for Refugee Status (Amendment) Regulations, 2014

L.N. 161 of 2014

REFUGEES ACT

(CAP. 420)

Procedural Standards in Examining Applications

for Refugee Status (Amendment) Regulations, 2014

IN EXERCISE of the powers conferred by article 25 of the

Refugees Act, the Minister for Home Affairs and National Security

has made the following rules:-

The title of these regulations is the Procedural Standards in

Examining Applications for Refugee Status (Amendment)

Regulations, 2014, and these regulations shall be read and construed

as one with the Procedural Standards in Examining Applications for

Refugee Status Regulations hereinafter referred to as "the principal

regulations".

In the title and in regulation 1 of the principal regulations,

for the words "Refugee Status" there shall be substituted the words

"International Protection".

In the principal regulations for the word "asylum"

wherever it occurs, with the exclusion of the words "asylum

procedure", there shall be substituted the words "international

protection".

Immediately after regulation 4 of the principal regulations,

there shall be added the following new regulation

" Examination

(1) The Refugee Commissioner

of applications.

shall ensure that applications for international

protection are neither rejected nor excluded

from examination on the sole ground that they

have not been made as soon as possible.

(2) When examining applications for

international protection, the Commissioner

shall first determine whether the applicants

qualify as refugees and, if such applicants do

not qualify, determine whether the applicants

are eligible for subsidiary protection.

(3) The Commissioner shall ensure

that decisions on applications for subsidiary

protection are taken after an appropriate

examination and that

(a)

applications are examined

and decisions are taken on an individual

basis;

(b) precise

and

up-to-date

information is obtained from EASO and

UNHCR as well as other relevant

international

human

rights

organisations

Provided

that

the

information referred to in this paragraph

shall be accessible to the Refugees

Appeals Board for the purpose of taking

a decision on an application for

international protection.

(c)

the personnel examining

applications and taking decisions have

acquired the appropriate knowledge in

the field of asylum and refugee law;

(d) the Commissioner has the

possibility to seek advice, whenever

necessary, from experts on medical,

cultural, religious, child-related or

gender issues.

(4) The Commissioner shall provide

for rules concerning the translation of

documents relevant for the examination of

applications.

(5) The Commissioner shall ensure

that the applicants are provided with

information relating to legislation and

procedure, free of charge

Provided that when examining an

application for international protection, due

consideration shall be had as to whether

(a)

the application is likely to be

unfounded; or

(b) the applicant is vulnerable,

is an unaccompanied minor or is in need

of special procedural guarantees.".

Immediately after regulation 4A of the principal

regulations, there shall be added the following new regulation

" Examination

4B. (1) The Commissioner may,

of facts and

from time to time, lay down the rules and

circumstances.

guidelines applicable to the procedure for the

determination of an application.

(2) The Commissioner shall examine

the application as soon as possible and shall,

in the assessment of the credibility of an

applicant’s claim, 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.

(3) (a) The applicant shall submit as

soon as possible all elements needed to

substantiate the application for international

protection. Such elements shall consist of the

applicant’s

statements

and

all

the

documentation at the applicant’s disposal

regarding the applicant’s age, background,

including that of relevant relatives, identity,

nationality, country and place of previous

residence,

previous

applications

for

international protection, travel routes, travel

documents and the reasons for applying for

international protection.

(b) For the purpose of this

regulation, when conducting a personal

interview on the substance of the application,

the Commissioner shall ensure that the

applicant is given an adequate opportunity to

present the elements needed to substantiate

the application, including the opportunity to

give an explanation regarding elements which

may be missing and/or inconsistencies or

contradictions in the application.

(4) The Commissioner shall assess the

relevance of the elements referred to in sub-

regulation (3). When aspects of the

applicant’s statements are not supported by

documentary or other evidence, such aspects

shall not need confirmation if

(a)

the applicant has made a

genuine effort to substantiate his

application;

(b) all relevant elements at the

applicant’s

disposal

have

been

submitted and a satisfactory explanation

has been given regarding any lack of

other relevant elements;

(c)

the applicant’s statements

are found to be coherent and plausible

and do not run counter to available

specific and general information

relevant to the applicant’s case;

(d) the applicant has applied for

international protection at the earliest

possible time, unless the applicant can

demonstrate good reason for not having

done so; and

(e)

the general credibility of the

applicant has been established.

(5) The assessment of the application

for international protection shall be carried

out on an individual basis taking into account

(a)

all relevant facts as they

relate to the country of origin at the time

of taking a decision on the application,

including laws and regulations of the

country of origin and the manner in

which they are applied;

(b) the relevant statements and

documentaries presented by the

applicant including information on

whether the applicant has been or may

be subject to persecution or serious

harm;

(c)

the individual position and

personal circumstances of the applicant,

including factors such as background,

gender and age, so as to assess whether,

on the basis of the applicant’s personal

circumstances, the acts to which the

applicant has been or could be exposed

would amount to persecution or serious

harm;

(d) whether the applicant’s

activities since leaving the country of

origin were engaged in for the sole or

main purpose of creating the necessary

conditions for applying for international

protection, so as to assess whether those

activities would expose the applicant to

persecution or serious harm if returned

to that country;

(e)

whether the applicant could

reasonably be expected to avail himself

of the protection of another country

where he could assert citizenship.

(6) For the purpose of this regulation,

where the Commissioner deems it relevant for

the assessment of an application, the

Commissioner shall, subject to the applicant’s

consent, arrange for a medical examination of

the applicant concerning signs that might

indicate past persecution or serious harm

Provided that the applicant’s

refusal to undergo such a medical

examination

shall

not

prevent

the

Commissioner from taking a decision on the

application.".

Regulation 5 of the principal regulations shall be amended

as follows

(a)

sub-regulations (1) and (2) thereof shall be deleted;

and

(b) sub-regulations (3) to (8)

thereof

shall

be

renumbered as sub-regulations (1) to (6).

Regulation 14 of the principal regulations shall be

substituted by the following new regulation

" Rights of

(1) Notwithstanding

the

refugees and

provisions of any other law to the contrary,

persons granted

and notwithstanding any deportation or

subsidiary

protection

removal order, a person declared to be a

status.

beneficiary of international protection shall be

entitled

(a)

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;

(b) 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 in

the case of a refugee and a travel

document in accordance with relevant

provisions of national law in the case of

a beneficiary of subsidiary protection,

entitling him to leave and return to

Malta without the need of a visa;

(c) to have access to employment

or self-employed activities, social

welfare, appropriate accommodation,

integration programmes, State education

and training, and to receive State

medical care

Provided that the social

welfare benefits granted to beneficiaries

of subsidiary protection may be limited

to core social welfare benefits.

(2) (a)

Persons granted the status of

refugee or subsidiary protection shall also be

granted access to existing recognition

procedures for foreign diplomas, certificates

and other evidence of formal qualifications.

(b) For the purpose of paragraph

(a), beneficiaries of international protection

who cannot provide documentary evidence of

their qualifications shall have access to

appropriate schemes for the assessment,

validation and accreditation of their prior

learning.

B

(3) (a)

Family members 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) Family members 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.

(4) 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.".

8. Regulation 15 of the principal regulations shall be

Substitutes

regulation 15 of

substituted by the following new regulation

the principal

regulations.

(1) A medical examination to

" Medical

examination.

determine the age of unaccompanied minors

within the framework of any possible

application for international protection may

be carried out. Such medical examination

shall be

(a)

performed with full respect

for the individual’s dignity;

(b) the least invasive; and

(c)

carried out by qualified

medical professionals allowing, to the

extent possible, for a reliable result.

(2) For the purpose of this regulation,

if, after the medical examination has been

conducted by the authority responsible for

medical age assessment, there is still doubt

with regard to the age of the applicant, it shall

be assumed that the applicant is a minor for a

period of up to one year.

Provided that

B

(a)

unaccompanied minors are

informed prior to the examination of

their application for international

protection, 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

international protection, 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) the Children and Young

Persons Advisory Board consents 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

further

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 international

protection and that the best interests of the

minor shall be a primary consideration in any

such decision.".

9. Immediately after regulation 15 of the principal Adds new

regulation 15A

regulations, there shall be added the following new regulation

to the principal

regulations.

(1) With

regard

to

an

" Action to be

taken with

unaccompanied minor falling within the

regard to an

provisions of article 13(3) of the Act, action

unaccompanied

minor falling

shall be taken as soon as possible, and not

within the

provisions of

later than thirty days from the issue of the

article 13(3) of

care order under that article, as follows

the Act.

B

(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 international protection,

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) Without prejudice to the provisions

of sub-regulation (1), unaccompanied minors

shall be accommodated in centres specialised

in accommodation for minors or in any other

accommodation suitable for the minor or

entrusted either to his adult relatives or to a

foster family

Provided that, in determining who

will be entitled to assume the custody of the

minor, regard shall be had to the views of the

minor, taking into account the age and degree

of maturity of such minor

Provided further that, as far as

possible, siblings shall be kept together,

taking into account the best interests of the

minor concerned and the age and degree of

maturity of the minor concerned.

(3) If an unaccompanied minor is

granted international protection, the authority

responsible for the provision of services to

unaccompanied minors, with the assistance of

international organisations as necessary, shall

proceed with the tracing of the family

members of the minor, provided that this is in

the best interests of the minor

Provided that in cases where there

may be a threat to the life or integrity of the

minor himself or his close relatives,

particularly if they have remained in the

country of origin, care must be taken to

ensure that the collection, processing and

circulation of information concerning these

persons is undertaken on a confidential

basis.".

10. Sub-paragraph (iii) of paragraph (d) of sub-regulation (1) Amends

of regulation 18 of the principal regulations shall be substituted by the regulation

the principal

following new sub-paragraph

regulations.

"(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, including gender

identity, shall be given due consideration for the purposes of

determining membership of a particular social group or

identifying a characteristic of such a group;".

B

€0.99