Court rejects human rights violation plea

Mr Justice Noel Cuschieri, sitting in the First Hall of the Civil Court, dismissed a constitutional application filed by Libyan national Samir El Yeferni against the authorities.

In his application filed against the Prime Minister, the Attorney General, the Minister for Justice and Home Affairs, the Police Commissioner and the Principal Immigration Officer, Mr El Yefemi claimed that a removal order issued in his regard was in violation of his fundamental human right to the protection of family life.

The court heard that the applicant had been found guilty by the Magistrates' Court, in December 2000, of various serious charges, including rape, offences against the person, seizure of a person and corruption of a 14-year-old girl and had been sentenced to five years' imprisonment. The Magistrates' Court had ordered the removal of Mr El Yefemi from the country after he served time.

The Court of Criminal Appeal had confirmed this judgment in September 2001.

Article eight of the European Convention of Human Rights declared that everyone was entitled to respect for his family life. The court had to establish whether the applicant had a family life and whether the execution of the removal order would lead to a serious disruption in his family life.

The court had further to establish whether the removal order was a legal one in terms of the European Convention.

Judgments by the European Court of Human Rights had interpreted "family life" as having a wider meaning that marriage-based relationships.

According to this court, family life could encompass other de facto family times where the parties were living out of wedlock. Mr Justice Cuschieri declared that there was no doubt that the applicant had a family life.

After Mr El Yefemi was arraigned in the Magistrate's Court and granted bail, he had created a situation that had activated the provision of article eight in his regard. This was because after his release on bail, the applicant had resumed cohabiting with Kathleen Camilleri and their first child was subsequently born.

After the Magistrates' Court had sentenced the applicant to five years' imprisonment, he fathered another child with Ms Camilleri and, eventually, while serving time, he had married Ms Camilleri.

Judgments of the European Court had declared that the existence of family life was to be assessed at the time when the decision was made. No account was to be taken of the establishment of family life between the making of a deportation order and its intended execution.

Furthermore, the European Court had declared that article eight of the European Convention did not impose a general obligation to respect the choice of residence of a married couple or to accept the non-national spouse's choice for settlement in that country.

In this case, it clearly resulted that when the applicant's first child was born, he and his partner were conscious of the fact that there was the threat of a removal order against Mr El Yefemi.

They also ignored the situation created when the Magistrates' Court had ordered the applicant's removal from the country, for one year later they had another child.

The court added that there did not seem to be any serious impediment that prevented the applicant from enjoying his family life in his country of origin.

Mr El Yefemi still held Libyan nationality and there was no legal reason that stopped him from returning to Libya. The fact that his children had been baptised was not relevant because the applicant had not produced any evidence to show that this would be an obstacle to normal life in Libya.

The applicant had freely chosen to baptise his children, even though he knew of the removal order, and his choice could not now be used to neutralise a removal order issued against him.

The fact that the applicant's children were still young enabled them to make new friends and this, too, was not an obstacle to their return to Libya.

The court concluded there was no insurmountable obstacle for the applicant to return to Libya to enjoy his family life. The court also concluded that the removal order against Mr El Yefemi had been issued in terms of law after the applicant had been found guilty of very serious crimes which showed he had not appreciated the hospitality shown to him by Maltese society.

The court therefore dismissed his application.