In a significant judgement delivered by the Court of Appeal in the names Yaneth Aldana vs Identita’, the Court overturned both a refusal issued by Identità and a subsequent decision of the Immigration Appeals Board concerning a third-country national who had entered Malta legally and applied for a single work permit.
The applicant’s work permit application had been refused by Identita’ after Jobsplus objected to the employment application, claiming that the prospective employer appeared to be facing redundancies and allegedly did not have sufficient work available for the employee.
However, the Court noted that it was never properly established how Jobsplus had arrived at these conclusions in the first place. The judgement repeatedly highlights the absence of any proper investigation or verification before such a serious decision was taken against the applicant.
Importantly, the Court also observed that despite Jobsplus’ concerns, the employer clearly continued insisting on the need for the employee’s position and even went as far as assisting in the filing of the appeal itself in order to defend the employment application.
The Immigration Appeals Board later declared the appeal “null and void” because no formal grievances or detailed submissions had been filed in support of the appeal.
Before the Court of Appeal, it emerged that the appeal had actually been filed by the prospective employer, while the applicant herself had not even been properly informed of the proceedings or that she was expected to submit further arguments within a specific time-limit.
The Court took a strongly critical stance towards the manner in which the authorities and the Board handled the case.
The appellant also raised serious concerns regarding the manner in which proceedings before the Immigration Appeals Board are conducted. She argued that while the Board repeatedly relies on procedural principles derived from the Administrative Justice Act to justify its practices, certain fundamental safeguards contemplated by those same principles were, in practice, not being properly observed. In particular, the appellant criticised the fact that appeals are frequently determined without any public sitting being held at all, arguing that this deprives parties of the opportunity to verify whether submissions were properly inserted into the acts, to challenge evidence produced by the opposing side, and to ensure that justice is not only done, but visibly seen to be done.
While the Court stopped short of fully endorsing every criticism advanced by the appellant, it nevertheless expressed clear concern about the Board’s practices and remarked that the Board was increasingly adopting the habit of dismissing appeals outright as “null” instead of hearing the parties and properly establishing the facts independently. The Court further stressed that both the Board and the authorities should, at the very least, genuinely hear the individuals affected and independently verify the facts before reaching decisions with such serious consequences on a person’s life and future in Malta.
The judgement also refers to concerns raised regarding the practical manner in which decisions are communicated. The appellant had described how individuals collecting decisions from the Board’s registry would allegedly find police officers already waiting with lists of rejected cases and ready to collect passports from unsuccessful applicants.
While the authorities denied there was any impropriety, the Court nevertheless remarked that this practice is indeed taking place and stated that it could not ignore the serious human dimension behind such situations.
In some of the strongest passages of the judgement, the Court stressed that individuals such as the appellant often leave behind their families, spend thousands of euros to travel to Malta, and arrive with hopes of building a better future, only to encounter closed doors and threats of removal instead of assistance and proper scrutiny of their circumstances.
The Court openly disagreed with the Board’s position that the appeal simply had to be declared null because no grievances had been filed. Instead, the Court stated that the authorities themselves had failed to properly perform their duties by relying blindly on unverified information without independently establishing the facts or genuinely hearing the applicant.
The Court further stated that where concerns arise regarding a prospective employer, the authorities should at the very least explore whether the individual may be assisted in finding alternative employment rather than immediately pushing them towards irregularity and removal.
Ultimately, the Court upheld the appeal, revoked both the Board’s decision and Identità’s refusal, and ordered that the applicant be allowed to file a fresh application so that her position in Malta may once again be considered and potentially regularised.
The judgement stands as a strong reminder that immigration procedures cannot lose sight of fairness, transparency, humanity and proper administrative scrutiny when dealing with people’s lives and futures.
The appellant was represented by Dr Gianluca Cappitta
