Lack of evidence pushes the Immigration Appeals Board to revoke a return decision, removal order and entry ban

Lack of evidence pushes the Immigration Appeals Board to revoke a return decision, removal order and entry ban given by the Principal Immigration Officer.

The Immigration Appeals Board revoked a return decision, removal order & entry ban given by the Principal Immigration Officer (P.I.O.) on the 22nd June 2022 because the P.I.O. failed to produce sufficient evidence substantiating these decisions. This was seen in Waqas Ijaz vs Principal Immigration Officer decided by the Immigration Appeals Board Division II on the 20th April 2023.

Waqas was in Malta with a single permit which allowed him to work with Mediclean JV on a full-time basis. The Principal Immigration Officer alleged that Ijaz was engaged in a part-time job, at a Car Wash company, and which employment was not regularized at law. The P.I.O. alleged that during a joint inspection carried out by the immigration police and Jobs Plus, Waqas was caught working at the Car Wash company and that such employment was not formalised. Hence, the above decisions were issued.

Nevertheless, his recognised employer confirmed that Mr Ijaz had been in employment with them for a number of years and the appellant was still reporting to work despite such orders. The same employer confirmed that even Waqas’s current residence permit had not been revoked following these decisions and in fact a renewal application was fully processed. It also transpired that the P.I.O. did not detain the appellant and had no intention to detain him in view of his ongoing employment with his recognised employer.

Ijaz’s legal representative, Dr Gianluca Cappitta, explained that the return decision and subsequent removal order and entry ban were issued on the allegation that the appellant failed to comply with the conditions implied in his work permit. However, it transpired that the appellant was still in compliance with his work permit as he was still in employment with his official employer reporting to work daily and diligently. It was remarked that no sufficient evidence was produced to prove that the appellant was indeed carrying out another part-time employment activity without the necessary authorization.

Dr Cappitta also raised the legal issue that even if one were to concede that the appellant was indeed doing a part-time job irregularly, considering the circumstances of this particular case, the appellant should not be made to bear the brunt for the irregularity. Reference to local legislation show that it is the employer’s duty to register part-time employees in Malta. Evidence produced by appellant showed that any employee has no control over the administrative act of being registered for part-time employment. Moreover, employment laws punish the employer for such failure and not the employee. Therefore, in these circumstances it was wholly dissonant with employment laws to deport an employee for an administrative act whose responsibility falls with the employer. Reference was also made to Camilo Atkinson Galindo vs Identity Malta Agency in which it was held that it is unjust for the applicant to be asked to carry the responsibility for the shortcomings of his employer.

Following this, the Board had to decide whether the return decision, removal order and entry ban were founded in fact and at law. The Immigration Appeals Board noted that it was never presented with any proof confirming that the appellant was indeed carrying out a part-time job. Nor where any witnesses produced to confirm that an inspection was carried out and that appellant was found working at the car wash without prior authorization. The Principal Immigration officer failed to produce evidence to corroborate its findings, raising the question whether such conduct was considered as a breach.

In view of all of the evidence produced and as per jurisprudence, the Board decided to give the appellant the benefit of the doubt because the Principal Immigration Officer failed to produce evidence to substantiate the issuance of its various decisions.  Therefore, it ordered the revocation and withdrawal of the return decision, removal order and entry ban issued against the appellant.