Regular procedure

Malta

Country Report: Regular procedure Last updated: 23/05/22

Author

aditus Visit Website

General (scope, time limits)

In 2021, the IPA received 1,281 applications, nearly half than in 2020 (2,419 applications) and close to one quarter if compared to 2019 (4,021 applications).

EASO reported that, at the end of June 2021, around 3,500 cases were awaiting a first-instance decision, while 4,200 cases were reported as pending at all instances. The higher outflow in 2021 reversed the backlog increase of late 2020, reaching the springtime levels of the year before. The top 5 nationalities in terms of pending cases at first instance coincided to a large extent with those lodging applications (Sudan 24%, Syria 10%, Eritrea 9%, Somalia 8%, and Libya 7%). Despite the decreasing caseload, these five nationalities still accounted for more than half of all pending cases (58%). While decreasing in volume, the age of the backlog continued to grow in 2021, with every four out of five cases (82%) at first instance pending for 6 months or more. The nationalities  with the highest proportions of old cases and counting at least 100 pending cases at the end of June 2021 were Mali (95%), Ivory Coast (91%) and Nigeria (90%). At the end of the year, 3,265 cases were still pending[1].

According to the Procedural Regulations, the IPA shall ensure that the examination procedure is concluded within six-months of the lodging of the application. The director may extend this time limit for a period not exceeding nine months for limited reasons: when complex issues are involved, when a large number of third-country nationals simultaneously apply for international protection or when the delay can clearly be attributed to the failure of the applicant to comply with his obligations.[2]

The examination procedure shall not exceed the maximum time limit of twenty-one months from the lodging of the application.[3]

When a decision cannot be made by the IPA within six months, the applicant concerned shall be informed of the delay and receive information on the time frame within which the decision on his application is to be expected. However, such information does not constitute an obligation for the Agency to take a decision within that time frame.[4]

Most of the IPA’s decisions are, in practice, not taken before the lapse of six months. According to the IPA, the average length of the asylum procedure was 263 days in 2020 (from the date of the lodging which can take place months after arrival). Moreover, asylum procedures were suspended due to COVID-19 between 12 March and 25 May 2020. During that period, cases were not processed and interviews were not carried out. The average length of the asylum procedure in front of the IPA was of 94 days in 2021. This relatively low number must however be read carefully, since it only refers to applications which were made in 2021.

Applicants channelled through the regular procedure and free from detention may wait for more than a year just to be called to a personal interview. Those in detention and channelled through the accelerated procedure, mainly due to their country of origin, can receive a decision within six months. However, due to a decrease in arrivals, detained applicants channelled through the accelerated procedure now see their asylum procedure being decided within a few weeks and are generally unable to seek any legal aid before they receive a rejection decision. The IPA indicated that it does not keep records of detained applicants; it is therefore common for the IPA to simply be unaware that an applicant is being detained, which consequently creates additional delays in the procedure.

Since June 2019, EASO supports the IPA in the examination of asylum applications by conducting the interviews and preparing opinions recommending a first instance decision. Claims are processed on both admissibility and merits. In 2021, EASO caseworkers carried out a total of 973 interviews and drafted a total of 911 concluding remarks. The main three nationalities interviewed and processed by EASO staff were Sudan, Eritrea and Nigeria.[5]

Interviews and opinions, as well as decisions taken by the IPA, are written in English.

 

Prioritised examination and fast-track processing

The IPA may decide to prioritise an examination of an application for international protection only when the application is likely to be well-founded and when the applicant is vulnerable or is in need of special procedural guarantees, in particular unaccompanied children.[6]

The IPA confirmed that applications lodged by applicants claiming to be Bangladeshi nationals or Moroccan nationals have been prioritised in 2019.[7] No official information is available for 2020 but lawyers assisting asylum-seekers report that it is still the case in 2020 for Bangladeshis, Moroccans, and Ghanaians, as these cases are processed when applicants are still in detention. As of 2021, new nationalities seem to be prioritised, such as Ivorians and Egyptians.

Such cases are generally rejected as manifestly unfounded, despite having been examined after a personal interview and a full assessment of the claim on the merit. When channelled through the accelerated procedure, applicants are not entitled to appeal and are usually immediately issued a return decision together with a detention order. Therefore, in 2021, applicants to which this procedure was applied were not released from detention after the final decision on their asylum application and remained in detention awaiting a possible return.

Moreover, applicants who applied for protection after being issued a removal order by Immigration Police are also prioritised.[8]

Following the crisis of December 2018, when the vessels operated by the NGOs Sea-Watch and Sea-Eye were stranded off the Maltese coast, the Prime Minister of Malta issued a statement announcing that Bangladeshi nationals shall face an expedient return, after due process.[9]

In January 2021, more than two years after this announcement, dozens of Bangladeshis were returned to their country of origin. They had entered Malta irregularly by boat in 2018, 2019, and 2020. They spent the duration of their stay in Malta in detention. Their applications were processed through the accelerated procedure and declared manifestly unfounded, so they were never entitled to appeal their negative decision. Despite being the second main country of origin in Malta in 2020, the statistics of the IPA confirm that all of them were rejected and that not a single protection status was granted to them (see the statistical table at the beginning of the report), except for 1 THP status granted. The same can be said of 2021, with only 2 protection status granted out of 303 applications lodged.

The Prime Minister himself posted on social media about this return operation stating that “Following months of intensive work, a number of migrants without an authorisation to stay have been returned home. Malta is committed to prevent irregular arrivals, share the responsibility with other EU countries and return migrants who are not truly in need of protection”.[10]

Three more returns of Bangladeshi nationals were carried out in September, November and December 2021. Most of them had arrived in 2020 and had remained in detention for more than 16 months on average.

 

Personal interview

The Procedural Regulations provide for a systematic personal interview of all applicants for international protection but foresee a few restrictive exceptions. The grounds for omitting a personal interview are the same as those contained in the recast Asylum Procedures Directive, namely: (a) when the Commissioner is able to make a positive recommendation on the basis of evidence available; or (b) when the applicant is unfit or unable to be interviewed owing to enduring circumstances beyond his control.[11]

In practice, all asylum seekers are interviewed, except when their application is declared inadmissible because they already benefit from the protection of another Member State.

The interviews are mainly conducted by EASO personnel on behalf of the IPA, which means that the interviews are conducted by the same authority that takes the decision on the application.

The new interview and assessment template established in 2020 with the support of EASO is shorter, clearer, and clearly differentiate the establishment of material facts and the legal analysis. It leaves more space for the caseworker to develop a reasoned individual assessment.

As mentioned above, interviews were not conducted between 12 March and 25 May 2020 as a result of COVID-19. No significant changes in interview techniques due to health restrictions were noticed in 2020 or 2021, but the IPA indicated that a limited number of interviews were conducted remotely.[12]

The IPA indicated that it does not keep records of the number of interviews carried out, and therefore could not provide such data for 2021.

Interpretation

The presence of an interpreter during the personal interview is required according to national legislation.[13] Interpreters for Sudanese, Bangladeshis, Somalis, Eritreans, Syrians, or Libyans – which are amongst the main nationalities of asylum seekers in Malta – are largely available. However, interpreters for other languages are not always readily available.

Complaints as to the quality and conduct of the first instance interpreters are at times raised with legal representatives at the appeal stage, with the possibility of these being included in the appeal submissions. It is possible for interview procedures to be gender sensitive by appointing an interpreter and interviewer of the gender preferred by the applicant.[14] However, this is not automatic, and requests to this end must be made either by the applicant themselves, or by their legal advisor before the interview is carried out.

Recording and report

In practice, interview notes are taken during the personal interview whilst the interviewer is asking the questions, as well as the responses provided by the interpreter, if any. However, there is no indication that the consent of the asylum seeker is obtained for the audio recording of the interview and it appears, from several case files of applicants, that asylum seekers are simply informed of the fact that the interview will be audio recorded. For applications channelled through the regular procedure, the IPA will usually provide the written transcript of the interview before any decision is taken, if a request is made to that effect by the applicant or his or her legal advisor. It is however not possible for the applicant to make comments on and provide clarification of the transcript as the audio recording is allegedly admissible at the appeal stage.[15]

The law indeed provides for the possibility of audio or audio-visual recording of the personal interview.[16] As a matter of standard practice, all interviews are recorded. The IPA will however only provide the audio recording for cases at the appeals stage in accordance with the Procedural Regulations.[17]

The audio recording of the interview will be accepted as evidence by the IPAT if a request is made to that effect. The lawyers can only consult the audio transcript at the IPA’s premises and cannot get copies of it. It is unknown to what extent the IPAT actually takes into account the recording for its decision.

The above would in any case only apply to applicants channelled through the regular procedure, as those channelled through the accelerated procedure are unable to file any request for the purpose of the review conducted by the IPAT. Those applicants are therefore unable to raise any interpretation or transcription issues after their interview.

Interviews can and have been conducted through video conferencing. According to the IPA, interviews through video conferencing are considered to be essential in situations where there is a lack of interpreters available in order to proceed with the interview of an asylum seeker. In 2020, a limited number of personal interviews were conducted remotely.[18] However, videoconferencing was used in few occasions to lodge an application, when physical interpretation was not feasible.[19] The IPA indicated that it does not keep data on the method of interview used and it is therefore unable to provide information on how many were conducted by remote methods in 2021.

Asylum seekers automatically receive, along with the decision and the interview notes, the evaluation report explaining in detail the motivation of the decision.[20] This constitutes a real improvement in the applicants’ rights to access their file and access to an effective remedy. The importance to access to the evaluation report for the right to a fair hearing has also been highlighted by the case law of the Court of Appeal.[21]

 

Appeal

Appeal before the International Protection Appeals Tribunal

An appeal mechanism of the first instance decision is available before a board formerly known as the Refugee Appeals Board (RAB) and now called the International Protection Appeals Tribunal (IPAT) following the amendment made to the Refugees Act, now the International Protection Act. The appeal is an administrative review and involves the assessment of facts and points of law. It has a suspensive effect.

Composition and nature

The IPAT consists of one Chairperson on a full-time basis and two or more members on a part-time basis.[23] Originally composed of three Chambers, the Home Affairs Ministry increased the Tribunal’s capacity by adding an additional Chamber in 2019. Each Chamber is made of a Chairperson and two other members,[24] all appointed by the President acting on the advice of the Prime Minister. In 2021, the Tribunal was composed of only one chamber.

The Act only specifies that the IPAT shall regulate its own procedure. Yet the Act does not stipulate a timeline within which this procedure must be adopted by the Tribunal. According to NGOs, the fact that the Act also does not require that the procedure be publicly available, and that it also conforms to national, European, and international standards on asylum procedure best practice, remains an issue.

NGOs assisting applicants at appeal stage have called for a reform of the appeal procedure for years. Even if the establishment of a full-time Chairperson was welcome, they criticised the modalities of appointments of the members where the Prime Minister directly appoints members of a tribunal that is supposed to be independent and impartial.[25]

One of the main concerns expressed by NGOs over the years regarding the appeal stage remains the lack of asylum-related training and capacity of the Board Members. The Act foresees that Chairpersons shall be chosen amongst “persons of known integrity” and be qualified “by reason of having had experience of, and shown capacity in matters deemed appropriate for the purpose”.[26] The law also requires for at least one member of the Tribunal shall be a person who has practised as an advocate in Malta for at least seven years. NGOs promptly criticised the reform for not listing any specific qualification for eligibility for all members of the Tribunal.

Stakeholders, including the Chamber of Advocates, have expressed concerns regarding specialised tribunals such as the IPAT.[27] In the feedback to DG Justice on the Malta Country Chapter for the Rule of Law Report, the aditus foundation highlighted the following shortcomings regarding the Board:

  • Although the basic principles of natural justice apply to the Tribunal, its members are not part of the judiciary and are not bound by any code of ethics that applies to members of the judiciary. The only requisite for the Tribunal to be validly constituted is that its members are “persons of known integrity who appear to be qualified by reason of having had experience of, and shown capacity in, matters deemed appropriate for the purpose” and that at least one of the members of the Tribunal “shall be a person who has practised as an advocate in Malta for a period or periods amounting, in the aggregate, to not less than seven(7) years”. The appointment of persons who lack any specific qualification and experience on a Board that examine particularly sensitive issues such as the detention of migrants and asylum seekers might deny individuals the right to an effective remedy.
  • Most members of the IPAT are part-time members. This means that they often have full-time jobs, usually in the private sector, and perform their Board functions for a limited number of hours during the week. This can raise serious conflict of interest issues, besides affecting the Board’s efficiency.
  • Members of the IPAT are appointed by the Prime Minister. Whilst it is not possible to automatically assume that such an appointment would lead to political interference, it is clear that the system could have an impact on independence and impartiality of the body and could play a part in strengthening the Government’s agenda on migration and asylum, as the Board examine decisions taken by Government bodies.
  • The manner in which the IPAT conducts its proceedings is not publicly available through published guidelines. It was noted that there is a lack of procedural transparency: proceedings are not appropriately recorded the minutes of the hearing are poorly done (if done at all). The decisions are not published and are not publicly available.
  • The IPAT’s decision is final, and no further appeal is possible on substantive issues. Whilst judicial review on administrative action might be possible, as well as a Constitutional case alleging human rights violations could be opened, there is rarely the possibility to bring substantive elements before the Courts of law.

These concerns were shared by the Venice Commission which considered that specialised tribunals such as the IPAT do not enjoy the same level of independence as that of the ordinary judiciary and reiterated in October 2020 its recommendations in that respect.[28]

Procedure to file an appeal

In 2021, 691 appeals were filed before the IPAT. This includes 482 “reviews” of applications deemed manifestly unfounded or inadmissible and 283 decisions on the merits.

An asylum seeker has two weeks to appeal, which in practice is interpreted as being a written intention to file an appeal, and these two weeks start to run from the day the asylum seeker receives the written negative decision of the International Protection Agency.[29]  Decisions are issued in English along with a document in several languages briefly mentioning the appeal procedure and its deadlines. However, this letter is a standard one and the number of languages is limited. The appeal is to be lodged in person by the appellant at the IPAT premises in Valetta. Appellants are then issued with their identity document (Asylum Seeker Document) which they have to renew at the IPAT every three or six months. The IPAT does not accept late appeals.

Asylum seekers in detention can face obstacles in appealing because there are no clear and established procedures in place to lodge an appeal in these cases. Standard appeal forms are not available to asylum seekers in detention as these forms are mostly provided by NGOs who are not present in detention facilities on a daily basis. Some parts of detention centres are not equipped with phones so applicants may not reach legal assistance in time. UNHCR visits detainees on a regular basis and may refer applicants wishing to appeal to NGOs, but this remains random and not comprehensive.

Moreover, access to detention centres was denied for several months in 2020 due to COVID-19, as a result many applicants were not in capacity to exercise their right to appeal. Access for NGOs slightly resumed in June 2021, albeit with limitations that do not ensure every detainee can file their appeal on time. Rejected applicants channelled through the accelerated procedure are deprived of the chance to appeal their case.

Proceedings and hearings

Appellants and their lawyers have to present written submissions within no more than 15 days following the registration of the appeal.[30] The IPAT does not accept late submissions. In the past, the IPA was granted 6 weeks to submit its own observations, and the lack of clear rules of procedure led to cases where the appellants received the IPA’s submissions after the hearing, in breach of the principle of equality of arms.

The procedure seems now more structured, upon lodging the appeal the parties are provided with a document giving the clear deadlines for their respective submissions. The IPA is now invited to file its submission within 2 weeks following the deadline given to the appellant to file its own. The IPA must present its submissions even if the appellant failed to do so: if the IPA does not wish to file submissions, it must inform the Tribunal and motivate such decision. In practice, the IPA largely ignores the Tribunal’s rules and only submits written observations on selected cases, usually very late after the deadline. The Tribunal will however generally uphold a request to strike out the IPA’s late submissions, if it is made. It remains unclear if counter-observations submitted by the appellant are permitted de jure.

For the appellant, failure to file submissions will automatically lead the IPAT to reject the case on the basis that the appellant “did not indicate on which ground the appeal was made”.[31] The number of rejections linked to the absence of submissions filed by the appellant is substantial, amounting to 139 out of 283 decisions (49%) in 2021.[32] NGOs report that most of these cases were handled by legal aid lawyers. Oddly enough, these cases are considered to be rejections “on the merits” by the IPAT.

There is no obligation for the IPAT to hold hearings. However, it can decide to hold one of its own initiative or following a request from the appellant.[33] As a result, asylum seekers can be heard in practice at the appeal stage but only on a discretionary basis. The past few years have shown an increase in the number of oral hearings held by the Board, and lengthier decisions referring to EU and national legal norms, country of origin information and jurisprudence of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). Hearings of the IPAT are not public and its decisions are communicated only to the applicant concerned, their legal representative, if known, the IPA, the Minister concerned, and UNHCR.[34] However, the International Protection Act foresees the possibility for the Tribunal to authorise the hearing to be public after the request by one of the parties or if the Tribunal so deems fit.[35]

In practice, the IPAT seems to be holding hearings whenever the appellant requests it. The data provided is limited to cases that were heard from November 2021, with 16 hearings held so far.

The hearings held by the Tribunal are very informal and mostly unprepared. They will usually last less than 15 minutes, with a time allocated to the appellant to summarise the case and the relevant arguments, and a time for the IPA’s lawyer to reply. The Tribunal’s members will rarely have specific or in-depth questions and will usually only consider information subsequent to the negative decision.

In 2019, the IPA started to attend oral hearings. Some caseworkers attended hearings and provided some comments on the cases. No information is available for 2020. For the hearings held since November 2021, all were attended by the IPA lawyer.

The UNHCR is entitled by law to attend the hearings held by the Tribunal. It will consider doing so if the appellant requests it. It also has the possibility to file observations in specific cases. It did so for one case in 2021, and made written and oral observations on the application of Article 1D of the 1951 Convention in a case concerning a Palestinian appellant.[36]

Time limits and decisions

The International Protection Act provides for time limits to take a final decision on the appeal. Each case shall now be concluded within three months of the lodging of the appeal. In cases involving complex issues of fact or law, the time limit may be further extended under exceptional circumstances, but cannot exceed a total period of six months.[37]

In practice, the majority of cases are examined under the accelerated procedure, which provides for a three-day review for all decisions deemed inadmissible or manifestly unfounded by IPA. The decisions taken through the regular procedure following a hearing and assessment can take up to several years. So far, the time limits provided by the new Act do not show any effect in practice, with some cases pending for more than 3 years. Moreover, it is not clear how one can challenge the fact that appeal decisions are not taken in time.

In 2020 and 2021, applicants channelled through the regular procedure saw their waiting times seriously increase due to the COVID-19 pandemic and the related shut down of the IPAT for several months, between March and July 2020.

As already mentioned, applicants whose application is rejected as manifestly unfounded or inadmissible, are not entitled to appeal against such decision. The IPA’s decision is automatically transferred to the IPAT for the three days review. Such reviews do not allow the applicant to express his/her views or to be heard. The decision generally consists of a one-sentence document confirming the IPA’s decision. In 2021, the IPAT carried 368 reviews of manifestly unfounded applications, 366 of which were confirmed, and 114 reviews on inadmissible decisions, 112 of which were confirmed. This brings the total number of reviews carried in 2021 to 482 reviews, with 478 confirmed reviews and 4 cases remitted back to IPA.[38]

As such, a substantial number of IPAT decisions in 2021 were reviews, with 482 reviews on 765 decisions. Decisions on the normal procedure amount to 283, which includes the 139 rejections due to a failure to file submissions. This leaves 144 decisions taken on the merits of the application (including Dublin appeals), namely 18% of the decisions taken by the IPAT in 2021, all of which were rejections. In 2019, less than 1% of the decisions taken by the IPAT granted refugee status and less than 3% granted subsidiary protection, while no data is available for 2020.

IPAT follows the practice of the IPA to split all the applications by individuals, even when families have the same claim. This leads the IPAT to issue decisions for the same families months apart, even issuing decisions for minor children before their parents, despite the absence of any individual claim or application made on behalf of the children.

The quality of the decisions varies substantially amongst Chambers, with some being more effective than others and little coordination amongst them all. The consequences include inconsistency in procedures, process, and decisions, as well as the lack of coherent case law.[39] While some decisions include a comprehensive examination of the elements of fact and law of the case, others do not include any reasoning at all, rejecting the case on the basis of one sentence. In the majority of cases, the decision given by the IPAT is binding on the parties and they will not remit it back to the IPA to take a new decision.

Judicial review

Although the International Protection Act stipulates that RAB decisions are final, it is possible to submit an application under Article under Article 469A of the Code of Organization and Civil Procedure to the Civil Courts in order to review decisions that allegedly breach principles of natural justice or that are manifestly contrary to the law. This application can be filed within 6 months of the decisions issued by the IPAT. In a number of cases, Maltese Courts have rejected the plea presented by the government that RAB decisions are final and that therefore the Courts should decline from taking cognisance of the case.[40]

Article 469A of the Code of Organization and Civil Procedure provides the following:

Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:

(a) where  the  administrative  act  is  in  violation  of  the Constitution;

(b) when the administrative act is ultra vires on any of the following grounds:

(i) When such act emanates from a public authority that is not authorised to perform it; or

(ii) when a public authority has failed to observe the principles  of  natural  justice  or  mandatory procedural  requirements  in  performing  the administrative  act  or  in  its  prior  deliberations thereon; or

(iii) when the administrative act constitutes an abuse of the public authority’s power in that it is done for  improper  purposes  or  on  the  basis  of irrelevant considerations; or

(iv) when  the  administrative  act  is  otherwise contrary to law

Maltese Courts, even where the law stipulates that certain decisions are final and may not be challenged or appealed, have held that “not even the legislator had in mind granting such unfettered immunity to the Board as would make it unaccountable for breaches which, in the case of other administrative tribunals, ground an action for judicial review.”[41] In the Sadek Mussa Abdalla judgement, the Civil Court (First Hall) went so far as to say that breaches of any of the recognized rules of natural justice are, in essence, breaches of a right to a fair hearing as upheld in the relative provisions of Chapter IV of the Constitution as well as Article 6 of the European Convention on Human Rights (ECHR).[42]

Judicial review is a regular court procedure, assessing whether administrative decisions comply with required procedural rules such as legality, nature of considerations referred to and duty to give reasons. Applicants could be granted legal aid if eligible under the general rules for legal aid in court proceedings.

Unfortunately, judicial reviews do not deal with the merits of the asylum claim, but only with the manner in which the concerned administrative authority reached its decision. Moreover, the lack of suspensive effect and the length of the procedure, which can take several years before any decision is reached, tend to discourage lawyers and rejected asylum seekers to file cases.

Legal assistance

National legislation states that at first instance an applicant is allowed to consult a legal adviser at his or her own expense. However, in the event of a negative decision at first instance, free legal aid shall be granted under the same conditions applicable to Maltese nationals.[43] In the case of Maltese nationals, legal aid is available for all kinds of cases. However, legal aid for civil cases is subject to a means test whilst legal aid for criminal cases is not.[44] According to the office responsible for the provision of free legal assistance within the relevant Ministry, such legal assistance is usually not subject to a means test for asylum seekers. In practice, the appeal forms the applicants fill in and submit to the IPAT contain a request for legal aid. Unless an applicant is assisted by a lawyer working with an NGO or a private lawyer, this request is forwarded to the Ministry for Home Affairs, National Security and Law Enforcement which will distribute the cases amongst a pool of asylum legal aid lawyers. One appointment with the applicant is then scheduled. To date, legal aid in Malta for asylum appeals has been financed through the State budget.[45]

In 2018, responsibility for legal aid for appellants was shifted to Legal Aid Malta, who assigned legal aid lawyers from the government pool, but this shifted back to the Ministry in 2019. The reason for this shift is not known. According to lawyers assisting migrants, such shift was seen as a negative move due to the large caseloads that the lawyers have, generally consisting of criminal and civil cases. The legal aid pool of lawyers is not specifically trained or knowledgeable in migration or refugee issues, whereas the legal aid lawyers chosen by the Ministry is usually chosen on the basis of an open call to provide specific migration and asylum related legal services. The contracts of service are awarded after interviews conducted by Ministry officials. Therefore, the legal aid pool from the Ministry is focused on the provision of asylum and migration related legal services.

The free legal assistance available to asylum seekers at first instance is mainly that provided by lawyers working with NGOs. These services are regularly provided by a small group of NGOs as part of their on-going services and are funded either through project-funding or through other funding sources. It is to be noted that funding limitations could result in the services being reduced due to prioritisation. Generally, such lawyers provide legal information and advice both before and after the first instance decision, including an explanation of the decision taken and, in some cases, interview preparation. They can also attend personal interviews whenever the asylum seeker requests their presence. However, this is at the discretion of the Refugee Commissioner and their contribution throughout the interview is limited.[46] The main obstacle regarding access to this kind of assistance is that there are a limited number of NGO lawyers who are able to provide such a service in relation to the number of asylum seekers requiring it. However, the Faculty of Laws, University of Malta, has a Law Clinic where supervised law students offer pro bono legal assistance and where asylum seekers could benefit from the assistance provided.

Legal assistance at the appeal stage is not restricted by any merits test or considerations, such as that the appeal is likely to be unsuccessful. There are, however, some practical and logistical obstacles involved in effectively representing asylum seekers at the appeal stage.

According to a local legal aid lawyer, the annual allowance paid to legal aid lawyers as per the general legal aid system, is not enough to cover the work involved in preparing and submitting an asylum appeal, including attending the oral hearing. Furthermore, meetings with appellants who are in detention can be particularly problematic for practical and logistical reasons that can be of detriment to both the appellants and the lawyers. For instance, at the entrance of the detention centres, legal aid lawyers have to show their identity cards and be given a pass. Sometimes this is a cumbersome procedure because the lawyer’s name could not be on the list of people authorised to enter the detention centre. The provision of interpreters for legal aid lawyers is also problematic, as this needs to be organised and paid for by the lawyer, if at all available. As a result, the financial remuneration does not compensate the amount of work provided. Inadequate remuneration remained an issue in 2020 and 2021.

A recurring problem is also the inadequate space for the legal aid lawyers to discuss the case with his or her client in detention, a problem that persisted throughout 2020 and 2021, exacerbated by COVID-19 related measures.

The law states that access to information in the applicants’ files may be precluded when disclosure may jeopardise national security, the security of the entities providing the information, and the security of the person to whom the information relates.[47] Moreover, access to the applicants by the legal advisers or lawyers can be subject to limitations necessary for the security, public order or administrative management of the area in which the applicants are kept.[48] In practice, however, these restrictions are rarely, if ever, implemented. Usually, the appeal takes the form of written submissions to the Board by a stipulated time. Thus, it is not a very complicated procedure in practice. Nevertheless, the assistance of a lawyer is essential for an effective appeal.

In 2021, 142 requests for legal aid were filed at the appeal stage on a total of 212 filed appeals. As such, appellants are heavily relying on the services of a legal aid lawyer, often lacking the necessary understanding of asylum qualification.

NGOs noticed that the IPAT systematically rejects appeals where no submissions are filed. Several of these cases result from the failure of the legal aid lawyer to file any submissions, despite having met with the appellant. In 2021, the IPAT rejected 139 appeals for this reason.

 

 

 

[1] EASO, 2022-2024 Operating plan agreed by EASO and Malta, 16 December 2021, available at:  https://bit.ly/3LUHhlJ, 15-19.

[2] Regulation 6(4) Procedural Regulations.

[3] Regulation 6(6) Procedural Regulations.

[4] Regulation 6(7) Procedural Regulations.

[5] Information provided by EUAA, 28 February 2022.

[6] Regulation 6(8) Procedural Regulations.

[7] Information provided by the Office of the Refugee Commissioner, January 2019.

[8] Information provided by the Office of the Refugee Commissioner, April 2020.

[9] Department of Information, ‘Statement by Prime Minister Joseph Muscat about the situation of Seawatch3 and Albrecht Penck’, PR190025, 9 January 2019, available at: http://bit.ly/2RXXc5i.

[10] The Times of Malta, ‘Migrants returned to their country after asylum applications are rejected’, 12 January 2021, available at: https://bit.ly/30Rl1mu.

[11] Regulation 10 Procedural Regulations.

[12] Information provided by the IPA, April 2021.

[13] Regulations 4(2)(c) and 5(3) Procedural Regulations.

[14] Regulation 10(10)(d) Procedural Regulations.

[15] Regulation 11(5) Procedural Regulations

[16] Regulation 11(2) Procedural Regulations.

[17] Regulation 11(9) Procedural Regulations

[18] Information provided by the IPA, April 2021.

[19] Information provided by the Office of the Refugee Commissioner, April 2020.

[20] The evaluation report is a very long template used for all the cases. The new Commissioner is currently reviewing it.

[21] Court of Appeal, Teshoome Tensae Gebremariam v Refugee Appeals Board and the Attorney General, 65/10 RCP, 30 September 2016.

[22] Information provided by the Refugee Appeals Board, January 2020.

[23] Art 5 International Protection Act.

[24] Art 5.5 International Protection Act.

[25] aditus foundation, JRS Malta, Comments on Bill No.133 Refugees (Amendment) Bill, July 2020, available at: https://bit.ly/2P2xUr6.

[26] Art 5.1 International Protection Act.

[27]  See EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION), opinion 993/2020, 8 October 2020, available at https://bit.ly/3Kwh7nS and European Commission, 2021 Rule of Law Report, Country Chapter on the rule of law situation in Malta, available at: https://bit.ly/3vBtXN9, 4-5.

[28] Venice Commission, CDL-AD(2020)019-e, para. 98; see also CDL-AD(2020)006 paras. 97-98; and CDL-AD(2018)028 paras. 80-83.

[29] Article 7 International Protection Act.

[30] Art 7.6 International Protection Act.

[31] Information reported by aditus foundation, January 2022.

[32] Information provided by the Secretary of the IPAT, January 2021.

[33] Regulation 5(1)(h) RAB Procedures Regulations.

[34] Regulation 5(1)(n) RAB Procedures Regulations. 

[35] Art 7.5 International Protection Act.

[36] Information provided by aditus foundation, November 2021.

[37] Art 7.7 International Protection Act.

[38] Information provided by the secretary of the IPAT, January 2022.

[39] UN General Assembly, Report by the Special Rapporteur on the human rights of migrants, François Crepeau, December 2014.

[40] See for instance, Paul Washimba v Refugee Appeals Board, the Attorney General and the Commissioner for Refugees, 65/2008/1, 28 September 2012; Saed Salem Saed v Refugee Appeals Board, the Commissioner of Police as Principal Immigration Officer and the Attorney General, 1/2008/2, 5 April 2013; Abrehet Beyene Gebremariam v Refugee Appeals Board and the Attorney General, 133/2012, 12 January 2016.

[41] Saed Salem Saed v Refugee Appeals Board, the Commissioner of Police as Principal Immigration Officer and the Attorney General, 1/2008/2, 5 April 2013.

[42] Sadek Mussa Abdalla v Refugee Appeals Board and the Attorney General, 511/2013, 22 October 2013.

[43] Regulation 7(1)-(2) Procedural Regulations.

[44] The Judiciary Malta, Frequently Asked Questions, available at: http://bit.ly/1FJWCug.

[45] Ibid.

[46] Regulation 7(4) Procedural Regulations.

[47] Regulation 7(2) Procedural Regulations.

[48] Regulation 7(3) Procedural Regulations.

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