Asylum seekers have right to review on appeals’ decisions

Malta's ombudsman has recognised the right of an asylum seeker and their legal representative to be allowed access to their case file and all relevant documents and information, so that he could adequately prepare a review of appeals' decisions made on protection claims to the Commissioner for Refugees.

An immigrant, assisted by the Jesuit Refugee Service, asked the Parliamentary Ombudsman to investigate the decision of the Refugee Commissioner that an immigrant or his legal representative could not access his case file except for the purposes of lodging an appeal from a decision of the Commissioner that he was not entitled to international protection or to make a subsequent application in terms of Article 7A of the Refugees Act.

The complainant said the Refugee Commissioner failed to provide the reasons for his decision that the evidence the asylum seeker produced to sustain his claim that he is of Eritrean nationality did not meet the expected level of substantiation; and repeatedly refused to allow his legal adviser access to the detailed decision contained in his case file on the basis of the argument that access to case files should only be granted for the appeals procedure.

"There was no reason why the basic principles governing fair hearing should not be extended and applied to asylum seekers whose application for asylum has been finally rejected by the Board of Appeal, but who maintain that they have the right to have their case reviewed," the Ombudsman said.

"The fundamental rule that a person has a right to full access to the evidence produced during the hearing when defending his case, needs to be observed at all stages of the procedure and especially so, when rights are being finally determined."

The Ombudsman said this right of access to evidence is of the essence of the fundamental right to a fair hearing protected by Article 46 of the Constitution and Article 4 of the European Convention, and the Board of Appeal and indeed, all other authorities entrusted with the final determination of rights, including the Commissioner, are bound to follow.

In a detailed opinion, the Parliamentary Ombudsman recognised the right of an irregular immigrant and/or legal representative to be allowed access to his case file and all relevant documents and information so that he could adequately prepare a request for a review or reconsideration of the Refugee Commissioner's decision.

In his final report, the Ombudsman recommended that immigrants and their legal advisers are to be granted full access to the evidence in their file; are to be given the opportunity to file a subsequent application irrespective of the quality of new evidence produced; that all final decisions of the Commissioner are subject to appeal; and that the Refugee Commissioner should revisit the procedures for the filing of subsequent applications to ensure that they fully conform with existing legislation and

the EU directive 2005/83/EC.

The Ombudsman said that present procedures denying irregular immigrants access to their files in certain circumstances, do not fully conform with the requisites of due process that constitutes the fundamental right to a fair hearing.

In his reply, the Refugee Commissioner expressed his gratitude for the Ombudsman's recommendations, which he said would surely serve as a basis for further improvement in the first instance asylum procedures at the Office of the Refugee Commissioner.

The Refugee Commissioner informed the Ombudsman that his Office had referred the Ombudsman's Final Opinion to the EU Affairs Unit and the Policy Unit in the Ministry for Home Affairs and National Security for further review and to discuss the needed action to revise or formulate new procedures taking on board the suggestions of the Ombudsman.