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The Office of the Refugee Commissioner

 

     The Refugee Commissioner
 

Dr. Martine Cassar

 
 
 
 
 
     Background
 

The Refugees Act, Chapter 420 of the Laws of Malta provided for the establishment of the Office of the Refugee Commissioner.

The Office of the Refugee Commissioner opened its doors on a trial basis on 18 June 2001. Initially, cases continued to be referred to UNHCR for final determination. This went on until the end of 2001. On 13 December 2001, Malta lifted its geographical reservation to the 1951 Geneva Convention. On 1st January 2002 the Office of the Refugee Commissioner became fully operational and started to deal with applications for international protection completely on its own.

The Office of the Refugee Commissioner’s main responsibly is to receive, process and determine applications for international protection in Malta, as stipulated by the Refugees Act, amended by Act VI and VII in 2015 and its Subsidiary Legislation 420.07 on Procedural Standards in Examining Applications for Refugee Status Regulations. This Office is also bound by the obligations assumed by Malta under the 1951 Geneva Convention relating to the status of Refugees and its 1967 Protocol, as well as its obligations under European Directive 2011/95/EU[1] , European Directive 2013/32/EU [2] and the Dublin Regulation [3] .

The Office’s fundamental objective is to ensure a totally independent, fair, efficient and swift eligibility determination process while, at the same time, guaranteeing the best quality possible regarding the hearing, analysis and determination of applications.eeing the best quality possible regarding the hearing, analysis and determination of applications.

 
 
 
 

A third-country national or a stateless person may approach the Office of the Refugee Commissioner or another authority in Malta, to inform about his/her intention to make an application for international protection.

The Office of the Refugee Commissioner provides information about the asylum procedure to persons who express their intention to make an application for international protection in Malta.  Information is provided with the help of interpreters, in a language which the applicant understands.  Applicants are assisted to lodge the application for international protection by filling up an application form known as a ‘Preliminary Questionnaire’.

Following the lodging of the application for international protection, the Office of the Refugee Commissioner proceeds to assess those applications which according to the Dublin Regulation are the responsibility of Malta.  Those applications, which fall under the criteria of the Dublin Regulation, are referred to the Dublin Unit which determines which Member State is responsible.

The applications for international protection for which Malta is responsible according to the Dublin Regulation, are examined on their merits by the Office of the Refugee Commissioner.  The Office holds at least one personal interview with each applicant.    Interviews are conducted by fully trained caseworkers with the assistance, where necessary, of an interpreter.

The Office of the Refugee Commissioner implements a single asylum procedure.  It first examines whether the applicant fulfils the criteria to be recognised as a refugee according to law. In the case of those who do not meet the criteria to be recognised as refugees, the Office proceeds to examine whether the applicant fulfils the criteria for subsidiary protection according to law.

The applicant is informed in writing about the decision issued by the Office of the Refugee Commissioner.  The reasons in fact and in law are stated in the decision.   In the case of a negative decision, applicants are informed of their right to enter an appeal against this decision to the Refugee Appeals Board.  Information on how to challenge a negative decision is given in writing to those applicants whose application was rejected with regards to refugee status and/or subsidiary protection status.


 
 
     Levels of Protection
 

The Office of the Refugee Commissioner as stipulated by law, may recommend two types of protection: (a) Refugee Status; and (b) Subsidiary Protection Status.

Refugee Status [4] is derived from Malta’s accession to the 1951 Geneva Convention and its 1967 Protocol relating to the Status of Refugees.  It should be noted that reservations made by Malta upon accession to those instruments were all withdrawn by 24 February 2004.

The subsidiary protection status was introduced in 2008 after EU Council Directive 2004/83/EC (now recast EU Directive 2011/95/EU)   was transposed into Maltese Legislation. Previously the Refugees Act provided for temporary humanitarian protection, defined as special leave to remain in Malta for those persons who could not have returned safely to their country of origin.

Subsidiary protection status is granted to third-country nationals or stateless persons who do not qualify to be recognised as refugees but in respect of whom substantial evidence have been shown for believing that if returned back to their country of origin/country of former habitual residence, would face a real risk of suffering serious harm [5].

According to Regulation 14 of Subsidiary Legislation 420.07 a person declared to be a beneficiary of international protection is entitled to (a)  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; (b) to be given a Convention Travel Document in the case of refugees and a travel document in accordance with relevant provisions of national law in the case of beneficiary of subsidiary protection, entitling him to leave and return to Malta without the need of a visa (unless he is in custody awaiting judicial proceedings for the commission of a criminal offence, or is serving a term of imprisonment); (c) to have access to employment or self-employment 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 benefits); (d) be granted access to existing recognition procedures for foreign diplomas certificates and other evidence of formal qualification.  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.  Dependant member of the family of a person granted subsidiary protection status, if they are in Malta at the time of the decision, enjoy the same rights and benefits as the person enjoying subsidiary protection status so that family unity may be maintained.


The Office of the Refugee Commissioner can also recommend another regime of protection that is Temporary Humanitarian Protection, an administrative procedure which is granted in special and extraordinary cases where applicants are found not to be eligible for recognition as refugees or beneficiaries of subsidiary protection, but who are nonetheless considered to be in need of protection due to special humanitarian reasons.  

 


 

ERF Project 2009-2011: “Post Application client preparation and asylum determination interviewing centre for asylum seekers which aims to adequately prepare TCNs for their asylum determination process”

 

The Office of the Refugee Commissioner, in 2011, concluded the first European Refugee Fund project entitled ‘Post application client preparation and asylum determination interviewing centre for asylum seekers’ whereby applicants are given all the necessary information about the asylum procedure including information about their rights and obligations during the entire process.  Applicants are also being assisted by interpreters, provided by this Office to fill in adequately their registration form known as Preliminary Questionnaire.  It must be noted that the changes that were made by means of this project were recognized by Thomas Hammerberg, Commissioner for Human Rights of the Council of Europe, wherein a report published on 09 June 2011, Hammerberg mentioned that the provision of information to asylum seekers has improved considerably. 

In 2011, through this project, the Office of the Refugee Commissioner has organized a training seminar as well as a national conference.  Members of organizations working in the field of asylum, NGOs and civil society were invited for this conference.  This event aimed to inform the public on what happens after the asylum procedure is concluded as well as allowed the Maltese community to connect with refugees on a human level and to understand the struggles that refugees have to face in order to integrate in our society.

 

The Office of the Refugee Commissioner continues with this practice of providing information to potential applicants for international protection, on the asylum procedure and the rights and obligations attached with this procedure. 

 


ERF Project August 2009–January 2010: The Emergency Measures Project

This project aimed to strengthen the existing asylum infrastructure especially when considering (a) the increasing number of irregular immigrants in 2008; (b) the increasing number of asylum applications; (c) the increase in the number of persons arriving on the same boat and (d) the Office’s commitment to conclude cases within six months from the day of arrival.

Through this project the Office of the Refugee Commissioner employed ten asylum determination officers and a project manager to examine the pending asylum applications, hence enabling this Office to fulfil its fundamental objective of ensuring a fair and an efficient asylum procedure within the first six months of the immigrants’ arrival in Malta.

Through this project the Office of the Refugee Commissioner has also extended its premises by investing in mobile offices.  With the use of the new office space, this Office now has 12 properly equipped interviewing rooms.  Moreover since these Offices will be used by staff of the Refugee Commissioner these have been furnished and equipped to cater for the special needs of an asylum determining office, making the place better suited for the asylum interview.

 


The GDISC Project

Throughout 2011, the Office of the Refugee Commissioner continued its work with GDISC, an EU organisation that works in the field of immigration and asylum.  The Office participated in this project as a beneficiary.  With this new project the Office benefited from linguistic analysis, as well as, from the services of interpreters from the United Kingdom to Malta when there was a need of an increased interpreters' capacity for a short period to provide practical assistance on the spot.  A total of six interpreters came to Malta in 2011, two that spoke Bangla, two that spoke Urdu and another two interpreters that spoke Amharic and Oromo, who in total helped in the interviews of just over ninety asylum applicants.   

 


ERF Project 2010–2012: Document Analysis in the Asylum Determination Process, Training and Implementation

The Office of the Refugee Commissioner implemented another ERF project entitled “Document analysis in the asylum determination process, training and implementation” (2010-2012) which mainly aimed to develop the level of expertise in the field of documentation analysis. This project particularly aimed at improving the asylum decision making process by (a) training asylum determination officers in the field of documentation analysis, (b) providing different level group workshops for asylum determination officers in Malta in the field of documentation analysis; (c) the leasing of document analysis equipment which will assist asylum determination officers in conducting their documentation analysis.

 

ERF Project 2012 – 2013: Putting Integration into Perspective: Studying integration efforts of beneficiaries of international protection and identifying areas where special input is needed.

This project aimed to study the integration efforts of beneficiaries of international protection and to identify areas where special input is needed in the field of integration was concluded in the end of June 2013. 

 

A final conference was also organised that marked the end of the project.  All the stakeholders that participated in the mini-conferences organised by this Office were invited along with other agencies/NGOs and organisations.  During the conference, a report on the different aspects of integrations, as compiled by the sociologists, was presented to all those present.  A copy of the detailed report was also disseminated to all those present.

 

ERF Project 2013 – 2015: Setting up a database for the electronic management of documentation during the asylum process and issuance of new protection certificates;

This project entitled ‘Setting up a database for the electronic management of documentation during the asylum process and issuance of new protection certificates’, aimed to digitalise the clients’ files and to issue a new format protection certificate. 

Through this project, the Office developed a new upgraded format of the protection certificate. For all the beneficiaries of international protection, the Office issues a protection certificate which prior to the implementation of this project was an A4 laminated security paper with a dry rubber stamp.  The Office issues an average of 3,000 certificates a year. The new format certificate is a polycarbonate card in the size of the residence permit card. 

With the implementation of this project, the Office also digitalized more than 8,000 files.  Since the setting up of the Office in 2002, the Office received more than 18,000 applications for international protection and has an acceptance rate of over 55%. The increase in workload/cases highlighted the need for an electronic storage of all clients’ files currently stored at the Office.

 

ERF Project 2013 – 2015: Enhancing structural and material facilities of the Office of the Refugee Commissioner

The project aimed to enhance the structural facilities of the Office of the Refugee Commissioner which were needed to continue providing information about the rights and obligations in the asylum procedure to third country nationals.  The aim was achieved by the setting up of five mobile offices to cater for the information sessions. These structural facilities are now fully equipped for the information sessions to ensure that third country nationals receive the necessary information in an environment congruent with trust; keeping in mind that these persons will be disclosing personal information and therefore the need to have enough space for privacy is respected.

Before the implementation of this project, the Office of the Refugee Commissioner did not have the space to hold these information sessions and was thus obliged to use the rooms which are usually used to have asylum interviews thereby hampering the interviewing process which would have to stop in order for the sessions to be delivered.

An inauguration ceremony was held on 18th June 2015.  

 
 
 
 
Please view the resources attached to this page.
 
 
     Conclusion
 
In conclusion, the Office of the Refugee Commissioner has throughout the years, adopted a number of strategies to increase its’ efficiency, despite the increasing numbers of applications for international protection throughout the years. Nonetheless, this Office is committed to maintain its solid work, ensuring a sound decision making procedure and building an efficient process which ensures and safeguards guarantees for genuine beneficiaries of international protection throughout the asylum procedure. 

 

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[1] 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.

[2]  On common procedures for granting and withdrawing international protection;  

[3]  On 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.

[4]  A refugee is defined as ‘a third country national who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, as a result of such events is unable or, owing to such fear, is unwilling to return to it’. 





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