Regulations, 2008

L.N. 243 of 2008

REFUGEES ACT

(CAP. 420)

Procedural Standards in Examining Applications for Refugee Status

Regulations, 2008

IN exercise of the powers conferred by article 25(h) of the

Refugees Act, the Minister responsible for immigration has made the

following regulations:-

The title of these regulations is Procedural Standards in

Examining Applications for Refugee Status Regulations, 2008.

These regulations transpose the provisions of the Council

Directive 2004/83/EC of 29 April 2004 on minimum standards for the

qualification and status of third country nationals or stateless persons

as refugees or as persons who otherwise need international protection

and the content of the protection granted and the Council Directive

2005/85/EC of 1 December 2005 on minimum standards on

procedures in Member States for granting and withdrawing refugee

status.

In these regulations, unless the context otherwise requires

“Act” means the Refugees Act;

“applicant” means applicant for asylum;

“competent authorities” means the Refugee Commissioner or

his representatives;

“Convention” means the 1951 Convention relating to the Status

of Refugees done at Geneva on 28th July, 1951, to which Malta

acceded on 17th June, 1971, and the 1967 Protocol relating to the

Status of Refugees of 31st January, 1967 to which Malta acceded on

15th September, 1971, subject to the declarations and reservations

made by Malta;

“international protection” means refugee status or subsidiary

protection;

“vulnerable persons” include pregnant women, persons with

disabilities, persons who have undergone torture, rape or other serious

forms of psychological, physical or sexual violence, or minors who

have been victims of any form of abuse, neglect, exploitation, torture,

cruel, inhuman or degrading treatment or who have suffered from

armed conflict.

(1) A person who wishes to apply for asylum shall make Application for

an application to the Commissioner on the prescribed form which, as refugee status.

far as possible, shall be in a language that the applicant understands.

(2) The applicant shall be

(a)

informed

(i) in a language which he may reasonably be

supposed to understand of the procedure to be followed

and of his rights and obligations during the procedure;

(ii) about the possible consequences of not

complying with his obligations and not cooperating with

the authorities;

(iii) of the timeframe as well as the means at his

disposal for fulfilling the obligation to submit the elements

required;

(iv) of his right to consult the High Commissioner

and to have legal assistance during all the phases of the

asylum procedure

Provided that this information shall be given

in time to enable the applicant to exercise the rights

guaranteed and to comply with the obligations prescribed

by law;

(b) advised on how and where he may make such

application as well as assistance, where necessary, in the

forwarding of the application to the Commissioner;

(c)

granted the services of an interpreter for submitting

his case to the competent authorities whenever necessary;

(d) given notice, in a reasonable time, of the decision on

his application for asylum and such notice shall be served on the

applicant or his legal advisor;

(e)

informed of the result of the decision, in a language

that he may reasonably be supposed to understand, when he is

not assisted or represented by a legal adviser and when free

legal assistance is not available.

(3) An applicant for asylum shall file his application in his

own name, and where applicable, that of his dependants.

(4) An application shall not be valid unless made within sixty

days of the arrival of the applicant in Malta

Provided that an application may be allowed by the

Commissioner, for special and exceptional reasons, after the lapse of

sixty days.

(1) The Commissioner may, from time to time, lay

down the rules and guidelines applicable to the procedure for the

determination of an application.

(2) The Commissioner shall examine the application as soon

as possible and shall endeavour to gather all relevant information that

will enable him to make a recommendation taking due account of the

applicant’s cooperation in the proceedings in the assessment of the

credibility of an applicant’s allegations.

(3) The applicant shall be interviewed, where necessary, with

the assistance of an interpreter and all evidence shall be retained by

the Commissioner or his representative for as long as is necessary.

(4) A legal adviser shall be allowed to assist the applicant in

accordance with procedures laid down by the Commissioner and,

where entitled to, free legal aid shall be provided to the applicant.

(5) The personal interview referred to in subregulation (3)

may be omitted where

(a)

the Commissioner is able to make a positive

recommendation on the basis of evidence available; or

(b) the Commissioner has already had a meeting with

the applicant for the purpose of assisting him with completing

his application and submitting the essential information

regarding the application; or

(c)

the Commissioner, on the basis of an examination of

the information provided, considers the application to be

unfounded where

(i) the applicant, in submitting his application

and presenting the facts, has only raised issues that are not

relevant or of minimal relevance to the examination of

whether he qualifies as a refugee; or

(ii) the application for asylum is considered to be

unfounded due to the notion of safe country of origin or

safe third country; or

(iii) where applicant has made inconsistent,

contradictory, improbable or insufficient representations

which made his claim clearly unconvincing in relation to

his having been the object of persecution; or

(iv) the person has submitted a subsequent

application which does not raise any relevant new elements

with respect to his particular circumstances or to the

situation in his country of origin; or

(v) where the applicant is making an application

merely in order to delay or frustrate the enforcement of an

earlier or imminent decision which would result in his

removal; or

(d) where it is not reasonably practicable, in particular,

where the Commissioner is of the opinion that the applicant is

unfit or unable to be interviewed owing to enduring

circumstances beyond his control; provided that when in doubt,

the Commissioner may require a medical or psychological

certificate.

(6) Without prejudice to the provisions of regulation 14, the

Commissioner, when deciding on the application for asylum, may

take into account the fact that the applicant failed to appear for the

personal interview unless he had a valid reason for such failure.

(7) A personal interview shall take place without the presence

of family members unless the Commissioner considers it necessary

for an appropriate examination to have other family members present

Provided that a personal interview shall take place under

conditions which ensure appropriate confidentiality.

(8) A personal interview shall be conducted under conditions

which allow the applicant to present the grounds for his application in

a comprehensive manner and must

(a) ensure that the person who conducts the interview is

sufficiently competent to take account of the personal or general

circumstances surrounding the application including the

applicant’s cultural origin or vulnerability, in so far as it is

possible to do so; and

(b) ensure the presence of an interpreter who is able to

give appropriate communication between the applicant and the

person who conducts the interview, but communication need not

necessarily take place in the language preferred by the applicant

if there is another language which he may reasonably be

supposed to understand and communicate in.

(1) The Commissioner shall ensure that a written report

is made of every personal interview containing at least the essential

information regarding the application as presented by the applicant.

(2) An applicant shall have, upon request, timely access to the

report of the personal interview allowing an appeal to be prepared and

lodged in due time.

(1) An applicant shall be allowed to consult, at his own

expense, in an effective manner, a legal adviser in relation to his

asylum application

Provided that in the event of a negative decision, free legal

aid shall be granted under the same conditions applicable to Maltese

nationals.

(2) A legal adviser who assists an applicant following a

decision shall enjoy access to such information in the applicant’s file

as is liable to be examined by the Refugee Appeals Board in so far as

the information is relevant to the examination of the application

Provided that where disclosure of such information would

jeopardize national security, the security of the organisations or

persons providing information or the security of the persons to whom

the information relates, or where the investigative interests relating to

the examination of applications for asylum by the Commissioner or

the international relations of Malta would be compromised, such

access shall be precluded.

(3) The legal adviser who assists an applicant for asylum shall

have access to closed areas such as detention facilities and transit

zones for the purpose of consulting the applicant, subject to such

limitations necessary for the security, public order or administrative

management of the area.

(4) The Commissioner may provide that the applicant is

allowed to bring with him to the personal interview a legal adviser

Provided that the absence of a legal adviser shall not

prevent the Commissioner from conducting or continuing the

personal interview with the applicant.

The Commissioner shall ensure that, where a Time limit for

recommendation cannot be made within six months, the applicant the decision.

concerned shall either

(a)

be informed of the delay; or

(b) receive, upon his request, information on the time

frame within which the decision on his application is to be

expected

Provided that such information shall not constitute

an obligation for the Commissioner towards the applicant

concerned to take a decision within that timeframe.

(1) The decision on the eligibility for refugee status or Decision to be

made in writing.

subsidiary protection status shall be made in writing.

(2) The decision referred to in subregulation (1) shall indicate

in writing reasons in fact and in law for a rejection of the application

and shall include information for the applicant on his right to

challenge the decision in terms of regulation 7.

(1) All information concerning applications for refugee Confidentiality.

status shall remain confidential saving that the report of the personal

interview, following the recommendation by the Commissioner, shall

be accessible to the applicant for asylum and to the Minister.

(2) Any information concerning an application shall, under no

circumstances, be disclosed to the authorities of the country of origin

of the applicant nor shall any information be requested from such

authorities regarding the applicant.

A person recognised as being in need of international Information

protection shall, as soon as possible after the respective refugee status relating

status.

or subsidiary protection status has been granted to him, have access to

information on the rights and obligations relating to that status in a

language likely to be understood by them.

(1) Notwithstanding the provisions of any other law to Treatment of

the contrary, and except where a subsequent application will not be applicants

asylum.

further examined, or where an applicant is to be surrendered or

extradited as appropriate to another Member State pursuant to

obligations in accordance with a European Arrest Warrant or

otherwise, or to a third country or to international criminal courts or

tribunals, an applicant shall not be removed from Malta before his

application is finally determined and such applicant shall be allowed

to enter or remain in Malta pending a final decision of his application.

(2) An applicant for asylum shall –

(a) not seek to enter employment or carry on business

unless with the consent of the Minister;

(b) unless he is in custody, reside and remain in the

places which may be indicated by the Minister;

(c) report at specified intervals to the immigration

authorities as indicated by the Minister;

(d)

hand over all documents in his possession;

(e)

be subject to search and his oral statements may be

recorded subject to the applicant being previously informed

thereof;

(f)

be photographed and have his fingerprints taken

Provided that if any such applicant is in breach of any of

the provisions of paragraphs (a), (b) or (c), he shall be guilty of an

offence and shall be liable on conviction to imprisonment for a term

of not more than six months.

(1) When an applicant explicitly withdraws his

application, the Commissioner shall decide either to discontinue the

examination or reject the application.

(2) When an applicant has implicitly withdrawn his

application, the Commissioner shall ensure that a decision is taken to

either discontinue the examination or reject the application on the

basis that the applicant has not established an entitlement to refugee

Provided that the Commissioner may assume that applicant

has implicitly withdrawn his application for asylum when it is

ascertained that

(a) he has refused notification of any document relating

to the asylum procedure; or

(b) he has failed to provide information essential to his

application or has not appeared for a personal interview unless

the applicant demonstrates, within a reasonable time, that his

failure was due to circumstances beyond his control; or

(c)

he has absconded or left without authorisation the

place where he lived or was held, without contacting the

competent authorities within a reasonable time or he has not,

within thirty days, complied with reporting duties or other

obligations to communicate.

(3) An applicant who reports again to the Commissioner after

a decision to discontinue the examination is entitled to request his

case to be re-opened within three months of such decision, unless the

request is considered as a subsequent application. Such application

shall be made in writing stating the reasons supporting such a request.

(4) Service of any document relating to the asylum procedure

shall be made by delivery to the applicant for asylum in person,

saving that, where this is not possible, such delivery shall be made to

his last known address or with his legal advisor or representative.

(1) (a)

Notwithstanding the provisions of any other Rights of

law to the contrary, and notwithstanding any deportation or removal refugees

persons granted

order, a person declared to be a refugee shall be entitled –

subsidiary

protection

status.

(i) without prejudice to the provisions of articles

9 and 10 of the Act, to remain in Malta with freedom of

movement, and to be granted, as soon as possible, personal

documents, including a residence permit for a period of

three years, which shall be renewable

Provided that a residence permit to be granted

to a family member may be valid for less than three years

and shall be renewable;

(ii) unless he is in custody awaiting judicial

proceedings for the commission of a criminal offence, or is

serving a term of imprisonment, to be given a Convention

Travel Document entitling him to leave and return to Malta

without the need of a visa;

(iii) to have access to employment, social welfare,

appropriate accommodation, integration programmes,

State education and training, and to receive State medical

care especially in the case of vulnerable groups of persons;

(b) A person enjoying subsidiary protection shall be entitled –

(i) without prejudice to the provisions of articles

21 and 22 of the Act, to remain in Malta with freedom of

movement and to be granted personal documents,

including a residence permit for a period of one year,

which shall be renewable;

(ii) to be provided with documents which enable

him to travel especially when serious humanitarian reasons

arise that require his presence in another State, unless

compelling reasons of national security or public order

otherwise require;

(iii) to have access to employment, subject to

labour market considerations, core social welfare benefits,

appropriate accommodation, integration programmes,

State education and training, and to receive core State

medical care, especially in the case of vulnerable groups of

persons.

(2) (a)

Dependant members of the family of a person

granted refugee status, if they are in Malta at the time of the decision

or if they join him in Malta, enjoy the same rights and benefits as the

refugee so that family unity may be maintained.

(b) Dependant members of the family of a person

granted subsidiary protection, if they are in Malta at the time of

decision, enjoy the same rights and benefits as the person enjoying

subsidiary protection status so that family unity may be maintained.

(3) Persons granted the status of refugee or subsidiary

protection and who are considered as vulnerable persons shall, as far

as possible, be provided with adequate health care.

(1) In relation to an unaccompanied minor falling

within the provisions of article 13(3) of the Act, as soon as possible,

and not later than thirty days from the issue of the care order under

that article

(a)

it shall be ensured that the appointed representative

of the unaccompanied minor is given the opportunity to inform

the unaccompanied minor about the meaning and possible

consequences of the personal interview and, where appropriate,

how to prepare himself for the personal interview. The

representative shall be present at the interview and may ask

questions or make comments within the framework set by the

person who conducts the interview;

(b) where an unaccompanied minor has a personal

interview on his application for asylum, that interview is to be

conducted and the decision prepared by a person who has the

necessary knowledge of the special needs of minors.

(2) Medical examinations to determine the age of

unaccompanied minors within the framework of any possible

application for asylum may be carried out.

Provided that

(a) unaccompanied minors are informed prior to the

examination of their application for asylum, and in a language

which they may reasonably be supposed to understand, of the

possibility that their age may be determined by medical

examination. This shall include information on the method of

examination and the possible consequences of the result of the

medical examination for the examination of the application for

asylum, as well as the consequences of refusal on the part of the

unaccompanied minor to undergo the medical examination

which may include the rejection of his claim that he is a minor;

(b) unaccompanied minors and their representatives

consent to carry out the determination of the age of the minors

concerned;

(c)

the decision to reject an application from an

unaccompanied minor who refused to undergo this medical

examination shall not be based solely on that refusal

Provided that an unaccompanied minor who has

refused to undergo such a medical examination shall not prevent

the determining authority from taking a decision on the

application for asylum and that the best interests of the minor

shall be a primary consideration in any such decision.

The High Commissioner

The High

Commissioner.

(a)

shall have access to applicants for asylum, including

those in detention and in airport or port transit zones;

(b) shall have access to information on individual

applications for asylum, on the course of the procedure and on

the decisions taken, when the applicant for asylum agrees

thereto;

(c)

may be present during any interview and, to present

his views in writing, in the exercise of his responsibilities under

Article 35 of the Convention, to any competent authorities

regarding individual applications for asylum at any stage of the

procedure as determined by the Commissioner

Provided that such rights shall apply to an organisation

which is working in Malta on behalf of the UNHCR pursuant to an

agreement with Malta.

(1) In determining an application as inadmissible on the

basis that a country is considered as a safe third country for the

applicant, in accordance with article 24 of the Act, the Commissioner

shall

(a) ensure that there is a connection between the

applicant and the third country so that the applicant can

reasonably be considered as able to go to that country;

(b) ensure that the safety of the third country is assessed

on an individual basis, taking into account any analysis made by

reputable international organizations that may be available from

time to time, including the office of the United Nations High

Commissioner for Refugees

Provided that the applicant shall be able to appeal

against the inadmissibility of the application on the basis of the

safe third country if he can show that, should he be returned to

such country, he will be subjected to torture, cruel, inhuman or

degrading treatment or punishment.

(2) In taking the decision referred to in subregulation (1), the

Commissioner shall

(a)

inform the applicant of his decision;

(b) provide him with a document informing the

authorities of the third country, in the language of that

country, that the application has not been examined in

substance.

(3) Where the third country does not permit the applicant to

enter its territory, the Commissioner shall ensure that the applicant

has access to the procedure for the examination of his application in

accordance with the Act or these regulations.

When considering an application for refugee status, in

assessing the fear of persecution, the Commissioner shall take

account of the following elements

(a) the concept of race shall in particular include

considerations of colour, descent, or membership of a particular

ethnic group;

(b) the concept of religion shall in particular include the

holding of theistic, non-theistic and atheistic beliefs, the

participation in or abstention from, formal worship in private or

in public, either alone or in community with others, other

religious acts or expressions of view, or forms of personal or

communal conduct based on or mandated by any religious

belief;

(c)

the concept of nationality shall not be confined to

citizenship or lack thereof but shall in particular include

membership of a group determined by its cultural, ethnic, or

linguistic identity, common geographical or political origins or

its relationship with the population of another State;

(d) a group shall be considered to form a particular

social group where in particular

(i) members of that group share an innate

characteristic, or a common background that cannot be

changed, or share a characteristic or belief that is so

fundamental to identity or conscience that a person should

not be forced to renounce it, and

(ii) that group has a distinct identity in the

relevant country, because it is perceived as being different

by the surrounding society; and

(iii) depending on the circumstances in the

country of origin, a particular social group might include a

group based on a common characteristic or sexual

orientation. Sexual orientation cannot be understood to

include acts considered to be criminal in Malta; gender

related aspects might be considered without by themselves

alone creating a presumption for the applicability of this

subparagaph;

(e) the concept of political opinion shall in particular

include the holding of an opinion, thought or belief on a matter

related to the potential actors of persecution which include the

State, parties or organizations controlling the State or a

substantial part of the territory of the State and non-State actors

if it can be demonstrated that the other actors are unable or

unwilling to provide protection against persecution or serious

harm, and to their policies or methods, whether or not that

opinion, thought or belief has been acted upon by the applicant.

(2) When assessing if an applicant has a well-founded fear of

being persecuted, it is immaterial whether the applicant actually

possesses the racial, religious, national, social or political

characteristic which attracts the persecution, provided that such a

characteristic is attributed to the applicant by the actor of persecution.