On 10 May 2023 the Court of Appeal delivered an important judgement on the status of holders of Specific Residence Authorisation (SRA). The judgement made a number of important points that clarify how Malta should be treating people who have chosen to make Malta their home. Our Pro Bono Unit is honoured to have had the opportunity to assist Mr. Ekogiawe in his struggle to secure his and his family’s legal status. It is encouraging for us and for our clients to see justice served in a way that respects their dignity and rights.
Mr. Ekogiawe came to Malta in 2008. After his asylum application was rejected, he was granted Temporary Humanitarian Protection New (THPN) on the basis of his efforts at integrating in Malta. Thanks to his continuous efforts at integrating in Malta, this status was regularly renewed. Since 2012 he has been in stable and regular employment, and in 2018 he and his partner had a baby girl.
Background: Specific Residence Authorisation
In 2019 THPN holders had their status converted to the newly-created Specific Residence Authorisation. SRA was established as Malta recognised “that a number of persons have been actively contributing to Maltese society for several years, have learnt Maltese or English, have built relationships with Maltese citizens and a life on our island.” It sought to treat such persons “humanely and with dignity.”. The SRA status granted eligible persons a residence permit and a set of rights, in acknowledgement of their successful integration activities.
The policy creating SRA was amended in 2020, effectively blocking any new applications. Since then, the number of SRA holders has been capped and we have seen attempts by the issuing entity – Identity Malta – at cutting down the number of SRA holders. Mr. Ekogiawe was one of these persons. In 2021 his application to renew his SRA status was rejected and he reverted to being an undocumented migrant, with none of the rights he has enjoyed for so many years.
Identity Malta fighting tooth and nail!
Our lawyers assisted him as he appealed this rejection before the Immigration Appeals Board (IAB). He won his appeal, with the IAB describing Identity Malta’s actions as “utterly ridiculous”. Not happy with this restoration of Mr. Ekogiawe’s rights, in June 2022 Identity Malta dragged him through a Court procedure in a further attempt to strip him of his security and stability. Again, our lawyers assisted him throughout this Court procedure by covering Court expenses, preparing written submissions and appearing for the Court sittings.
Il-Qorti ma tistax taċċetta li persuni li ilhom jgħixu f’Malta għal għadd ta’ snin, jaħdmu, qegħdin jippruvaw jintegraw, u kellhom l-istatus tagħhom regolarizzat bl-applikazzjoni tal-kriterji applikabbli, sussegwentement jintalbu jħallu l-pajjiż għaliex l-Aġenzija appellanta ddeċidiet li Policy li ġiet aġġornata fl-2020 għandha tibda tapplika anki għal dawk li qegħdin jitolbu li jġeddu l-permess ta’ residenza tagħhom.
Jamila Abdulkadir Mohammed vs. Identity Malta Agency, Court of Appeal (Inferior Jurisdiction) 60/2022 LM, 18 January 2023
We are extremely happy that, on 10 May 2023 the Appeal Court threw out Identity Malta’s appeal. Significantly, the Court confirmed a decision it had delivered in an identical case just months before. In fact, in January 2023 the same Appeal Court determined in favour of Ms. Jamila Abdulkadir Mohammed and restored her SRA status. Ms. Mohammed, also assisted by our lawyers, had been duly documented since 2013. Her 10-year old son also benefitted from her legal status, securing his well-being, education and stability.
As with Mr. Ekogiawe, Identity Malta refused to renew her SRA status and proceeded to initiate a Court procedure to strip her and her son of her rights.
Why are these cases important?
Yet in both cases the Appeal Court would have none of this. It laid down clear and strong principles that led to it rejected Identity Malta’s appeals and restoring our clients’ legal status. Summarily the Court stressed the following points:
- Cases relating to a person’s immigration status directly affect the most fundamental aspects of their lives and of their families. All decisions on these matters should take into account that such persons have, for some reason or other, left their homes and travelled to Malta looking for a better future.
- The Court gave considerable weight to our clients’ integration activities. It appreciated that they were legally employed, that they had chosen to establish a family and that they had attended various courses to enable their integration in Malta.
- Contrary to submissions made by Identity Malta, and by extension Government policy, Specific Residence Authorisation is a residence permit in terms of Maltese law. This means that SRA holders are in a regular immigration situation, duly documented and with consequential rights and obligations. Any action by Government to modify this status must be done in accordance with clear and transparent legal procedures, including the person’s right to appeal before the Immigration Appeals Board.
- It is not just or fair for Government to amend the SRA policy and apply its amendments retroactively. If a person if grant a set of rights on the basis of a policy, then they acquire a legitimate expectation that their status would be regulated on the basis of that policy and not on the basis of any future changes.
The Court cannot accept that persons who have been living here for several years, who work, who do their best to integrate, who had their status regularised by the applicable criteria, are subsequently asked to leave the counrt because the appellant decided that the 2020 updated policy should also start to apply to those who are renewing their residence permit.
Ekogiawe Johnbull Ibrahim vs. Identity Malta Agency, Court of Appeal (Inferior Jurisdiction) 74/2022 LM, 10 May 2023. Informal translation.
Finally, these two cases confirm what we have been telling Government for several years. Malta should recognise and reward those people who have made significant integration efforts to make Malta home.
We applaud the Court for these bold decisions in favour of legal certainty. We also congratulate our clients not only on their victories but on their combative spirit in not allowing governmental institutions to bully them into invisibility.
Human rights at risk
Ms. Mohammed and Mr. Ekogiawe are just two of many people whose fundamental human rights are being violated or are at risk of being denied.
Our legal services are provided free of charge, and in many cases we also cover related Court fees. Donate to our Ġustizzja Fund if you would like to support this important work, allowing us to represent people who would otherwise be unable to fight back.
