A married couple of Uighur ethnicity and Muslim faith from Xinjiang province (Xinjiang Uighur Autonomous Region, XUAR) applied for international protection in Malta. They claimed that as they belonged to the Uighur ethnic group, their house and they had been subjected to numerous searches, and they were at risk of arbitrary arrest and ill-treatment upon return. On 19 January 2017, the Office of the Refugee Commissioner in Malta rejected their request for protection. Their appeal to the Refugee Appeals Board (RAB) was rejected on 30 October 2017 and the Refugee Commissioner's decision was confirmed. The applicants remained in Malta, and in 2022 they applied for a nomad residence permit that the Immigration Office rejected. A return decision and removal order was issued to them on 1 August 2022. On 4 August 2022, the applicants challenged their removal order before the Immigration Appeals Board (IAB). They argued that their removal from Malta would constitute a violation of the principle of non-refoulement. On 24 November 2022, the applicants’ representative insisted that the IAB must focus on the lawfulness of the removal order considering the non‑refoulement principle, irrespective of an asylum application. On 12 January 2023, it concluded that the applicants would not be at risk. The applicants complained to the ECtHR, requesting the court interim measures under Rule 39. On 16 January 2023, the ECtHR indicated to the Government of Malta not to remove the applicants to China for the duration of the proceedings before the ECtHR.

Relying on Article 2, 3 and 13 of the ECHR, the applicants claimed they would be at risk of ill-treatment if they were returned to China and that they had no effective remedy to assess that risk.

The ECtHR concluded that the conduct of the Maltese authorities had been in breach of their procedural obligations under Article 3 ECHR. It held that the Immigration Appeals Board's function in 2022 was to rigorously assess the risk of treatment contrary to Article 3 the applicants would face if returned to China, before confirming the return decision and removal order. The court noted that for that body to be an effective remedy, it could not be a mere rubber stamp of any prior asylum decision. The court highlighted that this is even more so where there has been a substantial lapse of time between the rejection of the asylum application and the date of the removal order and its subsequent challenge. The court concluded that it was evident from the IAB’s brief decision that it merely relied on an assessment undertaken six years earlier.

The ECtHR further concluded that the applicants had sufficiently shown that their claim under Article 3 based on their nationality, religion, or ethnicity, as well as the fact that they left China to study in Malta, warranted an assessment by the national authorities in line with the situation as it stood just before their expected removal. In this respect, the ECtHR held that it remains for the domestic authorities to analyse the material submitted by the applicant, as well as any further development regarding the general situation in XUAR and the particular circumstances related to the applicants’ situation just before their removal, including in the light of any specific relocation alternatives. The court highlighted that such an assessment is required irrespective of whether the applicants decide to legalize their status in Malta via a subsequent asylum application.

The ECtHR stressed that contracting states have a rigorous procedural obligation under Article 3 of the ECHR to assess the risk of treatment contrary to that provision before removing an applicant. In this respect, the court stated that domestic authorities are obliged to take into account not only the evidence submitted by the applicant but also all other facts which are relevant to the case under examination. Moreover, the main concern for domestic authorities in such cases must be whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled.

Similarly, the effectiveness of a remedy within the meaning of Article 13 imperatively requires an independent and rigorous scrutiny of any claim that there are substantial grounds for fearing a real risk of treatment contrary to Article 3, as well as a particularly prompt response, and a remedy with automatic suspensive effect.

The court held that there would be a violation of Article 3 if the applicants were to be removed to China without an ex nunc rigorous assessment of the risk they would face on their return to XUAR as Uighur Muslims rejected asylum seekers. Interim measures were indicated to the Maltese government.