Court issues interim measure halting deportation of Albanian national | Andrew Drago

Andrew Drago is a trainee lawyer at Mifsud & Mifsud Advocates

On 31 October 2025, the First Hall of the Civil Court in the case of Artan Coku vs The State Advocate and the Chief Principal Immigration Officer, granted an interim measure in favour of the complainant, prohibiting his deportation from Malta pending the outcome of a constitutional case he filed.

The applicant, an Albanian national, was fostered in Malta from a very young age and has resided in Malta ever since. He was served with a removal order and a return decision by the Chief Principal Immigration Officer. Following the confirmation of both by the Immigration Appeals Board, Coku instituted a human rights action, claiming that such measures violated his right to private and family life.

However, prior to the outcome of his constitutional case, the complainant was informed that his deportation was imminent, and therefore filed an urgent request for an interim measure, asking the court to halt his deportation prior to deciding his case on the merits. The State Advocate opposed the request, arguing that the complainant had failed to exhaust ordinary remedies—appealing the Immigration Appeals Board’s decision before the Court of Appeal. The complainant, however, maintained that the law did not provide for such an appeal in his circumstances, and thus his only available remedy was to seek constitutional redress.

The court held that, even if an appeal was possible, the plaintiff’s claims were of a purely human rights nature. The court emphasised that neither the Immigration Appeals Board nor the Court of Appeal had competence to determine constitutional questions or to grant the remedies available under the Constitution. Consequently, the State Advocate’s argument was rejected.

The constitutional complaint was founded on the claim that the complainant’s deportation would itself constitute a breach of his fundamental rights under Article 8 of the European Convention on Human Rights which establishes the right to private and family life. The complainant argued that he was not merely an immigrant in Malta but a person who had been raised and fostered in the country from a very young age. Although of Albanian descent and nationality, he had never formed any connection with Albania. He had not entered Malta unlawfully as an adult; rather, he was brought to Malta as a child and raised here as though he were Maltese. His education was Maltese, his language was Maltese, and all his private and family ties were rooted in Malta. Therefore, he argued, enforcing the deportation order would uproot him entirely from the centre of his existence and send him to a country with which he had no meaningful link.

The court noted that the complainant was contesting not only his deportation but also the underlying measures and decisions that could lead to it, given his unique status as a person raised and fostered in Malta. The complainant argued that the deportation itself would constitute irreparable harm. Executing the deportation order, it was argued, would not only deprive him of the effectiveness of the remedy sought but also render his claim superfluous, as the violation he sought to prevent would have already taken place. The court concluded that the complainant had established an arguable case, and that, prima facie, a breach of his fundamental human rights could arise were the deportation to be carried out before the final determination of his constitutional claim.

The court recognised that no judicial pronouncement had invalidated or suspended the removal order or return decision, which were therefore still presumed legitimate. Nonetheless, the court held that it was appropriate, for the proper administration of justice, to grant the applicant’s request for an interim measure.

The court ordered that the execution of the removal order and return decision be suspended until a final judgment is delivered.

This decree represents a logical and human rights-oriented development in the jurisprudence on interim measures in Malta. Traditionally, Maltese courts have adopted a restrictive approach, granting interim orders only where a constitutional threat poses a real and immediate risk to life or limb.

This approach is derived from the jurisprudence of the European Court of Human Rights (ECtHR), an international court of last resort which assumes that member states of the Council of Europe possess sufficient domestic safeguards to ensure effective human rights protection.

However, this doctrine’s application by Maltese courts has been strongly criticised by former human rights court Judge Giovanni Bonello in his book Misunderstanding The Constitution, where he argues that such an approach allows human rights violations to occur rather than preventing them.

The decree in Artan Coku vs State Advocate et marks a significant shift from the restrictive ‘life or limb’ threshold. The court’s reasoning focuses instead on whether there exists a prima facie violation warranting protection until a final decision is delivered. The decree’s emphasis on preserving the integrity and effectiveness of the eventual judgment, ensuring that a potential ruling in favour of the applicant is not rendered futile by his deportation, crystallises the principle that the human rights remedy is in itself not just declaratory, but also preventative.