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Humanitarian protection

 

Background information on the Office of the Refugee Commissioner and International Protection

The Refugees Act, Chapter 420 of the Laws of Malta, provided for the establishment of the Office of the Refugee Commissioner which opened its doors for the first time on a trial basis on 18th June 2001. At the time, asylum cases continued to be referred to UNHCR for final determination until the end of the same year.

On 13th 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 independently deal with applications for international protection.

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 Acts 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, European Directive 2013/32/EU, and the Dublin Regulation[1].

The fundamental objective of this Office 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 for international protection.

Levels of International 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

Refugee Status 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  It should be noted that reservations made by Malta upon accession to those instruments were all withdrawn by 24th February 2004.

The 1951 Geneva Convention has established the legal definition of a refugee. Article (A)(2) of the Convention stipulates that a refugee is a person 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." This definition has been subsequently reproduced in Article (2) of the Qualification Directive and transposed into Maltese legislation.



[1] The purpose of the Dublin Regulation, adopted in 2003, is to determine which State is responsible for examining an asylum application – normally the State where the asylum seeker first entered the EU – and to make sure that each claim gets a fair examination in one Member State.

The refugee definition is universally binding.  Any person who meets its criteria has to be recognized as a refugee unless he/she meets one, or more, of the exclusion criteria under the Qualification Directive and the 1951 Geneva Convention.

 

Recital 21 of the Qualification Directive states that: “The recognition of refugee status is a declaratory act.” This means that a person is a refugee within the meaning of the 1951 Geneva Convention as soon as he or she fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his or her refugee status is formally determined. Recognition of the person’s refugee status does not therefore make him/her a refugee but is a declaratory act. A person thus, does not become a refugee because of recognition, but is recognized because he or she is a refugee (UNHCR Handbook paragraph 28).

 

Subsidiary Protection

The subsidiary protection status was introduced in 2008 after EU Council Directive 2004/83/EC (now recast EU Directive 2011/95/EU) and 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.

There are certain situations where a person cannot or does not want to avail her/himself of the protection of his country, feels a real threat against his life or person, but does not have a fear of persecution on any of the five grounds listed in the Geneva Convention. Although not a refugee in the legal sense of it, such a person would still be in need of international protection.

The Qualification Directive addressed this gap by creating a new regime of protection in Europe, based on diverse State practices, and inspired partly by the European Convention on Human Rights and its Court jurisprudence. This type of international protection is referred to as Subsidiary Protection and aims at providing protection to persons who might be at risk even if there is no nexus with any of the grounds listed in Article 1 (A) (2) of the 1951 Geneva Convention.

According to Qualification Directive Article 2 (f) a "Person eligible for subsidiary protection” means a third country national or stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 (...) and is unable, or, owing to such risk, is unwilling to avail himself or herself of the protection of that country;”

Article 15 defines serious harm as: "(a) death penalty or execution; or (b) torture, inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict."

Humanitarian Protection

The Office of the Refugee Commissioner can also recommend another regime of protection, Humanitarian Protection. This is a local type of protection 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.  

Humanitarian Protection is divided into two branches; Temporary Humanitarian Protection and Provisional Humanitarian Protection. 

Temporary Humanitarian Protection is granted in cases where the applicant’s claim for international protection has been rejected, but due to certain humanitarian reasons the Office grants him/her this form of local protection. Such cases include unaccompanied minors whose claim for international protection has been rejected, terminally ill people, seriously ill persons, and in order to maintain family unity.

Temporary Humanitarian Protection N is a local form of protection granted ex-gratia to failed asylum seekers who entered Malta in 2007 or before, subject to meeting a number of eligibility criteria. Failed asylum seekers who might be considered for Temporary Humanitarian Protection N need to present documentary evidence in relation to their integration efforts and their employment history in Malta. Other mandatory criteria for eligibility include living in a private residence in Malta and keeping a clean police conduct.   

Provisional Humanitarian Protection is given in cases where due to a high influx of asylum seekers, or because of other particular circumstances (e.g. the applicant is not fit for the interview), the case will not be processed within the normal timeframe. Provisional Humanitarian Protection is granted until the application for international protection can be properly assessed and a decision taken.

​​a) The remaining sections of the website should be updated to reflect the following information vis-à-vis the rights of beneficiaries of international protection and humanitarian protection.


Legal rights of beneficiaries of international protection

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 beneficiaries of subsidiary protection, entitling them to leave and return to Malta without the need of a visa (unless he/she 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. 

Dependent 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.  Dependent members 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.

Legal rights of beneficiaries of humanitarian protection

A person who is granted temporary humanitarian protection shall be allowed to remain in Malta with freedom of movement and be granted personal documents, including a residence permit for a period of one year, which shall be renewable. Persons who have been granted temporary humanitarian protection shall also have access to employment, subject to labour market considerations, State medical care, as well as the provision of accommodation, services and benefits by the Agency for the Welfare of Asylum Seekers. Finally a beneficiary of temporary humanitarian protection shall also be provided with documents enabling him/her to travel, especially when serious humanitarian reasons arise that require his presence in another State.


Last updated in August 2016​.