Maltese-Libyan couple lose bid to stop deportation

The First Hall of the Civil Court has dismissed a constitutional application filed by a Maltese woman and her Libyan partner who claimed that a deportation order issued against the latter would violate their fundamental human right to family life.

Alexia Portelli and Wessam Mohammed Elsrmani claimed in their application - filed against the Minister for Home Affairs and the Principal Immigration Officer - that that they had a relationship and had two children who were under the age of four.

Although unmarried, they declared that they constituted a normal family.

Mr Elsrmani's visa had expired and he had been arrested by the immigration branch of the police. A removal order had been issued against him and this had been confirmed by the Immigration Appeals Board.

Ms Portelli and Mr Elsrmani claimed that the removal of Mr Elsrmani from the country would be in violation of their right to respect for their family life and they requested the court to grant them a remedy.

The court heard that Mr Elsrmani, a Libyan national, had been found to be in Malta illegally and that a removal order had been issued against him.

In his judgment, Mr Justice Giannino Caruana Demajo noted that the state was bound not to interfere in the private family life of an individual unless such interference was reasonably required in the interests of a democratic society.

Mr Justice Caruana Demajo declared that Ms Portelli and Mr Elsrmani had constituted a family but this did not mean that the ordinary laws of the land did not apply.

It resulted that the first child allegedly born to the couple was registered at birth as being the son of Ms Portelli's estranged husband.

If the child were really the offspring of the applicants, then they had remedies available to them at law in order to have the child registered under Mr Elsrmani's name.

However, the court accepted evidence that the second child born to applicants was their offspring.

The court added that it had to examine whether applicants had a private and family life at the time when the deportation order was made and executed.

Mr Elsrmani had been removed from Malta for the first time in April, 2001, prior to the birth of the eldest child born to Ms Portelli. At this time the relationship between the applicants was in its very early stages.

One could not therefore say that the removal order issued in these circumstances was in violation of the law, for international law recognised the right of the state to control entry to its shores.

When the relationship between the applicants was established, Mr Elsrmani was already in the country illegally.

The fact that the last removal order against Mr Elsrmani was issued after he formed a family did not change his situation, for the order was issued because Mr Elsrmani had not obeyed previous removal orders against him.

Mr Justice Caruana Demajo therefore concluded that there was no unjustified interference on the part of the authorities into applicants' family life and dismissed the application.

The court also noted that the minister ought not to have been made a party to the suit.