Author
General (scope, time limits)
In 2022, IPA received 913 new applications, where in 2021 it recieved 1,281 applications. No information is available on the backlog of pending cases at the end of 2022.
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.[1] The examination procedure must in any case not exceed the maximum time limit of twenty-one months from the lodging of the application.[2]
The Regulations further provide that 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.[3] In practice however, this provision is not applied and applicants and lawyers seeking updates on pending cases are generally replied a generic message indicating that the IPA is unfortunately unable to provide a timeframe of when a decision will be taken and that the person will be notified in due time.
In a report published in July 2021, the National Audit Office confirmed that the IPA lacked the administrative capacity to be able to keep up with the number of applications lodged and that “given the complexities involved and the thoroughness of the asylum procedure, RefCom’s shortage of officials transcended in processing delays – which in cases surpassed legal requirements” highlighting that applicants remain uninformed on the status of their case.[4] NGOs further reported that in one case, a yemeni applicant who filed a formal written complaint to the IPA saw his application rejected within a few days following the complaint.
Most decisions in the regular procedure 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 IPA reported that the average length of the asylum procedure was of 94 days in 2021. This relatively low number must however be read carefully, since it only refers to applications which were lodged in 2021.
The IPA and the Government have been widely critized for the lack of resources and expertise in processing asylum applications, resulting in lengthy delays (up to 4 years), and a negative bias towards applicants.[5] In a recent judgement, the EctHR identified various failures of the Maltese asylum system and found that the IPA deprived the applicant of rigorous individual assessment of his asylum claim, highligting that “general measures could be called for”.[6]
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. Detained applicants channelled through the accelerated procedure now see their asylum procedure being decided within a few weeks or months. They generally go through the procedure unrepresented and are unable to access any form of legal assistance before they receive a rejection decision. In 2021, the IPA indicated that it does not keep records of detained applicants. For more, see Accelerated Procedure.
Interviews and opinions, as well as decisions taken by the IPA, are written in English.
In 2022, EUAA caseworkers carried out interviews concerning 957 applicants, of which 70% related to the top 10 citizenships of applicants interviewed by EUAA, mainly concerning nationals from Syria (154), Sudan (101) and Eritrea (72).[7]
In 2022, the EUAA drafted 950 concluding remarks, of which 71% related to the top 10 citizenships of applicants in concluding remarks drafted by the EUAA, mainly concerning Syrians (157), Sudanese (109), and Eritreans (80).[8]
Prioritised examination and fast-track processing
The Procedural Regulations provide that 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.[9]
The IPA confirmed that priority was given to vulnerable applicants or those in need of special procedural guarantees (see Special Procedural Guarantees).
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.[10]
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 EUAA personnel on behalf of the IPA, the EUAA caseworker who conducted the interview is generally in charge of drafting a recommendation and the decision is ultimately taken by IPA staff. 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.[11]
Asylum seekers are generally informed by phone by the IPA a couple days in advance, lawyers reported that they are rarely notified and must usually rely on their clients to informing them. Interviews can be held in the IPA’s premises in Ħamrun and at the EUAA premises in the Safi Detention Centre, independently of whether or not the applicant is detained in Safi.
In July 2021, the National Audit Office of Malta published the report “Performance Audit: Fulfilling obligations in relation to asylum seekers”, which assesses the efficacy of each asylum process. The report identified inadequacies, including a lack of resources at first instance, and proposed strategic and operational recommendations.[12]
In its 2022 annual asylum report,[13] the EUAA reported that for the first time the IPA held reflective meetings on the quality of the international protection procedure, whereby lessons learned are captured and included in bulletins shared with case officers. Furthermore, regular meetings are held with the Quality Control Unit to discuss and identify solutions to issues faced by case officers. The IPA reportedly introduced confidential psychological services to case workers during working hours, which require the written approval of the supervisor and a confirmation of attendance.
The EUAA further reported that Malta introduced a new practice to optimise case management, a so-called 3+3 principle, whereby each case officer has a weekly quota of interviewing three applicants and submitting three draft decisions (not corresponding to the interviews performed in the same week), with exceptions for case officers who may need to engage in other tasks or by extension by the line manager.
IPA drafted guidelines on the involvement and conduct of legal representatives (NGOs or private lawyers) during an asylum interview, allowing lawyers to intervene at certain parts of the interview and limiting their presence in cases of disruptive behaviour. According to the new rules, a lawyer can submit supplementary statements within 5 days of the interview[14].
On the other hand, NGOs and lawyers reported not having witnessed any improvement in the asylum procedure and reported that the quality of the assessments are generally very poor, even when undertaken by EUAA caseworkers. The recent ECtHR decision seems to confirm this for assessments carried out between 2020 and 2021. The Court found the assessments to be “disconcerting” and plagued by “rampant incongruence”[15]. While the Court did not refer to the entitiy which was in charge of the applicant’s assessments, the applicant’s lawyers later reported that the first assessment was carried out by an EUAA caseworker as indicated in the applicants file.
Furthermore, data is not available on the rate of confirmation/overturning by IPA of recommendations made by EUAA.
Interpretation
The presence of an interpreter during the personal interview is required according to national legislation.[16] 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.
The quality of interpretation largely depends on the interpreter with some EUAA interpreters providing excellent interpretation services. Complaints on the quality of the interpretation are at times raised by legal representatives within the context of the interview or at appeal stage.
Applicants are allowed to request an interpreter of a specific gender or nationality. [17] Requests to this end must be made either by the applicant themselves, or by their legal adviser before the interview is carried out.
Transcription
In practice, the interview transcript is taken by the caseworker in charge of the interview during the interview itself. Lawyers assisting applicants during their interviews noted that the caseworker oftentimes abruptly stops applicants or interpreters in the middle of a sentence in order to write down their answers which generates frustration and anger for applicants and interpreters alike. The fact that caseworkers are also in charge of typing the transcript means that they are more prone to inappropriate behaviour such as not listening to the applicant, ignoring a distressful situation when going over a traumatic memory, or letting their frustration and fatigue impacting the way they carry out the interview. Some applicants and lawyers reported witnessing such behaviours. Interviews carried out without an interpreter are reportedly more impacted by this issue since the caseworker usually uses the interpretation time to type the answers of the applicant.
Interviews are generally carried out by EUAA staff who are not native English speakers and have various levels of proficiency in English. It was reported by lawyers that this oftentimes leads to transcription issues where the caseworker does not understand the applicant (if the interview is in English) or the interpreter. Lawyers reported having to sometimes spell words for the caseworkers or request a readback of the transcript during the interview. The quality of the written transcript is generally impacted by this lack of proficiency in English with some transcript being full of mistakes, truncated sentences, and not faithful to the applicant’s statements.
Applicants channelled through the regular procedure generally have access to the written transcript of the interview before any decision is taken, provided a request is made to that effect by the applicant or their legal adviser. It is however not possible for the applicant to make any comments at this stage since transcription issues can only be raised at the appeal stage.[18]
The law provides for the possibility of audio or audio-visual recording of the personal interview and interviews are generally recorded.[19] The applicant is informed of such at the beginning of the interview; however their consent is not requested. The IPA will only provide the audio recording for cases at the appeals stage in accordance with the Procedural Regulations.[20] The recording can only be consulted at the IPA’s premises and applicants and their legal representatives cannot get copies of it. The audio recording of the interview will be accepted as evidence by the IPAT if a request is made to that effect.
Interviews can be 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.[21] Videoconferencing was also used on a few occasions to lodge an application, when physical interpretation was not feasible.[22] 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 receive the assessment report explaining in detail the motivation of the decision along with the decision and the interview notes.
Appeal
Appeal before the International Protection Appeals Tribunal
An appeal mechanism of the first instance decision is available before the International Protection Appeals Tribunal (IPAT). The appeal is an administrative review and involves the assessment of facts and points of law. It has a suspensive effect.
Concerns over the independence and impartiality of the Tribunal
The IPAT falls under the Ministry for Home Affairs and consists of one Chairperson on a full-time basis and two or more members on a part-time basis.[24] Members of the Tribunal are appointed for a period of three years and are eligible for reappointment.[25]
Originally composed of three Chambers, the Home Affairs Ministry increased the Tribunal’s capacity by adding an additional Chamber in 2019. Each Chamber was composed of a chairperson and two other members, all appointed by the President acting on the advice of the Prime Minister.[26]
Since 2021, the Tribunal is composed of only one chamber appointed until 22 August 2023.
The Act provides that members must be of known integrity and be qualified “by reason of having had experience of, and shown capacity in, matters deemed appropriate for the purpose”. The Act further provides that one of the members of the Tribunal must be a person who has practised as an advocate in Malta for a period amounting to not less than seven years and that one of the members must be a person representing the disability sector.[27] Little is known on the actual selection process, there is no public call for applications or interested parties, the process is not made public or reviewed by any independent body, and there is no possibility for any member of the public to question a Ministerial appointment made under the Act. The appointment of a member is only made public through the Government Gazette and the Tribunal’s actual composition is not available on any of the Government’s websites. Tribunal members are appointed by the Prime Minister.
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.[28]
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 Tribunal’s Members. These concerns were confirmed by the National Audit Office in a report published in 2021 where it was reported that Chairs themselves deemed selection criteria not amenable to the expertise essential to rule on such technical and life-changing matters since there was no onus or requirements for the members to possess any direct educational or legal preparation or experience in asylum matters. The National Audit Office added that “this lack of familiarity shown by the members in legal interpretation of the appellants’ cases resulted in the chairpersons or members from the legal profession within the Chambers to practically decide the outcome of the appellants’ cases on their own, with the rest of the Chamber simply endorsing the decisions.”[29]
The report goes on stating that some of the Board members allegedly received training in asylum legislation and procedures through the European Asylum Support Office (EUAA) and the United Nations High Commissioner for Refugees (UNHCR), specifically on the Dublin III legislation in 2017, attendance for which was voluntary. However, the Board chairpersons did not provide concrete evidence of the attendance, the frequency and efficacy of the training and they made it clear that more training was required especially for new members and those who were not legal professionals. It is noted that Malta’s appeal system is not included in the EUAA Operating Plan.
The audit also noted a critical shortage of administrative and support staff, including interpreters, research assistants and/or officers that could qualitatively assist the Tribunal in its hearings or in researching and drafting decisions.
Stakeholders, including the Chamber of Advocates, have expressed concerns regarding specialised tribunals such as the IPAT.[30] In the feedback to DG Justice on the Malta Country Chapter for the Rule of Law Report, 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.[31]
In its 2022 Rule of Law Report, the European Commission echoed such concerns and indicated that the Government has committed in the Maltese Recovery and Resilience Plan to carry out a review of the independence of specialised tribunals such as the IPAT in communication with the Venice Commission. This review will include a study, to be completed by end 2024, as well as legislative amendments to enter into force by 31 March 2026.[32]
In their submissions for the 2023 Rule of Law Report, aditus foundation and the Daphne Caruana Galizia Foundation stated that although aware of the review of the system, they expressed thier concerns at the deadline of the implementation, 3 years from now, highligthing that in the meantime, the boards are deciding on crucial issues relating to detention, refoulement and asylum, which have clear implication on fundamental rights in the implementation of European Union law. They further reported that the independence of the tribunals, specifically of the IPAT was also raised in pending Commission Complaint CHAP(2021)02127 – Systematic breach of EU law in accelerated procedures, breach of Charter (Asylum Unit).[33]
Procedure to lodge an appeal before the Tribunal
An appeal can be made within 15 days from the notification on the applicant of the decision of the International Protection Agency for appeals lodged within regular procedure.[34] A recent amendment reduced this deadline to 1 week for appeals lodged against a decision of the IPA withdrawing a refugee status or subsidiary protection (see Withdrawal of Protection).[35]
The decision of the IPA is issued in English and mentions the deadlines for appeal. The IPA generally also provides a document in several languages briefly mentioning the appeal procedure and its deadlines along with a document providing the address and contact of the Tribunal and relevant organisations. 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 under any circumstances.
Once the appeal is lodged, the application is forwarded to the Ministry for Home Affairs and the IPA, the latter must then forward the applicant’s file to the Tribunal[36]. Within the context of this procedure, the application takes the form of a letter addressed to the Tribunal with the personal details of the appellant. In cases where the appellant is being represented by an NGO lawyer or a private lawyer, the letter is generally drafted by the lawyer or NGO. When the appellant appeals with legal aid, the letter is provided by the Tribunal and a lawyer is later appointed by the Ministry for Home Affairs. NGOs such as aditus and JRS provide template letters to the appellants indicating whether the appellant is represented by a lawyer or wishes to request legal assistance.
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. No data for 2022 is available.
There are no established rules or procedures for appeals filed by asylum seekers who are detained or in prison. They face significant obstacles to appeal and generally rely on NGOs to liaise with the competent authorities. Standard appeal forms are not available to asylum seekers in the premises where they are detained or imprisoned, the whole process being carried out on an ad hoc basis in complete opacity. Detainees can hardly communicate with the Tribunal themselves since they have limited access to phones and generally rely on their legal representative calling or visiting them to inform them of their rejection.
Interpreters are not available in the detention centre and only individuals who are fluent in English seem to be able to communicate their intention to appeal to the Detention Services (DS). NGOs visiting the detention centres will take upon themselves to refer the appellant to the IPAT’s registry, the Detention Services (DS) and the Legal Aid Agency, when the appellant requests a legal aid lawyer. This requires the NGOs to be aware of the appellant, which is not always the case considering their limited access to detention (see Access to Detention).
Since the appeal must be lodged in person, the appellant must be brought by the DS to the IPAT’s premises within the prescribed deadline. The whole process is characterised by a general state of apathy on the part of DS and the IPAT’s registry since both entities refuse to endorse responsibility for ensuring the appeal is lodged within the deadline. NGOs reported that it takes several reminders and calls to finally have appellants brought to the Tribunal to file their appeals.
For asylum seekers who are in prison, the Correctional Service Agency must be informed instead of DS and while they are reportedly more organised than DS they lack the understanding of the whole asylum procedure and unless a lawyer or an NGO informs them it is likely the appeal will not be filed.
The overall appeal system for detained asylum seekers cruelly lacks in every aspect. Ironically, the damage is somehow contained since detainees are generally channelled through the accelerated procedure which does not provide for an appeal procedure (see Accelerated Procedure).
Proceedings before the Tribunal
The Act provides that the IPAT can regulate its own procedure.[37] Specific rules of procedures were adopted in Subsidiary Legislation 420.01, entitled “International Protection Appeals Tribunal (Procedure) Regulations”. The Regulations add the obligation for all members to swear an oath that “they will faithfully and impartially perform the duties of their office or employment, and that they will not divulge any information acquired by them under the Act”.[38]
However, the regulations remain superficial in nature and do not formalise the decision process of the Tribunal. The National Audit Office found that there were no written procedures that guide the Tribunal’s Chambers which reportedly worked differently to determine decisions. The audit found that some Chambers claimed that they met and actually discussed files together and agreed upon a decision while other Chambers distributed cases and then agreed on decisions. The Audit Office found that the latter point showed that such practice meant that not all four members would have viewed the files deeply but relied on each other’s opinions. According to the Audit Office, the current Chair of the Tribunal contended that this is a practice which is used even by the Court of Appeal and the ECHR and that it is legitimate for one member or two to look into the details of the case and report findings to their colleagues.[39]
Once the appeal is filed, appellants and their lawyers must present written submissions within no more than 15 days following the registration of the appeal.[40] The IPAT does not accept late submissions.
Upon lodging the appeal, the parties are issued with a Decree providing for clear deadlines for their respective submissions. The IPA must file its submission within 15 days following the expiry of the deadline given to the appellant to file its own submissions. The Decree states that the IPA must present its submissions even if the appellant failed to do so and that if the IPA does not wish to file submissions, it must inform the Tribunal and motivate such a decision.
In practice, the IPA largely ignores the Tribunal’s Decree 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. However, this is without prejudice to the right of the IPA to file oral submissions during any hearing appointed by the Tribunal. It remains unclear if counter-observations submitted by the appellant are permitted de jure but this is generally accepted by the IPAT and considered to be the final note of submissions with the possibility for the IPA to reply with its own final note of submissions. Parties are therefore generally allowed to file two note of submissions each.
Appellants are further allowed to file new evidence beyond the 15 days initially awarded to them provided this new evidence was not available when the submission was made.[41] The fact that appeals remain pending for several years means that new facts are likely to emerge within the proceedings. In practice further submissions on new points of fact are allowed and the IPA is generally given 2 weeks to provide a written reply.
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”.[42] 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.[43] NGOs reported that on some occasions, the registry of the IPAT failed to print the lawyer’s submissions on file, therefore leading the IPAT to reject the case on the presumption that no submissions were filed. While it is possible to file a request to reopen the case, the IPAT generally rejects such requests on the basis that the law does not provide for it. 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 on its own initiative or following a request from the appellant.[44] As a result, asylum seekers can be heard in practice at the appeal stage, but only on a discretionary basis.[45] The law 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.[46]
The National Audit Office reported that it was not in a position to establish if and how many times the relevant Chamber would have met with the appellant for an oral hearing. It noted that the current Chair of the IPAT contends that the Board would hold an appeal worthy of a hearing when there was a particular point of law or fact which needed clarification, or where there was a specific request by the appellant for an oral hearing. The Audit Office expressed concerns that that “such difference in procedures raises the question as to whether appellants are being given an equal opportunity to present their case”.[47]
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 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 representative to reply. The law provides that the Tribunal should normally hear only new evidence regarding which it is satisfied that such evidence was previously unknown or could not have been produced earlier.[48] As such, the Tribunal rarely shows any interest in the case beyond any new evidence or point of law which needs clarification.
The hearing is generally held in the presence of the Chairperson and the secretary only and the written transcript does not make any mention of the oral submissions made by the appellant or the IPA beyond the mention “the appellant made his submissions”.[49] Hearings are always attended by a representative of the IPA.
The UNHCR is entitled by law to attend the hearings held by the Tribunal.[50] It will consider doing so if the appellant requests it and so far, has been attending hearings whenever requested. It also has the possibility to file observations in the appeal and did so for one case in 2021, where it made written and oral observations on the application of Article 1D of the 1951 Convention in a case concerning a Palestinian appellant.[51] In 2022 UNHCR agreed to examine the negative decisions of a group of Sudanese applicants and attended a number of asylum interviews.
Time limits and decisions
The Act provides that an appeal must be concluded within three months of the lodging of the appeal and that 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.[52]
In practice, the vast 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 an appellant 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. In 2022, the IPAT resumed its activity as pre-COVID.
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.[53]
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.
The past few years have shown a certain improvement in the quality of the decision issued with an increased number of references 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). However, the concerns over the Tribunal’s independence remain and with 0% recognition rate in 2021, the Tribunal’s reputation was seriously damaged.
The Tribunal is under the obligation to carry out a full and ex nunc examination of both facts and points of law,[54] the expression “full and ex nunc” being introduced by amendment XIX of 2022. The Tribunal’s decisions are final and conclusive and cannot be challenged and no appeal may lie before any Court of Law[55] except for human rights complaint before the First Hall Civil Court (FHCC)[56] or within the context of a subsequent application.[57] 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.
With respect to constitutional proceedings before the FHCC, the eCtHR considers that this remedy does not provide applicants with an automatic suspensive effect and therefore falls short of this effectiveness requirement. In coming to this conclusion, the Court noted that it is possible to seek a provisional measure from the FHCC but that such a request does not itself have an automatic suspensive effect either, and the relevant decision depends on an assessment on a case-by-case basis.[58] This means that applicants alleging a breach of Article 3 ECHR on the basis of the principle of non refoulement are not required to exhaust the remedy offered by the FHCC.
The decisions of the Tribunal are not published or publicly available.
Judicial review
Although the International Protection Act stipulates that the IPAT’s decisions are final, it is possible to submit an application 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 the Refugee Appeals Board’s decisions are final and that therefore the Courts should decline from taking cognisance of the case.[59]
The Civil Court’s competence to review the decision of any administrative tribunal to ensure “firstly that the principles of natural justice are observed and secondly, to ensure that there is not any wrong or incomplete statement of the law” is a longstanding principle established by jurisprudence.[60]
Even where the law stipulates that certain decisions are final and may not be challenged or appealed, Maltese Courts 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.”[61]
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
Regulation 10(4) of the Procedural Regulations provides that a legal adviser shall be allowed to assist the applicant in accordance with procedures laid down by the International Protection Agency and, “where entitled to free legal aid shall be provided to the applicant”.[62] However, Regulation 12(1) provides that an applicant is allowed to consult a legal adviser “at their own expense” in relation to their application for international protection “at all stages of the procedure” provided that, in the event of a negative decision at first instance, free legal aid shall be granted under the same conditions applicable to Maltese nationals.[63]
In practice, free legal assistance is limited to the appeal stage and NGOs reported that they are not aware of any legal aid lawyer intervening at the first instance stage and that applicants who request the assistance of a lawyer at first instance are generally referred to the NGOs by the IPA which usually provides them with a document containing the contact details of the NGOs and the UNHCR. This is further confirmed by the calls for legal aid lawyers issued by the Ministry for Home Affairs, which do not include any fees awarded for assistance at the first instance (see below).
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. 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.[64]
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 for Home Affairs in 2019. As a result, legal lawyers providing assitance to asylum seekers and migrants before the Immigration Appeals Board (IAB) and the International Protection Appeals Tribunal (IPAT) are selected from a pool of lawyers which is different from the one provided for civil and criminal cases and fall directly under the Ministry for Home Affairs. Legal aid lawyers are generally chosen on the basis of an open call issued by the Ministry for Home Affairs to provide specific migration and asylum related legal services. The contracts of service are awarded after interviews conducted by Ministry officials.[65]
Legal aid lawyers must undertake to represent appellants to the best of their ability and submit an appeal on their behalf to the relevant body at law. They must undertake to examine the grounds of appeal and present, in writing, the appellant’s case before the relevant Board or Tribunal as well as attending heaings to explain case submissions and provide other general assistance to the respondents during their appeal. The legal aid lawyer must submit the appeal within the prescribed deadlines and failure to do so might lead to MHSE to terminate the contract.[66]
The contract is a fee-based service contract where lawyers are paid per completed appeals and upon presentation of an attendance sheet. [67] The fees are paid according to the below;
- Asylum Appeals: 100 euro (inc. VAT) for every appeal submission.
- Dublin Appeals: 80 euro (inc. VAT) for every appeal submission.
According to some legal aid lawyers, the fee perceived is not enough to cover the work involved in preparing and submitting an asylum appeal, including attending the oral hearing. Additionaly, some practical and logistical obstacles may arise during the procedure such as appellants not showing at their appointments with the legal aid lawyer either because they are unaware they are required to so or simply because they missed the call or message. In such instances, it has happened that the legal aid lawyer does not file submissions for the appeal leading, resulting in the appeal being decided negatively without an assessment on the merits of the case.
It must also be noted that very few lawyers apply to be legal aid lawyers with the Ministry, presumably due to insuficient fees and a lack of intererest or specialisation in this field. The lenght of the appeal procedure and the lack of any propsect of success is also likely to demotivates lawyers to involve themselves more than the minimum required. In 2022 10 legal aid lawyers were available.
Furthermore, the mere fact that legal aid lawyers are employed by the Ministry for Home Affairs, under which IPA and the IPAT also fall, raises serious concerns with regard to the level of independence enjoyed by legal lawyers assisting applicants.
State sponsored legal aid in asylum cases being restricted to the appeal stage, free legal assistance at first instance is only provided by lawyers working with NGOs[68] and the Legal Clinic of the Faculty of Laws of the Univsersity of Malta.[69]
The assistance provided by the NGOs are provided as part of their on-going services and are funded either through project-funding or through other funding sources and therefore subject to funding limitations which could result in the services being reduced due to prioritisation. NGO 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 and appeals.
The Procedural Regulations provide that the IPA must allow applicants to bring with them a legal adviser for the interview. It further provide that the legal adviser can only intervene at the end of the interview and that the absence of the legal adviser does not prevent the IPA to carry out the interview. The Regulations empower the IPA to draft further rules covering the presence of legal advisers during the interview.[70] These rules were drafted in 2021 and cover the presence of any third parties at the interview, including the UNHCR.[71]
The UNHCR is entitled to have access to information on individual applications, be present during personal interviews and submit their views in writing during the first instance and at appeal stage, provided the applicant has consented to it.[72]
According to the new rules, legal advisers are allowed to make comments or ask questions to the applicant only at the end of the interview, which will be recorded and included in the interview transcript. The rules provide that third parties (including the UNHCR and legal adviser) may not intervene directly during the questioning of the applicant and if they do so, they will be given a warning to desist from such interventions by the case officer. The guidelines further state that the interview will be suspended in case if the interventions continue and that the IPA reserves the right not to authorise the attendance of the legal adviser when the interview is subsequently rescheduled. It must be noted that the guidelines fail to mention that legal advisers are legally entitled to intervene at any point in the interview on matters of procedure, however this is generally confirmed by the case officers at the begining of the interviews in accordance with EUAA standards. Finally, the new rules provide for a stringent 5 days deadline from the interview to submit a supplementary statements.[73]
NGOs have consistently raised concerns about the lack of or insufficient access to legal assistance and representation during the asylum procedure, especially for those placed in detention and in prison and the ECtHR found against Malta in several cases.[74]
On the 20th of December 2022, the ECtHR found a violiation of Article 3 ECHR taken in conjunction with Article 13 after highlighing the numerous shortcomings of the asylum procedure in Malta. The Court noted that “the applicant had not had the benefit of any legal assistance in the preparation of his asylum application, during his interview and all throughout the process until a few days before the first decision” and did not did not accept the argument of the Government that the applicant had not claimed he had asked for such assistance and had been denied, noting that, “during the processing of his first asylum claim the applicant had been in detention (between September 2019 until December 2020) and the Court has repeatedly expressed its concerns in the Maltese context about concrete access to legal aid for persons in detention”. The Court found that the situation of the applicant was further exacerbated by the COVID-19 pandemic and held that it “had no reason to doubt the applicant’s submission, supported by the CPT report that, due to increased limitations following the outbreak, detained asylum-seekers were even less likely to obtain any form of access to legal aid, or of NGO lawyers, or any other lawyer of choice”.[75]
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. Interpreters are not always available, especially in detention and only one boardroom shared with all actors is available for visits at the Safi Detention Centre (see Access to Detention).
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.[76] 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.[77] In practice, however, these restrictions are rarely, if ever, implemented.
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] Regulation 6(4) of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta,
[2] Regulation 6(6) of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta,
[3] Ibid., Regulation 6(7).
[4] National Audit Office, Performance Audit: Fulfilling obligations in relation to asylum seekers, 7 July 2021, p. 72, available at http://bit.ly/3CT0VeK
[5] FRA, Migration: Key fundamental rights concerns, quarterly bulletin October – December 2021, available at https://bit.ly/3H5R8oe, 14.
[6] ECtHR, S.H. v. Malta, 37241/21, 20 December 2022, available at https://bit.ly/3KKz7OH
[7] Information provided by the EUAA, 28 February 2023.
[8] Information provided by the EUAA, 28 February 2023.
[9] Regulation 6(8) of the Procedural Regulations, Subsidiary Legislation 420.07.
[10] Regulation 10 of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta
[11] Information provided by the IPA, April 2021.
[12] EUAA, Annual Asylum Report (2022), p. 138, available at: https://bit.ly/3YgYL0q
[13] EUAA, Annual Asylum Report (2022), p. 138, available at: https://bit.ly/3YgYL0q
[14] EUAA, Annual Asylum Report (2022), available at: https://bit.ly/3LrbVVE p.140.
[15] ECtHR, S.H. v. Malta, 37241/21, 20 December 2022, cited above.
[16] Regulations 4(2)(c) and 5(3) Procedural Regulations.
[17] Regulation 10(10)(d) of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[18] Regulation 11(5) of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[19] Regulation 11(2) of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[20] Regulation 11(9) of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[21] Information provided by the IPA, April 2021.
[22] Information provided by the Office of the Refugee Commissioner, April 2020.
[23] Article 5(1) of the International Protection Act, Chapter 420 of the Laws of Malta.
[24] Art 5 International Protection Act.
[25] Article 5(3) of the International Protection Act, Chapter 420 of the Laws of Malta.
[26] Art 5.5 International Protection Act.
[27] Art 5 International Protection Act, Chapter 420 of the Laws of Malta.
[28] aditus foundation, JRS Malta, Comments on Bill No.133 Refugees (Amendment) Bill, July 2020, available at: https://bit.ly/2P2xUr6.
[29] National Audit Office, Performance Audit: Fulfilling obligations in relation to asylum seekers, 7 July 2021, pp. 73-83, available at http://bit.ly/3CT0VeK
[30] 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.
[31] 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.
[32] EC, Rule of Law Report, Country Chapter on the rule of law situation in Malta, 13 July 2022, pp. 5-6, available at https://bit.ly/3XRYS2D
[33] Information provided by aditus foundation and Daphne Caruana Galizia Foundation, January 2023.
[34] Article 7(2) of the of the International Protection Act, Chapter 420 of the Laws of Malta and Regulation 5(1) (a) of the IPAT (Procedure) Regulations, Subsidiary Legislation 420.01 of the Laws of Malta.
[35] Articles 10(6) and 22(6) of the International Protection Act, Chapter 420 of the Laws of Malta, as amended by Act XIX of 2022.
[36] Regulation 5(1) (b) of the IPAT (Procedure) Regulations, Subsidiary Legislation 420.01 of the Laws of Malta.
[37] Article 7(9) of the International Protection Act, Chapter 420 of the Laws of Malta.
[38] Regulation 4 of the IPAT (Procedure) Regulations, Subsidiary Legislation 420.01 of the Laws of Malta.
[39] National Audit Office, Performance Audit: Fulfilling obligations in relation to asylum seekers, 7 July 2021, pp. 73-83, available at http://bit.ly/3CT0VeK
[40] Art 7.6 International Protection Act.
[41] Article 7(6) of the International Protection Act, Chapter 420 of the Laws of Malta.
[42] Information reported by aditus foundation, January 2022.
[43] Information provided by the Secretary of the IPAT, January 2021.
[44] Regulation 5(1)(h) RAB Procedures Regulations.
[45] Regulation 5(1)(n) RAB Procedures Regulations.
[46] Art 7.5 International Protection Act.
[47] National Audit Office, Performance Audit: Fulfilling obligations in relation to asylum seekers, 7 July 2021, p. 77, available at http://bit.ly/3CT0VeK
[48] Regulation 5(1)(h) of the IPAT Procedures Regulations, Subsidiary Legislation 420.01 of the Laws of Malta.
[49] Information provided by JRS and aditus, January 2022.
[50] Article 7(8) of the International Protection Act, Chapter 420 of the Laws of Malta.
[51] Information provided by aditus foundation, November 2021.
[52] Art 7.7 International Protection Act, Chapter 420 of the Laws of Malta.
[53] Information provided by the secretary of the IPAT, January 2022.
[54] Article 7(1A) of the International Protection Act, Chapter 420 of the Laws of Malta as amended by Act XIX of 2022.
[55] Article 7(10) of the International Protection Act, Chapter 420 of the Laws of Malta.
[56] Article 46 of the Constitution of Malta.
[57] Article 7A of the International Protection Act, Chapter 420 of the Laws of Malta.
[58] ECtHR, S.H. v. Malta, no 37241/21, 20 December 2022, § 53.
[59] 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.
[60] Civil Court (First Hall), Anthony Cassar pro et noe vs Accountant General, 667/1992/1, 29 May 1998; Court of Appeal, Dr. Anthony Farrugia vs Electoral Commissioner, 18 October 1996.
[61] 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.
[62] Regulation 10(4) of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta
[63] Regulation 12(1) Procedural Regulations.
[64] Ibid.
[65] Ministry for Home Affairs, Call for Legal Aid Services, available at: https://bit.ly/3ZF9LWL
[66] Ibid.
[67] Ibid.
[68] These are aditus foundation, JRS Malta, the Migrants Commission, and the Women’s Rights Foundation.
[69] See https://bit.ly/41JSugE
[70] Regulation 12(2) of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[71] EUAA, Annual Asylum Report (2022), p. 194, available at: https://bit.ly/3EU7fUn
[72] Regulation 21 of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta
[73] The guidelines are not publicly available, this information was provided by the IPA upon request on the 20th of Janaury 2022.
[74] See, Aden Ahmedv. Malta, no. 55352/12, § 66, 23 July 2013; Mahamed Jama v. Malta, no. 10290/13, § 65, 26 November 2015; Abdi Mahamud v. Malta, no. 56796/13, § 46, 3 May 2016, Feilazoo v. Malta, no. 6865/19, § 58, 11 March 2021; S.H. v. Malta, no 37241/21, § 82, 20 December 2022 in the immigration context and Yanez Pinon and Others v. Malta, nos. 71645/13 and 2 others, § 6, 19 December 2017 in the prison context.
[75] ECtHR, S.H. v. Malta, no 37241/21, § 82, 20 December 2022.
[76] Regulation 7(2) Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[77] Regulation 7(3) Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta