Malta has been rebuked by the European Court of Human Rights for attempting to deport a Uyghur couple to China without taking into account their risk of persecution. 

The married couple, from the Xinjiang region, applied for asylum in 2016 after arriving in the country from Italy on a three-month visa. 

But their asylum request was rejected and the government ordered their deportation in 2023.

The applicants, who were represented by human rights NGO Aditus foundation's lawyers, filed a case against Malta’s deportation orders.

In its judgement, the ECHR said the applicants had provided enough evidence to show that they feared persecution had they been returned to China. 

The court slammed the Immigration Appeals Board (IAB) for not doing its job properly as it ignored the real threat of persecution the Uyghurs faced.

After the principal immigration officer issued a removal order for the couple, they filed an appeal with the IAB that reiterated the judgement given by the immigration officer.

The court said that the IAB was more concerned with whether or not a removal order was issued legally, rather than assessing the risks that the Uyghurs face if they are returned to China.

“The court considers this argument to be incongruous,” the judgement said.

On the contrary, it said the IAB’s role should have been to assess the risk that the applicants may face if they were returned. 

In light of this, the court declared that, if the applicants were to be removed, then this would be a violation of the non-refoulement principle, which ensures that people are not returned to countries where they face persecution.

In its judgement, the court also referred to a previous case in December 2022, where a European court found Malta responsible for not assessing the risks a 23-year-old Bangladeshi journalist would face if he was returned home when rejecting his asylum application.

Applicants feared persecution in China

Uyghurs are a Turkic ethnic group that is mainly located in the Xinjiang region. In 2022, a report from the United Nations Office of the High Commissioner for Human Rights found a number of human rights abuses that this ethnic group faces.

The married couple had arrived in Malta, from Italy on 1 August 2016, with a valid visa for three months ending on 1 October 2016.

Right before their visa expired, they applied for international protection with the Refugee Commissioner, mainly on the basis of belonging to the Uyghur ethnic group that has faced a lot of oppression in China. They also said that the police had searched their house in Xinjiang, and one of the applicants said that their family was threatened.

On 19 January 2017, the Refugee Commissioner rejected their application for international protection stating that they “did not provide evidence of a well-founded fear of persecution”.

The applicants then appealed before the Refugee Appeals Board (RAB) citing evidence showing that Uyghurs face a lot of human rights violations in China, and even their relatives and colleagues have been persecuted. They further said that it would be impossible for them to move elsewhere in China, as the Chinese authorities regularly sent Uyghurs back to Xinjiang.

The appeals board, on 30 October 2017, stuck to the commissioner’s judgment saying that the applicants had not proved that they would be in danger if they returned to China.

The applicants remained in Malta until 2022 when the principal immigration officer ordered them to be repatriated. The Uighurs appealed this decision with the IAB, but the IAB referred to the RAB’s decision and declared that the applicants would not be at risk if they returned to China.

Following this, the Uyghurs were held in Hal Safi’s detention centre, until 16 January, when they filed their case with a European Court, that subsequently ordered Malta not to repatriate the Uyghurs until the case was finalised.

Aditus director Neil Falzon said he hoped the government takes note of the judgement and improves the way refugees are protected. 

“We are honoured to stand by our brave clients, who chose to stand up to a failed system,” he said.