated procedure, the risk remains significant. In this context, the conclusions of the ECtHR in S.H. v. Malta will be applicable (see Accelerated Procedure).
Furthermore, applicants from Libya, Sudan and South-Sudan are likely to be rejected without an individual assessment of their claim considering the high rejection rate these nationalities face (see Statistics). According to the UNHCR, the IPA issued 602 decisions to Sudanese nationals in 2022, 342 were ‘otherwise closed’, 258 were rejected, and 2 were granted Refugee Status. This makes the recognition rate at 0.3% while the European average is 40%.
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 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.
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. 
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.
 Information provided by the Dublin Unit, February 2021.
 Information provided by the Dublin Unit, January 2022.
 Information provided by the Dublin Unit, January 2022.
 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.
 Information provided by the Dublin Unit, January 2022.
 Information provided by the IPA Legal Unit, November 2020.
 Information provided by the Dublin Unit, February 2020.
 Article 7(1) of the International Protection Act, Chapter 420 of the Laws of Malta, as amended by Act XX of 2017.
 ECtHR, M.S.S. v. Belgium and Greece, Application 30696/09, Judgment of 21 January 2011.
 Information provided by Dublin Unit January 2022.
 Article 24 of the International Protection Act, Chapter 420 of the Laws of Malta.
 Information provided by the UNHCR, January 2023.
 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.