In a judgment delivered by the Court of Appeal (Inferior Jurisdiction) in Jayson Laza vs Identity Malta Agency presided over by Mr Justice Lawrence Mintoff on 3 May 2023, the Court established that the appellee was legally present in Malta or elsewhere in the European Union and that his submission for appeal in front of the Immigration Appeals Board was not late.
Identity Malta Agency had appealed a decision taken by the Immigration Appeals Board whereby on the 25 July 2022 the Board upheld the appeal of Mr Laza and revoked the decision of the Agency of the 20 January 2022 deciding that he could continue his application process for Single Work Permit.
In its appeal, Identity Malta Agency argued that the merits of the case is the application submitted by the appellee on 10 January 2022 for a new Single Work Permit.
The Agency stated that when this application was submitted the appellee was staying in Malta illegally as his job had been terminated over six months prior. Hence the Agency had to refuse his application.
Furthermore, the Agency felt aggreaved by the decision taken by the Immigration Appeals Board because the law provides that an appeal before the Immigration Appeals Board should be filed within three working days from when a decision has been taken by the Agency. In fact the decision was taken on 20 January 2022 and the appellee submitted his appeal to the Board on 27 January 2022.
In his reply the appellee stated that the decision taken by the Immigration Appeals Board is just and should be confirmed. Although the Agency affirms that his appeal was submitted later than the three working days, the Agency failed to substantiate this allegation since it did not provide any evidence when the appellee was notified.
In fact the appellee argued that such notifications are not given publicly like the decisions given by the Courts or Tribunals of Malta, but by post or email, sometimes days after the decision has been delivered.
Furthermore, the appellee states that there was no breach of Article 8(1)(c) of Subsidiary Legislation 217.17, since he always applied for a Single Work Permit while he was residing legally in Malta. The appellee argued that he has been residing in Malta since December 2019 where he was employed. When his employment was terminated in July 2021 he found an alternative employment two days later and a new application was made straight away. During this period he changed jobs again in September 2021 and resubmitted another application on the same day whilst also informing the human resource department of his prospective employer.
The Court first analyzed the alleged lateness of submitting the application for appeal by Mr Laza. The Court points out that in such cases it is very difficult for the Court, and for the Board before it, to determine when the applicant was notified of the decision, and this is because such decisions are not given openly, but are given in the form of a letter which is sent to the applicant by post. Although the law imposes a term of three working days from the date of the decision and not from the date of its notification, in such circumstances the Court has an obligation to protect the objectives for which certain laws were promulgated. An applicant who is not notified of the appellant’s decision given against him within three working days cannot appeal from that decision within the term established by law. The Court further affirms that the Agency did not submit any evidence when the appellee was notified of such decision and in the letter sent to him, the Agency failed to inform that he has the right to appeal the decision, or that there is a deadline by when to appeal, and therefore the Court must consider the circumstances in which the applicant found himself.
Furthermore, the Court states that from the records of the case it emerges that the appellee had several other job opportunities, and for each job opportunity he always tried to regularize his status with Identity Malta. It therefore appears that what was alleged by the appellee that he always tried to regularize his status with Identity Malta by submitting a new application on time, has been proven. The Court is of the opinion that at no time should the appellee be considered to have been here in Malta illegally.
For the stated reasons, this Court decided this appeal by rejecting the Agency’s claims and confirmed the appealed decision in its entirety.
Jayson Laza was assisted by Dr Charlene Gauci and Dr Gianluca Cappitta.
Av. Malcolm Mifsud
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