Issue link: https://maltatoday.uberflip.com/i/1498713
14 maltatoday | SUNDAY • 7 MAY 2023 NEWS JAMES DEBONO 45% of the countries listed as being "safe countries" in Malta's International Protec- tion Act criminalise LGBTIQ+ identities and behaviour, the Asylum Database report (AIDA) published by Aditus reveals. Malta's asylum law contains a list of coun- tries that the Home Affairs Minister has designated as being 'safe', a list that includes all EU member states, the United States of America and other western countries, but also countries with repressive anti-gay laws like Egypt, Morocco, Senegal, Bangladesh, and Algeria. Asylum-seekers originating from these 'safe' countries are not given access to a full and proper asylum procedure, but are channeled to the accelerated procedure ap- plicable to cases where their asylum claim is dismissed as "manifestly unfounded". NGOs claim that when processed through the accelerated procedure, asylum claims are almost automatically rejected on the ba- sis that the applicants come from a country the Home Affairs Minister has decided is safe. And while prior to 2022, LGBT asylum seekers from so-called safe countries were still channelled to the regular procedure because of their vulnerability, this informal policy was changed and the International Protection Agency now strictly applies this determination to all applications, including those made by individuals claiming to be LGBTI. According to the report, most applica- tions deemed to be "manifestly unfounded" are from individuals coming from countries listed as safe in the law. The International Protection Agency, which processes asylum claims, has indicat- ed it rejected 303 applications on this basis in 2021. These include nearly all applicants from Bangladesh (127 applications out 130), Morocco (61 rejection out of 63 ap- plications), Ghana (12 rejections) and Egypt (77 rejections out of 79 applications). According to the law whenever the IPA is of the opinion that an application is mani- festly unfounded, it can examine the appli- cation within three working days and shall, where applicable, decide that the applica- tion is manifestly unfounded. Subsequently the application is processed in a few weeks under the accelerated procedure, where ac- cording to NGOs applicants in detention are generally "unrepresented and unable to access any form of legal assistance before they receive a rejection decision." But when the application is considered not to be manifestly unfounded, such ap- plications are still examined under normal procedures. Cases channelled through the accelerated procedure are often held while the appli- cants are held in detention, and applicants generally end up receiving the rejection de- cision and removal order at the same time. Most of them end up missing the short deadline – three days – to appeal the re- moval order, which necessarily needs the intervention of an NGO lawyer or a private lawyer. The accelerated procedure is not just ap- plied for asylum seekers from "safe coun- tries" but to other cases where the appli- cant is deemed to have provided irrelevant information, had misled the authorities by withholding relevant information or doc- uments, or when the authorities think the claim is just an attempt to delay or frustrate the enforcement of a removal order. The law does include safeguards for vic- tims of torture, psychological, sexual and physical violence where the accelerated procedure should not be applied. However, this requires the IPA to prompt- ly identify and recognise the vulnerability of the applicant which "is unlikely", according to NGOs. Indeed, NGOs working in the sector have confirmed that survivors of vi- olence "were still channelled through the accelerated procedure despite mentioning these episodes of violence during their in- terview and that no apparent effort was made to ensure these individuals are not channelled through the accelerated proce- dure, adding that ultimately the claim that they have suffered il-treatment is likely to be rejected as non credible." When detainees are channelled through the accelerated procedure, they are then is- sued with an IPAT review, a removal order and return decision along with their rejec- tion. Rejected claims from 'safe country' appli- cants are usually considered to be "man- ifestly unfounded" independently of the claim. Up until 2022, the IPA generally re- frained to make this finding in 'safe coun- try' claims where applicants were LGBTI, allowing them to file an appeal against re- jections, as per regular procedure. However, it seems the IPA has changed policy, strictly applying the "manifestly un- founded" determination to all individuals, even those claiming to be LGBTI. And the law allows "manifestly unfounded" claims to be examined under accelerated procedures, despite the provision at law that this applies only when the applicant is found not to be in need of international protection. In November 2022, aditus foundation launched the #Safe4All legal initiative advo- cating for the removal of countries of origin which criminalise criminalise LGBTIQ+ identities and/or behaviour from the safe countries list of the International Protec- tion Act. The NGO gathered data on the designa- tion of safe countries of origin across all EU member states and found that Malta ranks second in terms of the percentage of its des- ignated safe countries that criminalise LG- BTIQ+ identities and/or behaviour which means that Malta designates as 'safe' a rel- atively high number of countries that are dangerous for LGBTIQ+ persons. The NGO found that the IPA tends to sys- tematically reject subsequent applications of LGBTIQ+ applicants without carrying out an interview, even when the applicant provides evidence of his involvement with the LGBTIQ+ community, including re- ports from LGBTIQ+-supporting NGOs, letters and personal statements of friends, relatives and partners who are in Malta and are willing to present themselves as witnesses. The IPAT almost always con- firms the rejections and the appellants are left with no further means to challenge the IPA's assessment. The asylum procedure in Malta is also still characterised by long waiting times and dif- ferential treatments based on nationality. The unlawful accelerated procedure im- plemented by the International Protection Agency (IPA) and the International Protec- tion Appeals Tribunal (IPAT) was severely criticised by the European Court of Human Rights in a recent Judgement. Additionally the quality of the assessment is reportedly very low across all nationalities and the credibility assessment is reported to be excessively relied upon the determina- tion process. Appeals before the IPAT remain pending for years with no prospect of success for ap- pellant. And a new trend of automatic, tem- plate-based rejections was noted in relation to Libyan nationals and Non-Arab Darfuri from Sudan. The report reveals that in 2022, the IPA rejected Sudanese applicants en masse. Ac- cording to the UNHCR, the IPA issued 602 decisions: of these only two were granted refugee status for a recognition rate of 0.3% which contrasts with an EU average for Su- danese asylum seekers of 40%. NGOs reported that applications from Nigerians, Ivorians and Lebanese nationals are likely to be deemed manifestly unfound- ed. And in at least one case, the IPA reject- ed the application of a non-Arab Sudanese from war-torn Darfur, a region character- ised by a history of human rights violations against the non-Arab population. jdebono@mediatoday.com.mt LGBTIQ migrants in greater danger of being sent back to repressive countries Despite emerging as a global leader in LGBTIQ rights, Malta still deems countries where LGBTIQ identities are criminalised as "safe countries of origin", exposing LGBTIQ asylum seekers to a greater chance of being sent back through an accelerated process which NGOs claim lack adequate safeguards