Updated 5.05pm, adds ministry's reaction

The European Court of Human Rights on Tuesday ordered Malta not to forcibly remove two Chinese nationals of Uyghur ethnicity, detained at Safi Barracks on Friday.

Aditus Foundation and Spanish non-governmental organisations Safeguard Defenders filed an application with the European court on behalf of the married couple, who were set to be deported to China.

The order means that Malta cannot legally deport the couple until proceedings before the ECHR regarding their case have been wrapped up. Lawyers representing the couple are expected to file paperwork with the Strasbourg-based court in the coming weeks. 

It also means that Malta cannot legally detain the couple until those proceedings are concluded. Lawyers were informed that the couple was released from Safi Barracks on Tuesday, Times of Malta is informed.

The couple, who are Muslim, came to Malta in 2016. After their application for international protection was rejected in 2017, they spent years living in hiding in Malta and were issued a return decision and removal order on August 1, 2022.

They raised a claim based on the principle of non-refoulment - the principle in international law stating that a country cannot return asylum seekers to a country where they would likely face persecution - but this claim was rejected on January 12.

The couple were detained at Safi Barracks, where aditus lawyers met with them to discuss the next steps.

At Safi Barracks, their mobile phones were confiscated, making it impossible for them to call aditus should the removal have been carried through, the organisation said.

Arguments before the ECHR

When petitioning the ECHR, the applicants flagged to the court that, if returned to China, they would face a real risk of being subjected to serious violations of their human rights on account of their ethnicity and religion.

They also informed the court that Malta did not provide them with an effective remedy whereby they could raise their human rights complaints, as required by European human rights law.

Malta argued that the couple had “failed to produce further evidence to substantiate the principle of non-refoulment”.

Safeguard Defenders criticised Malta for that line of argument, saying the Maltese board had blatantly ignored the extensive documentation produced by the applicants.

That documentation included clear-cut evidence of transnational persecution of the couple by Chinese authorities through reprisals against their family members in Xinjiang since 2017, they said. 

There was also a growing series of reports and decisions by competent national and international authorities, including a “hard-fought report by the United Nations Office of the High Commissioner for Human Rights of August  2022”.

This states: “In light of the overall assessment of the human rights situation in Xuar,” or Xinjiang, “countries hosting Uyghurs and other Muslim minorities from Xuar should refrain from forcibly returning them, in any circumstance of real risks of breach of the principle of non-refoulment.

”The fear and uncertainty the couple has been put through is highly emblematic of the continuous strain felt by those at risk of the PRC’s gross human rights abuse and long-arm policing efforts in a European Union where many member states remain alarmingly negligent in upholding their international obligations, Safeguard Defenders said.

China's Uyghur controversy

The Uyghur are a Turkic ethnic group that originates in central Asia that are native to the Xinjiang Uyghur Autonomous Region in northwestern China. 

China has in the past years moved to incarcerate an estimated one million Uyghur in internment camps, without due process. Critics have described China's actions as genocide.

The UN Human Rights Commissioner found evidence of forced labour, torture and fertility controls against the Uyghur, and concluded that China's actions may amount to crimes against humanity.

China strongly refutes all those claims, saying camps are essentially "schools" and that accusations made by the west are a colonial fabrication. It described the UN report as a "farce". 

'Yet another condemnation'

In its statement on Tuesday,  Aditus said the ECHR order is “yet another condemnation” of Malta’s asylum procedure.

“It keeps on failing those who need it most: persons fleeing persecution and atrocious human rights violations.”

Aditus said it is high time that Malta reviews its approach to asylum to ensure it fulfils its core mission of protecting refugees.

In the meantime, the foundation has said it will continue to work hard to ensure that asylum-seekers are able to effectively present their claims and that refugees enjoy the protection they are entitled to.

'Couple exhausted asylum process and found not to need protection'

In a reaction, the Home Affairs Ministry said it will respect the interim measure but noted that the couple had exhausted the asylum process and was found not to need protection.

When their request for asylum was refused, they lived in Malta illegally for a number of years, it said, adding that it will be replying to each of the "incorrect allegations" made by the couple's lawyers.

The ministry said deportation was an integral part of the immigration and asylum policy and the efforts of some to hinder this work served to reduce the public's integrity and confidence in such systems, to the detriment of those who really needed protection.