Temporary Protection for Displaced Persons

L.N. 131 of 2005

REFUGEES ACT

(CAP. 420)

Temporary Protection for Displaced Persons

(Minimum Standards) Regulations, 2005

IN exercise of the powers conferred by article 19 of the

Refugees Act, the Deputy Prime Minister and Minister for Justice and

Home Affairs has made the following regulations:-

PART I

General provisions

(1) The title of these regulations is the Temporary Citation and

Protection for Displaced Persons (Minimum Standards) Regulations, purpose.

2005. (2) The purpose of these regulations is to implement the

provisions of the European Union Directive 2001/55/EC which

establishes minimum standards for giving temporary protection in the

event of a mass influx of displaced persons from third countries who

are unable to return to their country of origin and to promote a

balance of effort between Member States in receiving and bearing the

consequences of receiving such persons.

Regulation 26(4)

Model pass for the transfer of persons enjoying temporary protection

PASS

Name of the Member State delivering the pass

Reference number (*)

Issued under Article 26 of Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary

protection in the event of a mass influx of displaced persons and on measures promoting a balance of effort

between Member States in receiving such persons and bearing the consequences thereof.

Valid only for the transfer from ................................................... ( 1 ) to ........................................................ ( 2 ).

The person in question must present himself/herself at ......................................... ( 3 ) by .............................. ( 4 ).

Issued at: .............................................................................................................................................................

SURNAME: ........................................................................................................................................................

FORENAMES: ....................................................................................................................................................

PLACE AND DATE OF BIRTH: ........................................................................................................................

In case of a minor, name(s) of responsible adult: .................................................................................................

SEX: ....................................................................................................................................................................

NATIONALITY: .................................................................................................................................................

Date issued: .........................................................................................................................................................

PHOTO

SEAL

Signature of the beneficiary: ........................................ For the competent authorities: .......................................

The pass-holder has been identified by the authorities ................................................................................ ( 5 )( 6 )

The identity of the pass-holder has not been established ......................................................................................

This document is issued pursuant to Article 26 of Directive 2001/55/EC only and in no way constitutes a

document which can be equated to a travel document authorising the crossing of the external border or a

document proving the individual’s identity.

(*)

The reference number is allocated by the country from which the transfer to another Member State is made.

(1)

Member State from which the transfer is being made.

(2)

Member State to which the transfer is being made.

(3)

Place where the person must present himself/herself on arrival in the second Member State.

(4)

Deadline by which the person must present himself/herself on arrival in the second Member State.

(5)

On the basis of the following travel or identity documents, presented to the authorities.

(6)

On the basis of documents other than a travel or identity document.

For the purposes of these regulations

Interpretation.

"the Act", means the Refugees Act;

"the Commissioner" means the Refugee Commissioner and

includes, to the extent and authority given, any other person

temporarily authorised in that behalf by the Minister;

"displaced persons" means third-country nationals or stateless

persons who have had to leave their country or region of origin, or

have been evacuated, in particular in response to an appeal by

international organisations, and who are unable to return in safe and

durable conditions because of the situation prevailing in that country,

who may fall within the scope of refugees under Article 1A of the

Geneva Convention or other international or national instruments

giving international protection, in particular

(a)

persons who have fled areas of armed conflict or

endemic violence; or

(b) persons at serious risk of, or who have been the

victims of, systematic or generalised violations of their human

rights;

"Geneva Convention" means the Convention of the 28 July

1951 relating to the status of refugees, as amended by the New York

Protocol of 31 January, 1967;

"mass influx" means the arrival of a large number of displaced

persons, who come from a specific country or geographical area,

whether their arrival was spontaneous or aided, for example through

an evacuation programme;

"the Minister" means the Minister responsible for immigration,

and any public officer to whom the Minister may delegate in writing

any of the duties appertaining to him under this Act;

"Principal Immigration Officer" means the person appointed to

such office by the Prime Minister under article 3 of the Immigration

Act, and includes, within the limits of any authority granted by the

Principal Immigration Officer under the said article 3, any public

officer acting under such authority;

"residence permit" means any permit or authorisation issued

under any law at the time in force in Malta and taking the form

provided for in that legislation, allowing a third country national or a

stateless person to reside in Malta;

"sponsor" means a third-country national enjoying temporary

protection in Malta in accordance with a decision taken under

regulation 6 and who wishes to be joined by members of his or her

family;

"temporary protection" means a procedure of exceptional

character to provide, in the event of a mass influx or imminent mass

influx of displaced persons from third countries who are unable to

return to their country of origin, immediate and temporary protection

to such persons, in particular if there is also a risk that the asylum

system will be unable to process this influx without adverse effects

for its efficient operation, in the interests of the persons concerned

and other persons requesting protection;

"unaccompanied minors" means third-country nationals or

stateless persons below the age of eighteen, who arrive in Malta

unaccompanied by an adult responsible for them whether by law or

custom, and for as long as they are not effectively taken into the care

of such a person, or minors who are left unaccompanied after they

have entered into Malta;

"UNHCR" means the United Nations High Commissioner for

Refugees.

Regulations 11 and 16

The information referred to in Articles 10, 15 and 26 of the Directive

includes to the extent necessary one or more of the following documents or data

(a)

personal data on the person concerned (name, nationality, date

and place of birth, marital status, family relationship);

(b) identity documents and travel documents of the person

concerned;

(c)

documents concerning evidence of family ties (marriage

certificate, birth certificate, certificate of adoption);

(d) other information essential to establish the person’s identity or

family relationship;

(e)

residence permits, visas or residence permit refusal decisions

issued to the person concerned by the Member State, and documents forming

the basis of decisions;

(f)

residence permit and visa applications lodged by the person

concerned and pending in the Member State, and the stage reached in the

processing thereof.

The providing Member State shall notify any corrected information to the

requesting Member State.

Third country nationals who are eligible for temporary Establishment

protection in the event of a mass influx, in accordance with these of mass influx.

regulations, shall be granted temporary protection by the

Commissioner for the duration and under the conditions stipulated

under these regulations.

(1) Temporary protection shall not prejudge the Temporary

recognition of refugee status under the Act and the Geneva protection.

Convention.

(2) Temporary protection shall be applied with due respect for

human rights and fundamental freedoms and other obligations

regarding non-refoulement.

(3) The establishment, implementation and termination of

temporary protection shall be the subject of regular consultations with

the Office of the United Nations High Commissioner for Refugees

and other relevant international organisations.

(4) These regulations shall not apply to persons who have been

accepted under temporary protection schemes prior to the entry into

force of these regulations.

PART II

Duration and implementation of temporary protection

(1) Without prejudice to the provisions of regulation 7, Duration of

the duration of temporary protection shall be one year. Unless temporary

protection.

terminated under the terms of regulation 7(1)(b), such duration may

be extended automatically by six monthly periods for a maximum

period of one year.

(2) Where reasons for temporary protection persist, the

Commissioner may decide to extend that temporary protection by a

period of up to one year.

(1) The existence of a mass influx of displaced persons Existence of a

shall be declared by the Commissioner. Such declaration shall be mass

displaced

based on a Council Decision establishing the existence of a mass persons.

influx adopted by the Council of the European Union, on a proposal

from the European Commission, and adopted by qualified majority, in

accordance with the provisions of Directive 2001/55/EC.

(2) The Commissioner’s declaration in accordance with

subregulation (1) shall have the effect of introducing in Malta

temporary protection for the displaced persons to which it refers, in

accordance with the provisions of these regulations.

(1)

Temporary protection shall come to an end

(a)

when the maximum duration has been reached; or

(b) at any time, by a decision to this effect by the

Commissioner, following a Council Decision adopted by a

qualified majority on a proposal from the Commission of the

European Union.

(2) The Commissioner’s decision shall be based on the

establishment of the fact that the situation in the country of origin is

such as to permit the safe and durable return of those granted

temporary protection with due respect for human rights and

fundamental freedoms and other obligations regarding non-

refoulement.

The Commissioner may extend temporary protection as

provided for in these regulations to additional categories of displaced

persons over and above those to whom the provisions of regulation 6

apply, where they are displaced for the same reasons and from the

same country or region of origin.

PART III

Rights of persons enjoying temporary protection

(1) Persons enjoying temporary protection shall be

provided with residence permits for the entire duration of the

protection. Documents or other equivalent evidence shall be issued by

the competent authorities for that purpose.

(2) Whatever the period of validity of the residence permits

referred to in subregulation (1), the treatment granted to persons

enjoying temporary protection may not be less favourable than that

set out in regulations 10 to 17.

(3) Persons admitted for the purposes of temporary protection

shall be provided with every facility for obtaining the necessary visas,

including transit visas; formalities shall be reduced to a minimum

because of the urgency of the situation, and visas shall be free of

charge or their cost reduced to a minimum.

Persons enjoying temporary protection shall be provided

with a document, in a language likely to be understood by them, in

which the provisions relating to temporary protection and which are

relevant to them are clearly set out.

In order to enable the effective application of these Registration of

regulations, the Commissioner shall cause to be registered the personal data.

personal data referred to in paragraph (a) of the Second Schedule to

these regulations, with respect to the persons enjoying temporary

protection in Malta.

Subject to any bilateral agreement which may be entered Re-admission of

into with any other Member State of the European Union, a person person

temporary

enjoying temporary protection in Malta shall be re-admitted to Malta protection.

if the said person remains on, or seeks to enter without authorisation

onto, the territory of another Member State during the period covered

by the Commissioner’s decision referred to in regulation 6.

(1) Subject to any special arrangements to which Malta Employment.

may be a party, persons enjoying temporary protection shall, for a

period not exceeding that of temporary protection, be permitted to

engage in employed or self-employed activities, subject to rules

applicable to the profession, as well as in activities such as

educational opportunities for adults, vocational training and practical

workplace experience

Provided that for reasons of labour market policies,

priority may be given to EU citizens and citizens of States bound by

the Agreement on the European Economic Area and also to legally

resident third-country nationals who receive unemployment benefit.

(2) In the cases contemplated in subregulation (1), the general

provisions applicable to remuneration, access to social security

systems relating to employed or self-employed activities and other

conditions of employment shall apply.

(1) Persons enjoying temporary protection shall have Accommodation

access to suitable accommodation or, if necessary, they shall receive and

assistance.

the means to obtain housing accommodation.

(2) (a)

Persons enjoying temporary protection shall receive

the necessary assistance in terms of social welfare and means of

subsistence, if they do not have sufficient resources, as well as for

medical care.

(b) Without prejudice to the provisions of subarticle (4),

the assistance necessary for medical care shall include at least

emergency care and essential treatment of illness.

(3) Where persons enjoying temporary protection are engaged

in employed or self-employed activities, account shall be taken, when

fixing the proposed level of aid, of their ability to meet their own

needs.

(4) Medical or other necessary assistance shall be provided to

persons enjoying temporary protection who have special needs, such

as unaccompanied minors or persons who have undergone torture,

rape or other serious forms of psychological, physical or sexual

violence.

(1) Persons under eighteen years of age enjoying

temporary protection shall be granted access to the state education

system under the same conditions as Maltese nationals.

(2) Subject to such conditions as may be imposed by the

Commissioner, adults enjoying temporary protection may be allowed

access to the general education system.

(1) For the purposes of this regulation, in cases where

families already existed in the country of origin and were separated

due to circumstances surrounding the mass influx, the following

persons shall be considered to be part of a family

(a)

the spouse of the sponsor or his or her unmarried

partner in a stable relationship, in so far as Maltese legislation

or practice in force treats unmarried couples in a way

comparable to married couples under Maltese law relating to

aliens; the minor unmarried children of the sponsor or of his or

her spouse, without distinction as to whether they were born in

or out of wedlock or adopted;

(b) other close relatives who lived together as part of the

family unit at the time of the events leading to the mass influx,

and who were wholly or mainly dependent on the sponsor at the

time.

(2) (a)

In cases where the separate family members enjoy

temporary protection in other Member States of the European Union,

family members shall be reunited in Malta where the Commissioner

is satisfied that the family members fall under the description of

subregulation (1)(a), taking into account the wish of the said family

members.

(b) Family members may be reunited in Malta where the

Commissioner is satisfied that the family members fall under the

description of subregulation (1)(b), taking into account, on a case by

case basis, the extreme hardship the family members would face if the

reunification did not take place.

(3) (a)

Where the sponsor enjoys temporary protection in

Malta and one or some family members are not yet in a Member

State, the Commissioner shall allow the reunification of the family

members, who are in need of protection, with the sponsor in the case

where the Commissioner is satisfied that the family members fall

under the description of subregulation (1)(a).

(b) Family members, who are not yet in a Member State

and who are in need of protection, may be reunited with the sponsor

in Malta in the case where the Commissioner is satisfied that the

family members fall under the description of subregulation (1)(b),

taking into account, on a case by case basis, the extreme hardship

which the family members would face if the reunification did not take

place.

(4) When applying this regulation the best interests of the

children, if any, shall be taken into consideration.

(5) Without prejudice to the provisions of subregulations (1) to

(4), and taking due account of the provisions of regulations 25 and 26,

the Member State in which the reunification shall take place shall be

agreed upon between Malta and the other Member States concerned.

(6) (a)

Reunited family members shall be granted residence

permits under temporary protection, and documents or other

equivalent evidence shall be issued for that purpose.

(b) Transfers of family members onto the territory of

another Member State, other than Malta, for the purposes of the re-

unification under subregulation (2), shall result in the withdrawal of

the residence permits issued, and the termination of the obligations

towards the persons concerned relating to temporary protection, in

Malta.

(7) At the request of another Member State, the Government

of Malta shall provide information, as set out in the Second Schedule

to these regulations, on a person receiving temporary protection

which is needed to process a matter under this regulation.

(1) The Commissioner shall, on the recommendation of Representation

the Principle Immigration Officer, as soon as possible take measures of minors.

to ensure the necessary representation of unaccompanied minors

enjoying temporary protection by legal guardianship, or, where

necessary, representation by an organisation which is responsible for

the care and well-being of minors, or by any other appropriate

representation.

(2) During the period of temporary protection unaccompanied

minors shall be placed

(a)

with adult relatives;

(b)

with a foster family;

(c)

in reception centres with special provisions for

minors, or in other accommodation suitable for minors;

(d)

with the person who looked after the child when

fleeing.

(3) The Commissioner shall ensure that all the necessary steps

are taken to enable the placement, in consultation with the adult

person or persons concerned, and taking account of the views of the

child in accordance with the age and maturity of the child.

PART IV

Access to the asylum procedure in the context

of temporary protection

(1) Persons enjoying temporary protection shall be able

to lodge an application for asylum at any time.

(2) The examination of any asylum application not processed

before the end of the period of temporary protection shall be

completed after the end of that period.

The criteria and mechanisms to be applied for deciding

whether Malta or any other Member State shall be responsible for

considering an asylum application shall be in accordance with

European Union legislation as in force from time to time. In

particular, the Member State responsible for examining an asylum

application, submitted by a person enjoying temporary protection,

shall be the Member State which has accepted that person’s transfer

onto its territory.

(1) The Commissioner may provide that temporary

protection may not be enjoyed concurrently with the status of asylum

seeker while applications are under consideration.

(2) Where, after an asylum application has been examined,

refugee status or, where applicable, any other kind of protection is not

granted to a person eligible for or enjoying temporary protection,

then, without prejudice to the provisions of regulation 28, that person

shall enjoy or shall continue to enjoy temporary protection for the

remainder of the period of protection.

PART V

Return and measures after temporary protection has ended

Without prejudice to the provisions of regulations 22, 23 End of

and 24, legislation in force at the time on the protection of third temporary

protection.

country nationals and on third country nationals in general shall

apply, when the temporary protection ends.

(1) Persons enjoying temporary protection or whose Voluntary

temporary protection has ended shall have the right to voluntarily return.

return to their country of origin, in a manner that fully respects human

dignity. The Commissioner shall ensure that the decision of those

persons to return is taken in full knowledge of the facts.

(2) For such time as the temporary protection has not ended,

and on the basis of the circumstances prevailing in the country of

origin, favourable consideration shall be given to requests for return

to a host Member State, whether Malta or another Member State,

from persons who have enjoyed temporary protection and exercised

their right to a voluntary return.

(3) At the end of the temporary protection, the rights laid

down in regulations 9 to 17 may be extended individually to persons

who have been covered by temporary protection and are benefiting

from a voluntary return programme; such extension shall have effect

until the date of return.

(1) The forced return of persons whose temporary Forced return.

protection has ended and who are not eligible for admission shall be

conducted with due respect for human dignity.

(2) In cases of forced return, the Commissioner shall consider

any compelling humanitarian reasons which may make return

impossible or unreasonable in specific cases.

(1) The Principal Immigration Officer shall take the Residence

necessary measures concerning the conditions of residence of persons conditions.

who have enjoyed temporary protection and who cannot, in view of

their state of health, reasonably be expected to travel and where they

would suffer serious negative effects if their treatment was

interrupted; these persons shall not be expelled so long as that

situation continues.

(2) The Principal Immigration Officer may allow families,

whose children are minors and attend school to benefit from residence

conditions allowing the children concerned to complete the current

school period.

PART VI

Solidarity

(1) The Government of Malta shall, acting in co-

operation with the competent international organisations, ensure that

the eligible persons referred to in regulation 6, who have not yet

arrived in Malta, have expressed their will to be received onto Malta’s

territory.

(2) When the number of persons who are eligible for

temporary protection following a sudden and massive influx exceeds

Malta’s reception capacity, which would have been indicated in

figures or in general terms to the Council and the Commission of the

European Union, the Government of Malta shall have the right to

demand that the Council of the European Union examine, as a matter

of urgency, the situation and take appropriate action, including the

recommendation of additional support.

(1) For the duration of the temporary protection, the

Government of Malta shall co-operate with other Member States with

regard to transferral of the residence of persons enjoying temporary

protection from one Member State to another, subject to the consent

of the persons concerned to such transferral.

(2) The Government of Malta shall communicate requests for

transfers to the other Member States and shall notify the Commission

of the European Union and UNHCR; the Government of Malta shall

also inform any requesting Member State of its capacity for receiving

transferees.

(3) Where a transfer is made from Malta to another Member

State, the Maltese residence permit shall expire and the obligations

towards the persons concerned relating to temporary protection in

Malta shall come to an end.

(4 The model pass set out in the First Schedule to these

regulations shall be used for transfers, between Member States, of

persons enjoying temporary protection.

PART VII

Special provisions

(1) The Commissioner may exclude a person from

temporary protection if

(a)

there are serious reasons for considering that -

(i)

that person has committed a crime against

peace, a war crime, or a crime against humanity, as defined

in the international instruments drawn up to make

provision in respect of such crimes;

(ii) that person has committed a serious non-

political crime outside Malta prior to his or her admission

into Malta as a person enjoying temporary protection. The

severity of the expected persecution is to be weighed

against the nature of the criminal offence of which the

person concerned is suspected. Particularly cruel actions,

even if committed with an allegedly political objective,

may be classified as serious non-political crimes. This

applies both to the participants in the crime and to its

instigators;

(iii) that person has been guilty of acts contrary to

the purposes and principles of the United Nations;

(b) there are reasonable grounds for regarding that

person as a danger to the security of Malta as a host country or,

having been convicted by a final judgment of a particularly

serious crime, that person is a danger to the community of Malta

as a host country.

(2) The grounds for exclusion referred to in subregulation (1)

shall be based solely on the personal conduct of the person concerned.

Exclusion decisions or measures shall be based on the principle of

proportionality.

PART VIII

Final provisions

Persons who have been excluded from the benefit of Appeal.

temporary protection or family reunification shall be entitled to

appeal to the Refugee Appeals Board established under article 5 of