The applicants are Libyan nationals and include  one minor child. The State Secretary decided not to process their application because they first applied for international protection in Malta, so it was considered that, according to the Dublin III Regulation, Malta would be the Member State responsible for processing their asylum application.

The Court of the Hague annulled this decision on 19 October 2020, considering that the State Secretary had insufficiently reasoned on the situation in Malta, especially for the minor applicant, having regard to the fact thatshe alleged to be threatened and mistreated in Malta, that she suffers from trauma and PTSD symptoms, and that EMDR (Eye Movement Desensitization and Reprocessing) therapy has been prescribed for her. The Court of the Hague also noted that there was no specialised medical treatment for trauma victims in Malta and requested the State Secretary to obtain information from the BMA about the health situation of the minor.

On 25 November 2020, the child submitted an email from a psychologist concerning her medical situation and a diagnosis from a child and adolescent psychiatrist. She supplemented these documents with a joint letter from her treating physicians and a printout of her patient life on 13 January 2021. They showed that the child suffered from PTSD, flashbacks, anxiety symptoms, concentration problems, headaches, sleep problems, low self-esteem, and a sense of insecurity, and these appeared linked to traumas she sustained in Malta. The documents also reported that her treatment consisted of EMDR therapy weekly to once every two weeks. The child psychiatrist noted that these treatments would last for a few weeks to a few months, after which follow-up treatment in a specialised setting would be necessary. In the letter of 13 January 2021, the practitioners reported that the treatment appeared to be having some positive effects on the traumatic flashbacks and that a return of the child to the environment where she sustained her traumas could increasingly reactivate the treated traumas. Furthermore, the documents indicated that due to the perceived and actual insecurity, the child may enter a chronic state of acute stress, having negative effects on her health.

In addition, they reported that the child was experiencing suicidal thoughts and indicated that a sudden interruption of her therapeutic process entailed a possible increase in suicidal behaviour.

Based on the medical documents submitted, the Dutch Medical Advisers Office (BMA) issued a medical opinion on 21 December 2020 at the State Secretary's request, supplemented with a memorandum on 20 January 2021. In the opinion, BMA deemed the child capable of travelling, provided a social psychiatric nurse accompanies her during the journey. The BMA also recommended a written transfer of medical data if the foreign national undergoes medical treatment and sufficient medication to cover the duration of the journey. The supplementary medical evidence submitted by the applicant dated 13 January 2021 did not lead to a different conclusion. In the supplementary memorandum, the BMA noted that the suicidal thoughts did not render accompanied travel impossible. Furthermore, according to the BMA, the traumatic events in Malta and the feelings of insecurity fell under the determination of the facts. Because these aspects could be medically objectified, the BMA stated that it is not within its competence to comment on them.  

By decisions of 23 December 2020, the State Secretary again failed to process the applicants' requests. By judgment of 26 January 2021, the Court of the Hague upheld the appeals, annulled the decisions, and ordered the State Secretary to decide anew on the applicants, taking the judgment into consideration. While emphasizing the principle of mutual state trust, the court essentially ruled that with the supplementary letter from 13 January 2021, the applicant had made plausible that there is a real risk that the transfer to Malta will have significant and irreversible consequences for her state of health, and it is for the State Secretary to eliminate the impact of the transfer on her state of health. While the court acknowledged that it is correct that the BMA is not permitted to conduct fact-finding, it held that the BMA could have commented on the implications for the child if she is confronted with flashbacks. The court further held that it was insufficient to allow the transfer to proceed based on the measure of sharing the medical data with the Maltese authorities and discussing with them whether they could facilitate the necessary care and treatment.

The State Secretary appealed the judgment. The applicants submitted written statements and lodged a conditional cross-appeal.

The Council of State dismissed the appeal and upheld the lower court judgment.

First, citing the CJEU judgment in C.K. (C-578/16 PPU, 16 February 2017), the Council of State emphasized that the question of whether the transfer of a sick applicant entails a real and proven risk of a substantial and irreversible deterioration of the state of health must be distinguished from the question of whether appropriate medical care is available for that person in the receiving Member State after the transfer. Both the transfer itself and the absence of appropriate medical care may result in a real risk of inhuman or degrading treatment under Article 4 of the EU Charter. Next, the court assessed these elements in the given case.

Regarding the consequences of the transfer, the Council of State, in contrast to the lower court, held that the Secretary of State had complied with the C.K. requirements by requesting the BMA advice and making commitments to comply with all travel conditions and to inform the Maltese authorities.

As for the availability of appropriate medical care, the Council of State held, contrary to what the Secretary of State argued, that the applicants had shown that the lack of specialised treatment available to them in Malta. At the outset, the court emphasized that the principle of mutual trust plays a major role in determining whether appropriate medical care is available in the responsible Member State, and there is a strong presumption that asylum seekers will receive appropriate medical care in Member States bound by the recast RCD. Thus, the burden of proof lies primarily with the applicant to show that it will not be the case.

The Council of State noted that the applicants had provided concrete evidence, i.e. AIDA Report on Malta, that there were no specialised treatment available in Malta for trauma victims, which the court noted it is confirmed in the AIDA Update 2020. Based on this, the Council noted that the State Secretary had to demonstrate that the care in Malta was adequate and that no real risk contrary to Article 4 of the EU Charter is faced by the applicants. In the Council of State's view, the State Secretary had not dispelled the doubts raised and had failed to adequately substantiate that appropriate medical care is available for the child in Malta. The Council noted that references in the decision to the web pages of the Maltese Ministry of Health and EMDR-Europe are insufficient. The court noted that the first website is inaccessible and the second merely states that Malta is a EMDR-Europe member. Thus, it could not be concluded that EMDR therapy or other appropriate treatment options are available for the child in Malta, or that she would have access to them as a Dublin returnee. Lastly, the court held that the State Secretary's commitment to halt the transfer if the Maltese authorities state that they cannot meet the medical needs of the child was insufficient.