The Court of Appeal criticised Identity Malta Agency for expecting an applicant of a single permit to leave Malta immediately after she gave birth and when the rest of her family lived in Malta. This was held in a judgement delivered by the Court of Appeal on 18 January 2023 in Cristina Catagatan -v- Identity Malta Agency. The Court was presided over by Mr Justice Lawrence Mintoff.
The case dealt with Catagatan, the Appellee, being employed in Malta. She obtained a Single Permit on 30 December 2020, which was meant to be valid until January 2022. In February 2021, she left her job, so her Single Permit was no longer valid. She found another job in December 2021. The new employee applied for the Appellee’s work permit, but it was declined because they deemed her to be in Malta illegally for ten months between jobs. The Agency referred the case to the Principal Immigration Officer to decide whether she was in Malta illegally. At this time, the Appellee filed her appeal before the immigration Appeals Board.
The evidence showed that the Appellee had terminated her employment because she was pregnant. The pregnancy was complicated. The Appellee lived in Malta with her husband, who had a single permit and lived in Malta legally. The Appellee argued that it was impossible that she be considered as residing in Malta irregularly in terms of the Subsidiary Legislation 217.12 entitled Common Standards and Procedures for returning Illegally Staying Third-Country Nationals Regulations.
The Appellee explained that she did not receive any notification from Identity Malta (IM) that her Single Permit was being withdrawn. Therefore, she did not have an opportunity to explain her position to IM. She was left out of the proceeding, and IM used absolute discretion in her case.
The Immigration Appeals Board agreed with the Appellee and ordered that her application be processed on its own merit.
IM appealed before the Court of Appeal on the ground that the Subsidiary Legislation 217.7, which transposes EU Directive 2011/98/EU, where the State is prohibited from processing applications of persons residing in Malta illegally. IM gives a grace period of 10 days for a person to regularise his or her position in Malta. After this time, if the situation has not changed, the matter is referred to the Principal Immigration Officer. In this case, the process was not completed, and there was no decision. Therefore, the appeal is null.
The Appellee rebutted the appeal saying that according to Article 25A(8) of the Immigration Act, decisions of the Board are final, and no appeal may be admitted unless on the point of law.
The Court of Appeal held it is clear that the rejection of her work permit is to be considered as a final decision. Therefore, the discussion is a point of law, and the appeal was allowed.
Regarding whether the appeal before the Immigration Appeals Board is acceptable since the process was not concluded, the Court of Appeal pointed out that this was never raised before the Board.
Furthermore, the Court held that the case was referred to the Principal Immigration Officer because IM took a decision. IM did not inform the Appellee of the decision, which is a breach of the regulations. The decision was informed to the prospective employer. When processing the application, the Court held that IM must consider the applicant’s position. In this particular case, the Appellee and her family have been living in Malta for years. She underwent a difficult birth, and it was unreasonable that IM expects her to find a new job in 10 days or to travel to her country of origin with a newborn baby as it was difficult for the Appellee to regularise her position when she could not work or travel.
The Court then moved to reject the appeal and confirm the Board’s decision.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
The article may also be accessed on Malta Today.
For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.
