Removal order breached father's fundamental rights, court rules

A removal order issued against a man who lived in Malta illegally for 19 years and was found guilty of human trafficking charges gave rise to a breach of his fundamental human rights, a court has ruled.

The man arrived in Malta in 1997 and married a Maltese woman in 2001. The marriage was declared null four years later.

He later had a child with a Maltese woman, although the child was not registered as his because the woman was married to someone else. The two got married in 2012.

In 2016, the man was found guilty of human trafficking as well as residing in Malta illegally, and was handed a two-year prison term suspended for four years. In 2018, a decision regarding a removal order was communicated to the man, who was also barred from entering Malta for a period of five years.

The order was appealed both before the Immigration Appeals Board and Court of Appeal in its inferior jurisdiction, with both appeals being rejected. In 2021, a family court upheld a filiation plea with the man being legally recognised as the father of his child.

The judgement concerns proceedings which were subsequently filed before the First Hall of the Civil Court in its constitutional jurisdiction against the principal immigration officer and the state advocate, wherein it was claimed that the removal order and its execution would give rise to a breach of the man’s fundamental right to respect for family and a private life.

The court was asked to declare that the man retained the right to reside in Malta together with his daughter.

In its judgement, the court presided over by Madam Justice Miriam Hayman said the plaintiff had lived in Malta for over 27 years, albeit illegally for the majority of that time.

Reference was made to the relationships between the applicant, his wife, step-son and daughter. The court considered witness testimony of the applicant himself as well as that of his step-son, who declared that he had always been taken care of and enjoyed a good relationship with him.

The Court also took into consideration a declaration by the doctor of the applicant’s family, who said the man ‘has been the main breadwinner, ideal husband and father in this family unit’.

The man, it was upheld, had managed to prove that he retained familial relationships for the purposes of the European Convention on Human Rights.

However, it had to be determined whether the removal order was a proportionate measure to the right of the state to maintain public security. At this juncture, the court examined the man’s previous conviction, noting that the Court of Criminal Appeal had revoked an effective 30-month prison term before imposing a suspended sentence.

The court said that since the Appellate Court had not deemed the man to be a threat to national security, the court could not see why it should stop him from continuing to reside in Malta with his family.

The order was deemed disproportionate and quashed.

Lawyers Nicholas Mifsud and Mario Mifsud represented the man.