Reception of Asylum Seekers (Minimum Standards)

L.N. 417 of 2015

REFUGEES ACT

(CAP. 420)

Reception of Asylum Seekers (Minimum Standards)

(Amendment) 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:-

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

Asylum Seekers (Minimum Standards) (Amendment) Regulations, scope.

2015, and these regulations shall be read and construed as one with

the Reception of Asylum Seekers (Minimum Standards) Regulations, S.L. 420.06.

hereinafter referred to as the "principal regulations".

(2) These regulations transpose the provisions of the Council

Directive 2013/33/EU laying down standards for the reception of

applicants for international protection (recast).

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

for the words "Reception of Asylum Seekers (Minimum Standards)" and

of the principal

there shall be substituted the words "Reception of Asylum Seekers". regulations.

The definition "family members" in regulation 2 of the Amends

regulation 2 of

principal regulations shall be amended as follows

the principal

regulations.

(a)

paragraph (a) thereof shall be substituted by the

following new paragraph

"(a) the spouse of the asylum seeker or his

unmarried partner in a stable relationship;" and

(b) immediately after paragraph (b) thereof there shall

be added the following new paragraph

"(c) the father, mother or legal guardian, where

the applicant is a minor;".

Regulation 6 of the principal regulations shall be Substitutes

regulation 6 of

substituted by the following new regulation

the principal

regulations.

B

" Detention,

(1)

The Principal Immigration

residence and

Officer may, without prejudice to any other law,

freedom of

order the detention of an applicant for one or

movement.

more of these reasons, pursuant to an assessment

of the case

(a)

in order to determine or verify

his identity or nationality;

(b) in order to determine those

elements on which the application is based

which could not be obtained in the absence

of detention, in particular when there is a

risk of absconding on the part of the

applicant;

(c) in order to decide, in the

context of a procedure, in terms of the

Immigration Act, on the applicant’s right

to enter Maltese territory;

(d) when the applicant is subject to

a return procedure under the Common

Standards and Procedures for Returning

Illegally Staying Third-Country Nationals

Regulations, in order to prepare the return

or carry out the removal process, and the

Principal

Immigration

Officer

can

substantiate, on the basis of objective

criteria, including that the applicant

already had the opportunity to access the

asylum procedure, that there are

reasonable grounds to believe that the

applicant is making the application for

international protection merely in order to

delay or frustrate the enforcement of the

return decision;

(e)

when protection of national

security or public order so require; or

(f)

in accordance with Article 28

of Regulation (EU) No 604/2013 of the

European Parliament and of the Council of

26 June 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.

(2) A detention order issued by the

Principal Immigration Officer in writing, in a

language which the applicant is reasonably

supposed to understand, shall state the reason or

reasons on which it is based

Provided that wherever the Principal

Immigration Officer issues such a detention

order he shall also inform the applicant of

procedures to challenge detention and obtain

free legal assistance and representation.

(3) The Immigration Appeals Board

shall, with due regard to article 25A(10) of the

Immigration Act, review the lawfulness of

detention after a period of seven (7) working

days, which may be extended by another seven

(7) working days by the Board for duly justified

reasons.

(4) If the applicant is still detained, a

review of the lawfulness of detention shall be

held after periods of two months thereafter.

Wherever the Immigration Appeals Board rules

that detention is unlawful, the applicant shall be

released immediately.

(5) An applicant shall be provided with

free legal assistance and representation during

the review of the lawfulness of his detention in

accordance with sub-regulation (3). Free legal

assistance and representation entails preparation

of procedural documents and participation in

any hearing before the Immigration Appeals

Board.

B

(6) The Principal Immigration Officer

shall have the possibility to grant applicants

temporary permission to leave detention. The

Principal Immigration Officer shall take the

decisions

individually,

objectively

and

impartially and shall give reasons if the

decisions are negative

Provided that the applicant shall be

given the facility to keep appointments with

authorities and courts if his appearance thereat is

necessary.

(7) Any person detained in accordance

with these regulations shall, on the lapse of nine

months, be released from detention if he is still

an applicant.

(8) Where the Principal Immigration

Officer does not order the detention of an

applicant in accordance with sub-regulation (1),

he may require the applicant

(a)

to report at a police station

within specified timeframes;

(b) to reside at an assigned place.

For the purposes of this

paragraph, the Principal Immigration

Officer shall have the possibility to grant

temporary permission to leave. The

Principal Immigration Officer shall take

the decisions individually, objectively and

impartially and shall give reasons if the

decisions are negative

Provided that the applicant

shall in no case require permission to keep

appointments with authorities and courts if

his appearance thereat is necessary

Provided further that wherever

the applicant is not required to reside at an

assigned place, he shall be required to

notify any change of address to the

Principal Immigration Officer within not

more than twenty-four hours.

(c)

to deposit or surrender

documents; or

(d) to place a one-time guarantee

or surety, with the Principal Immigration

Officer.

Such measures shall have a

maximum duration of nine months

Provided that, if the applicant

concerned does not comply with conditions

referred to in this sub-regulation, the Principal

Immigration Officer may order the detention of

such applicant in accordance with the terms and

conditions prescribed in this sub-regulation.".

5. Immediately after regulation 6 of the principal regulations, Adds a new

regulation to the

there shall be added the following new regulation

principal

regulations.

" Detention

(1)

Whenever an applicant is

facilities.

detained in accordance with regulation 6, he

shall be detained in a specialised facility, which

facility shall not be utilised as a place of

detention for sentenced persons. In the

eventuality that an applicant has to be detained

in a facility for the detention of sentenced

persons he shall be kept separate from inmates

who are not detained pursuant to regulation 6

Provided that minors shall never be

detained in a facility utilised as a place of

detention for sentenced persons.

(2) Applicants detained in a specialised

detention facility in accordance with sub-

regulation (1) shall, insofar as possible, be kept

separate from third-country nationals who have

not filed an application for international

protection.

(3) Applicants in detention shall have

access to open-air spaces.

(4) Representatives of the United

Nations High Commissioner for Refugees

(UNHCR) shall be given the possibility to

communicate with and to visit applicants in

detention in conditions that respect privacy.

B

(5) Legal

advisers,

counsellors,

representatives of relevant non-governmental

organisations and family members of detainees

shall be given the possibility to communicate

with and visit applicants in detention in

conditions that respect privacy, in accordance

with rules and conditions that may be laid down

in legislation regulating detention facilities

Provided that specialised detention

facilities or facilities for the detention of

sentenced persons may provide for limitations to

access where necessary for purposes of

administrative management or the upkeep of

security and public order, as long as access is not

severely restricted or rendered impossible.

(6) The management of specialised

detention facilities or facilities for the detention

of sentenced persons shall provide to applicants

in detention information concerning the rules of

the facility, their rights and their obligations in a

language that they may be reasonably presumed

to understand.

(7) The management of specialised

detention facilities or facilities for the detention

of sentenced persons shall provide families in

detention with separate accommodation

guaranteeing adequate privacy.

(8) The management of specialised

detention facilities or facilities for the detention

of sentenced persons shall ensure that female

applicants in detention are accommodated

separately from male applicants, unless the male

applicants are family members and all applicants

concerned give their consent to being

accommodated together.

(9) Notwithstanding sub-regulations (7)

and (8), the management of specialised detention

facilities or facilities for the detention of

sentenced persons may designate common

spaces for recreational or social activities,

including the provision of meals for male and

female applicants who are not part of a family

unit in detention.".

6. Regulation 8 of the principal regulations shall be amended Amends

regulation 8 of

as follows

the principal

regulations.

(a)

the current provision shall be re-numbered as sub-

regulation (1) thereof; and

(b) immediately after sub-regulation (1) thereof, as re-

numbered, there shall be added the following new sub-

regulation

"(2) For the purposes of this regulation,

the Director General Health or any officer duly

authorised shall apply the relevant provisions of

the Prevention of Disease Ordinance and the

Public Health Act whenever they deem

necessary.".

Immediately after sub-regulation (2) of regulation 9 of the Amends

principal regulations, there shall be added the following new sub- regulation

the principal

regulation

regulations.

"(3) Preparatory classes for the minor children of

applicants, including language classes, shall be provided where

these are necessary with a view to facilitating their participation

in the education system as provided in sub-regulation (1).".

Regulation 10 of the principal regulations shall be Amends

regulation 10 of

substituted by the following new regulation

the principal

regulations.

"10. (1) An applicant shall be granted access to the

labour market after the lapse of nine months from the date when

the application was lodged, provided that he is still an applicant

when such a lapse has occurred.

(2) Where an appeal is lodged against a negative

decision, access to the labour market shall not be withdrawn

during the appeals stage.

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

without prejudice to priorities given, by reasons of labour

market policies, to citizens of Member States and nationals of

States parties to the Agreement on the European Economic Area

and also to legally resident third-country nationals.".

Regulation 11 of the principal regulations shall be Amends

regulation 11 of

amended as follows

the principal

regulations.

(a)

sub-regulations (2), (3) and (4) thereof shall be

renumbered as sub-regulations (3), (4) and (5) respectively; and

(b) immediately after sub-regulation (1) thereof there

shall be added the following new sub-regulation

"(2) Applicants shall be provided with emergency

health care and essential treatment of illness and serious

mental disorders. Medical and other assistance shall be

provided to applicants who have special reception needs,

including mental health care.".

Regulation 12 of the principal regulations shall be

amended as follows

(a) in paragraph (c) of sub-regulation (1) thereof, for the

words "accommodating applicants." there shall be substituted

the words "accommodating applicants:"; and immediately

thereafter, there shall be added the following new provisos to

the sub-regulation

"Provided that, when accommodating applicants,

due regard shall be given to gender and age-specific

concerns, as well as the situation of vulnerable persons

Provided further that, wherever possible,

dependent adult applicants are to be accommodated with

close adult relatives who are in Malta.";

(b) in sub-regulation (3) thereof immediately after the

words "or by custom" there shall be added the words "or with

their minor unmarried siblings";

(c)

in sub-regulation (5) thereof, for the words "Legal

advisers" there shall be substituted the words "Family members,

legal advisers";

(d) paragraphs (b) and (d) of sub-regulation (6) thereof

shall be deleted, and paragraph (c) thereof shall be renumbered

as paragraph (b); and

(e)

immediately after sub-regulation (6) thereof, there

shall be added the following new sub-regulation

"(7) Transfers of applicants from one facility to

another shall take place only when necessary. Applicants

shall be granted the possibility to inform their legal

advisers of the transfer and of their new address.".

Regulation 13 of the principali regulations shall be Amends

regulation 13 of

amended as follows

the principal

regulations.

(a) in sub-regulation (4) thereof, for the words "persons

covered by regulation 15" there shall be substituted the words

"persons covered by Part IV"; and

(b) immediately after sub-regulation (4) thereof, there

shall be added the following new sub-regulation

"(5) Material reception conditions shall not be

withdrawn or reduced before a decision is taken in

accordance with sub-regulation (4).".

In the title of Part IV of the principali regulations for the Amends the title

words "Persons with Special Needs" there shall be substituted the of

principal

words "Vulnerable Persons".

regulations.

Regulation 14 of the principali regulations shall be Substitutes

regulation 14 of

substituted by the following new regulation

the principal

regulations.

" General

(1)

In the implementation of the

principle

provisions relating to material reception

regarding

conditions and health care, including mental

vulnerable

persons.

health, account shall be taken of the specific

situation of vulnerable persons which shall

include minors, unaccompanied minors,

disabled people, elderly people, pregnant

women, single parents with minor children,

victims of human trafficking, persons with

serious illnesses, persons with mental disorders

and persons who have been subjected to torture,

rape or other serious forms or psychological,

physical or sexual violence, such as victims of

female genital mutilation, found to have special

needs after an individual evaluation of their

situation

Provided that minors who have been

victims of any form of abuse, neglect,

exploitation, torture or cruel, inhuman and

degrading treatment or who have suffered from

armed conflicts shall be given access to pertinent

rehabilitation services in terms of the Victims of

Crime Act, further to being provided with the

required mental health care.

B

For the purposes of this provision an

evaluation by the entity responsible for the

welfare of asylum seekers, carried out in

conjunction with other authorities as necessary

shall be conducted as soon as practicably

possible

Provided that applicants identified as

minors shall not be detained, except as a

measure of last resort

Provided further that applicants who

claim to be minors shall not be detained, except

as a measure of last resort, unless the claim is

evidently and manifestly unfounded.

(2) Whenever the vulnerability of an

applicant becomes apparent at a later stage,

assistance and support shall be provided from

that point onwards, pursuant to a reassessment

of the case.

(3) Whenever the vulnerability of an

applicant is ascertained, no detention order shall

be issued or, if such an order has already been

issued, it shall be revoked with immediate effect.

(4) In the implementation of the

provisions of these regulations, where these

refer to minors, the best interests of the child

shall constitute a primary consideration. When

considering the best interest of the child due

regard shall be taken to the possibilities of

family reunification, the minor’s general well-

being and social development, safety and

security considerations, and the views of the

minor in accordance with his age and maturity.

(5) Minor applicants shall have access to

leisure activity, including play and recreational

activity appropriate to their age, and to open air

activity whenever accommodated in accordance

with regulation 12.

(6) The entity responsible for the welfare

of asylum seekers shall, with the assistance of

international organisations as necessary, initiate

procedures to trace the family members of

applicants who are unaccompanied minors.

Whenever the circulation of data may place

family members in jeopardy, the collection,

processing and circulation of data shall be kept

confidential.".

14. Regulation 16 of the principal regulations shall be Substitutes

regulation 16 of

substituted by the following new regulation

the principal

regulations.

(1)

Applicants

who

feel

Appeals.

aggrieved by a decision taken in pursuance to

the provisions of these regulations and by a

decision in relation to age assessment in

accordance with regulation 17 of the Procedural

Standards in Examining Applications for

International Protection Regulations, shall be

entitled to an appeal to the Immigration Appeals

Board in accordance with the provisions laid

down in the Immigration Act

Provided that applicants who lack

sufficient resources to appeal from a decision,

are entitled to free legal assistance and

representation.

(2) Free

legal

assistance

and

representation shall entail the preparation of the

required procedural documents and participation

in the hearing before the Immigration Appeals

Board.".

B

€1.08