Refugee denied protection by ‘ineffective’ Maltese asylum system, ECHR rules

The European Court in Strasbourg has ruled that Malta violate the fundamental human rights of an asylum seekers when it failed to properly assess his fear of being returned to his home country.

The European Court of Human Rights (ECHR) published an important judgement condemning a series of failings in Malta’s asylum procedure in the landmark case S.H. v. Malta, opening the door for hundreds of identical cases against Malta.

S.H. v. Malta has raised several red flags in Malta’s treatment of refugees from the moment of their arrival, his Bangladeshi nationality was given overdue consideration rather than the ample evidence he had brought to substantiate his claims.

S.H. worked for Vairab KTV Bangla, a news TV channel in the Kishorganji District in Dhaka, Bangladesh, and insisted he had suffered death threats from the governing Bangladesh Awami League for his reports on corruption and fraud committed by the AL.

Despite his amply evidence of his claims filed in three asylum claims, the International Protection Agency (IPA) declared the first application to be ‘manifestly unfounded’, whilst it threw out the subsequent two as it decided that S.H. did not present any relevant new facts or information. All decisions were confirmed by the International Protection Appeal Tribunal (IPAT).

But the ECHR has questioned how Malta’s asylum procedure simply dismissed S.H.’s claims without ever actually assessing their substance. “Clearly spelled out threats were also considered not to be detailed enough.”

The ECHR said the Maltese system required a far too high level of proof, and berated the IPAT carrying out only a “superficial assessment of all the documentation presented... The brief stereotype decision, confirming the incongruous conclusions reached at first instance and providing no further reasoning, support such a conclusion.”

Malta also designates certain countries as ‘safe’ countries of origin so that such asylum claims can be given an accelerated procedure, usually automatically rejected on the basis that the applicants come from a country the Home Affairs Minister decrees as safe.

Furthermore, rejected asylum-seekers are not permitted to appeal this negative decision. The IPAT merely reviews these decisions and in an often automatic and speedy rubber-stamping of the original rejection.

“Aditus foundation has on several occasions flagged that Malta’s accelerated procedure violates the rights of asylum-seekers. It determines applications on countries of origin, rather than on merits, and does not permit any real appeal. For refugees coming from countries designated as safe by the Home Affairs Minister, it is close to impossible to have their applications heard fully and fairly,” the NGO said, which represented S.H. in his European human rights claim.

“Malta’s accelerated procedure applies to persons coming from countries the Home Affairs Minister has designated as safe, including when these countries criminalise LGBTIQ+ behaviour or identities. In our #Safe4All campaign, we are flagging this incongruity in Malta’s system by stressing that a country may and should not be considered safe if it has laws and national practices that imprison people simply for their LGBTIQ+ identity! Without a change to this system, Malta runs the risk of returning refugees to places where they might be arbitrarily arrested, detained, beaten or even killed.”

Significantly, the ECHR once again lamented the inadequacy of Malta’s own system for the protection of human rights: the Constitutional remedy. It noted that S.H. was not able to receive protection from Malta’s judicial system because Malta’s Constitutional regime does not automatically suspend the deportation of a person alleging that such a deportation could lead to a violation of their rights.

The Strasbourg Court has repeatedly insisted that the European Convention on Human Rights requires this automatic suspensive effect in order to prevent human rights violations occurring as a result of a forced removal. If a judicial system does not offer automatic, albeit temporary, suspension of a removal until it fully examines all relevant claims, then that judicial system is simply not up to the Convention’s standards.

“The conclusion is clear: until Parliament strengthens Malta’s Constitutional protection of the fundamental human rights of a person facing removal to perilous places, the Strasbourg Court will continue to declare our system ‘ineffective’,” Aditus said.