Dublin

Malta

Country Report: Dublin Last updated: 30/11/20

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General

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:[1]

  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.[2] 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 started to express concerns over the application of inadmissibility procedures in 2018 since this procedure does not provide for an effective remedy but only a three day review with the Refugee Appeals Board which does not allow the applicant to provide written submissions or to be heard. The decisions are found to be a mere confirmation of the first administrative decision without any examinations of points of facts or law (see below).

In 2019, 388 applications were deemed inadmissible.  

 

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 were then channelled into 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 two simultaneous rejections (i.e. the RefCom decision dismissing the application as inadmissible and the Refugee Appeal Board’s decision confirming the RefCom decision), or receive the rejections within a timeframe that makes an appeal against the 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.[3] Furthermore, the term “shall immediately” in Article 23(3) lacks legal clarity so the actual mandatory duration of the procedure is unclear.

In 2019, the majority of decisions taken by the Refugee Appeals Board (55%) were review decisions (contrary to appeal decisions) made in the accelerated procedure which consist of a mere confirmation of inadmissibility decisions made in the first instance without any further assessment. These decisions are usually taken the day after receiving RefCom’s decision and are only signed by the Chairperson. They do not include any examination of all points of facts and law as required by the Asylum Procedures Directive.

Such procedure is foreseen under the national law, which incorrectly transposes the recast Asylum Procedures Directive when it comes to the right to an effective remedy. As a consequence, practitioners and the UNHCR[4] do not consider this review to constitute an effective remedy as laid out in Article 46 of the recast Asylum Procedures Directive. 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.”[5]

The incorrect transposition of the recast Asylum Procedures Directive in respect of an effective remedy was subject to a legal challenge before the civil court in the case of a Palestinian asylum seeker who was not allowed to appeal his inadmissible decision. In this case, the applicant claimed that Malta’s asylum legislation violates the recast Asylum Procedures Directive and that, as a consequence of this, his procedural rights were violated.[6] This being one of Malta’s first ever cases relating to state liability for incorrect transposition of EU asylum law, the court (and Government) was unsure how to proceed, inviting the parties to explain whether this case is one of judicial review or one of damages.

The civil court finally rejected the case on the basis that it concluded it was a judicial case, and, therefore, time-barred, as opposed to an action for damages on the basis of an incorrect transposition of EU law.[7]  An appeal was filed and remains pending. In the course of the proceedings, the Office of the Attorney General confirmed that the Ministry was in dialogue with the EU Commission with a view to revising the accelerated procedure, although details are currently unknown.

 

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.

 


[1] Article 24 Refugees Act.

[2] Court of Appeal, Paul Washimba v Bordtal-Appellidwarir-Rifugjati, 28 September 2012.

[3] Information provided by UNHCR, January 2019.

[4] Information provided by UNHCR, January 2019.

[5] Article 7(1A)(a)(ii) Refugees Act, as amended by Article 4(b) Act XX of 2017.

[6] Case no. 909/2018GM filed on 16 February 2018.

[7] Civil Court, First Hall, CHEHADE MAHMOUD vs L-AVUKAT GENERALI E, 909/2018, 28 January 2020, available at: https://bit.ly/2Vqn2CT.

 

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