Safeguarding the rights of asylum applicants to a fair and effective refugee status determination procedure

Abstract

The 1951 Geneva Convention relating to the Status of Refugees, whilst defining 'the refugee', does not provide for the procedures to be followed in the identification of those in need of international protection. The Maltese status determination procedure draws its inspiration from asylum-specific legislative instruments at EU level and domestic law which transposes these obligations. In addition, since in determining applications for international protection national authorities are also implementing EU law, the procedure in practice is also governed by European fundamental rights law. Finally, national administrative law, prescribing the principles to be adhered to in the workings of an administrative authority, is still of particular relevance as procedural fairness is incumbent upon the workings of any decision-maker. This study examines the Maltese status determination procedure at first instance, both in terms of the quality of the law which maps out the procedure and its implementation in practice. The procedure is analysed in light of the large body of European fundamental rights law and national administrative law which prescribe fairness and efficiency. The conclusions of this study illustrate that while improvements have been made to the procedure in recent years, this still falls short of meeting the requirements for it to be fully characterised as fair. This is both due to the margin of discretion which the enacted legislation affords to the Refugee Commissioner, with minimal procedural safeguards afforded to the applicant, as well as to the marked importance attached to efficiency in determining applications for international protection. Efficiency is, at times, achieved at the expense of fairness. However, full and effective implementation of the substantive obligations of the Convention presupposes fair and effective status determination procedures geared towards identifying applicants with protection needs so that they may be accorded the rights they are entitled to at law.