Communicated on 10 November 2015

FOURTH SECTION

Application no. 66297/13 Concetta SCHEMBRI against Malta lodged on 17 October 2013

STATEMENT OF FACTS

The applicant, Ms Concetta Schembri, is a Maltese national, who was born in 1944 and lives in Rabat, Malta. She is represented before the Court by Dr M. Camilleri, a lawyer practising in Valletta.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows:

1. Background to the case

In 2004 S., a Pakistani citizen, arrived irregularly in Malta by boat and was detained under the applicable immigration laws. While in detention S. met C., the applicant ’ s brother, who worked with the detention services.

Following his release from detention in 2005, S. maintained contact with C. and started carrying out some works in the latter ’ s house. S. eventually started living in that house and met the applicant (who lived elsewhere) with whom he started a relationship. It appears that three months later S. wanted to marry the applicant, but she did not agree.

After some time, once his asylum application (at first instance) had been rejected, S. absconded to Italy, but the two remained in contact via telephone. An appeal against the asylum decision was never issued since S. could not be traced.

In November 2007 the applicant, her brother and the latter ’ s daughter went to Milan, and on that occasion the applicant and S. decided to get married. The applicant lived with S. for a short while and then returned to Malta for a few months before returning to Italy in March 2008.

On 19 March 2008 the applicant married S., who was thirty years her junior, under the regime of separation of estates. They married in Milan Italy, and their marriage was registered in the Public Registry of Malta in the same year.

According to a declaration by two Italian lawyers (who had assisted the applicant) dated 2011, to their knowledge, the applicant and S. lived together before and after their marriage, until they went abroad (see below).

In April 2008 the applicant and S. went to the Maltese embassy in Rome in order to apply for a visa for S. Following an interview, S. was informed verbally that he would not be granted a visa to enter Malta. No written decision was issued nor was he informed about any possibility of appeal. The applicant alleges that it was suggested that he go back to Pakistan wherefrom he could apply for an entry visa – the embassy denied this (during the domestic proceedings, see below), their position being that his visa was refused because during the interview it transpired that S. had been lying.

In May 2008 the applicant went back to Malta to ask for a review of the decision taken by the embassy and to try to obtain a visa for her husband through the Visa Unit in Malta. She was informed that she had to write a letter to the Visa Unit outlining her request. She followed suit and then returned to Italy on 8 August 2008. She continued communicating with the Visa Unit, but no decision was communicated to her.

In October 2008 S. returned to Pakistan to try and obtain an entry visa from there. However, the Italian embassy in Islamabad could not provide assistance.

In the meantime the applicant had returned to Malta and continued pursuing the application from there. She was sent from one office to the other to no avail. On an unspecified date, at a meeting with the MC and JM (two employees of the Visa Unit), the applicant was told that if the visa were to be issued the applicant would have had to give personal guarantees with regard to the financial support of her husband. She accepted to take the responsibility.

It is not clear whether and when an official decision was taken with regard to the applicant ’ s visa application. In any event, the law did not appear to provide a possibility for appeal against any such decision (unless it had been taken by the Principal Immigration Officer, which did not appear to be so in the present case). Nevertheless, in practice it appeared that an internal board had started to investigate the applicant ’ s complaint. It also transpired that the authorities suspected that the applicant ’ s marriage to S. had been one of convenience, which was why a visa would not be issued.

2. Constitutional redress proceedings

On 23 July 2009 the applicant instituted constitutional redress proceedings complaining that the refusal to issue her husband a visa was unlawful and constituted a violation of Article 8 of the Convention.

The court heard a number of witnesses including the applicant (who reiterated the facts as mentioned above), but not S. who did not testify.

JM the director of the Department of Citizenship stated that S. was an exempt person but that his status had not yet been confirmed. He explained that exempt status was an inherent right of a spouse of a Maltese citizen, unless the spouses did not live together or if there was an order by the Minister responsible. He explained that he had been in contact with the visa unit and the embassy in Italy and that his role was to ensure that the legislation was not abused, particularly in the light of marriages of convenience, which were not rare and which could be detected through a European Resolution which gave pointers on identifying such situations. He further testified that even having exempt person status, an individual could not automatically enter the country and a visa was still required. JM noted that the exempt person status of S. had never been confirmed. At the same time he also stated that there was no application to be filed, since one should not have to apply for something which belonged to him or her by right. He explained that there was an enquiry form requiring details of the exempt person and when this was filled in, a letter confirming the status would be sent out. However, he stated that this was simply a formality because the exempt person status is acquired as soon as the marriage is contracted. S. had never filled in this form, as he never entered Malta following his marriage. Nevertheless, JM testified that an informal request had been made by the applicant, who had been accompanied by a lawyer.

MS another employee of the Visa Unit, stated that S. ’ s visa was refused and that there was a right of appeal - he later stated that it was not an appeal but a review or reconsideration. He declared that the department had reviewed the case and decided that the request should be refused because there was suspicion of a marriage of convenience. MS explained that the file was sent to the department of citizenship and that the case had not yet been concluded, and no decision letter had been sent out.

By a judgment of 29 November 2011 the Civil Court (First Hall) in its constitutional jurisdiction dismissed the applicant ’ s claim.

The court rejected the Government ’ s objection as to non-exhaustion of ordinary remedies. It considered that the reconsideration procedure as undertaken by the Visa Unit in the present case could not be considered an effective remedy – it had taken too long, despite the Visa Unit having all the relevant information from the Maltese embassy in Rome. Indeed the Visa Unit had no reason to continue prolonging the yes or no decision, which was never rendered. Further, the procedure eventually came to a halt with the institution of the constitutional redress proceedings. Moreover, such a remedy was not independent of the Visa Unit since it was decided upon by the same unit. It followed that, having regard to the totality of the procedure and its ineffectiveness, the court had to exercise its constitutional competence to assess the merits of the complaint.

It also held that the applicant had a juridical interest in lodging the complaint in her name, since her complaint was that as a result of the impugned actions or omissions, her own family life was being violated.

In connection with the merits, the court referred to the applicant ’ s testimony and the fact that MC and JM had given testimony and considered that S. required a visa in order to enter Malta. This would have enabled him to apply for a residence permit and to travel in the Schengen area.

The court noted that the couple never cohabited in Malta, and that the applicant had never had the intention to marry S. when he was in Malta. Referring to general principles of the Court ’ s case-law, it considered that the couple had never envisaged having a family life, and why the applicant had changed her mind and decided to marry S. in Italy was a mystery. The court was not convinced that the applicant ’ s dec ision to marry had been genuine ‑ not once in her testimony had she declared to love her husband, nor had she explained at least slightly the level of intimacy she had with her husband who was thirty years her junior; neither had she given an explanation about her change of mind, or why she did not want to follow her husband in Pakistan. She had also admitted that she was not living with her husband as he was in Pakistan, and thus implicitly admitting that she was de facto separated. Thus, S. could not expect to obtain exempt status, nor could it be said that there existed family life in the present case, and the authorities had simply applied the law. Furthermore, S. had shown a total disregard for the proceedings, having chosen not to submit any written testimony corroborating the applicant ’ s statements or challenging those of the authorities. The court considered that it was not for it to decide whether there had been a marriage of convenience; it sufficed to find that the authorities refusal to issue S. with a visa had not breached Article 8 of the Convention.

By a judgment of 26 April 2013 the Constitutional Court rejected the applicant ’ s appeal.

It considered that when they were in Malta the applicants had not formed a family life, and their encounters were rather ambiguous, tenuous and lacking any commitment towards each other. The same appeared to be the case of their life in Italy. While it was true that they had married there, the only commitment which appeared to have arisen was for S. to acquire a visa. The Constitutional Court recalled that according to the Court ’ s case-law it was only genuine marriages undertaken according to law which were protected by Article 8. While the Constitutional Court was ready to accept that the marriage was according to law it had to address the State ’ s argument as to whether the marriage had been genuine.

The Constitutional Court noted that the applicant was aware of the precarious situation S. was in (since he was a third country national, thus requiring a visa to enter Malta) despite her claim that he did not require a visa. Nevertheless, S. never instituted an ordinary remedy to challenge such refusal. It could not be ignored that the applicant had refused to marry S. when they were in Malta, and only changed her mind in Italy after a few months, and despite the age difference between them. Their cohabitation in Italy was temporary and could not aspire to be permanent in view of various reasons, namely, his irregular status in Italy, the applicant ’ s refusal to follow him in Pakistan (which she had not proved would be problematic), and the visa refusals by the Maltese authorities. Furthermore, the court was struck by the lack of commitment, and interest towards the proceedings by S. who had not even bothered to file written testimony, or at least attempted to send a letter or make use of letters rogatory or other means which were available to persons not on the territory.

All the above led the court to conclude that there had been no family life, in the meaning of Article 8, in the present case and that therefore there was no breach of the applicant ’ s rights.

B. Relevant domestic law and practice

1. The Immigration Act

Part IV of the Immigration Act deals with “Prohibited Immigrants” and requires all, except those with a right of entry and residence according to the provisions of the Act, to obtain permission to enter Malta from the Principal Immigration Officer.

Part II of the Act concerning “Exempt Persons” provides that Part IV of the Act does not apply to exempt persons. The relevant provision, namely Article 4 (1) reads as follows:

“ The provisions of Part IV of this Act shall not apply to any person -

( a ) who is a citizen of Malta; or

...

( g ) who is the spouse of any person referred to in any of the foregoing paragraphs and is still married to and living with that person; and

...

Provided that the spouse or the dependent of a person referred to under paragraphs ( d ) and ( e ) shall not in Malta exercise any profession or occupation or hold any appointment or be employed by any other person or engage in business without, and other than in accordance with the conditions of, a licence from the Minister which the latter may at any time vary or withdraw as he may deem fit, and provided further that such dependant shall cease to be an exempt person if he contravenes this provision or if he does not comply with any of the conditions contained in such licence.”

The Act as applicable at the time of the present case provided, in its Article 25 A (5), for a review of a decision only in limited circumstances, it read as follows:

“Any person aggrieved by any decision of the competent authority under any regulations made under Part III, or in virtue of article 7, article 14 or article 15 may enter an appeal against such decision and the Board shall have jurisdiction to hear and determine such appeals.”

For the purposes of comprehending the above, Part III of the Act concerns special provisions connected to the European Union, Article 7 concerns residence permits, Article 14 concerns removal orders and Article 15 concerns carriers. It followed that visas, which are dealt with in Article 8 (Part IV) of the Act are in theory excluded from any available review according to this provision.

Nevertheless, Regulation 19 of Subsidiary Legislation 271.04 provided, amongst its miscellaneous provisions, that “ Any person aggrieved by any decision of the Principal Immigration Officer may appeal to the [Immigration Appeals] Board as provided for in article 25A(5) of the Act.”

In 2012, the situation regarding visa appeals was clarified by means of Regulation 2 of Legal Notice 2 or 2012 which reads as follows:

“the Immigration Appeals Board has the competence to hear appeals related to the refusal, annulment or revocation of the visa with reference to the provisions of paragraph 3 of Article 32 and paragraph 7 of Article 34 of the Regulation (EC) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code). “

The time limit of such an appeal was three days, eventually extended to fifteen days by Legal Notice.20 of 2003.

2. The Marriage Act

Article 38 of the Marriage Act reads as follows:

“(1) Any person who contracts a marriage with the sole purpose of obtaining -

(a) Maltese citizenship; or

(b) freedom of movement in Malta; or

(c) a work or residence permit in Malta; or

(d) the right to enter Malta; or

(e) the right to obtain medical care in Malta, shall be guilty of an offence and shall on conviction be liable to imprisonment for a term not exceeding two years.

(2) Any right or benefit obtained by a person convicted of an offence under subarticle (1) on the basis of the marriage referred to in that subarticle (1) may be rescinded or annulled by the public authority from which it was obtained.

(3) Any person who contracts a marriage with another person knowing that the sole purpose of such other person in contacting the marriage is one or more of the purposes referred to in subarticle (1) shall be guilty of an offence and shall on conviction be liable for the same punishment laid down in subarticle (1).”

COMPLAINT

The applicant complains that the refusal of the authorities to issue her husband with a visa, denying him a fair evaluation of his situation, breached her right to family life under Article 8 of the Convention. She further considered that the total lack of procedure meant that any “continued” decision by the authorities was not taken in accordance with a procedure prescribed by law, and was therefore arbitrary.

QUESTIONS TO THE PARTIES

1. Is Article 8 of the Convention applicable to the present case? In particular can it be said that there existed “family life” in the circumstances of the present case? Could the authorities have taken any action to challenge the applicant ’ s marriage undertaken in Italy?

2. If the provision is applicable, did the actions or omissions of the authorities in respect of S. violate the applicant ’ s right under Article 8 of the Convention? In particular, did the State put in place an appropriate legislative and administrative framework to ensure the full realisation of the applicant ’ s Article 8 rights? Alternatively, did the circumstances at issue come about in accordance with the law and was the law of sufficient quality, as understood in the Convention?

3. Under which provision of law, if any, does an “exempt person” require a visa to enter Malta?

4. What are the difficulties for the applicant to join her husband in Pakistan?