We’ve commented on proposals to amend Malta’s asylum regime

On Monday 13 June we sent the Home Affairs Ministry and the Opposition our comments on proposals to amend Malta’s asylum regime.

Bill No. 2, the International Protection (Amendment) Bill, was presented in Parliament on 7 May 2022. At the time of writing these Technical Comments, the Bill was before Parliament, yet we received no invitation to discuss or consult.

We appeal to the Ministry and to Parliament to promote a consultative approach to law-making, particularly in situations involving highly technical matters that require in-depth knowledge and experience working in the relevant fields of law, such as EU asylum law.

Our comments (.pdf) are available here.

Our input is based on our years of experience working with asylum applicants and beneficiaries of international protection, coupled with a sound knowledge of international, EU and national law/jurisprudence. In line with the fundamental human rights to seek asylum, we advocate for procedures that are:

  •  Fair – it should be a procedure that is effectively and equally accessible to all persons wishing to exercise their fundamental right to seek asylum, irrespectively of country of oiling or other consideration. Administrative or practical hurdles that impede the exercise of this right should be removed, in particular where these affect vulnerable applicants such as children, persons with mental health issues, and persons otherwise encountering difficulties understanding their rights and obligations;
  • Effective – asylum and humanitarian assessment procedures should be capable of distinguishing between who is and who is not in need of Malta’s protection on the basis of an application of legal definitions consistent with international, EU and national definitions. Attention should also be paid to constantly evolving jurisprudence as a source of law and clarity;
  • Just – seeking protection does not commence and stop at application stage, but is a continuous process staggered over several stages. It is imperative that all these stages guarantee procedural fairness in terms of real access to information and advice/support (including from NGOs), adequate time for preparation in suitable conditions, sensitive interviews, impartial assessments and – importantly – real access to effective remedies.

It is with these principles in mind that our commentary on Bill No. 2 welcomes a number of its provisions.

Notably, we are happy to see a clarification on the nature of the appeal procedure, in line with EU law and jurisprudence. We also welcome the simplification of the subsequent application process, acknowledging the reality faced by most applicants in these situations.

We also express serious concern at proposed articles that limit procedural guarantees for some applicants. In recent years, Malta has introduced a series of measures seeking to limit the application and procedural rights of applicants, based on their country of origin.

This includes a misapplication of the notion of ‘safe country of origin’, permissible under EU law yet with core safeguards that Malta has failed to introduce, an over-reliance on an unfair accelerated procedure for hundreds of applications and denial of subsistence possibilities for certain categories of persons.

Whilst we appreciate Malta’s interest in securing the integrity of the asylum procedure and international protection rights, we find it unacceptable that nationals of specific states are penalised from their very first day they interact with Malta’s asylum procedure. In particular, our concern relates to the following proposed measures:

  •  a limited understanding of what Malta’s ‘territory’ is for the purposes of receiving asylum applications;
  • a continued incorrect use of accelerated procedures for applications deemed to be manifestly unfounded;
  • restriction of appeal and other procedural rights;
  • the Agency for the Welfare of Asylum-Seekers is not the appropriate entity toprovide asylum-related assistance to children.