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Courts must take into consideration all documents when deciding

By November 8, 2020November 24th, 2023No Comments

Courts and administrative tribunals must take into consideration all the documents it has before it when finalizing its decision. This was held by the Court of Appeal presided by Justice Lawrence Mintoff in Answar Ali and Ufficjal Principal ghall-Imigrazzjoni u l-Bord tal-Appell dwar l-Imigrazzjoni.

Ali appealed by decision delivered by the Immigration Appeals Board wherein it rejected an appeal he had lodged on the ground that he did not produce evidence showing that he was not a prohibited immigrant and that he could support himself.

The facts surrounding this case starts in March of this year when Ali arrived to Malta on a single permit based on employment. When he arrived, Malta had declared that there existed a state of emergency due to COVID-19. He came to Malta because his employer had applied for a work permit which was approved in November 2019. In March 2020 there was a partial lock-down and Ali found himself in difficulty because his job opportunity did not bear any fruits because of COVID-19. He was unable to travel because a travel ban was in place. He was unable to transfer his work permit because his first job was not registered. When his Visa expired in July 2020, he went to Italy, but was sent back because the Italian authorities noticed his Visa was expired.

The Immigration stopped an entry ban for 3 years because he was in the Schengen Zone illegally.Ali appealed on the ground that in the circumstances he found himself in, he did his utmost to regularize his position. The Immigration Appeals Board referred Article 5 of the Immigration Act which prohibits entry into Malta if the Principal Immigration Officer deems that person as not being justified to enter Malta.  One of the grounds of appeals was that the Board did not take into consideration all the documents Ali had produced. The Board held that no evidence was produced that shows that Ali could support himself. Ali explained that he came to Malta to work legally but he was faced with bureaucratic difficulties.

He explained to the Board that he had found a second job but this could not have been registered because his first job was not registered. This fact was not considered by the Board. Ali also held that the 3 year ban was not proportionate to the situation he found himself. The Principal Immigration Officer disagreed since Ali’s first employer withdrew the work permit application. If Ali wanted to re-apply he could have this was online but the first employment was not registered and this is not the Board’s fault.

Mr Justice Mintoff, presiding over the Court of Appeal held that it is a cardinal rule in procedural law that for a court to analyze the evidence he or she must take cognizance of all the evidence produced. The lower courts and administrative tribunals should decide their cases swiftly and there is no need in their decisions to give all the reasons. It is sufficient if the court or the tribunals give some of the reasons on how they reached their conclusions. In this particular case the Board held that it based its conclusions on the records of Identity Malta, but there was no reference to documents presented by Ali.

This is certainly a point of law that allows the Court of Appeal to investigate. It has been proved that there were bureaucratic problems because the first employer withdrew the work permit application once the restriction measures on COVID 19 kicked in. The Court asked why the Board took into consideration facts that could not have been found in the records of Identity Malta and at the same time not make reference to documents on the second employment Ali was given. The circumstances that Ali found himself in should have been taken into consideration. As to whether the three-year ban was not proportionate, the Court of Appeal that this experience was traumatic, where Ali was arrested for a number of weeks and this was a deterrent enough. The Court agreed with the appellant that the three-year ban was not proportionate.

The Court moved to uphold the appeal and revoked the Board’s decision.

Avv. Malcolm Mifsud


Mifsud & Mifsud Advocates

This article is also available on MaltaToday.