Too poor for reunification: Filipino family take Immigration authorities to court over refusal of children's resident status

A family from the Philippines who have been residing in Malta since 2013 are fighting to have their children’s residence status approved after the authorities ruled that they had insufficient resources to satisfy the conditions provided in the Family Reunification Regulations by not taking overtime and bonuses into account, despite the law being aimed at safeguarding the best interests of the children.

The Baldueza family’s lawyer, Robert Galea, explained to MaltaToday that they had already been living in Malta for seven years when they brought their children from abroad.

“They fulfil all the requirements to be eligible for Long Term Residence status, in fact, the mother had already applied and had been exempted from paying school fees for the same minor children,” he said.

But the children’s Maltese residence permit is being refused by Identity Malta on the basis that it does not satisfy the conditions provided for in Subsidiary Legislation 217.06 – the Family Reunification Regulations and the respective administrative guidelines implemented by Identity Malta.

“In this regard, the application has failed to prove that you have sufficient resources to meet the current living costs in Malta,” reads the refusal letter.

The regulations were introduced to implement European Union Directive 2003/86/EC on the right to family reunification, into local law.

The Balduezas subsequently filed a case before the Immigration Appeals Board, arguing that discretion was being improperly used.

In that case, Galea accused the Director for Citizenship and Expatriate Affairs of improperly exercising his discretion as in terms of the law the guiding principle in issuing such permits is the “best interest of minor children”.

“All these cases are treated in a standardised manner, resulting in an institutional disregard of all the relevant factors, including the best interest of the minors,” Galea said.

The local law was meant to transpose the relative Directive, which states that adoption of Directive should be in conformity with the obligation to protect the family and respect to family life. Also, that policy should aim at granting them rights and obligations comparable to those of citizens of the European Union.

Law and documents issued by Identity Malta state that “where the conditions concerning stable resources referred to in this sub-regulation, are not met by the sponsor, the Director shall consider all relevant circumstances and if there are justified reasons to do so, the Director shall accept the relative amount declared by the said third-country national as satisfying the conditions stipulated therein”.

“Nevertheless, this is being systematically overlooked, making all decisions of the Director illegal and ultra vires due to improper exercise of discretion,” argued the lawyer.

This is due to the fact that all relevant circumstances could not be known to the Director since at no point was any information requested from the appellant or contact made with them. The Director limited himself solely to the documents submitted with the application, Galea said.

“The ‘resources’ requirement is not set in stone and not inderogable as it is being treated by the Director, and the Director not only may but should look beyond this factor. Furthermore, a cursory look at the way in which the ‘average wage’ is arrived at shows that it is nothing but the result of a statistical fiction, essentially lumping all posts and positions in Malta into one lot, and assuming that anyone falling outside such ‘benchmark’ is at the risk of poverty – and this when the national minimum wage currently stands at €9,143 per annum.”

To add insult to injury, any additional bonuses or wages from overtime are not taken into account to any degree when calculating the family’s income, he said.

“Where applicants would have worked for long years and would have, over the years consistently accumulated over time, wouldn’t it be just to take overtime into account? Definitely this is something that the Director not only could but would have been reasonably expected to do. Yet, this was not considered by the Director.”

Galea is also arguing that there is an incorrect transposition of the Directive into local legislation.

“There is a stark difference between what the Directive sought to layout and the manner in which this was circumscribed by the local legislative exercise. The Directive refers to the national minimum wage, while local law goes further, raising the bar to the fictitious concept of average wage.

“The CJEU confirmed in judgements that said that the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof.”

The lawyer argued that the way in which the system is being approached by local authorities totally disregards directions by the EU Commission, which state that the national minimum wages are to be seen as the upper limit and that, provided that needs vary from one individual to another, one may only establish a reference amount and not impose a minimum level below which all applications are being refused – as is the case in Malta.

“It is clearly stated that a state may not refuse an application only on the basis that the reference amount is not reached. This alone makes the decision totally null and void.”

The applicable EU Directive clearly states that “Family reunification should apply in any case to members of the nuclear family, that is to say, the spouse and the minor children” in its preambles.

“In view of all this, how can it be said that the Director proceeded in line with the best interest of the children when all these considerations were disregarded?”

The lawyer asked how the right to family life, in terms of the Constitution and jurisprudence of the ECHR, are being safeguarded when not all relevant matters are being taken into account.