Author
The procedure in place is a single procedure with the examination and determination of eligibility for subsidiary protection and Temporary Humanitarian Protection (THP)[1] being undertaken by the International Protection Agency (IPA) within the context of the same procedure. The language of the procedure is English. The IPA is the only entity authorised by law to receive applications for international protection. Should the individual express a need for international protection at the border, this information is passed on to the IPA for the necessary follow-up. Since 2019, the IPA has been supported by the EUAA across asylum and reception-related activities.
The registration process – whether undertaken by the IPA or EUAA – consists of collecting personal details and issuing a unique IPA number as well as the Asylum Seeker Document/Certificate. The lodging of applications consists of completing and signing an application form stating the basic reasons for seeking protection.
Immigration and asylum procedures only commence following confirmation by the Health Authorities that applicants have been screened and found not to suffer from any contagious disease (namely COVID-19 and tuberculosis). All those who apply for asylum are systematically fingerprinted and photographed by the immigration authorities for insertion into the Eurodac database. Those who enter Malta irregularly are immediately placed in detention on health grounds, and subsequently fingerprinted and photographed.
Once applicants are medically cleared by the Superintend of Public Health, the Principal Immigration Officer (PIO) issues Detention Orders under the Reception Regulations to applicants from countries of origin where returns are feasible. Those applicants generally spend the whole procedure in detention.
Dublin assessments are conducted for all cases and if necessary, an interview with the Dublin Unit is scheduled. If required, the examination of the application for protection is suspended pending the outcome of the Dublin procedure. The director of the IPA is designated as the head of the Dublin Unit.
Following the initial collection of information in the application form, and if Malta is deemed responsible for processing the application, the IPA schedules an appointment for an interview with the applicant. After the recorded interview takes place, the applicant is informed that he or she will be notified of the decision in due course.
A more experienced officer or manager reviews the caseworkers’ decision on the application and the IPA makes the final decision.[2]
According to the amended Procedural Regulations, the IPA shall ensure that the examination procedure is concluded within six-months of the lodging of the application. The examination procedure shall not exceed the maximum time limit of twenty-one months from the lodging of the application.[3] However, most of the decisions by the IPA are, in practice, not taken before the period of time established by the Regulations.
The International Protection Act provides for a right of appeal against a negative decision, within a two-week time period from the day of the notification of the decision.[4] This procedure is referred to as “normal procedure” as opposed to the “accelerated procedure” below.
Appeals are to be filed before the International Protection Appeals Tribunal (IPAT), an administrative tribunal which is currently operating in a one-chamber composition of three members and a secretary. Appeals to the Tribunal have suspensive effect, which guarantees that an asylum seeker may not be removed from Malta prior to a final decision being taken on his or her appeal.[5] The Tribunal is empowered to regulate its own procedure and its decisions are binding on the parties and the Tribunal will not remit it back to IPA to take a new decision.[6] By law, the Tribunal must decide within 6 months of the appeal and this can only be extended for a further 6 months in exceptional circumstances.[7] In practice however, the IPAT takes on average more than two years to decide on appeals. It is noted that the IPAT is housed within the Home Affairs Ministry and its members are all appointed by the Prime Minister.
The International Protection Act specifies that no appeal is possible from the decision of the IPAT,[8] although it is possible to submit a judicial review application to the Civil Court (First Hall).[9] Notwithstanding this, no appeal lies on the merits of the decision except for the possibility of filing a human rights claim to the Civil Court (First Hall) in its Constitutional jurisdiction alleging a violation of fundamental human rights in terms of the European Convention on Human Rights (ECHR) and/or the Maltese Constitution, should the rejected appellant be faced with a return that is prejudicial to his or her rights.
Accelerated procedures are also foreseen in national law for applications that appear to be prima facie inadmissible or manifestly unfounded.[10] In practice, most applicants are interviewed by the IPA although their case might be classified as being inadmissible or manifestly unfounded following an evaluation of their asylum claim.
In such cases, the accelerated procedure commences at the appeal stage and the decision of the IPA is automatically transmitted to the IPAT which must assess and review the decision of the IPA within three-days.[11]
Within the scope of this procedure, applicants are not entitled to appeal against the decision and no provision provides for the right to express their views by way of written submissions. No hearing is held and the decision is generally taken before applicants are notified of their first instance rejection. The decision generally consists of a one-page document confirming the IPA’s decision. The law provides that when the IPAT does not confirm the decision, the case must be remitted back to IPA for a new decision to be issued, however this is a scenario that rarely happens. In the few instances this happens, the IPA generally amends its decision to issue a simple rejection which allows for an onward appeal according to the normal procedure mentionned above.
Applicants from countries of origin where returns are deemed feasible are systematically detained and their cases are generally fast-tracked within the accelerated procedure; the outcome of such procedure, in all cases registered in recent years, resulted in a rejection decision. Overall, these applicants are registered and interviewed within the first 3 months of their arrival and issued with the IPA’s rejection decision, the IPAT’s review, a return decision, and a removal order a couple of weeks after. Nearly all asylum seekers coming from countries listed as safe in the Shedule of the International Protection Act[12] will see their application automatically rejected as manifestly unfounded on the ground that they are from a safe country of origin.
The asylum procedure and return procedures are not automatically linked. In practice however, it can be said that the accelerated procedure is linked to the return procedure since applicants are generally issued with a return decision and a removal order at the same time as the IPAT’s review and the entity notifying them is generally the PIO.
Applicants granted subsidiary protection or THP at first instance have the right to appeal this decision according to the normal procedure. [13] Additionally, rejected asylum seekers can apply to THP within a separated procedure at any time [14] and their status will be considered as rejected asylum seekers until a decision is issued. In that context, the law provides that no appeal lies against a decision of the IPA not to grant THP.[15]
The law foresees the possibility to file a subsequent application. Few subsequent applications pass the stage of admissibility and most are rejected as inadmissible. Inadmissible subsequent applications are channelled through the accelerated procedure as presented above and the review of the IPAT generally confirms the IPA’s decisions.
In 2022, the International Protection Agency continued to massively discontinue applications as implicitly withdrawn[16], significantly reducing its backlog in the process. Asylum seekers who miss a call for an interview or fail to renew a document on time see their application systematically discontinued by the Agency. While it is true that many applicants absconded from Malta or abandoned their applications, mostly due to the length of the asylum procedure and the lack of any prospect in the country, the asylum seekers who remained in Malta are also impacted by this policy. NGOs noted that this policy disproportionately affects asylum seekers who are employed and work long hours and those who are doing jail time as the IPA tends to notify people by phone call during working hours. According to NGOs, applications which were discontinued and subsequently reopened are treated as fresh applications as if they were lodged the year of the decision to reopen the application.
Asylum seekers in detention were reportedly also impacted by this policy and many of them saw their application discontinued due to various miscommunication issues and their misunderstanding of the procedure or their refusal to carry the interview due to their health condition or simply due to the frustration and anger for being detained without any information or access to a lawyer. The PIO generally issues a return decision and a removal order shortly after the decision to discontinue the application.
UNHCR reports that 2,637 decisions were issued at first instance in 2022, including 140 positive decisions (6% of the total). Out of these, 15 were recognitions of refugee status, 119 of subsidiary protection status and 16 of THP (although THP is not a form of international protection). There were 899 rejections (34%). The rest were 1,587 ‘closed’ cases (60% of the total), referring to applications that resulted in an administrative closure, Dublin closure, or applications that are explicitly withdrawn, implicitly withdrawn or inadmissible. A total of 913 first time applications were made in 2022.
In 2022, protection was mainly granted to Eritreans (31%), Syrians (50%) and Libyans (6%) followed by Sudanese and Palestinians (2% each).[17]
In 2022, the IPA rejected Sudanese applicants en masse. According to the UNHCR, the IPA issued 602 decisions: 342 were ‘otherwise closed’, 258 were rejected, and 2 were granted refugee status for a recognition rate of 0.3%.[18]
[1] THP is a form of national protection regulated by Article 17A of the International Protection Act and awarded to applicants for international protection who does not qualify for refugee status or subsidiary protection status, but who is deemed to qualify for protection on humanitarian grounds. The law is listing several categories of persons eligible for such status: an accompanied minor who cannot return to his country of origin pursuant to the principle of the best interest of the child; a terminally ill applicant or one who suffers from a severe or life-threatening medical condition not treatable in his country of origin; and an applicant who cannot be returned for other humanitarian reasons which can include serious disability affecting the applicant’s normal life. Applicants who committed crimes as defined in the International Protection Act are excluded from this status. See aditus foundation, Comments on Bill No. 133: Refugees (Amendment) Bill, July 2020, available at https://bit.ly/3HNvJ3C.
[2] ECRE, Asylum authorities: an overview of internal structures and available resources, October 2019, available at: https://bit.ly/2Ut8QIK, 55.
[3] Regulation 6(6) Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[4] Article 7(2) of the International Protection Act, Chapter 420 of the Laws of Mala
[5] Regulation 12 of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta
[6] Articles 7(9) and 7(11) of the International Protection Act, Chapter 420 of the Laws of Malta
[7] Article 7(7) of the International Protection Act, Chapter 420 of the Laws of Malta
[8] Article 7(10) International Protection Act, Chapter 420 of the Laws of Malta
[9] This is the Chamber of general jurisdiction. For further information on the First Hall of the Civil Court see the website of Malta’s judiciary, available at: http://bit.ly/1ds58HF.
[10] Articles 23 and 24 of the International Protection Act, Chapter 420 of the Laws of Malta
[11] Articles 23(3) and 24(2) of the International Protection Act, Chapter 420 of the Laws of Malta
[12] Schedule (Article 24) of the International Protection Act, Chapter 420 of the Laws of Malta.
[13] Article 17A (3) of the International Protection Act, Chapter 420 of the Laws of Malta.
[14] Article 17A (1) of the International Protection Act, Chapter 420 of the Laws of Malta.
[15] Ibidem.
[16] Regulation 13 of the Procedural Regulations, Subsidiary Legislation 420.07 of the Laws of Malta.
[17] UNHCR, Malta Fact Sheet, December 2022, available at: https://bit.ly/3IZf2Ai.
[18] Information provided by the UNHCR, January 2023.