This case dealt with an unmarried couple, a Maltese and a Libyan illegal immigrant (X & Y), who claimed a breach of their fundamental rights under Articles 8 and 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which forms part of Maltese Law.

The facts

Y, a Libyan citizen, entered Malta illegally and was deported after arraignment in Court in April 2001. He re-entered again illegally in May 2001 and after deportation, entered again in January 2002, failing to notify immigration officials of his previous deportation, an omission considered a breach of the Immigration Act.

During his stay Y, initiated a relationship with X, a Maltese citizen who is legally separated from another Maltese citizen and currently awaiting judgement for an annulment. X and Y are unmarried but have been co-habiting for a number of years. X has given birth to two children.

The delay in annulment proceedings left X and Y still unable to marry and Y essentially living in Malta illegally.

In October 2004, Y was found in X’s home and an order for his removal was issued in terms of the new administrative procedures under the Immigration Act. His appeal was rejected.

Y was not deported but kept under detention in Malta pending the final outcome of their Human Rights action against the State.

Plaintiffs’ allegations

• Although unmarried, they still lived as a family in a fixed abode and were recognised and accepted as such by relatives.

• They intended to get married upon the annulment of X’s marriage to her Maltese husband.

• The order for the removal of Y from Malta was in breach of Articles 8 and 12 of the European Convention which state the following:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 12 – Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right

• Y’s deportation would result in a serious disruption of their family life, would also have a detrimental effect on the children and would prolong the couple’s prospects of getting married once the annulment decree is issued.

• The authorities breached their right to respect for private and family life and this right should apply also to families that are formed out of wedlock and families composed of any types of relationships.

Defendants’ claims

• Every sovereign state enjoys the well-established right under International Law to control entry into its territory by non-citizens. The European Court Judgement Gul vs. Switzerland (1996) explained that the right under Article 8 cannot be viewed as a hard and fast obligation to “… respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory”.

• Y cannot expect that fathering a child outside wedlock while living in Malta illegally would entitle him to reside in Malta and render him exempt from immigration restrictions. Y was deported on numerous occasions and still persistently returned illegally.

• Y is using his claim of a breach of fundamental rights so as to camouflage his intention to stay in Malta illegally. By deporting Y in accordance with the law, the State did not breach his rights since this deportation did not hinder the possibility of X and the children leaving Malta themselves and joining Y.

• Article 8 also caters for the State to intervene if it “…is in accordance with the law and is necessary in a democratic society…”

• The claim of breach of Article 12 in this case has no standing since the applicants never alleged that the authorities obstructed their attempt to marry nor hindered the possibility of Y’s right to have a family once married.

The Court judgement was determined as follows:

Was there a breach of Article 8?

A 1985 European Court Judgement stated that “the duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a contracting party to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.”

The obligation entrenched in Article 8 is non-interference by the State insofar as this is not in accordance with the law and necessary in a democratic society.

Hence the Court found it necessary to examine the following elements:

Was there the

so-called “family life” referred to in Article 8 between the applicants and children?

The existence or otherwise of there being a family life was not dependent upon observance of the legal definition of the family but upon the de facto circumstances (Elsholz vs. Germany [2002]). Co-habitation and a relationship leading to the birth of offspring should be deemed sufficient to refer to such life situation as in fact a family unit of sorts.

However, the fact that a human rights action was filed by the plaintiffs should not be a passport to evading the law. The first-born child’s birth certificate showed X’s husband as the father. It was hence felt that since X and Y did not take the ordinary remedies allowed by law to correct such certificate to reveal Y as the biological father, then there was no reason why the Court should not use such a document which the plaintiffs made no effort to correct, as evidence of the child’s parentage.

Also, while testifying, the reports of X and Y as to when their relationship started did not correspond.

For these reasons, the Court was driven to examine the family relationship between X, Y and the second born child rather than the first, and established that a family relationship between such persons exists. However, what was relevant to examine was whether a family life existed at the particular time relevant to this case.

Was there interference in the family life by the public authority?

The European Court has felt that there must be an examination as to whether at the time of the issue and execution of a removal order there existed in fact a family life.

When Y was deported for the first time in April 2001, this was before the birth of the second child. (The Court seems to have disregarded the first child as not being Y’s.)

The order cannot be deemed to be illegal since in terms of International Law, a state is allowed to determine and control its borders including length of stay.

Y knew that he was here illegally and that there was a strong possibility that he would be caught, arrested, tried and deported again. Had he observed the law from the outset, this situation would not have arisen.

Even if the removal order in question were to be deemed as interference in one’s family life, in this case, the first order was issued at a time when there was no family life for the purposes of Article 8. The fact that there were subsequent orders made by the immigration authorities after the first one does not change the situation, as these were orders deemed necessary due to Y’s repeated breach of the law.

Hence what is relevant to examine is the very first order issued and also that at the time of the first order of deportation, there was no family life rendering a claim of a breach of Article 8 of the Convention unfounded, since without a family life being traced, there could be no talk of any interference by a State Authority.

Was there a breach of Article 12?

Maltese Law does not allow polygamous marriages. Here, X was still married. She could therefore not marry Y. Marrying may well have solved problems regarding Y’s constant deportation, yet X’s marriage was acting as a legal obstacle in this regard. The fact that she filed a Court case claiming her marriage to be null was not sufficient to change her civil status, even though she claimed that her husband would not contest her claim for annulment. A judicial declaration of nullity is necessary to free X and enable her to re-marry. Until such time, she remains married in the eyes of the Law.

Hence, claims of a breach of Article 12 had absolutely no legal basis for the simple reason that according to Maltese Law, there was no legal right to marry – the couple’s obstacle to marriage was not by the Immigration Authorities but X’s marriage which is currently still awaiting final judgement for an annulment.

Conclusion

The Court concluded by quashing all allegations of breaches of Fundamental Human Rights under the European Convention and refused all pleas made by applicants.