LGBTIQ migrants in greater danger of being sent back to repressive countries

45% of the countries listed as being “safe countries” in Malta’s International Protection Act criminalise LGBTIQ+ identities and behaviour, the Asylum Database report (AIDA) published by Aditus reveals.

Malta’s asylum law contains a list of countries 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 applicable 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 basis 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 applications 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 indicated 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 applications), 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 manifestly unfounded, it can examine the application within three working days and shall, where applicable, decide that the application is manifestly unfounded. Subsequently the application is processed in a few weeks under the accelerated procedure, where according 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 applications are still examined under normal procedures.

Cases channelled through the accelerated procedure are often held while the applicants are held in detention, and applicants generally end up receiving the rejection decision and removal order at the same time. Most of them end up missing the short deadline – three days – to appeal the removal order, which necessarily needs the intervention of an NGO lawyer or a private lawyer.

The accelerated procedure is not just applied for asylum seekers from “safe countries” but to other cases where the applicant is deemed to have provided irrelevant information, had misled the authorities by withholding relevant information or documents, 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 victims of torture, psychological, sexual and physical violence where the accelerated procedure should not be applied.

However, this requires the IPA to promptly 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 violence “were still channelled through the accelerated procedure despite mentioning these episodes of violence during their interview and that no apparent effort was made to ensure these individuals are not channelled through the accelerated procedure, 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 issued with an IPAT review, a removal order and return decision along with their rejection.

Rejected claims from ‘safe country’ applicants are usually considered to be “manifestly unfounded” independently of the claim. Up until 2022, the IPA generally refrained to make this finding in ‘safe country’ claims where applicants were LGBTI, allowing them to file an appeal against rejections, as per regular procedure.

However, it seems the IPA has changed policy, strictly applying the “manifestly unfounded” 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 advocating for the removal of countries of origin which criminalise criminalise LGBTIQ+ identities and/or behaviour from the safe countries list of the International Protection Act.

The NGO gathered data on the designation of safe countries of origin across all EU member states and found that Malta ranks second in terms of the percentage of its designated safe countries that criminalise LGBTIQ+ identities and/or behaviour which means that Malta designates as ‘safe’ a relatively high number of countries that are dangerous for LGBTIQ+ persons.

The NGO found that the IPA tends to systematically 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 reports 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 confirms 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 differential treatments based on nationality.

The unlawful accelerated procedure implemented by the International Protection Agency (IPA) and the International Protection 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 determination process.

Appeals before the IPAT remain pending for years with no prospect of success for appellant.

And a new trend of automatic, template-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. According 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 Sudanese asylum seekers of 40%.

NGOs reported that applications from Nigerians, Ivorians and Lebanese nationals are likely to be deemed manifestly unfounded. And in at least one case, the IPA rejected the application of a non-Arab Sudanese from war-torn Darfur, a region characterised by a history of human rights violations against the non-Arab population.

International Protection Agency reaction

Reacting to the report, the International Protection Agency (IPA) said the fact that a third country is designated as a safe country of origin does not mean that there cannot be individual cases, or profiles, originating from such a country who might be in need of international protection. Indeed, it should be noted that there have been cases of nationals of safe countries of origin who have been granted international protection in Malta, including due to their sexual orientation or gender identity

“Applications lodged by persons coming from a safe country of origin are processed in accordance with the law, meaning that the International Protection Agency processes these applications within a shorter timeframe. Nevertheless, all procedural guarantees are applied in the same manner, including a personal interview and a full and thorough assessment of the protection needs claimed by the applicant,” it said.

“Asylum seekers originating from safe countries of origin are granted international protection if it is established that they have a well-founded fear of persecution or a real risk of suffering serious harm upon return.”

It said on the contrary to claims of low-quality assessment, the assessment carried out by the Agency is a comprehensive and detailed one based on the various guidelines published by the European Union Agency for Asylum, and which takes into account not only the applicant’s credibility, but also his/her profile and the situation in his/her area of origin. Furthermore, before a decision is issued this is always reviewed by one or more senior officers to ensure the quality and correctness of the decision.

“The International Protection Agency wishes to reaffirm its commitment to ensuring a swift, fair and efficient asylum procedure wherein persons who are eligible for international protection, regardless of their country of origin, are duly recognized as such.”