Pandora’s box: Appeals court rules Principal Immigration Officer has no power to prosecute

The Court of Criminal Appeal has upheld an appeal filed by a Syrian man convicted of passport offences, declaring proceedings against him as irregular and null as he was prosecuted by the Principal Immigration Officer, who it said, has no legal power to do so.

The judgment is expected to have far-reaching implications, not least a landslide of appeals and compensation claims, as all passport-related prosecutions are currently being performed by the Principal Immigration Officer.

The case was filed earlier this week by Hamid Afou, a Syrian man arrested at the airport, on a connecting flight from Greece over a false ID card in July.

His lawyer, Arthur Azzopardi, argued that the Principal Immigration Officer, who prosecutes such cases, is not legally empowered to do so. In a judgment handed down on Monday, Mr Justice Giovanni Grixti upheld the appeal, quashing Afou’s conviction.

The man’s appeal against his passport-related conviction highlighted a flaw in the way such cases are prosecuted, namely that the Principal Immigration Officer would lead the prosecution.

In late July this year, Hamid Afou from Syria had been arrested at the airport upon his arrival from Greece. An immigration official had suspected that Afou’s Greek ID card was forged and he was subsequently arrested.

The Syrian was charged with falsifying or being in possession of a falsified identification document, with using a falsified identification document and the use or possession of a falsified immigration document.

Assisted at the time by legal aid counsel, Afou had pleaded guilty upon arraignment and was sentenced to 6 months in prison.

But after being convicted, the man had changed lawyers and filed an appeal. His new lawyer, Arthur Azzopardi, argued that the arraignment and all subsequent proceedings were null, because the Principal Immigration Officer, who usually prosecutes such cases, is not legally empowered to do so.

The Criminal Code does not give the Principal Immigration Officer the power to accuse and prosecute anyone, said the lawyer. The Immigration Act only gives this public official the right to arrest but not to prosecute, and the Passport Ordinance says nothing about any powers of arrest.

Moreover, the charge of falsification under article 5 of the Passport Ordinance was “astutely and misleadingly” changed, with references to “passport” being replaced with “documents” in the charges.

In its judgment, the Court of Criminal Appeal said it was “clear that the Principal Immigration Officer does not have the power to lead the prosecution himself, even if it so happens that he occupies the position of Inspector of Police.”

Even if the breach of the laws he was charged under, amount to a crime, no action against the accused could be brought, except by the Commissioner of Police, said the judge.

“It is an established principle that if the law wanted something, it would state it and once this power is not expressly provided for in the law, which is a special law, then the Principal Immigration Officer cannot act as a prosecutor in the name of the police, even if he has powers of arrest emerging from the law.”

The court upheld the appeal and declared the proceedings against Afou as irregular and null, and ordered that he be released immediately.