Deportation order did not breach fundamental human rights

By Dr Joseph Mizzi

Saaida Chabab, a Moroccan citizen, visited Malta in 2002 and during her stay here she met Mario Farrugia, who is a Maltese citizen. After a few months, the couple got married and Chabab applied for citizenship. She therefore became an 'exempt person'. Subsequently, she obtained the right to freedom of movement in terms of European law. The applicant also applied for a residence permit, which permit was granted until 22 October 2012.

On 8 January 2009, upon suspicion that the plaintiff was not living in her matrimonial home, the police inspected the home of her sister, Milouda Mangion. Upon the inspection it transpired that the plaintiff was in fact living with her sister and not her husband. This was confirmed when the police confronted the plaintiff's husband, who stated that the plaintiff had left the matrimonial home three weeks prior. Later that month, the applicant and her husband went to the relevant departments in order for the applicant to apply for Maltese citizenship. Upon this application and following the findings from the inspection, the police requested that the right of freedom of movement be removed, and in May 2009 the request was granted. 

The plaintiff, together with her husband, explained to the Citizenship Department that they had started living together again; therefore the director decided not to remove the exempt status of the plaintiff. Subsequently, the commissioner ordered the police to execute a random inspection in order to establish whether the plaintiff and her husband were truly living together.

In March 2010, the police inspected the matrimonial home of the plaintiff and her husband, and upon such inspection no personal belongings of the plaintiff were found. The police asked Farrugia whether Chabab was living with him, and he confirmed that the latter had left their home around three months before. This information was forwarded to the relevant departments, and the plaintiff was informed that she no longer had the right to live in Malta and a deportation order was issued against her.

In her court application, the plaintiff explained that the deportation order was in breach of Article 32 (c) of the Constitution of Malta and Article 8 of the European Convention of Human Rights. Furthermore, the plaintiff claimed that such an action exposed her to inhuman and degrading treatment, in breach of Article 36 of the Constitution and Article 3 of the Convention.

The court, after considering all the facts, stated that the plaintiff could not invoke that Article 32 of the Constitution of Malta was breached, since it is simply an introduction to the list of human rights which are found in the Constitution. Furthermore, the court noted that Article 46(1) of the Constitution provides the possibility for a person to allege a breach of human rights in terms of Articles 33 to 45, and therefore article 32 is excluded.

The court also examined Article 3 of the Convention and Article 38 of the Constitution, which speak about inhuman or degrading punishment or treatment. The case at hand related to degrading treatment, and the court, after quoting several judgements and authors, held that treatment is said to be degrading when it deliberately causes severe mental and physical suffering. The court continued by stating that in this case the deportation order was issued according to law and from the evidence produced it did not result that the plaintiff suffered any sort of metal or physical abuse.

The plaintiff also alleged that Article 8 of the Convention had been breached. The article deals with the right to respect one's private and family life, his home and his correspondence, subject to certain restrictions that are in accordance with law and necessary in a democratic society. The court, after taking note of several judgements, stated that every country has the right at law to control the entry, the residence status and the deportation of every person who is not a citizen of such country.

When concluding, the court noted the fact that the plaintiff got married only a few months after she had met Farrugia and did not conceive any children from the marriage. The facts of the case easily established that the marriage was one of convenience, and the court under the circumstances stated that no human rights had been breached. The court decided the case in denying all the plaintiff's pleas. The plaintiff appealed the decision.

Joseph Mizzi is an associate at Mifsud & Mifsud Advocates