In the case of Istok Lazarevic vs. Direttur tad-Dipartiment taċ-Ċittadinanza (Appell Nu 78/2018), the Civil Court of Appeal revoked a decision issued by the Immigration Appeals Board (“the Board) upholding a refusal decision by Identity Malta Agency (“the Agency”) for a single permit application on the grounds of public policy and public security.
The facts of the case are as follows, Mr. Lazarevic applied for the renewal of his single permit in 2017 which was refused on the grounds of public policy and public security and consequently he appealed this decision before the Board. The Board accepted this appeal as it was not convinced that he posed a threat to national security. He then went to renew his documentation with the Agency. However, the Agency did not abide by the Board’s decision and in 2018 he was issued with another refusal on the same basis which was once again appealed before the Board. During the proceedings for the second appeal before the Board, the inspector declared on oath that he had carried out research regarding the applicant and it resulted that he would pose a threat to national security and this was communicated to the Agency. On the basis of this, the Board rejected the appeal since there was no evidence to the contrary.
Subsequently, Mr. Lazarevic appealed this second decision to the Civil Courts of Appeal (the “Court”).
The Court’s Decision
The Court disagreed with the manner in which the Board decided the second appeal for two reasons. Firstly, the Court held that the Agency was legally bound to issue Mr. Lazarevic with a single permit on the basis of the Board’s first decision. The Board in its second decision effectively overturned its first decision in spite of the fact that the Agency did not appeal to the Civil Courts as it was legally bound to do.
Secondly, the Court held that the Board failed to effectively assess the Agency’s allegation that Mr. Lazarevic had submitted a new application for the single permit following the Board’s first and positive decision.
Thirdly, the Court went on to state that the Board, as an administrative tribunal, is bound to assess evidence based on facts and that the opinion of an inspector cannot be considered as sufficient evidence. In view of the fact that the Board did not have all of the evidence before it, it should never have arrived at the conclusion that the Agency was justified in issuing the refusal to Mr. Lazarevic’s application. The Court thus decided that the Board’s decision was solely based on speculation.
Finally, the Court declared that despite the fact that the Executive has the discretion to issue such a decision on the grounds of public policy and public security, the Board is bound by the principle of equality of arms and thus must have all the evidence before it when issuing any decision, therefore mere declarations do not suffice in this regard. The fact that in the Inspector’s affidavit it was declared that the applicant is a threat to national security, is not sufficient evidence for such a refusal. In such circumstances, the reasons in fact and in law supporting such a declaration must be provided. Furthermore, the Board did not give the appellant the opportunity to rebut the statements made by the Inspector, contrary to the principles of natural justice.
The Court of Appeal concluded that since it is the executive which is making the declaration that the individual is a threat to national security, then the onus of proof falls upon the same Agency stating such and not the appellant. Therefore, the Court of Appeal revoked the Board’s decision and referred it back to the Board to be decided accordingly.
Interpretation of Public Security & Public Policy by the CJEU
The Court of Justice of the European Union (“the CJEU”) has ruled on the interpretation of public security and public policy within the scope of the family reunification and long-term residence directives, and can be applied by analogy to decisions relating to single-work permits and other residence statuses based on EU law.
In Joined Cases G.S. (C‑381/18), V.G. (C‑382/18) v. Staatssecretaris van Justitie en Veiligheid the national courts referred questions to the CJEU regarding the interpretation of the Family Reunification Directive which allows member states to reject an application for entry and residence of family members on grounds of public policy, public security or public health as well as withdrawal or non-renewal on such grounds.
The CJEU ruled, “the competent authorities cannot automatically take the view that a third-country national is a threat to public policy… merely because he or she has been convicted of some or other criminal offence … the competent authorities must carry out…an individual assessment of the situation of the person concerned, taking due account of the nature and solidity of that person’s family relationships, of the duration of his or her residence in the Member State and of the existence of family, cultural and social ties with his or her country of origin ”.
Therefore, to determine whether an individual poses a threat to public policy, the national authorities must assess whether “their individual conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned” (see also Orfanopoulos and Oliveri, C‑482/01 and C‑493/01, paragraphs 66 and 67, Coman and Others, C‑673/16, paragraph 44).
Additionally, consideration must be given by the national authorities to the principle of proportionality which is one of the general principles of EU law, the national practice applying those provisions cannot, in particular, go beyond what is necessary to ensure that public policy is safeguarded (see, by analogy, K and A, C‑153/14).
In WT v. Subdelegación del Gobierno en Guadalajara, a preliminary reference was made to the CJEU regarding the interpretation of Long-Term Residence Directive, which allows member states to expel long-term residents if they constitute an actual and sufficiently serious threat to public policy or public security.
The facts of the case concerned a decision relating to the withdrawal of long-term residence due to previous criminal convictions, and consequently ordering the applicant to be expelled from the Spanish territory.
The CJEU concluded that “Article 12 of Directive 2003/109 must be interpreted as precluding legislation of a Member State which… provides for the expulsion of any third-country national who holds a long-term residence permit who has committed a criminal offence punishable by a custodial sentence of at least one year, without it being necessary to examine whether the third country national represents a genuine and sufficiently serious threat to public order or public security or to take into account the duration of residence in the territory of that Member State, the age of the person concerned, the consequences of expulsion for the person concerned and family members and the links with the country of residence or the absence of links with the country of origin”.
Therefore, it is evident that national authorities cannot issue decisions to revoke or refuse residence permits to third-country nationals on the grounds of public policy and public security in an arbitrary manner. Rather, national authorities are bound to carry out an individual assessment taking into account various factors affecting the individual’s sphere of life, taking into account the principle of proportionality. If following such assessment there remain concerns on such grounds, it must be to such a degree that the individual poses a serious threat to the public policy and public security of the country, that a decision to reject or revoke the residence permit of a third-country national on the grounds of public policy or public security, would be duly justified at law.