Malta’s deficient asylum system under the spotlight once again

In a judgement against Malta by the European Court of Human Rights (ECtHR), published yesterday, several deficiencies within Malta’s asylum system were pointed out, many of which had been previously highlighted in a report by the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) following a visit to Malta in 2020, as well as by local activists and NGOs.

In the case S.H. v Malta, the ECtHR found that Malta breached the rights of a 23-year-old Bangladeshi journalist whose asylum request was repeatedly rejected by the International Protection Agency (IPA) without a proper assessment of his claim regarding the risks he would face if returned to his homeland.

The Court of seven judges unanimously agreed there has been a violation of Article 13 (right to an effective remedy) in conjunction with Article 3 (prohibition of torture) of the Convention.

The Court’s judgment emphasises several glaring flaws in Malta’s asylum system.

These include how, at all stages, Malta’s asylum procedure dismissed S.H.’s claims without ever adequately assessing their substance, the excessive amount of evidence the applicant was required to present to support their claims, and the applicant’s detention and lack of legal assistance throughout most of the asylum procedure.

The Court also references the 2021 report by the CPT. It focuses on those sections where the CPT had critically observed how Malta detains and treats its asylum-seekers.

The CPT report findings

In a report published in March 2021 based on a rapid reaction ad hoc visit to Malta in September 2020, the CPT found: “an immigration system that was struggling to cope: a system that purely ‘contained’ migrants who had essentially been forgotten, within poor conditions of detention and regimes which verged on institutional mass neglect by the authorities.

The same report also noted how, although Maltese law has, on paper, a range of safeguards designed to protect detained migrants from harm and prevent their ill-treatment, the CPT’s delegation found that many of these safeguards were not operating correctly.

These included severely restricting communication with the outside world through the systematic confiscation of mobile phones and a lack of information on the contact details of NGOs, consular assistance, lawyers or the UNHCR.

These issues are all reflected in the ECtHR’s latest judgement that notes how the Court had repeatedly “expressed its concerns in the Maltese context about concrete access to legal aid for persons in detention”. The Court also notes in more than one instance (paras 84 and 85) that S.H. was unrepresented and had been in detention in the months before his case being heard by the Maltese authorities.

In other words, the Court understood that, given the applicant’s circumstances, it was unlikely that the applicant could have provided the detailed and technical answers expected by the Maltese authorities.

Accelerated procedure and filtering system

The lack of a proper assessment of the applicant’s request for asylum noted by ECtHR was compounded by the process known as an accelerated procedure.

Malta’s asylum law has a list of countries that the Minister of Home Affairs has designated as being ‘safe’. This means asylum-seekers from these countries don’t undergo the complete asylum process but are channelled into the accelerated procedure. With this procedure, claims are almost automatically rejected.

Human rights NGO Aditus has often flagged how Malta’s accelerated procedure violates asylum-seekers rights because it determines applications on the basis of country of origin rather than on the merits and concrete facts of a given case and does not permit any real appeal.

In December last year, a source within migrant services approached The Shift and detailed how the system through which asylum seekers’ applications are processed – the so-called “filtering system” – is “broken” and lacks the resources to function adequately.

The source pointed towards critical issues in the International Protection Agency (IPA), the government authority responsible for the determination of asylum seekers’ applications, which maintains a general policy of rejecting “as many applications as possible” while prioritising the processing of applications that were denied, leading to deportation.

Urgent reforms still needed

In September, the Council of Europe’s Committee of Ministers decided to keep a case related to the Safi Detention Centre’s atrocious conditions open to further scrutiny.

The Committee of Ministers asked Malta to provide some tangible proof of improvements. The ministers called on the authorities to “reduce the risk of de facto isolation” and “to submit any reports or assessments of these improvements and their impact on the overall conditions of detention in practice”.  Based on the information received, the case will be discussed again in 2023.

Following the ECtHR’s decision, human rights NGO Aditus issued a statement saying that the Court’s decision “not only upheld the fundamental human rights of our client, S.H. but has also opened the door for hundreds of identical cases against Malta. S.H. v Malta raises several red flags in Malta’s treatment of refugees from the moment of their arrival and throughout the procedure intended to protect them. This is a welcome judgement that we hope will lead to urgently needed reforms”.