The granting of citizenship is the Minister’s discretion and therefore, cannot be subject to the Court’s judicial review. This was held by the First Hall of the Civil Court, presided by Mr Justice Robert Mangion in Ena Shoby Zaky Ibrahim Attia -v- Direttur taċ-Ċittadinanza, Ministru għall-Ġustizzja, Kultura u Gvern Lokali.
The Plaintiff filed a sworn application asking the court to overturn a decision of the Director of the Citizenship which did not accept her application to become a Maltese citizen. There was no reason given to the decision taken in March 2017.
The government replied stating that Article 469A of the Code of Organisation and Civil Procedure does not apply, which the granting of citizenship is the prerogative of the State and is not administrative act. The Director held that she should not be part of this case because it is the Minister who grants citizenship and not the Director.
Mr Justice Mangion analysed the evidence brought forward the Court. The Plaintiff applied for citizenship in August 2010 and received the decision over 7 years later. She filed a judicial protest against the Defendants holding them responsible for their actions and claiming that the rules of natural justice was not followed in the procedure.
Her lawyer explained to the Court on how she applied filled in the necessary forms in terms of Article 10(1) of the Maltese Citizenship Act in August 2010. Officials of Identity Malta also testified and explained that there are two methods of becoming Maltese citizens, either by one’s ancestry or else by naturalisation, based on being a resident in Malta. The authority does not depend on its applicants documents but has an independent due diligence. It was revealed that an official was being paid to process this application and there were newspaper articles of criminal judgements the plaintiff was subject of. There is also a contestation on the paternity of the children, which Identity Malta, took seriously. Furthermore, the marriage certificate does not contain any information on her separation.
The Plaintiff testified and explained that she came to Malta in 2003 on a holiday, where she met her husband. She returned to Egypt, but their relationship continued until she returned and both got married. The marriage was an unhappy one and at one point she had to take refuge at a shelter. She complained that her citizenship application took 7 years and not reason was given why it was turned down. She had met the then Minister Tonio Borg, who pointed out that she was not resident in Malta for 10 years, but he would keep her file pending until 2013. When she went to the Ministry again, there was a change of administration. The file was left pending a second time because of her paternity case. Then the decision was communicated that her application was turned down.
As to whether the Director of Citizenship was correctly suited, the Court referred to the Maltese Citizenship Act, which gives the power of accepting new citizens to the Minister responsible for citizenship or to other authorised persons. There is no evidence showing that any other person is authorised to act in the name of the Minister. Furthermore, according to Article 19 of the Act held that no reason needs to be given by the Minister for his decision. Therefore, the Minister is the deciding authority. The Court then ruled that the Director should not be part of these proceedings.
As to the Minister of Justice, Culture and Local Government, the decision was given in March 2017 and the action was instituted in June 2017. The Minister responsible for citizenship was the Minister of Justice, Culture and Local Government. Parliament was dissolved on 1 May 2017 and after the general elections on 4 June 2017 the new ministries were assigned on 10 and 13 June 2017, after the case was filed. Therefore, the case was correctly filed against the correct ministry.
As to the merits of the case the actions is asking for a judicial review of an administrative decision. Article 469A of the COCP states that a judicial review can take place on whether the administrative act was ultra vires and the authority did not observe the principles of natural justice. The Defendants argued that citizenship is at the discretion of the State and it is also secret, since it could involve national security. As such the State is not legally bound to explain why citizenship applications are refused. Blackstone defines prerogative as “exceptional powers, preeminences and privileges which the law gives the government.
That special preeminence which the government has over and above all other persons in right of regal dignity.’ The prerogative of giving citizenship is exclusively in the hands of the minister. This was also accepted by the European Union Court of Justice in documents entitled “Pathways to citizenship for third country nationals in the EU Member States”, published on 5 August 2019. Every member state must take into consideration the laws of the European Union when giving citizenship and this is because once a citizen of a member state, that person will be also a citizen of the European Union.
The Minister is not bound to give an explanation in terms of Article 19 of the Maltese Citizenship Act, which is derived from Article 44(2) of the British Nationality Act 1981 and its predecessor British Nationality Act 1948.
The Court then moved to uphold the pleas and turn down the Plaintiff’s claims.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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