The applicant, Sudanese national, applied first for asylum in Malta and then in the Netherlands. The State Secretary did not consider the application and requested the transfer of the applicant to Malta under Dublin III Regulation as state responsible for processing the asylum application. The State Secretary relied on the principle of mutual trust and legitimate expectations between Member States when concluded that the situation in Malta does not amount to treatment contrary to the Article 3 ECHR. The applicant contested the transfer and alleged that the situation in Malta is contrary to the ECHR, and he should not be transferred. By judgement of 6 July 2021, the District Court of the Hague upheld the appeal lodged by the applicant, annulled the contested decision and held that the Netherlands is responsible for examining his application for international protection. In order to take this decision the District Court of the Hague analysed whether the Secretary of State wrongly applied the interstate principle of trust, in view of the available information, in particular about the detention of Dublin applicants in Malta and their detention conditions, reception conditions and possibilities for access to an effective remedy. The District Court noted the following aspects:

a. the cooperation agreements between Malta and the European Asylum Support Office (EASO) of 2019 and 2021;

b. the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 10 March 2021;

c. the response of the Maltese authorities to the CPT report;

d. the Amnesty International report of 7 September 2020, 'Malta: Waves of impunity, Malta's human rights violations and Europe's responsibilities in the central Mediterranean';

e. information from the European Council on Refugees and Exiles (ECRE) of 13 November 2020;

f. information from the United Nations of 8 May 2020;

g. ECtHR case law, especially the case of Feilazoo v Malta, of 11 March 2021,

h. a recently adopted interim measure of the ECtHR of 30 June 2021 in case no. 22615/21 where the ECtHR considered that the applicant shall not be transferred to Malta pending the outcome of the procedure. The interim measure was adopted because Malta has not confirmed that, after transfer, that applicant will be treated in accordance with Article 3 of the ECHR.

The District Court of the Hague stated the following:

i. the Malta authorities are responsible for large-scale systematic pushbacks that flagrantly violate the fundamental rights of asylum applicants;

ii. these authorities structurally detain asylum applicants, including Dublin claimants, because there is insufficient reception capacity;

iii. Malta has structural shortcomings in the capacity and quality of reception;

iv. aliens are detained under appalling conditions;

v. access to legal aid and a judge is not guaranteed.

The State Secretary appealed against this decision and argued that that District Court did not take into account that for Malta the lower limit as referred to in the judgment of the Court of Justice of 19 March 2019, Jawo v Germany, ECLI:EU:C:2019:218 , has not been reached. According to the State Secretary the shortcomings, which are not structural, do not reach the particularly high threshold of seriousness to fall within the scope of Article 3 of the ECHR or Article 4 of the EU Charter. Therefore, in the State Secretary opinion, the Dublin transfer to Malta can still be based on the interstate principle of trust. 

The Council of State rejected the appeal of the State Secretary and held, in light of new information and multiple reports, that the State Secretary gave inadequate reasons that the detention of Dublin applicants after arrival in Malta is not of a structural nature and that such detention is in all cases compliant with the recast Reception Directive. Moreover, it stated that the State Secretary gave inadequate reasoning on detention and reception conditions being compliant with CEAS and that reports show a combination of serious shortcomings. The Council of State noted also that the applicant complained of lack of access to legal assistance in Malta during the 9 months detention period and held that the State Secretary shall provide adequate reasons that after transfers asylum applicants have effective access to legal remedies.

The Council of State considered that it shall not suspend the case and wait for the CJEU judgement in the referral Applicant v State Secretary for Justice and Security, NL21.4376 , ECLI:EN:RBDHA:2021:10735, 04 October 2021 because the findings in this case are clear.

The Council of State confirmed the lower court decision with regard to the transfer to Malta and held that the Secretary of State must conduct further investigation, but annulled the conclusion that the Netherlands shall be responsible for processing the application.