This case concerns an appeal filed by the International Protection Agency and the State Advocate against a decision pronounced by the First Hall in its Constitutional Jurisdiction on the 1 March 2022, wherein the court ruled that Article 23 of the International Protection Act is in breach of the applicant’s fundamental rights in terms of Article 39(2) of the Constitution and Article 6 of the European Convention on Human Rights. As a remedy, the first court ordered that the International Protection Appeals Tribunal (IPAT) hear the case of the applicant again.

The court cited the first court’s reasoning which digressed from the already established position in jurisprudence that applications for refugee status are a civil right. While the court agreed with the concerns expressed by the first court on the inappropriateness of the automatic review procedure, it saw no reason to digress, in the same manner as the first court, from the position which is well established in jurisprudence.

The court also rejected the applicant’s argument that her complaint was not about the procedure before the International Protection Agency (IPA), but the appeals procedure. It noted that the entire procedure – before the IPA and before the IPAT – is considered a procedure which does not determine a civil right or obligation, or a criminal offence, and therefore does not fall under the provisions of Article 39 of the Constitution and Article 6 of the European Convention on Human Rights. The court stated that the argument presented by the applicant was based on the assertion that applications for refugee status are a civil right and that the procedures before the IPAT are “procedures against her”, which was not the case. The court further stated that the applicant was correct in arguing that procedures before the IPAT – as well as those before the IPA – are regulated by the Administrative Justice Act, Chapter 490 of the Laws of Malta, and therefore, if she considered that there was a deficiency in the safeguard of the administrative process, she should have sought a remedy in terms of that law, and not in terms of Article 39 of the Constitution or Article 6 of the European Convention on Human Rights, which were not appropriate for the case.

The court, relying on Alheto, C-585/16, 25 July 2018, stated that the adjective “full” in Article 46(3) of the APD (recast 2013/32) confirms that the court is obliged to examine the points decided or which could have been taken into consideration by the determining authority as well as those which arose after the adoption of the decision by the determining authority. With regards to the requisite of a “full and ex nunc examination”, it noted that this implies that that the court should hear the applicant, unless it considers that it can conduct the examination on the basis of information in the file, which includes, depending on the case, the evaluation report or the transcript of the personal interview before the mentioned determining authority (the court also referred to Sacko, C-348/16 EU:C:2017:591, points 31 and 44). The court further noted that in the case where new elements or points arose after the adoption of the decision by the determining authority, the court was obliged, according to Article 47 of the Charter of Fundamental Rights, to offer the applicant the possibility to express himself/herself when these points can affect him/her in an unfavourable manner.

The court concluded that the applicant made her claim before the IPA, and the IPAT could legitimately rely on the acts of the procedure before the IPA to come to its conclusions, and it has done so. Furthermore, the court stated that accelerated procedures without a hearing are not extraordinary, although one’s fundamental rights can be affected. It added that even the European Court of Human Rights does not hold back from discarding applications without hearing the interested party, and the court cited a blog post referring to a press release by the ECtHR registrar dated 1 June 2017.

For these reasons the court confirmed the IPA and State Advocate’s claim that Article 39 of the Constitution and Article 6 of the European Convention on Human Rights do not apply to the applicant’s case and stated that this is sufficient to confirm the appeal and it is not necessary to consider the other arguments invoked. The court confirmed the first judgment on those counts which were not contested but revoked the judgment on the conclusion that there was a breach of Article 39 of the Constitution and Article 6 of the European Convention on Human Rights.