The State Secretary for Justice and Security did not process the application for international protection because Malta was considered the state responsible for its examination. By interim injunction, suspensive effect of the applicant’s appeal was granted, and the transfer was suspended pending outcome of the appeal. The applicant contested the determining authority decision by invoking the risk of being detained upon transfer to Malta and of facing poor material conditions in detention. Moreover, the applicant mentioned that he was unable to apply for asylum in Malta during his previous detention, that there was no remedy to complain about detention conditions before Maltese authorities and all these factors demonstrate that, upon return, he will be subject to treatment contrary to the Article 3 ECHR and article 4 EU Charter. The applicant sustained his allegations by referring to CPT report of 10 March 2021, and the AIDA country report 2020, of 7 May 2021, along with the ECtHR judgement in the case Feilazoo v. Malta. The applicant considered that Dutch authorities can not rely on the principle of mutual trust and legitimate expectations in relation to Malta.

On the contrary, the State Secretary acknowledged that the detention conditions in Malta are poor, but that national authorities made some improvements, both in the asylum procedure and in the reception conditions (including detention, detention conditions and procedural safeguards during detention) and it does not result that the applicant would be placed in detention upon return.

The Court of the Hague reassessed if the reports invoked and the rulings reflect the current situation in Malta and the real risk of the applicant being placed in detention upon return, the detention conditions and procedural safeguards during detention. The Court noted that the majority of third country nationals are placed in detention based on public health regulations and that material detention conditions are very poor, there is no contact with the exterior and hygiene and health care are insufficient. The CPT report concludes to a potential violation of article 3 ECHR for the detention conditions and the AIDA and UNHCR showed that legal remedies in detention are not effective.

Based on all reports, the  Court of the Hague noted that there were improvements from Maltese authorities with regard to detention, conditions, procedural safeguards but stated that there is a need for more information and clarity on the circumstances the applicant would be exposed to upon return to Malta in order to determine whether the applicant, as a Dublin transferee would risk a treatment contrary to the Article 3 ECHR. Based on these considerations, the Court of the Hague allowed the appeal and requested the State Secretary to rectify its decision within a 12 week deadline, and to duly inform the court of its findings, after which the applicant will have the chance to submit observations and then the court will adopt a final judgement.