The applicant, a Syrian national, applied for international protection on 2 October 2021 in Austria. As he had already applied for international protection in Malta in September 2021, the Federal Office for Immigration and Asylum (BFA) requested the Maltese authorities to take back the applicant, which Malta accepted. By decision of 25 November 2021, the BFA rejected the application for international protection as inadmissible and ordered the applicant’s removal to Malta. The applicant challenged this decision claiming that he would be placed in detention upon return to Malta and that the conditions in detention in Malta would violate his rights guaranteed by Articles 2 and 3 of the ECHR.

His appeal was dismissed by the Federal Administrative Court as unfounded on 27 January 2022. The court held that the transfer to Malta was compatible with fundamental rights as the applicant did not substantiate his claim that there were systemic deficiencies in the asylum system in Malta or that he had suffered inhuman treatment in Malta.

Upon further appeal, the Constitutional Court noted that the Federal Administrative Court did not assess the situation concerning detention in Malta and ignored the deterioration following the COVID-19 situation in Malta. The Constitutional Court cited reports by AIDA concerning the use of systematic detention of asylum applicants in Malta, the fact that reintegration into the accommodation system is extremely rare, the lack of places for applicants in reception centres. The court also noted the CPT report following the visit in September 2020 in Malta in which it noted institutional neglect of immigration detention, the ‘containment’ approach, the detention of migrants en masse for unlawful and arbitrary long periods of time, under public health orders, or for long periods of time under reception and removal orders, along with a lack of due process safeguards. Finally, the court noted the judgment of the ECtHR in Feilazoo v Malta concerning the use of detention and the conditions in detention.