Regulations, 2005

L.N. 320 of 2005

REFUGEES ACT

(CAP. 420)

Reception of Asylum Seekers (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

PURPOSE, DEFINITIONS AND SCOPE

(1) The title of these regulations is the Reception of Citation, scope and

commencement.

Asylum Seekers (Minimum Standards) Regulations, 2005.

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

provisions of the European Union Directive 2003/9/EC which

establishes minimum standards for the reception of asylum seekers in

Member States.

(3) These regulations shall come into force on such date as

the Minister responsible for asylum may, by notice in the Gazette,

appoint.

Interpretation.

For the purposes of these regulations:-

“accommodation centre” means any place used for collective

housing of asylum seekers;

“the Act” means the Refugees Act;

“applicant” means a person who has made an application for

a declaration under article 8 of the Act;

“application” means an application for refugee status made under

article 8 of the Act;

“asylum seeker” means a person who has made an application

for a declaration under article 8 of the 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;

“detention” means confinement of an asylum seeker within a

particular place, where the applicant is deprived of his or her

freedom of movement;

“family members” means, only in so far as the family already

existed in the country of origin, the following members of the

applicant’s family who are present in Malta, in relation to the

application for asylum made in Malta

(a)

the spouse of the asylum seeker;

(b) the minor children of the applicant and his spouse

referred to in paragraph (a) or of the applicant, on condition

that the children are unmarried and dependent and regardless

of whether they were born in or out of wedlock or adopted in

a manner recognized under Maltese law;

“the Geneva Convention” means the Convention of the 28 th

July, 1951 relating to the status of refugees, as amended by the

New York Protocol of the 31 st January, 1967;

“material reception conditions” means the reception

conditions that include housing, food and clothing, provided in

kind, or as financial allowances or in vouchers, and a daily expenses

allowance;

“Member State” means a country which is a member of the

European Union;

“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 article 3(3) of

the said Act, any public officer acting under such authority; Cap.

217. “reception conditions” means the full set of measures that

are granted in Malta to asylum seekers in accordance with Maltese

law;

“refugee” means a person who fulfils the requirements of

Article 1(A) of the Geneva Convention;

“unaccompanied minors” means persons below the age of

eighteen who arrive in Malta unaccompanied by an adult

responsible for them whether by law or by custom, and for as long

as they are not effectively taken into the care of such a person; it

includes minors who are left unaccompanied after they have entered

Malta.

(1) These regulations shall apply to all third country Scope.

nationals and stateless persons who make an application for asylum in

Malta as long as they are allowed to remain in Malta as asylum seekers,

as well as to family members, if they are covered by such application

for asylum according to the Maltese law.

(2) These regulations do not apply in cases of requests for

diplomatic or territorial asylum submitted to representations of Malta

abroad.

(3) These regulations do not apply when the Temporary

Protection for Displaced Persons (Minimum Standards)

Regulations, 2005, are applied. L.N. 131 of 2005.

PART II

GENERAL PROVISIONS ON RECEPTION CONDITIONS

(1) The Principal Immigration Officer shall take the Information to

necessary steps in order that, within a reasonable time and not exceeding asylum seekers.

fifteen days from the day an asylum seeker has lodged his application,

the asylum seeker shall be informed of any established benefits and of

the obligations with which he must comply relating to reception

conditions; in this respect the Principal Immigration Officer shall ensure

that an applicant is provided with information on organisations or groups

of persons that provide specific legal assistance and organisations that

might be able to help or inform him concerning the available reception

conditions, including health care.

(2) The Principal Immigration Officer shall ensure that the

information referred to in sub-regulation (1) is in writing and, as far as

possible, in a language that the applicant may reasonably be supposed

to understand; where appropriate, this information may also be supplied

orally.

(1) The Commissioner shall ensure that, within three days

after an application is lodged, an applicant is provided with a document

issued in his own name certifying his status as an asylum seeker or

testifying that he is allowed to stay in Malta while his application is

pending or being examined.

(2) Sub-regulation (1) of this regulation shall not apply when

the asylum seeker is in detention and during the examination of an

application for asylum made at the point of entry into Malta or within

the context of a procedure to decide on the right of the applicant legally

to enter the territory of Malta. In specific cases, during the examination

of an application for asylum, applicants may be provided with other

evidence equivalent to the document referred to in sub-regulation (1).

(3) The document referred to in sub-regulation (1) shall be

valid for as long as the asylum seeker is authorised to remain in Malta.

(4) Asylum seekers may be provided with a travel document

when serious humanitarian reasons arise that require their presence in

another State.

(1) The Principal Immigration Officer may decide on the

residence of the asylum seeker for reasons of public interest, public

order or, when necessary, for the swift processing and effective

monitoring of his or her application.

(2) The Principal Immigration Officer may, for legal reasons

or reasons of public order, order that an applicant be confined to a

particular place in accordance with Maltese law.

(3) The provision of the material reception conditions shall

be subject to actual residence by the particular applicant in a specific

place, to be determined by the Principal Immigration Officer.

(4) The Principal Immigration Officer shall have the

possibility to grant applicants temporary permission to leave the place

of residence mentioned in sub-regulations (1) and (3) or the assigned

area mentioned in sub-regulation (2). The Principal Immigration Officer

shall take the decisions individually, objectively and impartially and

shall give reasons if the decisions are negative

Provided that the applicant shall be given the facility to keep

appointments with authorities and courts if his appearance thereat is

necessary.

(5) Where applicable, applicants are required to inform the Families.

competent authorities of their current address and notify any change of

address to such authorities as soon as possible.

Where applicants are provided with accommodation,

appropriate measures shall, as far as possible, and with the asylum

seeker’s agreement, be taken to maintain family unity.

The Director General Health may require medical screening Medical screening.

for applicants on public health grounds.

(1) Minor children of asylum seekers and asylum seekers Schooling and

education of minors.

who are minors shall have access to the education system under similar

conditions as Maltese nationals for so long as an expulsion measure

against them or their parents is not actually enforced; such education

may be provided as may be determined by the Director of Education.

(2) Access to the education system shall not be postponed

for more than three months from the date the application for asylum

was lodged by the minor or the minor’s parents

Provided that this period may be extended to one year where

specific education is provided in order to facilitate access to the education

system.

(1) In accordance with labour market conditions Employment.

prevailing at the time, the Ministry responsible for issuing employment

licences shall determine a period of time, starting from the date on which

an application for asylum was lodged, during which an applicant shall

not have access to the labour market.

(2) If a decision at first instance has not been taken within

one year of the presentation of an application for asylum and this delay

cannot be attributed to the applicant or his legal representative, the

Ministry responsible for issuing employment licences shall decide the

conditions for granting access to the labour market for the applicant.

(3) Where an appeal is lodged against a negative decision,

access to the labour market shall not be withdrawn during the appeal

stage.

(4) The provisions of sub-regulations (1), (2) and (3) are

without prejudice to priorities given, for reasons of labour market

policies, to citizens of Member States and nationals of States parties to

the Agreement on the European Economic Area and also to legally

resident third country nationals.

(1) The authorities responsible for the management of

reception centres shall ensure that material reception conditions are

available to applicants when they make their application for asylum.

(2) The material reception conditions shall be such as to

ensure a standard of living adequate for the health of applicants and

capable of ensuring their subsistence; the authorities referred to in sub-

regulation (1) shall moreover ensure that that standard of living is met

in the specific situation of persons who have special needs, in accordance

with regulation 14, as well as in relation to the situation of persons who

are in detention.

(3) The provision of material reception conditions and health

care shall be subject to the condition that applicants do not have sufficient

means to have a standard of living adequate for their health and to enable

their subsistence.

(4) Where applicants have sufficient resources, or if they

have been working for a reasonable period of time, applicants may be

required to cover or contribute to the cost of the material reception

conditions and of the health care provided for in these regulations; if it

transpires that an applicant had sufficient means to cover material

reception conditions and health care at the time when these basic needs

were being covered, the asylum seeker may be asked for a refund.

(1) Where accommodation is provided in kind, it should

take one or a combination of the following forms

(a) premises used for the purpose of accommodating

applicants during the examination of an application for asylum

lodged at the moment of entry into Malta;

(b) accommodation centres which guarantee an adequate

standard of living;

(c)

other premises adapted for accommodating applicants.

(2) The authorities responsible for such accommodation

shall ensure that applicants provided with the accommodation referred

to in sub-regulation (1) (a), (b) and (c) are assured

(a)

protection of their family life;

(b) the possibility of communicating with relatives, legal

advisers and representatives of the United Nations High

Commissioner for Refugees and recognised non-governmental

organisations.

Particular attention shall be paid to the prevention of assault within the

premises and accommodation centres referred to in sub-regulation (1)

(a) and (b).

(3) If appropriate, minor children of applicants or applicants

who are minors shall be lodged with their parents or with the adult

family member responsible for them whether by law or by custom.

(4) Transfers of applicants from one accommodation facility

to another shall take place only when necessary, and applicants shall be

provided with the possibility of informing their legal advisers of the

transfer and of their new address.

(5) Legal advisers or counsellors of asylum seekers and

representatives of the United Nations High Commissioner for Refugees

or non-governmental organisations designated by the latter and

recognised by the authorities responsible for the management of

reception centres shall be granted access to accommodation centres and

other accommodation facilities in order to assist the said asylum seekers;

in granting such access the authorities responsible for the management

of reception centres may impose such limits as they may deem

appropriate on grounds relating to the security of the centres and facilities

and of the asylum seekers.

(6) In exceptional circumstances modalities may be set for

material reception conditions which are different from those provided

for in this regulation, for a reasonable period which shall be as short as

possible, when

(a) an initial assessment of the specific needs of the applicant

is required,

(b) material reception conditions, as provided for in this

regulation, are not available,

(c) accommodation capacities normally available are

temporarily exhausted,

(d)

the asylum seeker is in detention or confined to a border

post

Provided that these different conditions shall, in any case,

cover basic needs.

PART III

REDUCTION OR WITHDRAWAL OF RECEPTION

CONDITIONS

(1) The authorities responsible for the management of

reception centres may reduce or withdraw reception conditions in the

following cases

(a)

where an asylum seeker

(i) abandons the place of residence determined by the

competent authority without informing him or, if requested,

without permission, or

(ii) does not comply with reporting duties or with

requests to provide information or to appear for personal

interviews concerning the asylum procedure during a

reasonable period laid down by law

Provided that when the applicant is traced or

voluntarily reports to the competent authority, the authorities

responsible for the management of reception centres shall

reach a decision, based on the reasons for the disappearance,

as to the reinstallation or otherwise of the grant of some or all

of the reception conditions;

(b) where an applicant has concealed financial resources and

has therefore unduly benefited from material reception conditions.

(2) The authorities responsible for the management of

reception centres may refuse reception conditions in cases where an

asylum seeker has failed to demonstrate that the asylum claim was made

in accordance with the provisions of the Act after his arrival in Malta.

(3) The authorities responsible for the management of

reception centres may, in accordance with rules for accommodation

centres drawn up for the purpose, determine sanctions applicable to

serious breaching of the rules of such accommodation centres as well

as to seriously violent behaviour.

(4) Decisions for reduction, withdrawal or refusal of

reception conditions or sanctions referred to in sub-regulations (1), (2)

and (3) shall be taken individually, objectively and impartially and

reasons shall be given; the decisions shall be based on the particular

situation of the person concerned, especially with regard to persons

covered by regulation 15, taking into account the principle of

proportionality.

PART IV

PROVISIONS FOR PERSONS WITH SPECIAL NEEDS

(1) In the implementation of the provisions relating to General principle

material reception conditions and health care, account shall be taken of regarding

needs.

the specific situation of vulnerable persons which shall include minors,

unaccompanied minors and pregnant women, found to have special

needs after an individual evaluation of their situation.

(2) In the implementation of the provisions of these

regulations, where these refer to minors, the best interests of the child

shall constitute a primary consideration.

An unaccompanied minor aged sixteen years or over may Unaccompanied

minors.

be placed in accommodation centres for adult asylum seekers.

PART V

APPEALS

Without prejudice to the principles of public policy and Appeals.

public interest, asylum seekers who feel aggrieved by a decision taken

in pursuance of the provisions of these regulations shall be entitled to

appeal to the Immigration Appeals Board in accordance with the

procedures laid down in the Immigration Act.