Preliminary
An appeal on a rejection decision given by the Immigration Appeals Board towards our client, a Nepalese national.
Facts
The claimant applied for a residence permit to work a company in Malta. After a due diligence process by the Identità, the client received an approval letter and a visa, allowing him to arrive in Malta in July 2022. He received a residence permit valid from August 2022, to August 2023. The claimant planned to work as a courier driver and decided to take a vacation to Portugal in August 2022, while waiting to start his job.
On August 26, 2022, the police conducted checks on flight FR 1509 to Porto and found three Nepalese citizens, including the claimant, carrying all their personal belongings, CVs, medical results, and health insurance documents. These items suggested they did not intend to return to Malta. The police found that the claimant's employer was unaware of his travel plans. Identità was informed, and their residence permits were revoked.
The authorities issued return orders and entry bans for three years, citing violations of the Immigration Act, including being in Malta without proper authorisation, lacking means to support themselves, and not complying with the conditions of their residence permits. The claimant and the others claimed they were going on a short holiday with return tickets, but the police concluded that they intended to leave Malta permanently, evidenced by the employment documents they carried.
Merit
Sciberras Advocates appealed the decision before the Board and presented the submissions, including a bail submission so that the appellant is to be released from detention.
The Decision Appealed
Proceedings
The Immigration Appeals Board conducted several sittings, with testimonies and evidence presented by both parties.
- The return decision was based on several grounds including:
- Entry without leave from the Principal Immigration Officer.
- Inability to prove financial self-support or risk of becoming a public charge.
- Violations of the Immigration Act or its regulations.
- Non-compliance with conditions of leave or residence permit.
- Changes in circumstances that justified the initial leave or residence permit.
Legal Framework
Article 5(1) of Chapter 217 deems a person without proper leave from the Principal Immigration Officer as a prohibited immigrant.
Article 5(2) outlines various conditions under which a person can be considered a prohibited immigrant, including lack of financial means, contraventions of the Immigration Act, and changes in the circumstances of their stay.
The appeal was lodged following the issuance of these decisions, with the Immigration Appeals Board directed to render a judgment after considering all evidence and submissions.
Considerations
From all the evidence produced, it resulted that the appellant's arrival in Malta was few days prior to the trip to Porto. Appellant was already in possession of a valid single permit, valid between the 16th of August, 2022 to the 16th of August, 2023 and appellant's flight itinerary showing outbound flight to Porto on the 26th of August, 2022 and inbound flight to Malta on the 31st of August, 2022. Proof of when flights were purchased was not presented to the Immigration Appeals Board.
Decide
From evidence produced it resulted that appellant failed to produce evidence showing to the satisfaction of this Board that inbound flight Porto to Malta was purchased prior to the issuance of the return decision, removal order and entry ban, issued on the 26th August, 2022. In view of the above, the Immigration Appeals Board rejects appellant's appeal and confirms return decision, removal order and entry ban issued to appellant on the 26th of August, 2022.
The Appeal
In the appeal filed by Sciberras Advocates, we requested the Court to accept this appeal and annul the return decision, expulsion order, and entry ban issued by the Principal Immigration Officer. We also sought to overturn the Board's decision to allow him to apply for a new residence permit in Malta.
Appeals Court Decision
The Court of Appeal accepted the appeal of our client and revoked the original Board decision for the return and for the removal from Malta, together with the entry ban issued on the same day, so that our client could present a new application for a residence permit in Malta.
However, not all grievances were upheld. In the second grievance, the claimant argued that it could have been verified, from his side, that the return ticket to Malta was bought before the decision had been given, but the court decided not to comment on this grievance, since at appeal stage, only points of law can be raised and not points of fact. Therefore, the court did not have competence.
In third grievance, the claimant argued that the audi alterem partem principle was breached since he was not given opportunity to make his case heard, even though he was made a party to the proceedings. The court decided that the decisions which were taken of an administrative nature and that the applicant had the right to appeal the decision before both the Board and the Court. In front of the Board the claimant had the possibility of proving his case and explain the reasons as to why he should not be considered a prohibited immigrant. Therefore, this grievance was rejected.
The final judgement can be downloaded from here:
https://ecourts.gov.mt/onlineservices/Judgements/Details?JudgementId=0&CaseJudgementId=146104.
This article is for information purposes only and should not be construed as legal advice.
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