Issue link: https://maltatoday.uberflip.com/i/1490638
maltatoday | SUNDAY • 22 JANUARY 2023 15 LAW CLASSIFIEDS THE Court of Appeal criti- cised Identit y Malta Agency for expecting an applicant of a single permit to leave Mal- ta immediately after she gave birth and when the rest of her family lived in Malta. This was held in a judgement de- livered by the Court of Appeal on 18 January 2023 in Cristina Catagatan -v- Identit y Malta Agency. The Court was pre- sided over by Mr Justice Law- rence Mintoff. The case dealt with Cataga- tan, the Appellee, being em- ployed in Malta. She obtained a Single Permit on 30 Decem- ber 2020, which was meant to be valid until January 2022. In February 2021, she left her job, so her Single Permit was no longer valid. She found anoth- er job in December 2021. The new employee applied for the Appellee's work permit, but it was declined because they deemed her to be in Malta il- legally for ten months between jobs. The Agency referred the case to the Principal Immigra- tion Officer to decide whether she was in Malta illegally. At this time, the Appellee filed her appeal before the immi- gration Appeals Board. The evidence showed that the Appellee had terminated her employment because she was pregnant. The pregnan- cy was complicated. The Ap- pellee lived in Malta with her husband, who had a single per- mit and lived in Malta legally. The Appellee argued that it was impossible that she be considered as residing in Mal- ta irregularly in terms of the Subsidiary Legislation 217.12 entitled Common Standards and Procedures for returning Illegally Staying Third-Coun- try Nationals Regulations. The Appellee explained that she did not receive any noti- fication from Identity Malta (IM) that her Single Permit was being withdrawn. There- fore, she did not have an op- portunity to explain her posi- tion to IM. She was left out of the proceeding, and IM used absolute discretion in her case. The Immigration Appeals Board agreed with the Appel- lee and ordered that her appli- cation be processed on its own merit. IM appealed before the Court of Appeal on the ground that the Subsidiary Legislation 217.7, which transposes EU Directive 2011/98/EU, where the State is prohibited from processing applications of per- sons residing in Malta illegally. IM gives a grace period of 10 days for a person to regularise his or her position in Malta. After this time, if the situation has not changed, the matter is referred to the Principal Im- migration Officer. In this case, the process was not complet- ed, and there was no decision. Therefore, the appeal is null. The Appellee rebutted the appeal saying that according to Article 25A(8) of the Immi- gration Act, decisions of the Board are final, and no appeal may be admitted unless on the point of law. The Court of Appeal held it is clear that the rejection of her work permit is to be consid- ered as a final decision. There- fore, the discussion is a point of law, and the appeal was al- lowed. Regarding whether the ap- peal before the Immigration Appeals Board is acceptable since the process was not con- cluded, the Court of Appeal pointed out that this was never raised before the Board. Furthermore, the Court held that the case was referred to the Principal Immigration Officer because IM took a decision. IM did not inform the Appellee of the decision, which is a breach of the reg- ulations. The decision was informed to the prospective employer. When processing the application, the Court held that IM must consider the ap- plicant's position. In this par- ticular case, the Appellee and her family have been living in Malta for years. She un- derwent a difficult birth, and it was unreasonable that IM expects her to find a new job in 10 days or to travel to her country of origin with a new- born baby as it was difficult for the Appellee to regularise her position when she could not work or travel. 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