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Key Words Archives: Access to the asylum procedure

M.M. v. The Principal Immigration Officer

The appellant is a Bangladeshi national who was rescued and disembarked in Malta in September 2019. He declared to be a minor born on 01 January 2003 upon arrival and was directly detained. The appellant was detained on health grounds until June 2020 where he was issued with a removal order. The appellant complained to his lawyers that he orally requested to apply for asylum but was never registered by the IPA and therefore was illegally issued with a removal order. Following the lawyer’s intervention, the appellant was released and formally registered as an asylum seeker in November 2020.

In the meantime the Agency for the Welfare of Asylum Seekers (AWAS) declared the appellant to be an adult in October 2020, the appellant’s lawyer filed an appeal before the Immgration Appeals Board and the case was first heard by Division II in November 2021.

In August 2021, the appellant was apprehended at Malta International Airport trying to embark on a flight to Italy in possession of fraudulent documents. He was handed a six month effective prison incarceration. Upon his release from Corradino Correctional Facility in December 2021, the appellant’s return decision was “re-activated” and the appellant was transferred to Safi Detention Centre pending removal to Bangladesh.

However, the Immigration Police was informed by the appellant’s lawyers that the appellant was still an asylum seeker and, following confirmation by the International Protection Agency, the appellant was issued with a detention order based on S.L. 420.06 which transposes the Reception Directive, in April 2022. The detention order was directly appealed while the decision on the age assessment appeal was still pending.

The appellant requested his immediate release in view of the excessive duration of his detention which amounted to a total of 14 months in Safi Detention Centre and 6 months in Corradino Correctional Facility and the unlawful enforcement of his removal order taken in June 2020 while still an asylum seeker claiming to be a minor.

The Immigration Appeals Board confirmed the detention order issued in April 2022 to be legal in view of the fact that the risk of absconding is real, also considering the fact that appellant tried to abscond from Malta to be later apprehended and handed a 6 month effective incarceration.

Nonetheless, the Immigration Appeals Board decided that in view of the fact that the appellant’s age assessment was still ongoing, the appellant must be presumed a minor. The Immigration Appeals Board therefore ordered the appellant to be shifted to the buffer zone within AWAS Open Centre under those conditions that are deemed appropriate and necessary by AWAS.

Source: PDF with the case

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Decision by the 5th Comittee of the Appeals Authority on 2 June 2021

The Committee decided to postpone the adoption of a decision on the age of the applicant and to refer the applicant, a minor, to an age assessment under the legal procedure. The minor from Afghanistan was residing in Lesvos RIC and had been wrongfully assessed as an adult, after taking into consideration the statements of the applicant, his birth certificate and the stages of the age assessment decision, which were not examined in the initial procedure of the age assessment.

Official source link: [PDF] -> attachments: Greece-Age Assessment_PDF 1

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Decision by the 5th Comittee of the Appeals Authority on 2 June 2021

The Committee decided to postpone the adoption of a decision on the age of the applicant and to refer the applicant, a minor, to an age assessment under the legal procedure. The minor from Afghanistan was residing in Lesvos RIC and had been wrongfully assessed as an adult, after taking into consideration the statements of the applicant, his birth certificate and the stages of the age assessment decision, which were not examined in the initial procedure of the age assessment.

Official source link: [PDF] -> attachments: Greece_PDF 1

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Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast)

The recast “Asylum Procedures Directive” is a recast of a previous Directive (Council Directive 2005/85/EC of 1 December 2005), with implementation deadline of 20 July 2015. The Directive sets up common procedures for granting and withdrawing international protection (refugee status and the protection given to people who are not refugees but who would risk serious harm if returned to their country of origin). The Directive enshrines the presumption of minority and further provides requirements on how age assessment should be carried out (art. 25).

https://eur-lex.europa.eu/legal-content/en/ALL/?uri=celex%3A32013L0032

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O.M. v. Hungary, ECtHR, Application No. 9912/15, Judgment of 5 July 2016

The Court recalls that detention is authorised under subparagraph (b) of Article 5 § 1 only to ‘secure the fulfilment’ of the obligation prescribed by law. It follows that, at the very least, there must be an unfulfilled obligation incumbent on the person concerned, and the arrest and detention must be for the purpose of securing its fulfilment and must not be punitive in character. As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist.

https://hudoc.echr.coe.int/eng?i=001-164466

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