CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 février 2025

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text-decoration:underline; color:#0069d6 } .fixListIndent { list-style-position: inside }   FOURTH SECTION CASE OF A.B. AND Y.W. v. MALTA (Application no. 2559/23)     JUDGMENT Art 3 (procedural) • Expulsion • Respondent State’s failure to assess the risk of treatment contrary to Art   3 before confirming the removal to China of two Uighur Muslims, six   years after the rejection of their asylum claim • Removal without an ex   nunc rigorous risk assessment would entail a breach • Art   35 §   1 • Applicants not required to lodge a subsequent asylum application as they exhausted the relevant remedy available to them at the material time, against their removal, namely the Immigration Appeals Board, which did not carry out a fresh risk assessment notwithstanding its competence to do so   Prepared by the Registry. Does not bind the Court.   STRASBOURG 4 February 2025   FINAL   04/05/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.B. and Y.W. v. Malta, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lado Chanturia , President ,   Tim Eicke,   Lorraine Schembri Orland,   Ana Maria Guerra Martins,   Anne Louise Bormann,   Sebastian Răduleţu,   András Jakab , judges , and Simeon Petrovski, Deputy Section Registrar, Having regard to: the application (no.   2559/23) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Chinese nationals, Mr A.B. and Ms Y.W. (“the applicants”), on 13 January 2023; the decision to give notice to the Maltese Government (“the Government”) of the application; the decision not to have the applicants’ names disclosed; the decision to indicate an interim measure to the respondent Government under Rule   39 of the Rules of Court that the applicants should not be removed to China; the parties’ observations; Having deliberated in private on 14 January 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns two married Chinese nationals of Uighur ethnicity and Muslim faith from Xinjiang who were refused international protection in Malta and issued a removal decision. The applicants relied on Articles 2 and 3 alone and in conjunction with Article 13 of the Convention. THE FACTS 2.     The applicants were both born in 1986 and were at the time of lodging the application detained in Safi. The applicants were represented by Ms   K.   Gatt, a lawyer from Aditus Foundation practising in Ħamrun. 3.     The Government were represented by their Agent, Dr C. Soler, State Advocate, and Dr J. Vella, then Advocate at the Office of the State Advocate. 4.     The facts of the case may be summarised as follows. Background to the case    The applicants’ arrival in Malta 5.     The applicants are married Chinese nationals of Uighur ethnicity and Muslim faith from Xinjiang (Xinjiang   Uighur Autonomous Region-XUAR). 6.     They arrived in Malta regularly, by air, from Italy on 1 August 2016. They entered Malta with a valid Chinese passport bearing a Schengen visa which had been issued by the embassy of Malta in Beijing. The visa was valid for a three-month period, ending on 1 October 2016.    Application for International Protection 7.     According to the applicants, prior to the expiration of their visa they sought legal advice. As a result, on 28 September 2016, the applicants approached the Office of the Refugee Commissioner asking for international protection. On 30 November 2016 they filled in an application form to that effect and later were required to fill in a questionnaire and submit themselves to a personal interview. Their personal interview was held on 1 December 2016, in English. 8.     They claimed in particular that (a) the police searched their house in XUAR; (b) they had been subjected to numerous searches at checkpoints in China; (c) they belonged to the Uighur ethnic group; and (d) that there were arbitrary arrests in China. The second applicant also claimed that her family in China had been threatened by the Chinese authorities. 9.     Their claims were rejected by the Refugee Commissioner (‘RC’) with a decision of 19 January 2017 which stated the following: “The Refugee Commissioner is of the opinion that, even if such claims, as described by you, were true, there is no reason to believe that such alleged claims, in the circumstances described by you, (a) amount to any of the grounds for refugee recognition according to the 1951 Geneva Convention, (b) amount to the possibility of you suffering serious harm as defined in the Refugees Act, Chapter 420 and the Council Directive 2011/95/EU of 13 December 2011 ... the Office of the Refugee Commissioner is of the opinion that you did not provide evidence of a well-founded fear of persecution.” 10.     The reports (of around seventy pages) attached to the RC’s decision contained a recapitulation of facts since the applicants arrived in Malta, the transcript of their interview, and an evaluation of their claims in the light of their statements made in the interview and the relevant Country of Origin Information (‘COI’). According to the reports, the assessors did not doubt the applicants’ marriage, nationality, religion or ethnicity. In respect of the second applicant, doubts were raised about the searches to her house, as she had forgotten to mention it at the interview and the description she gave when questioned was considered short and superficial. It thus concluded that there had been no evidence that the authorities inspected her house for any reasons related to any persecution grounds. In respect of the first applicant, even assuming the truthfulness of the search, it was not aimed at his house, but it concerned the entire block. The same was held with respect to the alleged checks at the check point. In respect of both claims the situation was not one which could lead to the possibility of suffering serious harm as defined in the Refugees Act. While people of Uighur ethnicity were discriminated, the level of discrimination was not sufficiently serious, by its nature or repetitiveness, to constitute a severe violation of basic human rights. 11.     The reports further noted that their families had not suffered any repercussions ever since the applicants had left China. In respect of both applicants, circumstances related to the issuance of their passport and their departure for educational purposes, as set out in their interview, led to the consideration that there had been no grounds justifying their refugee status. Furthermore, while they had suffered some restrictions, neither the applicants nor their families risked suffering serious harm as a result of their departure from China. They had also not suffered serious restrictions on their freedom of movement, expression or religion, and the first applicant’s father’s eviction from his home had been one of 100,000 such evictions and he had been compensated for it. Their fears concerning, inter alia , arbitrary arrest and persecution were based on assumptions and things that happened to others, rather than facts and personal situations. Lastly, the applicants had not applied for protection in Italy, as they had not known it was a possibility (see in this regard the applicants’ submissions at paragraph 49 below). 12.     The applicants appealed against this decision before the Refugee Appeals Board (‘RAB’). They emphasised that it should not be disputed that the Uighur ethnic group in China was experiencing severe violations of their human rights in numerous regards. They referred to the COI available and relied on numerous reports dated 2015-2016, the persecution of their close relatives and colleagues and noted, inter alia , that the first applicant was at even higher risk as an IT specialist given the Chinese Government’s censorship, surveillance and prosecution of online and offline computer activities, targeting particularly and deliberately Uighurs in XUAR. They further argued that relocation within China was not effective because such residence permits were not issued by the authorities, people were regularly sent back to the XUAR, and because discrimination and persecution of Uighurs affected all China. 13.     After receiving the applicants’ appeal and their legal submissions, as well as the reply of the RC, the RAB held a hearing on 26 September 2017 and proceeded to judgment on 30 October 2017, confirming the first-instance decision. The RAB noted that, in the interview with the RC, the applicants had focused on the general situation of the Uighur community and how they were treated, but they had not claimed that they themselves had been involved in any protests nor had they been commenting on the Chinese government. The home searches referred to had been general searches in the area and had not aimed at the applicants, nor had the applicants suffered any consequences following those searches. The first applicant confirmed that his fears had been for the future and not related to the past, and that he considered that he could not move to another part of China because of his religion. 14.     The RAB was of the opinion that since the applicants had left China legally (and had been given a passport to do so) they would not be at risk of persecution if returned, and they had not proved that if returned to China they would be in real danger. Furthermore, the situation at check points had been the result of the situation in XUAR, which had been infiltrated by a separatist movement fighting against Chinese authorities for liberation from China and Islamic extremism, which was common in the region. Relying on a country advice document published by the Australian Refugee Review Tribunals, the RAB noted that despite little information, it did not appear that Chinese authorities imputed all rejected asylum seekers with political opinions hostile to the Communist Party of China (‘CPC’). There was also little evidence that rejected asylum seekers were harmed upon return due to their imputed beliefs. There was, however, evidence that high-profile rejected asylum seekers had been ill-treated upon return. However, in this case the applicants were not high-profile dissidents or activists against the CPC and therefore were not regarded as subject to potential persecution. Thus, the RAB had not been convinced that the applicants suffered a well-founded fear of persecution and even assuming their claims were true, there had been no reason to believe that they could not have sought a more appropriate residence in other parts of China.    Subsequent events 15.     During the above proceedings the first applicant had been working legally in Malta. Following that decision, the applicants remained in Malta. In 2022, following their application for a nomad residence permit, the Principal Immigration Officer (hereinafter ‘PIO’) discovered that the applicants were in Malta without a valid permit. They were therefore declared “prohibited immigrants” in terms of Article 5 of the Immigration Act (see paragraph 29 below) and were issued with a return decision and removal order on 1 August 2022. 16.     The return decision was issued against the applicants on various grounds, namely that they were in Malta without leave from the PIO; that they were unable to show that they had the means to support themselves and were therefore likely to become a burden on public funds; that they had contravened the provisions of the Immigration Act or any of the regulations made thereunder; and that they were found to be overstaying in Malta since 2016. 17.     Upon being issued with a return decision and removal order, the applicants allegedly agreed to a period of voluntary departure from Malta to travel to Istanbul and obtain a work permit from there.    Proceedings before the Immigration Appeals Board 18.     On 4 August 2022, the applicants challenged their removal order before the Immigration Appeals Board (‘IAB’) in terms of Article 25A of the Immigration Act (see paragraph 29 below), with the aid of legal representation. They argued that their removal from Malta would constitute a violation of the principle of non-refoulement . They relied, inter alia , on the fact that the US State Department and the Parliaments of Canada and the Netherlands had found that China’s conduct against Uighurs in XUAR 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). 19 .     A hearing was held before the IAB where the applicants raised a claim under Article 3 of the Convention. The IAB ordered the applicants to provide further evidence of their claim. On 18 August 2022 they submitted documentary evidence, namely their affidavits; a copy of message exchanges they had had with their family in 2017; a note of submissions (highlighting that the situation of the Uighur community had deteriorated since the 2016 assessment, thus requiring a new risk assessment, and that no EU country had effected such returns in recent years); a defence brief from the non ‑ governmental organisation Safeguard Defenders (outlining the grave risk of irreparable harm in case the applicants were deported on the basis of documented assessments by competent international human rights bodies and national authorities regarding the grave human rights violations in XUAR (see paragraph 33 below); and evidence regarding pressure to return from Chinese authorities through reprisals against their family members in China. They further explained that they had not filed a new application for asylum “since the whole procedure was mentally and emotionally exhausting and they felt disheartened by the system in Malta”. At the hearing of 13 October 2022, the applicants declared that they had not applied for asylum and that they were considering various available options. They further submitted in evidence the United Nations (UN) Office of the High Commissioner for Human Rights (OHCHR) assessment of human rights concerns in the XUAR, People’s Republic of China, of 31 August 2022 (see paragraph 31 below). 20.     On 24 November 2022 the applicants’ representative insisted that the IAB was to focus on the lawfulness of the removal order in light of the non ‑ refoulment principle, irrespective of an application for asylum. According to the minutes of that hearing: “The Board clarified that going forward, that assessment is part of the final judgment. The Board also clarified that the application for asylum is not dependent on the decision in parte on this matter. The way forward is; either there is an application for asylum followed by a stay in proceedings until the asylum request is processed, and if the decision is in the affirmative, they are given the protection the appellant is after, or, the Board proceeds to give a final decision on the subject matter and the appellant proceeds to apply for asylum afterwards.” At this hearing the applicants were requested once again to clarify their claim. 21 .     According to the Government,   and on the basis of the above minutes, during the sittings before the IAB, the latter brought to the applicants’ attention that if they wished to claim international protection, proceedings before the IAB were not the appropriate forum. The parties disagree as to whether during these proceedings there had been discussions about the possibility that the applicants would re-apply for asylum. The applicants submitted that such discussions had not concerned them, but rather a third individual who was also party to the domestic proceedings and who had never applied for asylum, but did so subsequent to that hearing. 22 .     The applicants subsequently requested the IAB to decide whether it was competent to assess the risks under Article 3 of the Convention, given its previous practice on the matter. The IAB accepted that it had competence to assess the matter, nevertheless, on 12 January 2023 it considered that the RAB had already examined the applicants’ claims and found that the applicants would not be at risk. Thus, it concluded that: “the Board rests on the judgment delivered by the RAB and declares that appellants failed to produce further evidence to substantiate the principle of non-refoulement post judgment delivered by the RAB. The Board confirms the return decision, removal order and entry ban issued and finds that appellants’ removal from Malta does not constitute a breach of Article 2 and 3 ECHR”.     The situation following the IAB decision 23.     The applicants were detained at the IAB premises and taken to the PIO’s office where they were issued with removal orders and subsequently taken to Safi Detention Centre where they were kept until after they lodged their application with the Court. At the time, their legal representatives had no physical access to the applicants and their phones had been confiscated. 24 .     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. RELEVANT LEGAL FRAMEWORK AND PRACTICE         Domestic Law 25.     The relevant domestic law is set out in S.H. v. Malta (no. 37241/21, §§ 30-34, 20 December 2022). For ease of reference some of those provisions are reiterated hereunder, together with additional legal provisions also relevant to the present case.    International Protection Act 26 .     In so far as relevant the International Protection Act, Chapter 420 of the Laws of Malta reads as follows: Article 2 “"person eligible for subsidiary protection" means a third country national who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his country of origin, would face a real risk of suffering serious harm, and is unable or, owing to such risk, unwilling to avail himself of the protection of that country, and has not been excluded from being eligible for such protection under article 17(1); "refugee" means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, as a result of such events is unable or, owing to such fear, is unwilling to return to it, but does not include a person excluded in terms of article 12: Provided that in the case where a person has more than one nationality, the term "country", mentioned above, shall refer to each country of which he is a national, and such a person shall not be considered as not having the protection of his country if, without any founded fear of persecution, he has not sought the protection of one of the countries of which such a person is a national: Provided further that: (a) acts of persecution within the meaning of Article 1A of the Convention must be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the right from which derogation cannot be made under Article 15(2)of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or (b) be an accumulation of various measures, including violations of human rights, which is sufficiently severe as to affect an individual in a similar manner as in paragraph (a). For the purpose of paragraph (a), "acts of persecution" means: (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; (c) prosecution or punishment which is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory manner; (e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion as set out in article 12(2); (f) acts of a gender-specific or child-specific nature: Provided that refugee status on the grounds of fear of persecution shall only be granted if there is a connection between the reasons for persecution mentioned in regulation 18 of the Procedural Standards in Examining Applications for International Protection Regulations and the acts of persecution referred to in this definition; “subsequent application” means a further application for international protection made after a final decision has been taken on a previous application.” Article 7 “(1) The [International Protection Appeals] Tribunal shall have power to hear and determine appeals against a decision of the International Protection Agency including appeals from decisions for the transfer of a third country national from Malta to another Member State in accordance with the provisions of Council Regulation 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or stateless person. (1A) For the purpose of this article, an appeal on both facts and points of law shall lie against: (a) a decision taken on an application for international protection: (i) considering an application to be unfounded in relation to refugee status and, or subsidiary protection status; (ii) considering an application to be inadmissible pursuant to article 24; Provided that for the purpose of this provision, the review conducted by the Chairperson of the International Protection Appeals Tribunal shall be deemed to constitute an appeal. [...] (10) Notwithstanding the provisions of any other law, but without prejudice to article 46 of the Constitution of Malta and without prejudice to the provisions of article 4 of the European Convention Act the decision of the Tribunal shall be final and conclusive and may not be challenged and no appeal may lie therefrom, before any court of law, saving the provisions of article 7A. (11) Where the Tribunal finds in favour of the applicant the International Protection Agency shall issue a declaration accordingly.” Article 7A “(1) A person who has applied for international protection may make a subsequent application after a final decision to the International Protection Agency: Provided that such application shall only be considered on the presentation of new elements or findings, relating to the examination of whether the person making the subsequent application qualifies as a beneficiary of international protection, and of which the applicant could not have been aware or which he could not have submitted. (2) The person submitting a subsequent application shall: (a) indicate facts and provide evidence which justify this procedure; and (b) submit such new information within fifteen days from the day on which the person making the subsequent application obtained such information. (3) The examination may be conducted on the sole basis of written submissions and the person making the subsequent application is to be informed of the outcome of the examination and of his right for an appeal. (4) For the purpose of taking a decision on the admissibility of an application pursuant to article 24, a subsequent application shall be subject to a preliminary examination as to whether new elements or findings have arisen or have been presented since the lodging of the first application. (5) If the preliminary examination referred to in sub-article (4) concludes that new elements or findings have arisen or have been presented by the applicant which significantly add to the likelihood of the applicant qualifying as a beneficiary of international protection, a further examination of the application shall be carried out: Provided that an application shall only be further examined if the applicant concerned was, through no fault of his own, incapable of concluding that new elements or findings have arisen. (6) When a subsequent application is not further examined pursuant to this article, it shall be considered inadmissible, in accordance with article 24(1)(d). ...” Article 13 “(1) A person seeking international protection in Malta may apply to the International Protection Agency in the prescribed form for a declaration and shall be interviewed by the International Protection Agency as soon as practicable. (2) An applicant for international protection shall have access to state education and training in Malta and to receive state medical care and services.” Article 14 “(1) A person shall not be expelled from Malta or returned in any manner whatsoever to the frontiers of territories where the life or freedom of that person would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Article 17 “(1) The International Protection Agency shall decide as to whether subsidiary protection status may be granted to an applicant for international protection whose application has been dismissed but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his country of origin, or in the case of a stateless person, to his country of former habitual residence, would face a real risk of suffering serious harm, and the International Protection Agency shall continue to be able to take such a decision in cases where the real risk of suffering serious harm arises even after a decision not to grant subsidiary protection has been taken: ... Provided also that the decision concerning the granting of subsidiary protection shall be given in conjunction with the formal determination that the applicant does not meet the criteria of a refugee under this Act. (2) For the purpose of this article, a real risk of suffering serious harm may be based on events which have taken place after the applicant has left his country of origin or activities engaged in by applicant since leaving the country of origin, except when based on circumstances which the applicant has created by his own decision since leaving the country of origin.” 27.     Regulation 3 of the International Protection Appeals Tribunal (Procedures) Regulations, Subsidiary Legislation 420.01 of the Laws of Malta, reads as follows: “ It shall be the function of the International Protection Appeals Tribunal to hear and determine appeals against a recommendation of the Chief Executive Officer in accordance with articles 5 to 7 of the Act.” 28.     Regulation 19 of the Procedural Standards for Granting and Withdrawing International Protection Regulations, Subsidiary Legislation   420.07 of the Laws of Malta, reads as follows: “(1) When considering an application for refugee status, in assessing the fear of persecution, the International Protection Agency shall take account of the following elements: (a) the concept of race which shall in particular include considerations of colour, descent, or membership of a particular ethnic group; (b) the concept of religion which shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in or abstention from, formal worship in private or in public, either alone or in community with others, other religious act or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief; (c) the concept of nationality which shall not be confined to citizenship or lack thereof but shall in particular include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State; (d) a group shall be considered to form a particular social group where in particular: (i) members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it; and (ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society; and (iii) depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic or sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in Malta. Gender and sex related aspects, including gender identity, gender expression index characteristics, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group; (e) the concept of political opinion which shall in particular include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution which include the State, parties or organizations controlling the State or a substantial part of the territory of the State and non-State actors if it can be demonstrated that the other actors are unable or unwilling to provide protection against persecution or serious harm, and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. (2) When assessing if an applicant has a well-founded fear of being persecuted, it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution.”    The Immigration Act 29 .     The relevant provisions of the Immigration Act, Chapter 217 of the Laws of Malta, read as follows: Article 2 “"removal order" means an order enforcing the return decision or an order made in relation to the restriction of the free movement of a Union citizen and his family members as provided for in the Free Movement of European Union Nationals and their Family Members Order; "return decision" means a decision issued by the Principal Immigration Officer, stating or declaring the stay of a third country national to be illegal and imposing or stating an obligation to return.” Article 5 “(1) Any person, other than one having the right of entry, or of entry and residence, or of movement or transit under the preceding Parts, may be refused entry, and if he lands or is in Malta without leave from the Principal Immigration Officer, he shall be a prohibited immigrant. (2) Notwithstanding that he has landed or is in Malta with the leave of the Principal Immigration Officer or that he was granted a residence permit, a person shall, unless he is exempted under this Act from any of the following conditions or special rules applicable to him under the foregoing provisions of this Act, be a prohibited immigrant also – (a) if he is unable to show that he has the means of supporting himself and his dependants (if any) or if he or any of his dependants is likely to become a charge on the public funds; ... (e) if he contravenes any of the provisions of this Act or of any regulations made thereunder; or (f) if he does not comply or ceases to comply with any of the conditions, including an implied condition, under which he was granted leave to land or to land and remain in Malta or was granted a residence permit; or (g) if any circumstance which determined the granting of leave to land or to land and remain in Malta or the extension of such leave or the granting of a residence permit ceases to exist; ...” Article 14 “(1) If any person is considered by the Principal Immigration Officer to be liable to return as a prohibited immigrant under any of the provisions of article 5, the said Officer may issue a return decision against such person who shall have a right to appeal against such decision in accordance with the provisions of article 25A. (2) If such a return decision is accompanied by a removal order, such person against whom such order is made, may be detained in custody until he is removed from Malta: [...] (3) Nothing in this article shall affect the obligation of any person who does not fulfil or who no longer fulfils the conditions of entry, residence or free movement to leave Malta voluntarily without delay. (4) Removal of a person shall be to that person’s country of origin or to any other State to which he may be permitted entry, in particular under the relevant provisions of any applicable re-admission agreement concluded by Malta and in accordance with international obligations to which Malta may be party: Provided that, following the issue of a removal order by the Principal Immigration Officer in accordance with the provisions of this article, to any person considered as a prohibited immigrant under any of the provisions of article 5, if such person files an application for asylum in terms of the International Protection Act, all the effects of the removal order shall be suspended pending the final determination of the asylum application. Following the final rejection of the asylum application, the removal order along with its effects shall again come into force: Provided that, notwithstanding that the effects of the removal order are suspended pending the final determination of the asylum application, the detention of such person shall continue until a final decision on detention is reached in terms of the regulations issued under the International Protection Act: Provided further that, whenever a prohibited immigrant has filed an application for asylum, the Principal Immigration Officer shall not be required to issue a return decision or a removal order. (5) Nothing in this article shall preclude or prejudice the application of Maltese law on the right to asylum and the rights of refugees and of Malta’s international obligations in this regard. ... (8) The Principal Immigration Officer shall not execute any return decision or removal order if appeal proceedings before the Immigration Appeals Board are pending. ...” Article 17 “Notwithstanding any other law to the contrary, no return decision or removal order shall be obstructed nor shall the implementation of any such return decision or removal order be delayed by means of any warrant issued under the Code of Organization and Civil Procedure: Provided that this article shall not apply to orders issued by the Constitutional Court.” Article 25A “(1) (a)There shall be a board, to be known as the Immigration Appeals Board, hereinafter referred to as the Board ... (c) The Board shall have jurisdiction to hear and determine appeals or applications in virtue of the provisions of this Act or regulations made thereunder or in virtue of any other law. ... (5) Any person aggrieved by any decision of the competent authority under any regulations made under Part III, or in virtue of article 7, article 14 or article 15 may enter an appeal against such decision and the Board shall have jurisdiction to hear and determine such appeals. (6) During the course of any proceedings before it, the Board, may, even on a verbal request, grant provisional release to any person who is arrested or detained and is a party to proceedings before it, under such terms and conditions as it may deem fit, and the provisions of Title IV of Part II of Book Second of the Criminal Code shall, mutatis mutandis apply to such request. (7) Any appeal has to be filed in the Registry of the Board within three working days from the decision subject to appeal: Provided that the period applicable for the filing of an appeal from the refusal, annulment or revocation of a visa shall be of fifteen days. (8) The decisions of the Board shall be final except with respect to points of law decided by the Board regarding decisions affecting persons as are mentioned in Part III, from which an appeal shall lie within ten days to the Court of Appeal (Inferior Jurisdiction). The Rule Making Board established under article 29 of the Code of Organization and Civil Procedure may make rules governing any such appeal. (9) The Board shall also have jurisdiction to hear and determine applications made by persons in custody in virtue only of deportation order or return decision and removal order to be released from custody pending the determination of any application under the International Protection Act or otherwise pending their deportation in accordance with the following subarticle of this article. (10) The Board shall grant release from custody where the detention of a person is, taking into account all the circumstances of the case, not required or no longer required for the reasons set out in this Act or subsidiary legislation under this Act or under the International Protection Act, or where, in the case of a person detained with a view to being returned, there is no reasonable prospect of return within a reasonable time-frame. (11) The Board shall not grant such release in the following cases: (a) when elements on which any claim by applicant under the International Protection Act is based, have to be determined, where the determination thereof cannot be achieved in the absence of detention; (b) where the release of the applicant could pose a threat to public security or public order. (12) A person who has been released under the provisions of subarticles (9) to (11) may, where the Principal Immigration Officer is satisfied that there exists a reasonable prospect of deportation or that such person is not co-operating with the Principal Immigration Officer with respect to his repatriation to his country of origin or to another country which has accepted to receive him, and no proceedings under the International Protection Act are pending, be again taken into custody pending his removal from Malta. (13) It shall be a condition of any release under subarticles (9) to (12) that the person so released shall periodically (and in no case less often than once every week) report to the immigration authorities at such intervals as the Board may determine.” 30 .     In so far as relevant, the Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations, Subsidiary Legislation 217.12 of the Laws of Malta, read as follows: Regulation 3 “ (1) Without prejudice to the provisions of sub-regulations (2),(3) and (4), the Principal Immigration Officer shall issue a return decision to any third country national staying illegally in Malta. ... (8) The Principal Immigration Officer shall provide, upon request, a written or oral translation of the main elements of a return decision and information on the legal remedies in a language the third-country national may reasonably be supposed to understand.” Regulation 6 “(1) The Principal Immigration Officer shall not effect removal where: (a) it violates the principle of non-refoulement; or (b) an appeal has been filed with the Board in accordance with the provisions of article   25A(7) of the Act and a decision thereon is pending: Provided that the Principal Immigration Officer may postpone removal for an appropriate period taking into account the specific circumstances of the case, in particular the third-country national’s physical state or mental capacity, or technical reasons. (2) Where a removal is postponed temporarily in accordance with the provisions of sub-regulations (1)(a) and (b) the Principal Immigration Officer may impose, on the third-country national for the duration of the period for voluntary departure, obligations aimed at avoiding the risk of absconding.” Regulation 12 “(1) The [Immigration Appeals] Board shall have the power to review decisions related to return and the possibility of temporarily suspending their enforcement: Provided that where the third-country national is informed about the removal an order postponing such removal shall take place. (2) The Board shall review any removal postponed for an appropriate period in accordance with regulation 6(2).”       INTERNATIONAL LAW United Nations      Office of the UN High Commissioner for Human Rights 31 .     According to the most recent OHCHR assessment of human rights concerns in the Xinjiang Uighur Autonomous Region, People’s Republic of China, dated 31 August 2022 [1] : “139. Over the past few years, credible information has been received about members of the Uighur community living abroad in several countries, having been forcibly returned, or being placed at risk of forcible return to China, in breach of the prohibition under international law of refoulement. The UN human rights mechanisms, including the UN Committee on the Elimination of Racial Discrimination as well as the Special Procedures, have expressed concerns about reports of forcible return of Uighurs to China, and have recalled the human rights and refugee law obligations of both China and third countries in such circumstances ... ... “142. ... in light of the overall assessment of the human rights situation in XUAR, countries hosting Uighurs 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-refoulement. ... “153. OHCHR recommends to the international community that it supports efforts to strengthen the protection and promotion of human rights in the XUAR region in follow ‑ up to these recommendations. States should further refrain from returning members of Uighur and other predominantly Muslim minorities to China who are at risk of refoulement and provide humanitarian assistance, including medical and psycho-social support, to victims in the States in which they are located.”      UN High Commissioner for Refugees (UNHCR) 32 .     The Guidelines on International Protection no. 4: “Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, part of the Handbook on procedures and criteria for determining refugee status and Guidelines on International protection, February 2019, which are intended to provide interpretative legal guidance for, inter alia , governments, legal practitioners, decision ‑ makers and the judiciary, reads, in particular, as follows [2] : “ A. Part of the holistic assessment of refugee status ... 6. The 1951 Convention does not require or even suggest that the fear of being persecuted need always extend to the whole territory of the refugee’s country of origin. The concept of an internal flight or relocation alternative therefore refers to a specific area of the country where there is no risk of a well‑founded fear of persecution and where, given the particular circumstances of the case, the individual c