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An asylum seeker whose claim has been rejected may submit a subsequent application to the International Protection Agency.[1] A person may apply for a subsequent application if they can provide elements or findings that were not presented before – subject to strict interpretation – at first instance. The applicant is required to submit evidence of which they were either not aware, or which could not have been submitted at an earlier instance.
Act XIX of 20 December 2022 removed the requirement to present new facts or evidence within 15 days of becoming aware of such information. This brought the Act in line with the CJEU judgement in XY v Bundesamt für Fremdenwesen und Asyl.[2]
The IPA will first assess the admissibility of the subsequent application and if the application is deemed admissible, the applicant may be called for an interview, at the discretion of the Agency. Once the application is evaluated, a decision on the case is communicated to the appellant in writing. Since there is no free legal aid at this stage of the proceedings, asylum seekers are almost entirely dependent on NGOs.
There is no limit as to the number of subsequent applications lodged, as long as new evidence is presented every time. Second, third, and other subsequent applications are generally treated in the same manner.
The International Protection Agency created a standard form that applicants or their representatives need to fill in order to file a subsequent application. This form is meant to facilitate the filing of such applications by exempting applicants to draft submissions.
Despite the International Protection Act clearly stating that a personal interview on the admissibility of the application shall be conducted before a decision on the admissibility of an application has been taken.[3] Applicants submitting a subsequent application where no new elements were presented are not given the opportunity to be heard during a personal interview. The procedure is only in writing, with the ability for the legal representative to present submissions along with the application. In the (rare) event where the subsequent application is deemed admissible, the IPA will interview the applicants on the merits of their case with further questions on the new evidence provided.
Removal orders are only suspended once the applicant has formally been confirmed to be an asylum seeker by the IPA, since this confirmation triggers the general protection from non-refoulement guaranteed to all asylum seekers.
In practice, asylum seekers filing a first subsequent application are entitled to an Asylum Seeker Document and all the rights attached to it. However, they usually will have to renew the document every month, hence limiting their ability to apply for a work permit as employers are reticent to employ people with such a limited right to remain.
For asylum seekers who filed a second or more subsequent application, the Asylum Seeker Document will only be provided if the application is deemed admissible. The Procedural Regulations provide that an exception from the right to remain in the territory may be made where a person makes another subsequent application in the same Member State, following a final decision considering a first subsequent application inadmissible or after a final decision to reject that application as unfounded.[4]
The Procedural Regulations mention that this exception may be lifted if the International Protection Agency or the International Protection Appeals Tribunal indicate, by means of a notice in writing, that the return decision in respect of the person in question would constitute direct or indirect refoulement. However, no such case was encountered, and it was indicated by the IPA that this cannot be requested by the applicant itself.
As a practice, the PIO generally refrains from removing any individual with a pending subsequent application independently of the number of applications filed but is likely to detain the applicant on the basis of the Reception Regulations.
Processing time is similar to first-time applicants with the exception of detained applicants who are prioritised. Asylum seekers who filed a second or more subsequent application are likely to remain undocumented for more than 6 months before they can hope to have a decision on the admissibility of their application.
In the eventuality that a subsequent application is deemed admissible but is not accepted on the merits, there is the possibility of appealing this decision to the International Protection Appeals Tribunal within 15 days, in the same way as with the regular procedure (See Regular Procedure).[5] However, the IPA may also reject the application as manifestly unfounded even if the application was admissible. NGOs reported that this happened in at least 2 cases in 2022. Both applications were remitted back to the IPA by decision of the the IPAT thanks to the intervention of a lawyer right before the IPAT decided.[6]
In case the subsequent application is deemed inadmissible, the decision is immediately forwarded to the IPAT for a review in accordance with the accelerated procedure, which does not allow for the applicant to file an appeal, and be heard and will likely be confirmed by the IPAT as practice indicates (see Accelerated Procedure). The IPA is well aware of this fact and does not hesitate to abuse of this procedure, even when applicants provide new evidence of their claims.
As with first applications, concerns as to the quality of the assessments remain, with nearly all subsequent applications deemed inadmissible despite applicants providing new evidence of their claim.
In S.H. v. Malta, the applicant filed two subsequent applications, both rejected as inadmissible by the IPA. The ECtHR noted that the first subsequent application was deemed inadmissible despite the IPA concluding that the applicant had presented new elements and noted that “despite the rampant incongruence, the Tribunal’s review confirmed the decision, without any reasoning”. With regard to the second subsequent application which was filed on the basis of the Court’s order for interim measure, which in the Court’s own words “had precisely referred to the absence of an adequate assessment”, the Court noted “with no surprise” that the Tribunal confirmed the decision. The Court ultimately concluded that the applicant did not have access to an effective remedy under Article 13 for the purposes of his claim under Article 3.[7]
NGOs reported that the IPA tends to systematically reject subsequent applications of LGBTIQ+ applicants without carrying out an interview, even when the applicant provides evidence of his involvement with the LGBTIQ+ community, including reports from LGBTIQ+-supporting NGOs, letters and personal statements of friends, relatives and partners who are in Malta and are willing to present themselves as witnesses. The IPAT almost always confirms the rejections and the appellants are left with no further means to challenge the IPA’s assessment.
Aditus foundation reported that the IPA rejected at least one Palestinian national on two occasions, his second application being remitted back to IPA by decision of the IPAT. The UNHCR intervened in this case by submitting their written observations and being present during the interview. The case is still pending. Several subsequent applications from Sudanese non Arab Darfuri were also rejected as inadmissible by the IPA.
Lawyers and NGOs now refrain from filing new applications since according to a new policy from Jobsplus, applicants who see their applications rejected as inadmissible are barred from accessing legal employment.[8]
In 2022, 57 subsequent applications were lodged, 20 of which were from Ukrainians. 9 were filed by Egyptian nationals, 8 by Sudanese, 4 by Moroccans and Ivorians and the remaining were filed by applicants from various countries.
[1] Articles 7A of the International Protection Act, Chapter 420 of the Laws of Malta.
[2] CJEU (Third Chamber), XY v Bundesamt für Fremdenwesen und Asyl. Request for a preliminary ruling from the Verwaltungsgerichtshof. Case C-18/20, 9 September 2021.
[3] Article 24 (3) of the International Protection Act, Chapter 420 of the Laws of Malta.
[4] Article 16(3) of the international Protection Act, Chapter 420 of the Laws of Malta.
[5] Article 7(1A) (2) International Protection Act.
[6] ECtHR, S.H. v. Malta, application no 37241/21, 20 December 2022, § 92-97.
[7] ECtHR, S.H. v. Malta, application no 37241/21, 20 December 2022, § 92-97.
[8] Information provided by Jobsplus, September 2022.