Issue link: https://maltatoday.uberflip.com/i/1541360
ON 31 October 2025, the First Hall of the Civil Court in the case of Artan Co- ku vs The State Advocate and the Chief Principal Immigration Officer, grant- ed an interim measure in favour of the complainant, prohibiting his deporta- tion from Malta pending the outcome of a constitutional case he filed. The applicant, an Albanian national, was fostered in Malta from a very young age and has resided in Malta ever since. He was served with a removal order and a return decision by the Chief Princi- pal Immigration Officer. Following the confirmation of both by the Immigra- tion Appeals Board, Coku instituted a human rights action, claiming that such measures violated his right to private and family life. However, prior to the outcome of his constitutional case, the complainant was informed that his deportation was imminent, and therefore filed an urgent request for an interim measure, asking the court to halt his deportation prior to deciding his case on the merits. The State Advocate opposed the request, ar- guing that the complainant had failed to exhaust ordinary remedies—appealing the Immigration Appeals Board's de- cision before the Court of Appeal. The complainant, however, maintained that the law did not provide for such an ap- peal in his circumstances, and thus his only available remedy was to seek con- stitutional redress. The court held that, even if an ap- peal was possible, the plaintiff's claims were of a purely human rights nature. The court emphasised that neither the Immigration Appeals Board nor the Court of Appeal had competence to de- termine constitutional questions or to grant the remedies available under the Constitution. Consequently, the State Advocate's argument was rejected. The constitutional complaint was founded on the claim that the com- plainant's deportation would itself constitute a breach of his fundamental rights under Article 8 of the European Convention on Human Rights which establishes the right to private and family life. The complainant argued that he was not merely an immigrant in Malta but a person who had been raised and fostered in the country from a very young age. Although of Albanian descent and nationality, he had never formed any connection with Albania. He had not entered Malta unlawful- ly as an adult; rather, he was brought to Malta as a child and raised here as though he were Maltese. His education was Maltese, his language was Maltese, and all his private and family ties were rooted in Malta. Therefore, he argued, enforcing the deportation order would uproot him entirely from the centre of his existence and send him to a country with which he had no meaningful link. The court noted that the complainant was contesting not only his deportation but also the underlying measures and decisions that could lead to it, given his unique status as a person raised and fostered in Malta. The complainant ar- gued that the deportation itself would constitute irreparable harm. Executing the deportation order, it was argued, would not only deprive him of the effec- tiveness of the remedy sought but also render his claim superfluous, as the vio- lation he sought to prevent would have already taken place. The court conclud- ed that the complainant had established an arguable case, and that, prima facie, a breach of his fundamental human rights could arise were the deportation to be carried out before the final deter- mination of his constitutional claim. The court recognised that no judi- cial pronouncement had invalidated or suspended the removal order or re- turn decision, which were therefore still presumed legitimate. Nonetheless, the court held that it was appropriate, for the proper administration of justice, to grant the applicant's request for an in- terim measure. The court ordered that the execu- tion of the removal order and return de- cision be suspended until a final judg- ment is delivered. This decree represents a logical and human rights-oriented development in the jurisprudence on interim measures in Malta. Traditionally, Maltese courts have adopted a restrictive approach, granting interim orders only where a constitutional threat poses a real and immediate risk to life or limb. This approach is derived from the jurisprudence of the European Court of Human Rights (ECtHR), an inter- national court of last resort which assumes that member states of the Council of Europe possess sufficient domestic safeguards to ensure effective human rights protection. However, this doctrine's application by Maltese courts has been strongly criticised by former human rights court Judge Giovanni Bonello in his book Misunderstanding The Constitution, where he argues that such an approach allows human rights violations to occur rather than preventing them. The decree in Artan Coku vs State Ad- vocate et marks a significant shift from the restrictive 'life or limb' threshold. The court's reasoning focuses instead on whether there exists a prima facie violation warranting protection until a final decision is delivered. The decree's emphasis on preserving the integrity and effectiveness of the eventual judg- ment, ensuring that a potential ruling in favour of the applicant is not rendered futile by his deportation, crystallises the principle that the human rights remedy is in itself not just declaratory, but also preventative. 8 maltatoday | SUNDAY • 16 NOVEMBER 2025 LAW Court issues interim measure halting deportation of Albanian national Andrew Drago Mifsud & Mifsud Advocates This decree represents a logical and human rights- oriented development in the jurisprudence on interim measures in Malta The Constitutional Court issued an interim measure to halt the deportation of an Albanian national who has lived all his life in Malta after having been fostered as a child by a Maltese family