International Protection Regulations, 2015

L.N. 416 of 2015

REFUGEES ACT

(CAP. 420)

Procedural Standards for Granting and Withdrawing

International Protection Regulations, 2015

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 regulations:-

The title of these regulations is the Procedural Standards

for Granting and Withdrawing International Protection Regulations,

2015.

These regulations transpose the provisions of the Council

Directive 2011/95/EU on standards for the qualification of third-

country nationals or stateless persons as beneficiaries of international

protection for a uniform status for refugees or for persons eligible for

subsidiary protection, and for the content of the protection granted

and Council Directive 2013/32/EU on common procedures for

granting and withdrawing international protection.

(1)

In these regulations, unless the context otherwise

requires -

"Act” means the Refugees Act;

"applicant" means third country nationals or stateless persons

who have made an application for international protection in respect

of which a final decision has not yet been taken by the Commissioner

or the by Refugees Appeals Board;

"applicant in need of special procedural guarantees" means an

applicant whose ability to benefit from the rights and comply with the

obligations provided for in these regulations as well as in the Act, is

limited due to individual circumstances;

"the Board" means the Refugees Appeals Board as established

by article 5 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;

"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;

"determining authority" means the Refugee Commissioner;

"the High Commissioner" means the United Nations High

Commissioner for Refugees or his representative;

"international protection" means refugee status or subsidiary

protection;

"legal adviser" means a person who is authorised to practice the

legal profession in Malta in terms of the Code of Organization and Cap. 12.

Civil Procedure;

"minor" means a third-country national or a stateless person

below the age of eighteen years;

"remain" means to remain in the territory including at the border

or in transit zones of the Member State in which the application for

international protection has been made or is being examined; the right

to remain shall not constitute an entitlement to a residence permit;

"representative" means a person or an organisation appointed by

the competent bodies in order to assist and represent an

unaccompanied minor in asylum procedures with a view to ensuring

the best interests of the child and exercising legal capacity for the

minor where necessary. Where an organisation is appointed as a

representative, it shall designate a person responsible for carrying out

the duties of a representative in respect of the unaccompanied minor;

"unaccompanied minor" means a minor who arrives on the

territory of Malta unaccompanied by an adult responsible for him or

her in accordance with national law and for as long as such minor is

not effectively taken into the care of such an adult; it includes a minor

who is left unaccompanied after he or she has entered the territory of

Malta;

"vulnerable persons" means persons in need of special care,

support, or protection because of age, disability, or risk of abuse or

neglect, including minors, unaccompanied minors, disabled people,

elderly people, pregnant women, single parents with minor children,

victims of human trafficking, persons with mental disorders and

persons who have been subjected to torture, rape or other serious

forms of psychological, physical or sexual violence.

(1)

The applicant shall be

(a)

informed

(i) in a language which he understands or is

reasonably 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 the consequences of an explicit or implicit

withdrawal of the application;

(v) of his right to consult the High Commissioner

or any other national organisation providing legal advice

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) granted the services of an interpreter for submitting

his case to the competent authorities whenever necessary;

(c)

given notice, in a reasonable time, of the decision on

his application for international protection and such notice shall

be served on the applicant or his legal adviser;

(d) informed of the result of the decision, in a language

that he understands or is reasonably supposed to understand,

when he is not assisted or represented by a legal adviser;

(e)

provided with information on how to challenge a

negative decision;

(f)

provided with the information referred to in this

regulation and information provided by the experts in

accordance with regulation 8(3)(d), where the Refugee

Commissioner has taken that information into consideration for

the purpose of taking a decision on their application.

(2) The guarantees referred to in this regulation shall also be

provided at appeal stage.

(3) An applicant shall also –

(a)

be obliged to cooperate with the Commissioner with

a view to establishing his identity and other elements referred to

in the Act and in these regulations;

(b) report or appear before the Commissioner without

delay or at a specified time;

(c)

inform the competent authorities of his current place

of residence or address and of any changes thereof as soon as

possible;

(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

Provided that, without prejudice to any search

carried out for security reasons, a search of the applicant’s

person shall be carried out by a person of the same sex with full

respect for the principles of human dignity and of physical and

psychological integrity;

(f)

be photographed and have his fingerprints taken;

and

(g) be provided with information relating to legislation

and procedure, free of charge.

(1) A person who wishes to apply for international Access to the

protection shall make an application to the Commissioner, or to any procedure.

authority likely to receive such applications.

For the purpose of this regulation, when a person indicates

that he wishes to make an application for international protection to

an authority likely to receive such applications, then that authority

shall inform the Commissioner of the applicant’s intention to apply

for international protection and refer such applicant to the

Commissioner.

(2) The Commissioner shall register the making of an

application for international protection within three working days

Provided that, when an application for international

protection is made to other authorities likely to receive such

applications, the Commissioner shall register such applications within

six working days

Provided further that, when simultaneous applications for

international protection by a large number of persons make it very

difficult in practice to respect the three day limit, the Commissioner

may provide for that time limit to be extended to ten working days.

(3) An application for international protection shall be deemed

to have been lodged once the prescribed form has reached the Office

of the Refugee Commissioner. Such application shall be lodged in

person and, or at a designated place.

For the purpose of this regulation, the Commissioner shall

ensure that the applicant has an effective opportunity to lodge the

application as soon as possible.

(4) When an application for international protection is made to

an authority other than the Commissioner, then the applicant is to be

advised and assisted on how and where he may lodge such

application

Provided that with regard to an unaccompanied minor, the

appointed representative referred to in regulation 18 has the right to

lodge an application for international protection on behalf of the

unaccompanied minor, if on the basis of an individual assessment of

the minor’s personal situation, the appointed representative is of the

opinion that the minor may be in need of protection.

(5) An applicant for international protection shall file his

application in his own name, and where applicable, that of his

dependants

Provided that where a person lodged an application for

international protection on behalf of his dependants, the

Commissioner shall ensure that each dependant adult consents to the

lodging of the application on his behalf, failing which he shall be

given the opportunity to make an application on his own behalf.

(6) For the purpose of this regulation, consent shall be

requested at the time the application is lodged or, at the latest, when

the personal interview with the dependant adult is conducted. Each

dependant adult shall be informed in private of the relevant

procedural consequences of the lodging of the application on his

behalf and of his right to make a separate application for international

protection.

(7) A minor has the right to make an application for

international protection either on his own behalf if he has legal

capacity, or through his parents or other adult family members, or an

adult responsible for him in accordance with national law, or through

a representative.

(1) The Commissioner shall ensure that the examination Time limits for

procedure is concluded as soon as possible, without prejudice to an the

procedure.

adequate and complete examination.

(2) The Commissioner shall also ensure that the examination

procedure is concluded within six months of the lodging of the

application.

(3) Where an application is subject to the procedure laid down

in EU Regulation 604/2013 establishing the criteria and mechanisms

for determining the Member State responsible for examining an

application for international protection lodged in one of the Member

States by a third-country national or a stateless person, the time limit

of six months shall start to run from the day the Maltese authorities

are determined as the Member State responsible in accordance with

that Regulation, the applicant is on Maltese territory and has been

taken in charge by the Commissioner.

(4) The Commissioner may extend the time limit of six

months for a period not exceeding a further nine months, where

(a)

complex issues of fact and, or law are involved;

(b) a large number of third-country nationals or stateless

persons simultaneously apply for international protection,

making it very difficult in practice to conclude the procedure

within the six-month time limit;

(c)

where the delay can clearly be attributed to the

failure of the applicant to comply with his obligations under

regulation 4

Provided that the Commissioner may extend the time limit

referred to in this regulation by a maximum period of three months, to

ensure an adequate and complete examination of the application for

international protection.

(5) When the examination procedure cannot be concluded due

to an uncertain situation in the country of origin, the Commissioner

may postpone concluding the examination procedure. In such a case,

the Commissioner shall

(a)

conduct reviews of the situation in that country of

origin at least every six months;

(b) inform the applicants concerned within a reasonable

time of the reasons for the postponement;

(c)

inform the Commission within a reasonable time of

the postponement of procedures for that country of origin.

(6) The Commissioner shall ensure that the examination

procedure shall not exceed the maximum time limit of twenty-one

months from the lodging of the application.

(7) The Commissioner shall ensure that, where a

recommendation cannot be made within six months, the applicant

concerned shall

(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.

(8) The Commissioner may decide to prioritize an

examination of an application for international protection, where

(a)

the application is likely to be well-founded;

(b) the applicant is vulnerable or is in need of special

procedural guarantees, in particular unaccompanied minors.

(1) The Commissioner shall assess within a reasonable

period of time after an application for international protection is made

whether the applicant is in need of special procedural guarantees

Provided that the Commissioner may, for the purpose of

this regulation, lay down a procedure with a view to determining

whether a person is in need of special procedural guarantees. The

outcome of such an assessment shall be inserted in the applicant’s

file.

(2) The Commissioner shall ensure that where an applicant has

been identified as an applicant in need of special procedural

guarantees, such applicant will be provided with adequate support

throughout the whole procedure.

(3) Whenever it is considered that an applicant requires

special procedural guarantees as a consequence of having suffered

torture, rape or other serious form of psychological, physical or

sexual violence, the accelerated procedure referred to in article 23 of

the Act shall not be applied.

(4) The need for special procedural guarantees shall also be

addressed even if such need becomes apparent at a later stage and

even without the necessity of initiating new procedures.

(1) The Commissioner shall ensure that applications for Requirements

international protection are neither rejected nor excluded from for

examination of

examination on the sole ground that they have not been made as soon applications.

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 international protection are taken after an appropriate

examination and that -

(a)

applications are examined and decisions are taken

individually, objectively and impartially;

(b) precise and up-to-date information is obtained from

EASO and UNHCR as well as other relevant international

human rights organisations as to the general situation prevailing

in the countries of origin of the applicants and, where necessary,

in countries through which they have transited and that such

information is made available to the personnel responsible for

examining applications and taking decisions

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 particular issues, such as

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.

(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, 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) 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.

(4) For the purpose of this regulation, the Commissioner or

his representative shall retain all such elements for as long as

necessary.

(5) The Commissioner shall assess the relevance of the

elements referred to in sub-regulation (4). 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 specific and general

information available and 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.

(6) 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 documents 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.

(7) 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 for the applicant concerning signs that

might indicate past persecution or serious harm.

Medical examinations carried out in accordance with this

sub-regulation shall be paid for out of public funds.

(8) The medical examination referred to in sub-regulation (7)

shall be carried out by qualified medical professionals and the result

thereof shall be submitted to the Commissioner as soon as possible

Provided that the applicant’s refusal to undergo such a

medical examination shall not prevent the Commissioner from taking

a decision on the application.

(9) When no medical examination is carried out in accordance

with sub-regulation (7), the determining authority shall inform

applicants that they may, on their own initiative and at their own cost,

arrange for a medical examination concerning signs that might

indicate past persecution or serious harm.

(10) The Commissioner shall assess the results of the medical

examination along with the other elements of the application.

(1) Before a decision is taken by the Commissioner, the

applicant shall be given the opportunity of a personal interview with a

person competent to conduct an interview.

(2) The Commissioner may initially provide that a personal

interview on the admissibility of the application for international

protection be conducted in accordance with article 24 of the Act.

(3) For the purpose of this regulation, the personal interviews

on the substance of the claim shall be conducted by personnel from

the Office of the Refugee Commissioner

Provided that when simultaneous applications for

international protection by a large number of third-country nationals

or stateless persons make it impossible for the Commissioner to

conduct timely interviews on the substance of each application, the

Commissioner may provide that trained personnel of another

authority be temporarily involved in conducting such interviews.

(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 sub-regulation (1)

may be omitted where

(a)

the Commissioner is able to make a positive

recommendation on the basis of evidence available; or

(b) 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 to establish whether the condition that makes the

applicant unfit or unable to be interviewed is of a temporary or

enduring nature

Provided that where a personal interview is not conducted

pursuant to paragraph (b) or, where applicable, with the dependant,

reasonable efforts shall be made to allow the applicant or the

dependant to submit further information.

(6) The absence of a personal interview in accordance with

this regulation shall not prevent the Commissioner from taking a

decision on an application for international protection.

(7) Without prejudice to the provisions of regulation 20 the

Commissioner, when deciding on the application for international

protection, 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.

(8) 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.

(9) The personal interview shall take place under conditions

which ensure appropriate confidentiality.

(10) 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, gender, sexual orientation, gender

identity or vulnerability;

(b) ensure that the person who conducts the personal

interview is properly trained and has the acquired knowledge of

problems which might affect the applicant’s ability to be

interviewed.

For the purposes of this paragraph, the determining

authority has to ensure that all the persons conducting the

interviews have been provided with relevant training in

accordance with Article 6(4)(a) to (e) of Regulation (EU) No

439/2010 as well as with relevant training established and

developed by the European Asylum Support Office;

(c)

ensure the presence of an interpreter who is able to

give appropriate communication between the applicant and the

person who conducts the interview. The communication shall

take place in the language preferred by the applicant unless

there is another language which he or she understands and in

which he is able to communicate clearly;

(d) ensure whenever possible that the person conducting

the interview and interpreter, be a person of the same sex if the

applicant so requests, unless the Commissioner has reason to

believe that such a request is based on grounds which are not

related to difficulties on the part of the applicant to present the

grounds of his application in a comprehensive manner;

(e)

ensure that the person who conducts the interview

on the substance of an application for international protection

does not wear a military or law enforcement uniform; and

(f)

ensure that interviews with minors are conducted in

a child-appropriate manner

Provided that, for the purpose of this regulation, the

Commissioner may establish rules concerning the presence of third

parties at a personal interview.

(11) When conducting a personal interview on the substance of

an application for international protection, the determining authority

shall ensure that the applicant is given an adequate opportunity to

present elements needed to substantiate the application as completely

as possible, including the opportunity to give an explanation

regarding elements which may be missing and, or any inconsistencies

or contradictions in the applicant’s statements.

(1) The Commissioner shall ensure that either a

thorough and factual report containing all substantive elements or a

transcript is made of every personal interview.

(2) The Commissioner may provide for audio or audiovisual

recording of the personal interview

Provided that where such recording has been made, the

Commissioner shall ensure that the recording or a transcript thereof is

available in connection with the applicant’s file.

(3) The Commissioner shall ensure that the applicant has the

opportunity to make comments and, or provide clarification, orally

and, or in writing, with regard to any mistranslations or

misconceptions appearing in the report or in the transcript, at the end

of the personal interview or within a specified time limit before the

Commissioner takes a decision, containing all substantive elements of

the personal interview.

(4) For the purpose of this regulation, the Commissioner shall

ensure that the applicant is fully informed of the content of the report

or the transcript containing all substantive elements and where

necessary with the assistance of an interpreter.

(5) The Commissioner shall request the applicant to confirm

that the content of the report or the transcript correctly reflects the

interview

Provided that when the personal interview is recorded in

accordance with sub-regulation (2) and the recording is admissible as

evidence in the appeals procedure, the Commissioner need not

request the applicant to confirm that the content of the report or the

transcript correctly reflects the interview or to make comments on

and, or provide clarification of the transcript.

(6) Where the applicant refuses to confirm that the content of

the report or the transcript correctly reflects the personal interview,

the reasons for his refusal shall be entered in the applicant’s file.

(7) A refusal to confirm the content of the report or the

transcript shall not prevent the Commissioner from taking a decision

on the application.

(8) The applicant and his legal adviser shall have timely

access to the report or the transcript and where applicable, the

recording of the personal interview, before a decision on the

application is taken by the Commissioner.

(9) When both a transcript and a recording of the personal

interview has been provided, the Commissioner need not provide

access to the recording in the procedures at first instance, but shall

nevertheless provide access to the recording in the appeals

procedures.

(10) Where the application is examined under accelerated

procedures in accordance with article 23 of the Act, access to the

report or the transcript, and where applicable, the recording may be

granted at the same time as the decision is made.

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

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

application for international protection at all stages of the procedure

Provided that in case of an appeal, free legal assistance

shall be granted under the same conditions applicable to Maltese

nationals. Free legal assistance shall include, at least, the preparation

of the required procedural documents and participation in the hearing

before a court or tribunal of first instance on behalf of the applicant

Provided also that legal assistance and representation shall

not be arbitrarily restricted thus hindering the applicant’s effective

access to justice.

(2) A legal adviser assisting and representing an applicant

shall enjoy access to the information in the applicant’s file, upon the

basis of which a decision is or will be made and 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 international protection 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 international

protection shall have access to closed areas such as detention

facilities for the purpose of consulting the applicant, subject to

applicable rules concerning security, public order or administrative

management of the area.

(4) The Commissioner shall allow an applicant to bring with

him to the personal interview a legal adviser. The legal adviser may

only intervene at the end of the personal interview

Provided that the Commissioner may, for the purpose of

this regulation, provide rules covering the presence of legal advisers

at all interviews in the first instance procedure

Provided further that the absence of a legal adviser shall

not prevent the Commissioner from conducting or continuing the

personal interview with the applicant.

(1) When an applicant explicitly withdraws his

application, the Commissioner shall decide either to discontinue the

examination or reject the application. A notice to such effect shall be

entered in the applicant’s file.

(2) When an applicant has implicitly withdrawn or abandoned

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

to either discontinue the examination or, provided that such

application is deemed to be unfounded on the basis of an adequate

examination of its substance, to reject the application.

(3) If the Commissioner decides to discontinue the

examination without taking a decision, a notice to such effect shall be

entered in the applicant’s file

Provided that the Commissioner may assume that the

applicant has implicitly withdrawn or abandoned his application for

international protection when it is ascertained that

(a)

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

(b) 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, unless the applicant demonstrates

that this was due to circumstances beyond his control.

(4) 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 or to make a new application which shall not be

a subsequent application. Such application shall be made in writing

stating the reasons supporting such a request

Provided that when an applicant reports again to the

Commissioner after nine months of the decision to discontinue the

examination, then the applicant’s case can no longer be reopened and

the new application may be treated as a subsequent application.

(5) In case the examination of the application has been

discontinued, the applicant’s case may be reopened only once and the

Commissioner may decide to resume the examination at the stage

where the examination had been discontinued.

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

shall be made by delivery to the applicant for international protection

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) The decision on the eligibility for refugee status or

subsidiary protection status shall be made in writing following the

determination of the application.

(2) The decision referred to in sub-regulation (1) shall indicate

the reasons in fact and in law and in case of a negative decision, it

shall also include information clarifying the reasons for such decision

as well as an explanation on how such a negative decision can be

challenged

Provided that an applicant who has been recognised as

being in need of international protection shall, as soon as possible

after the respective refugee 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 which he understands

or may reasonable be supposed to understand

Provided further that if an applicant has been provided

with such information at an earlier stage, the Commissioner need not

include such information with the decision.

(3) When an application has been lodged on behalf of

dependants and whenever such an application is based on the same

grounds, the Commissioner may take a single decision, covering all

dependants, unless to do so would lead to the disclosure of particular

circumstances of an applicant which could jeopardise his interests, in

particular in cases involving gender, sexual orientation, gender

identity and, or age based persecution. In such cases, a separate

decision shall be issued to the person concerned.

(1) All information concerning applications for

international protection shall remain confidential, without prejudice

to access of the applicant’s file by the Minister.

(2) No information concerning an application shall, under any

circumstances, be disclosed to the alleged actor of persecution or

serious harm. Nor shall the Maltese authorities obtain any

information from the alleged actor of persecution or serious harm in a

manner that would result in such actor being directly informed of the

fact that an application has been made by the applicant in question,

and would jeopardise the physical integrity of the applicant or his

dependants, or the liberty and security of his family members still

living in the country of origin.

(1) Applicants shall be allowed to remain on the Right to remain.

Maltese territory, for the sole purpose of the procedure, until the

Commissioner has made a decision. This right to remain shall not

constitute an entitlement to a residence permit.

(2) Notwithstanding the provisions of any other law to the

contrary, and except where a subsequent application will not be

further examined pursuant to article 7A of the Act, 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.

(3) An exception from the right to remain in the territory may

be made where a person

(a)

has lodged a subsequent application, which is not

further examined pursuant to article 7A of the Act, merely in

order to delay or frustrate the enforcement of a decision which

would result in his imminent removal;

(b) makes another subsequent application in the same

Member State, following a final decision considering a first

subsequent application inadmissible pursuant to article 24 of the

Act or after a final decision to reject that application as

unfounded

Provided that the exception referred to in this regulation

may only be made where the Commissioner, and confirmed by the

Refugees Appeals Board, considers that a return decision will not

lead to a direct or indirect refoulement.

(1) A medical examination to determine the age of Unaccompanied

unaccompanied minors within the framework of any possible minors.

application for international protection may be carried out. Such

medical examination shall be

(a)

conducted in a language which he understands or is

reasonably supposed to understand;

(b)

performed with full respect for the individual’s

dignity;

(c)

the least invasive possible; and

(d) 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

(a)

unaccompanied minors are informed prior to the

examination of their application for international protection,

and in a language they understand or is reasonably 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)

unaccompanied minors and, or their representatives

consent to a medical examination being carried out to determine

the age of the minors concerned;

(d) 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.

(1) With regard to an unaccompanied minor falling

within the provisions of article 13(3) of the Act action shall be taken

as soon as possible, and not later than thirty days from the issue of the

care order under that article, as follows

(a)

the unaccompanied minor shall be represented and

assisted by a representative during all the phases of the asylum

procedure;

(b) the unaccompanied minor shall be informed

immediately of the appointment of a representative, who shall

perform his duties in the best interests of the minor and shall

also have the necessary knowledge of the special needs of

minors;

(c)

the person acting as a representative shall be

changed only when necessary;

(d) 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;

(e)

it shall be ensured that unaccompanied minors shall

be provided with legal and procedural information, free of

charge, in accordance with regulation 12;

(f)

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) For the purpose of sub-regulation (1), organisations or

individuals whose interests conflict or could potentially conflict with

those of the unaccompanied minor shall not be eligible to become

representatives.

(3) Without prejudice to 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 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.

(4) 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.

(1) 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 which shall in particular include

considerations of colour, descent, or membership of a particular

ethnic group;

(b) the concept of religion which 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 which 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, 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;

(e) the concept of political opinion which 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.

(1)

Notwithstanding the provisions of any other law to Rights of

the contrary, and notwithstanding any deportation or removal order, a refugees

persons granted

person declared to be a beneficiary of international protection shall be subsidiary

protection

entitled

status.

(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 at least 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, 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)

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.

(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.

The High Commissioner -

(a)

shall have access to applicants for international

protection, including those in detention, at the border, and in

airport or port transit zones;

(b) shall have access to information on individual

applications for international protection, on the course of the

procedure and on the decisions taken, when the applicant for

international protection 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 international protection 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) The Commissioner may apply the safe third country Assessing a

concept only where it is satisfied that the applicant will be treated in third

safe.

accordance to the principles listed in article 2 of the Act.

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 safe third country concept can be

applied to a particular country or applicant and that a case-by-

case consideration of the safety of the country has been carried

out;

(c)

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

Provided further that the applicant shall also be allowed to

challenge the existence of a connection between such applicant and

the third country as well as to challenge the application of the safe

third country concept on the grounds that the third country is not safe.

(2) In taking the decision referred to in sub-regulation (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.

A third country may, after an individual examination of the

application, be considered as a safe country of origin for a particular

applicant only if

(a)

he or she has the nationality of that country; or

(b) he or she is a stateless person and was formerly

habitually resident in that country, and he or she has not

submitted any serious grounds for considering the country not

to be a safe country of origin in his or her particular

circumstances and in terms of his or her qualification as a

beneficiary of international protection in accordance with

articles 8 and 17 of the Act.

The Procedural Standards in Examining Applications for

International Protection Regulations, 2008, are hereby being revoked,

without prejudice to anything done or omitted to be done thereunder.

2008. €2.25