This case concerned a claim of a breach of the Constitution of Malta and the European Convention on Human Rights and Fundamental Freedoms.

The plaintiff was a Libyan national who came to Malta in 2002. In March of 2002, he married a Maltese woman and was given ‘Exempt Person Status’. The spouses had a daughter together, however later separated in December 2006. Due to such separation, the plaintiff lost his ‘Exempt Person Status’ allegedly on the ground that he no longer lived with his wife. In 2007, a Removal Order was issued against the plaintiff because he was found guilty for a crime punishable with more than one-year’s imprisonment. The plaintiff had appealed this order before the Immigration Appeals Board and his case was still pending during the course of these proceedings.

The plaintiff claimed that:

· the removal order in respect of his ‘Exempt Person Status’ and his eventual removal from Malta breached his fundamental rights;

· should he be forced to leave Malta, he would not have access to his daughter thereby constituting unjustified interference in his right to privacy and family life thus seriously breaching the right to a family life guaranteed by Article 8 of the ECHR (transposed into Maltese Law by virtue of Chapter 319 – Laws of Malta.)

· the removal of his ‘Exempt Person Status’ occurred without giving him the opportunity to be heard, therefore breaching Article 6 of the ECHR guaranteeing the right to a fair trial including the right to be heard;

· the plaintiff was left without an effective remedy (Article 13);

· although there were many marital separations similar to his and his wife’s, there was no removal of the ‘Exempt Person Status’ in such cases as occurred to him thereby constituting discrimination;

· he did not want to leave Malta after being here for five years because there was no valid reason for his removal particularly since persons in his exact same situation were not encountering such complications to exercise or continue exercising their rights.

The defendants claimed that:

· the plaintiff’s claims were unfounded both in fact and in law;

· the plaintiff was adopting extraordinary proceedings without first resorting to ordinary remedies in breach of Article 42(2) of the Constitution of Malta and the proviso to Article 4(2) of Chapter 319;

· the decision was justified and legitimate in terms of the Immigration Act (Chapter 217 – Laws of Malta), which under Article 4(1)(g) holds that such Exempt Person Status applies to ‘the spouse of any person referred to in any of the foregoing paragraphs and is still married to and living with that person’;

· the plaintiff and his wife were legally separated in December 2006 but had actually been separated since 2003 and had not lived together for a while before their separation;

· the plaintiff was issued the Removal Order since he was prohibited from having such an Exempt Person Status in terms of Article 5(2) of the Immigration Act which holds that “...a person shall... be a prohibited immigrant also – (d) if he is found guilty by a court of criminal jurisdiction in Malta of an offence against any of the provisions of the White Slave Traffic (Suppression) Ordinance or of the Dangerous Drugs Ordinance or of a crime, other than involuntary homicide or involuntary bodily harm, which, in the case of a first crime committed by such person, is punishable with imprisonment for a term of not less than one ... ”;

The Court considered the claim that the plaintiff had not exhausted all the ordinary remedies available to him. The plaintiff had appealed to the Removal Order before the Immigration Appeals Board which appeal was still pending before this Board. The defendants therefore claimed that the Court should decline from continuing such constitutional proceedings in line with Article 46(2) of the Constitution and Article 4(2) of Chapter 319 which hold that the constitutional remedy may be resorted to “provided that the Court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.”

The Court stated that this issue was considered on numerous occasions by the Maltese Courts and therefore referred to a series of judgements including Dr Mario Vella vs Joseph Bannister nomine (1994) wherein it was held inter alia that:

· in the event that ordinary remedies are available, the constitutional remedies should be resorted too only after such ordinary remedies are exhausted or are not available;

· the Constitutional Court should not disturb the discretion of the Court of First Instance unless there is a serious illegality or injustice or a manifest error;

· every case is different and therefore must be considered;

· when ordinary remedies are not resorted to, the Constitutional Court cannot refuse to exercise its jurisdiction if such ordinary remedies only partially provide a remedy;

· where the plaintiff fails to resort to such ordinary remedies as a cause of somebody else, it is undesirable that the Constitutional Court fails to continue proceedings.

In Philip Spiteri vs Sammy Meilaq (1995) it was held that when a case is of a complex and mixed nature and involves both issues that may be remedied ordinarily as well as issues for which no ordinary remedies are available, therefore making a constitutional action the only possible remedy, then such latter action will prevail.

In this case, the plaintiff had available a remedy to attack the removal of his exempt person status so much so that he made use of such remedy and was awaiting a ruling from the proceedings that were still pending before the Immigration Appeals Board. The plaintiff feared that upon the decision delivered by the Appellate Court, he would be forced to leave Malta instantly. The Court held that this was merely hypothetical and the Plaintiff could then proceed to institute constitutional proceedings upon the occurrence of such breach of fundamental human rights should such breach indeed occur.

On this basis, the Court therefore rejected the plaintiff’s pleas and refused to exercise its constitutional jurisdiction in line with Article 46(2) of the Constitution of Malta and Article 4(2) of Chapter 319.