Asylum Procedure in Malta

© Darrin Zammit Lupi

Applications for international protection are to be lodged with the Refugee Commissioner, as the Office of the Refugee Commissioner (RefCom) is the authority responsible for examining and determining applications for international protection at first instance. The procedure in place is a single procedure with the examination and determination of eligibility for subsidiary protection being undertaken by the Refugee Commissioner within the context of the same procedure. The Refugee Commissioner 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 Refugee Commissioner for the necessary follow-up.

The initial stages of the procedure require the filling in of a form known as the Preliminary Questionnaire (PQ) which asylum seekers are asked to complete following an information session given by RefCom staff members. The PQ is considered to be the registration of the asylum seeker’s desire to seek international protection. If, at this stage, an individual provides information that, prima facie, renders him or her eligible for a transfer to another EU Member State in terms of the Dublin III Regulation, the examination of the application for protection is suspended pending the outcome of the Dublin procedure. It is pertinent to note that although the Refugee Commissioner is designated as the head of the Dublin Unit, the immigration police are charged with implementing the Dublin procedure in practice.

Following the initial collection of information in the PQ, an appointment is scheduled for an interview with the applicant. Once the applicant is called for the interview, he or she is first asked to fill in an Application Form that contains questions similar to those previously answered in the PQ. The application form is considered to be the official application for international protection. Then the recorded interview takes place and the applicant is informed at the end of the interview that he or she will be notified of the decision in due course.

National law specifies a 2-week time period from when an applicant is notified of the decision of the Refugee Commissioner, during which he or she may appeal to the Refugee Appeals Board (RAB). This Board, an administrative tribunal set up in terms of the Refugees Act which is currently made up of 6 chambers, is entrusted to hear and determine appeals against recommendations issued by the Refugee Commissioner. The Refugees Act specifies that the Minister may also lodge an appeal against the recommendation at first instance. An appeal to the Board has suspensive effect such that an asylum seeker may not be removed from Malta prior to a final decision being taken on his or her appeal.

The Refugees Act specifies that no appeal is possible from the decision of the Refugee Appeals Board, although it is possible to submit a judicial review application to the First Hall of the Civil Court. Notwithstanding, no appeal lies on the merits of the decision except the possibility of filing a human rights claim 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.

The above refers to the regular procedure employed in adjudicating the majority of applications for international protection. Accelerated procedures are also foreseen in national law for applications that appear to be prima facie inadmissible or manifestly unfounded. All applicants for asylum are interviewed by the Refugee Commissioner although their case might be classified as being inadmissible following an evaluation of their asylum claim. In such cases, the accelerated procedure kicks in at appeal stage. The recommendation of the Refugee Commissioner is transmitted to the Refugee Appeals Board with the Board having a 3-day time-limit, specified at law, during which an examination and review of the Refugee Commissioner’s recommendation is to be carried out.

The procedure for determining applications for international protection from applicants arriving by boat is identical to that for applicants who arrive in Malta by other means. According to the newly released Strategy for the Reception of Asylum Seekers and Irregular Migrants, new arrivals shall be accommodated at an Initial Reception Facility in order for them to be medically screened and processed by the pertinent authorities, including AWAS and Police officials. The period of stay at the Initial Reception Facility shall ordinarily be limited to no more than 7 days; although the period of stay may be longer if health-related considerations so dictate. During their time in the Initial Reception Facility irregular migrants would be informed of their right to apply for international protection by the Office of the Refugee Commissioner, as well as of any other relevant rights.

Those irregular migrants who do not apply for international protection, or whose application for international protection has been definitively rejected, may be detained. Asylum seekers who entered Malta regularly and whose application has been definitively rejected, provided that their stay is no longer regular, may also be with a view to ensuring their return. Any migrant in respect of whom detention is to be pursued shall be transferred to a Detention Centre upon release from the Initial Reception Facility; whilst those not detained or eventually released from detention shall be offered accommodation in an Open Centre.

Vulnerable persons such as children and pregnant women shall not be detained after being released from the Initial Reception Facility. Such persons shall instead be immediately accommodated at Open Centres suited to their specific circumstances.

Grounds for detention:

• To determine or verify the asylum seeker’s identity. A lack of documentation will not lead to automatic detention if alternative evidence for the person’s nationality exists, such as credible and consistent testimony by other applicants who reached Malta along with the migrant in question.

• When there is a risk of absconding on the part of the asylum seeker.

• To determine that the migrant has the right to enter Maltese territory. Only to be applied if a migrant entered the island via a regular border crossing but whose entry was irregular (such as in the case of stowaways).

• When a migrant only submits an application for international protection after being served with a return decision to delay or frustrate enforcement.

• Whenever there is reasonable suspicion that the asylum applicant has committed a criminal offence, particularly of a serious nature.

• If an asylum seeker is to be returned to another EU State responsible for determining his asylum application, provided that that there is a risk of absconding.

An asylum seeker shall in no case be detained for more than 9 months, upon which time he or she becomes entitled to access to the labour market. Detention for those waiting to be returned to their country of origin shall be of 6 months, which may be extended by a further 12.

 

Those seekers asylum seekers who entered the country irregularly, who are not vulnerable, and who are not subjected to a detention decision, may be required to abide by one or more of the following conditions for a period not exceeding 9 months, namely:

  • · to report at an assigned place within specified timeframes;
  • · to reside at an assigned place;
  • · to deposit or surrender documents; or
  • · to place a one-time guarantee or surety.

These conditions shall be applied whenever no detention decision is issued in respect of the person concerned, but where it is still considered that there may be a risk of absconding.

Asylum seekers and beneficiaries of international protection released from detention shall, if no alternative accommodation arrangements are available to them, be offered accommodation at Open Centres. Irregular migrants (i.e. persons who have not submitted an asylum application or whose applications have been definitively rejected) may also be offered accommodation at Open Centres if humanitarian considerations so require; provided that priority shall be accorded to asylum seekers and beneficiaries of international protection. The objective of Open Centres is to provide accommodation to asylum seekers and beneficiaries of international protection until such time as they are able to settle independently in the community. Open Centres will not only accommodate asylum seekers who would have reached Malta in an irregular manner, but also asylum seekers who would have reached Malta in a regular manner, provided that Malta is the State responsible for determining their asylum applications. This includes asylum seekers formally resettled or relocated to Malta. Other migrants, on the other hand, are provided with accommodation until such time as they can be returned to their country of origin or other arrangements have been made. Unless there are overriding humanitarian considerations, no migrant shall be allowed to reside at an Open Centre for more than 12 months.

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