General (scope, time limits)
In 2019, 4,021 applications for international protection were made in Malta. This represents a substantial increase compared to 2018 where RefCom received 2,045 applications.
RefCom is a specialised authority in the field of asylum. However, it falls under the Ministry also responsible for Police, Immigration, Asylum, Correctional Services and National Security.
According to the amended Procedural Regulations, the Refugee Commissioner shall ensure that the examination procedure is concluded within six-months of the lodging of the application. The Commissioner 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.
The examination procedure shall not exceed the maximum time limit of twenty-one months from the lodging of the application.
When a recommendation/decision cannot be made by the Refugee Commissioner 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 Commissioner to take a decision within that time frame.
Most of the decisions taken by the RefCom are, in practice, not taken before the lapse of six months. The average length of the asylum procedure at first instance is not available for 2019.
Following on from the deployment of EASO staff to Malta in June 2019, EASO supports RefCom in the examination of asylum applications through the conduct of interviews and preparation of opinions recommending a first instance decision. EASO follows the same approach as RefCom regarding the scope of examination of asylum applications, meaning that it processes claims on both admissibility and merits.
Interviews and opinions, as well as decisions taken by RefCom, are written in English.
Prioritised examination and fast-track processing
The Refugee Commissioner 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.
In the past, as a matter of practice, certain caseloads were prioritised by RefCom. The types of cases which were prioritised included cases involving particular vulnerable persons who, on a prima facie basis, were likely to be given protection, cases involving persons who were in closed centres over those who were in open centres and, in the case of mass influx, preference was given to those coming from countries whose nationals are, prima facie, more liable to be given protection.
RefCom confirmed that applications lodged by applicants claiming to be Bangladeshi nationals or Moroccan nationals have been prioritised in 2019.
Moreover, applicants who applied for protection after being issued a removal order by Immigration Police were also prioritised.
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. However, whilst cases of Bangladeshi asylum-seekers were in fact prioritised at first and second instance, no Bangladeshi nationals were returned in 2019.
The Procedural Regulations now 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.
In practice, all asylum seekers are interviewed, although applicants classified as coming from a Safe Country of Origin are reportedly questioned only on basic information.
The interviews are conducted by caseworkers at RefCom, which means that the interviews are conducted by the same authority that takes the decision on the application. However, as mentioned above, EASO also provides support to RefCom in the conduct of interviews (see Number of staff and nature of the determining authority).
The new Refugee Commissioner, appointed in October 2019, expressed her willingness to revise the interview and assessment templates in order to process cases more efficiently and in line with accepted standards. For example, the current template does not clearly differentiate the assessment of facts with the legal analysis and is not conducive to a proper and reasoned individual assessment. The changes to the template are to take place in 2020.
The presence of an interpreter during the personal interview is required according to national legislation. Interpreters for Somalis, Eritreans, Syrians or Libyans – 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. However, this is not automatic, and requests to this end have to be made either by the applicant him or herself or by his or her legal assistant before the interview is carried out.
Recording and report
The law provides for the possibility of audio or audio-visual recording of the personal interview. As a matter of standard practice, all interviews are recorded. Regulations state that when such recording is made, the Commissioner shall ensure that the recording (or transcript) is available in connection with the applicant’s file.
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. It is uncertain whether an audio/video recording is admissible in the appeal procedure as there are no known cases wherein the Refugee Appeals Board made use of such recording material.
Interviews can and have been conducted through video conferencing. According to the Refugee Commissioner, 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 2019, no interview was conducted through video conferencing. However, videoconferencing was used on a couple of occasions to lodge an application when physical interpretation was not possible.
Following changes in RefCom’s policy in 2017, asylum seekers automatically receive, along with the decision and the interview notes, the evaluation report explaining in detail the motivation of the decision. This constitutes a real improvement in the applicants’ rights to access their file and access to an effective remedy. The importance of access to the evaluation report for the right to a fair hearing has also been highlighted by case law of the Court of Appeal.
Appeal before the Refugee Appeals Board
An appeal mechanism of the first instance decision is available before a board known as the Refugee Appeals Board (RAB). Originally composed of three Chambers, the Home Affairs Ministry increased the RAB’s capacity by adding an additional Chamber in 2019. Each Chamber is made up of four persons – a chairperson and an additional three members. It is an administrative review and involves the assessment of facts and points of law. 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 Refugee Commissioner. The Refugee Appeals Board does not accept late appeals. There is no time limit set in law for the Board to take a decision. Nevertheless, the appeal has suspensive effect.
The decision containing the reasons for the rejection of the application at first instance is always written in English. RefCom is now providing a document in several languages mentioning the appeal procedure. However, this letter is a standard one and the number of languages is limited.
Asylum seekers in detention can face obstacles in appealing because there are no clear and established procedures in place for them to lodge an appeal. For instance, standard appeal forms are not always available to asylum seekers in detention as such forms are mostly provided by NGOs who are not present in detention facilities on a daily basis.
Processing times at the appeal stage vary significantly. The majority (321 cases, 55%) of decisions taken in 2019 were under the accelerated procedure which provides for a three-day review for all decisions deemed inadmissible by RefCom. The decisions taken through the regular procedure following a hearing and assessment can take up to several years.
In 2019, applicants channelled through the regular procedure saw their waiting time seriously increase, partially due to the suspension of one Chamber for several months following the resignation of one of its members. In 2019, 50 decisions were taken on appeals which were pending since 2014, 15 on appeals pending since 2015, 17 on appeals pending since 2016, 28 on appeals pending since 2017 and 92 on appeals pending since 2018.
Usually, the appeal takes the form of written submissions to the Refugee Appeals Board. However, the Board can, where appropriate, hold an oral hearing. As a result, asylum seekers can be heard in practice at the appeal stage but only on a discretionary basis. Some Chambers systematically call for hearings in all cases whilst others appoint hearings on specific cases. 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 Refugee Appeals Board are not public and its decisions are communicated only to the applicant concerned, their legal representative, if known, the Refugee Commissioner, the Minister concerned and UNHCR.
There is no information available on the number of oral hearings that have been held in 2019. However, NGOs’ experience suggests that most appellants treated through the regular procedure have oral hearings conducted by the chambers.
The hearings held by the Board are very informal, mostly unprepared and proceed differently from one Chamber to another. Where some Chambers systematically call for hearings they do so only to consider information subsequent to the negative decision or inquire about new developments. Therefore, members of the Board do not ask any specific questions to the applicant or his/her representative. Where other Chambers call for hearings for selected cases, they conduct more in-depth questioning with the applicant.
Recently, RefCom has started to submit written observations on selected cases, replying to lawyers’ argumentations in support of their decision. The Board usually grants RefCom a six-week period to submit the observations. Appellants should receive these RefCom submissions prior to the Board’s hearings and are usually allowed to comment on them. However, procedural rules are mostly lacking before the Refugee Appeals Board, giving scope to legal uncertainty and varying practices. Therefore, rules are unclear regarding the submissions of observations by RefCom, which are sometimes received by the applicant after the hearing, in breach of the principle of equality of arms. It remains unclear if counter-observations submitted by the applicant are permitted de jure.
In 2019, RefCom started to attend oral hearings. Some case workers attended hearings and provided some comments on the cases.
One of the main concerns expressed by NGOs regarding the appeal stage remains the lack of asylum-related training and capacity of the Board Members. The quality of the decisions also 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. 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 RAB is binding on the parties and they will not remit it back to RefCom to take a new decision. In 2019, less than 1% of the decisions taken by the RAB granted refugee status and less than 3% granted subsidiary protection.
An onward appeal is not provided in the law in case of a negative decision from the RAB. However, judicial review of the decisions taken by the Board is possible within six months and several cases to this effect have been filed in the past couple of years. No information on judicial reviews is available for 2019 Unfortunately, judicial review does not deal with the merits of the asylum claim but only with the manner in which the concerned administrative authority reached its decision. Moreover, such cases would not automatically have suspensive effect. 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.
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. 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. 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 Refugee Appeals Board 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 and Security 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.
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 and Security in 2019. The reason for this shift is not known.
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. The main obstacle with regard to 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.
In 2019, UNHCR provided trainings to eight lawyers at the legal aid clinic.
There are no known private lawyers providing free legal assistance to asylum seekers at first instance.
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. 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 remains an issue in 2019.
A recurrent problem of inadequate place for the legal aid lawyers to discuss the case with his or her client in detention has also been noted, a problem which persists in 2019. However, in Safi barracks, one of the detention centres in Malta, there is now a room specifically dedicated for these meetings.
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. 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. 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.
 Regulation 6(4) Procedural Regulations.
 Regulation 6(6) Procedural Regulations.
 Regulation 6(7) Procedural Regulations.
 Regulation 6(8) Procedural Regulations.
 Information provided by the Office of the Refugee Commissioner, January 2019.
 Information provided by the Office of the Refugee Commissioner, April 2020
 Regulation 10 Procedural Regulations.
 Regulations 4(2)(c) and 5(3) Procedural Regulations.
 Regulation 10(10)(d) Procedural Regulations.
 Regulation 11(2) Procedural Regulations.
Information provided by the Office of the Refugee Commissioner, April 2020.
 The evaluation report is a very long template used for all the cases. It is currently being reviewed by the new Commissioner.
 Court of Appeal, TeshoomeTensaeGebremariam v Refugee Appeals Board and the Attorney General, 65/10 RCP, 30 September 2016.
 Information provided by the Refugee Appeals Board, January 2020.
 Article 5(1) Refugees Act.
 Article 7 Refugees Act.
Regulation 5(1)(h) RAB Procedures Regulations.
 Regulation 5(1)(n) RAB Procedures Regulations.
 Information provided by the Refugee Appeals Board, January 2019.
 UN General Assembly, Report by the Special Rapporteur on the human rights of migrants, François Crepeau, December 2014.
 Regulation 7(1)-(2) Procedural Regulations.
 Regulation 7(4) Procedural Regulations.
 Information provided by UNHCR Malta, January 2020
 Regulation 7(2) Procedural Regulations.
 Regulation 7(3) Procedural Regulations.