Issue link: https://maltatoday.uberflip.com/i/1539671
8 maltatoday | SUNDAY • 21 SEPTEMBER 2025 LAW ON 5 September, 2025, the First Hall of the Civil Court in its Constitutional Jurisdiction in Malta permitted the de- portation of three Ethiopian migrants: Kendieneh Mhretie Mersie, resident in Malta for 18 years, Yosuf Ahmed Adam for 14 years, and Abdi Sufian Mahmud for 11 years. All had been lawfully em- ployed in Malta and bore no criminal convictions. They were all failed asy- lum-seekers. For decades, deportation had not been possible due to the absence of diplo- matic ties between Malta and Ethiopia. This changed when an Ethiopian del- egation visited Malta last year to veri- fy their identities, thereby facilitating their removal. The plaintiffs argued that their return to Ethiopia was unconstitutional on three grounds: They would face a risk of cruel and degrading treatment; their right to private and family life in Malta would be breached; and their detention pending deportation was arbitrary and contrary to their right to liberty. They sought asylum before the Inter- national Protection Agency, but their claims were rejected, a decision upheld by the International Protection Agency Tribunal. With deportation imminent, they applied to the First Hall for interim relief to halt their removal until a final judgment on the merits, which is ad- journed to 14 November 2025. Yet, on 4 September 2025, the court rejected their request for interim meas- ures, and on the following day, denied them leave to appeal, stating that no prima facie breach of human rights had been established. The plaintiffs coun- tered that if deported, any final judg- ment on the merits would be rendered vexatious, since returning to Malta would be difficult if not impossible. The court, however, rejected this argument, asserting that if such reasoning were ac- cepted, it would be too easy for persons residing irregularly in Malta to prolong their stay by filing constitutional claims and seeking interim relief. Too easy it was not for the plaintiffs, and their de- portation ensued. Without venturing into the merits of this case, which remains pending, it must be observed that under this ju- ridical framework, the very violation against which protection is sought may take place before the court has the chance to decide. The very purpose of precautionary measures is to shield rights at risk until the court determines the dispute. Otherwise, access to justice dissipates into meaningless judgments and unremedied violations. Our law appears more generous in granting interim relief in ordinary civil cases. One of the grounds for injunc- tions in civil jurisdiction is periculum in mora—the principle that any eventual remedy would be meaningless without interim relief. The second requirement is that the injunction must protect rights. The civil courts have consist- ently held that they will not enter in- to the merits of whether the plaintiff is ultimately correct in asserting such rights; that is reserved for final judg- ment. Their role at this stage is only to assess whether suspending the act in question prevents irreparable harm or prejudice. Thirdly, the Civil Court examines whether prima facie, a right exists. Crucially, such assessment is not based on the subjective view of the judge, but on an objective and superfi- cial consideration. When our immigration procedure has been repeatedly lambasted by the Euro- pean Court of Human Rights, and when migrants have resided in Malta for years, weaving social ties, the objective view ought to recognise that rights are at risk of violation. Whether the State is justified in limiting or infringing these rights is a question for the final judg- ment. In his seminal Misunderstand- ing the Constitution, Judge Giovanni Bonello criticises the reluctance to grant interim measures, maintaining that the Constitution should be understood as making the prevention of human rights violations the primary function of the courts, rather than treating such pro- tection as an exceptional remedy. Is the legal landscape logical, when the courts will readily issue an injunc- tion ordering the spouse not to transfer shares which may pertain to the com- munity during separation proceedings, but not order the suspension of de- portation of a long-term resident? The Constitution, Malta's supreme law, an- swers in its opening article, which sol- emnly proclaims that Malta is a demo- cratic republic founded on "respect for the fundamental rights and freedoms of the individual." ANDREW DRAGO Mifsud & Mifsud Advocates Court permits deportation of long-term Ethiopian residents despite pending human rights claims Without venturing into the merits of this case, which remains pending, it must be observed that under this juridical framework, the very violation against which protection is sought may take place before the court has the chance to decide.