Regular procedure

Malta

Country Report: Regular procedure Last updated: 19/05/21

Author

aditus Visit Website

General (scope, time limits)

In 2020, the IPA received 2,419 applications, marking an important decrease from the previous year.  In 2019, 4,021 applications for international protection were lodged in Malta and this represented a substantial increase compared to 2018 where RefCom had received 2,045 applications.

In August 2020, there were 3,961 cases awaiting first-instance decision, with more than 80% of cases pending for more than 6 months.[1] At the end of the year, 4,320 cases were still pending.

The IPA 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 Procedural Regulations, the IPA shall ensure that the examination procedure is concluded within six-months of the lodging of the application. The CEO 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 decisions taken by the IPA 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.

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.

Following on from the deployment of EASO staff to Malta in June 2019, EASO supports the IPA 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 the IPA regarding the scope of examination of asylum applications, meaning that it processes claims on both admissibility and merits. In 2020, EASO caseworkers carried out a total of 581 interviews and drafted a total of 653 concluding remarks. The three main three nationalities interviewed and processed by EASO staff were Bangladesh, Sudan, and Morocco.[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.

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 2020, 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 were 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 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]

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, most asylum seekers are interviewed, except when their application is declared inadmissible for reason of already benefitting from the protection of another Member State.

The interviews are conducted either by caseworkers at the IPA, or by EASO on behalf of the IPA for asylum-seekers who are detained, which means that the interviews are conducted by the same authority that takes the decision on the application.

The new IPA’s CEO, 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. This was done in 2020 with the support of EASO and after receiving feedback from UNHCR and local NGOs.

The new interview and assessment template 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 covid were noticed in 2020, but the IPA indicated that a limited number of interviews were conducted remotely[12].

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 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.[15] 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 2020, a limited number of personal interviews were conducted remotely.[16] However, videoconferencing was used on a couple of occasions to lodge an application when physical interpretation was not possible.[17]

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.[18] 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.[19]

 

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.

According to the new Act, the IPAT now consists of one Chairperson on a full-time basis and two or more members on a part-time basis.[21] 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,[22] all appointed by the President acting on the advice of the Prime Minister.

NGOs assisting applicants at appeal stage have called for a reform of the appeal procedure for years. However, 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.[23]

The appeal 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 International Protection Agency.[24] They are also requested to make written submissions within no more than 15 days following the registration of the appeal.[25]

The IPAT does not accept late appeals.

The new International Protection Act now 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.[26]

The introduction of time limits for appeals, which have suspensive effect, is an undeniable improvement as the procedure could, previously, take up to several years. However, lawyers assisting asylum-seekers reports that many applicants have been waiting for much longer periods than the foreseen time limits. Moreover, it is not clear how one can challenge the fact that appeal decisions are not taken in time.

The decision containing the reasons for the rejection of the application at first instance is always written in English. The IPA 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.

As already mentioned, applicants who receive a negative decision, either because their application was deemed manifestly unfounded or inadmissible, are not entitled to appeal against such decision. The IPA’s decision is automatically transferred to the IPAT who shall review the decision and confirm it within three days.[27] 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. No data is available but from the experiences of NGOs, such reviews systematically confirm the original rejection.

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 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 was denied for several months in 2020 due to Covid-19 (including to UNHCR), as a result many applicants were not in capacity to exercise their right to appeal.

Processing times at the appeal stage vary significantly. No data was provided for 2020, but the majority of cases are usually 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.

Moreover, in 2020, 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.

Usually, the appeal takes the form of written submissions to the IPAT. However, the Tribunal can, where appropriate, hold an oral hearing.[28] 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 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.[29] However, the new 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.[30]

There is no information available on the number of oral hearings that have been held in 2020.[31] NGOs’ experience suggests that most appellants treated through the regular procedure have oral hearings conducted by the chambers. However, due to the Covid-19 situation, lawyers assisting asylum-seekers at appeal stage noticed a decrease in the number of oral hearings held this year.

The hearings held by the Tribunal 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.

The IPA is now submitting written observations on selected cases, replying to lawyers’ argumentations in support of their decision. The Board usually grants the IPA a six-week period to submit the observations. Appellants should receive these IPA submissions prior to the Board’s hearings and are usually allowed to comment on them. However, procedural rules are mostly lacking before the IPAT, giving scope to legal uncertainty and varying practices. Therefore, rules are unclear regarding the submissions of observations by IPA, 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. The new 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.

In 2019, the IPA started to attend oral hearings. Some case workers attended hearings and provided some comments on the cases. No information is available for 2020.

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 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.[32] 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. The new Act now 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”.[33] 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.

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. In 2019, less than 1% of the decisions taken by the IPAT granted refugee status and less than 3% granted subsidiary protection. No data is available for 2020.

Judicial review

An onward appeal is not provided in the law in case of a negative decision from the IPAT. 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.

 

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.[34] 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.[35] 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.[36]

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.[37] 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.

In 2019, UNHCR provided trainings to eight lawyers at the legal aid clinic.[38

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.

The recurring problem of there be being inadequate space for the legal aid lawyers to discuss the case with his or her client in detention has also been noted, a problem which persisted throughout 2020 and 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.[39] 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.[40] 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.

 

 

[1]   EASO, 2021 Operating plan agreed by EASO and Malta, 11 December 2020, available at:  https://bit.ly/3tpXLIW.

[2]  Regulation 6(4) Procedural Regulations.

[3]  Regulation 6(6) Procedural Regulations.

[4]  Regulation 6(7) Procedural Regulations.

[5]  Information provided by EASO, 26 February 2021.

[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(2) Procedural Regulations.

[16] Information provided by the IPA, April 2021

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

[18]  The evaluation report is a very long template used for all the cases. It is currently being reviewed by the new Commissioner.

[19]  Court of Appeal, TeshoomeTensaeGebremariam v Refugee Appeals Board and the Attorney General, 65/10 RCP, 30 September 2016.

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

[21]  Art 5 International Protection Act.

[22]  Art 5.5 International Protection Act.

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

[24]  Article 7 International Protection Act.

[25] Art 7.6 International Protection Act.

[26]  Art 7.7 International Protection Act.

[27]  Art 23 and 24 International Protection Act.

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

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

[30]  Art 7.5 International Protection Act.

[31]  Information provided by the Refugee Appeals Board, January 2019.

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

[33]  Art 5.1 International Protection Act.

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

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

[36]  Ibid.

[37]  Regulation 7(4) Procedural Regulations.

[38]  Information provided by UNHCR Malta, January 2020.

[39] Regulation 7(2) Procedural Regulations.

[40]  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