Published on 19 June 2023

SECOND SECTION

Application no. 2559/23 A.B. and Y.W against Malta lodged on 13 January 2023 communicated on 2 June 2023

SUBJECT MATTER OF THE CASE

The application concerns two married Chinese nationals of Uyghur ethnicity and Muslim faith from Xinjiang who are in Malta. After overstaying their visa, in 2016, unrepresented, they applied for asylum claiming in particular that (a) the police searched their house; (b) they had been subjected to numerous searches at checkpoints in China; (c) they belonged to the Uyghur ethnic group; and (d) that there were arbitrary arrests in China. Their claims were rejected at first instance and on appeal before the Refugee Appeals Board (RAB) in 2017, mainly because they had legally left China so they would not be at risk of persecution if returned; it did not appear that the Chinese authorities impute all failed asylum seekers with political opinions hostile to the Communist Party of China and the applicants were not high ‑ profile dissidents or activists against the Communist Party of China, therefore they should not be regarded as subject to potential persecution.

The applicants remained in Malta. They were eventually issued with a return decision and a removal order on 1 August 2022 and were detained.

At that point, with the aid of legal representation, they raised a claim based on the principle of non-refoulement before the competent authorities. They relied, inter alia , on the fact that the United States State Department and the Parliaments of Canada and the Netherlands had found that China’s conduct against the Uyghur in Xinjiang constituted a genocide under International Law and also referred to the Court’s findings in M.A. and Others v. Bulgaria (no. 5115/18, 20 February 2020). Having been requested to supply further evidence, the applicants submitted documentary evidence, namely their affidavits, a copy of message exchanges with their families, a note of submissions (highlighting that the situation of the Uyghur community had deteriorated since the 2016 assessment thus requiring a new risk assessment, that no EU country had effected such returns in recent years, and that they had not returned to China since then), as well as a defence brief including relevant and recent assessments by competent international human rights bodies and national authorities regarding the grave human rights violations in the Xinjiang Uyghur Autonomous Region.

Having accepted that it had the competence to decide the claims, the Immigration Appeals Board (IAB) rejected them on 12 January 2023. It considered that the RAB had already explored the applicants’ claims and found that the applicants would not be at risk. No further evidence had been provided. There would therefore be no breach of Articles 2 and 3 of the Convention if they were to be returned. A new return decision and a removal order were issued, and the applicants were detained in Safi Detention Centre.

Following the applicants’ request under Rule 39 of the Rules of Court, on 16 January 2023 the Court indicated to the Government of Malta that the applicants should not be removed to China for the duration of the proceedings before the Court. The following day they were released from detention.

The applicants complain that they would be at risk of treatment contrary to Articles 2 and 3 of the Convention if returned to China, noting that they sufficiently substantiated their claim, including that they were members of a group systemically exposed to ill-treatment, which the authorities had failed to properly assess. Relying on Article 13 of the Convention they further consider that they had no effective remedy providing a rigorous assessment of their situation, in particular considering that the IAB had only relied on a five ‑ year ‑ old assessment which in turn was the result of proceedings which had a number of shortcomings.

QUESTIONS TO THE PARTIES

1. Did the applicants have at their disposal an effective domestic remedy providing for a rigorous assessment of whether there are substantial grounds for believing that they face a real risk of being subjected to treatment in breach of Articles 2 or 3 of the Convention alone and in conjunction with Article 13 of the Convention (see F.G. v. Sweden ([GC], no. 43611/11, § 113, 23 March 2016, and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 293, ECHR 2011)? Inter alia , before confirming their expulsion order, did the Immigration Appeals Board proceed to an ex nunc assessment in respect of the applicants’ claim that in view of their identity, nationality, ethnicity and religion, namely, as Uyghur Muslims from Xinjiang, they would be exposed to a real risk of being subjected to treatment contrary to Articles 2 or 3 if returned to China?

2. In the light of the applicants’ claims and the materials which have been submitted, would they face a real risk of being subjected to treatment in breach of Articles 2 or 3 of the Convention if they were returned to China?