The deportation of three long-term Ethiopian residents raises questions about Malta’s commitment to fundamental rights. Andrew Drago explores how the courts’ refusal to grant interim relief may undermine access to justice.
On 5 September, 2025, the First Hall of the Civil Court in its Constitutional Jurisdiction in Malta permitted the deportation of three Ethiopian migrants: Kendieneh Mhretie Mersie, resident in Malta for 18 years, Yosuf Ahmed Adam for 14 years, and Abdi Sufian Mahmud for 11 years. All had been lawfully employed in Malta and bore no criminal convictions. They were all failed asylum-seekers.
For decades, deportation had not been possible due to the absence of diplomatic ties between Malta and Ethiopia. This changed when an Ethiopian delegation visited Malta last year to verify their identities, thereby facilitating their removal.
The plaintiffs argued that their return to Ethiopia was unconstitutional on three grounds: They would face a risk of cruel and degrading treatment; their right to private and family life in Malta would be breached; and their detention pending deportation was arbitrary and contrary to their right to liberty.
They sought asylum before the International Protection Agency, but their claims were rejected, a decision upheld by the International Protection Agency Tribunal. With deportation imminent, they applied to the First Hall for interim relief to halt their removal until a final judgement on the merits, which is adjourned to 14 November 2025.
Yet, on 4 September 2025, the court rejected their request for interim measures, and on the following day, denied them leave to appeal, stating that no prima facie breach of human rights had been established. The plaintiffs countered that if deported, any final judgement on the merits would be rendered vexatious, since returning to Malta would be difficult if not impossible. The court, however, rejected this argument, asserting that if such reasoning were accepted, it would be too easy for persons residing irregularly in Malta to prolong their stay by filing constitutional claims and seeking interim relief. Too easy it was not for the plaintiffs, and their deportation ensued.
Without venturing into the merits of this case, which remains pending, it must be observed that under this juridical framework, the very violation against which protection is sought may take place before the court has the chance to decide. The very purpose of precautionary measures is to shield rights at risk until the court determines the dispute. Otherwise, access to justice dissipates into meaningless judgments and unremedied violations.
Our law appears more generous in granting interim relief in ordinary civil cases. One of the grounds for injunctions in civil jurisdiction is periculum in mora—the principle that any eventual remedy would be meaningless without interim relief. The second requirement is that the injunction must protect rights. The civil courts have consistently held that they will not enter into the merits of whether the plaintiff is ultimately correct in asserting such rights; that is reserved for final judgement. Their role at this stage is only to assess whether suspending the act in question prevents irreparable harm or prejudice. Thirdly, the Civil Court examines whether prima facie, a right exists. Crucially, such assessment is not based on the subjective view of the judge, but on an objective and superficial consideration.
When our immigration procedure has been repeatedly lambasted by the European Court of Human Rights, and when migrants have resided in Malta for years, weaving social ties, the objective view ought to recognise that rights are at risk of violation. Whether the State is justified in limiting or infringing these rights is a question for the final judgement. In his seminal Misunderstanding the Constitution, Judge Giovanni Bonello criticises the reluctance to grant interim measures, maintaining that the Constitution should be understood as making the prevention of human rights violations the primary function of the courts, rather than treating such protection as an exceptional remedy.
Is the legal landscape logical, when the courts will readily issue an injunction ordering the spouse not to transfer shares which may pertain to the community during separation proceedings, but not order the suspension of deportation of a long-term resident? The Constitution, Malta’s supreme law, answers in its opening article, which solemnly proclaims that Malta is a democratic republic founded on “respect for the fundamental rights and freedoms of the individual.”
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