The EU Screening Regulation [EU 2024/1356) is a very important legal instrument of the ten that constitute the EU Pact on Migration and Asylum and which came into force on the 12 June 2026.  Within the text itself of that Regulation and its actual implementation, the Ombudsman has a significant role.

With effect from the 12 June 2026, as far as the Ombudsman is concerned, Article 10 of the Screening Regulation has to be considered in addition to the existing authority and/or functions of the Ombudsman as determined in the Ombudsman Act 1995 (Chapter 385) and in Articles 64A and 96A of the Constitution of Malta.

Regulation (EU) 2024/1356 establishes the screening of third-country nationals at the external borders of the EU. Article 10 is entitled "Monitoring of fundamental rights." Article 10(2) requires every Member State to provide for an "Independent Monitoring Mechanism" (IMM) for the purposes of the protection and safeguard of fundamental rights of persons during the screening procedures.

The appointment of an IMM is not optional. Malta must have this  mechanism in place. Within its framework, the Ombudsman has a crucial function. In fact Article 10(2) provides that: "National Ombudspersons and national human rights institutions ... shall participate in the operation of the independent monitoring mechanism and may be appointed to carry out all or part of the tasks of the independent monitoring mechanism."

Use of the term "shall" is important.  The Regulation does not merely say that the Ombudsman may be consulted or informed but insists on participation within the IMM itself.  The Ombudsman is not just an observer.  He should be able to attend meetings and monitor activities; receive relevant information; contribute to the choice of areas to inspect; raise cases; propose investigations; participate in findings; comment upon draft recommendations; and ensure his observations are formally considered,

The EU Regulation is directed at substance.

The IMM must monitor compliance by the Member State with EU law, including the EU Charter of Fundamental Rights. Particular attention must be given to access to the asylum procedure; non-refoulement; the best interests of children; national rules governing detention; and the observance of fundamental rights generally during screening. This is considerably more than just a formalities or procedural check-list exercise but a fundamental-rights monitoring mandate.

Article 10 goes further:

"The independent monitoring mechanism shall cover all activities undertaken by the Member States in implementing this Regulation."

The IMM has to ensure that sustained allegations of failure to respect fundamental rights are dealt with "effectively and without undue delay" and, where necessary, that investigations are commenced and their progress monitored.

There is a requirement that Member States are obliged to make provision for investigating allegations of fundamental-rights violations and, where appropriate, for referral for civil or criminal proceedings.

Article 10 requires the IMM to work through checks whether on-the-spot, random or unannounced checks. IMM must also be given access to all relevant locations, reception facilities, detention facilities, persons and documents to the extent necessary for the performance of its functions.

With effect from the 12 June 2026, the Screening Regulation is part of Maltese domestic law and is directly enforceable in these Islands. When the IMM for Malta is constituted in the manner stipulated established in the Screening Regulation, the participation of the Ombudsman will extend well beyond the functions assigned by domestic law prior to 12 June 2026 because with effect from 12 June 2026 the Ombudsman will exercise with others a specific EU-law monitoring function.

Article 10 expressly requires "adequate safeguards to guarantee the independence of the independent monitoring mechanism."

Oversight is required for persons: arriving irregularly; disembarked following search-and-rescue operations; undergoing screening; seeking international protection; subjected to border asylum procedures; held in relevant facilities; identified as vulnerable; who are children or unaccompanied minors; or whose treatment raises non-refoulement concerns.

Article 10 expressly identifies the principle of non-refoulement as a matter that the IMM must monitor. This is significant because non-refoulement may arise under several overlapping legal regimes including the Refugee Convention, the European Convention on Human Rights and Fundamental Freedoms and the EU Charter on Fundamental Rights.

Article 10 specifically identifies compliance with rules concerning detention, including relevant national detention legislation. The IMM must have access to detention facilities to oversee the lawfulness of administrative practice; the conditions of detention; the treatment of vulnerable persons; duration; access to information; access to procedures; children; medical vulnerability and procedural safeguards.

Article 10 also specifically mentions "the best interest of the child", a rule that is intended to keep a caring watch on unaccompanied minors; age-assessment procedures; family unity; accommodation; vulnerability assessments; detention; guardianship arrangements; and access to the asylum procedure.

This constitutes part of the substantive benchmark to monitor effective compliance.

The Regulation imposes an obligation upon Member States to provide the IMM with appropriate financial means. If the mechanism is expected to conduct unannounced inspections, maintain border monitoring, employ specialist staff, examine detention conditions, deal with allegations and monitor investigations, then adequate resourcing is required to ensure compliance.

Article 10 requires independence in substance.  The Executive cannot control how the monitoring is exercised.  The independence requirement is therefore crucial. A monitoring arrangement would be questionable if a Government were to determine which facilities could be inspected, where prior permission would be routinely required, where access to migrants would depend upon executive consent, where a Government would determine which allegations could be investigated and where reports would require ministerial clearance. Article 10 requires adequate safeguards guaranteeing the independence of the monitoring mechanism. The question is therefore not merely whether Board members act conscientiously. The structural question is whether there are in place sufficient guarantees of independence from the authorities whose conduct is being monitored.

The Regulation instructs the European Union Agency for Fundamental Rights (“FRA”) to issue general guidance concerning establishment and independent functioning of the IMMs. Member States may ask FRA for assistance with institutional safeguards; methodology; training; and development of the mechanism itself. That provides an external EU benchmark against which domestic arrangements can be assessed.

The IMM does not replace European Union Asylum Agency (“EUAA”).  Article 10(3) expressly says that the IMM will operate without prejudice to the monitoring mechanism established in Article 14 of Regulation (EU) 2021/2303, which deals with the operational and technical application of the Common European Asylum System.