The marriage registrar's policy to refuse to issue banns to immigrants who are not granted refugee status is in breach of their fundamental right to marry, the Ombudsman has found.
He ruled that it is discriminatory for the registrar to expect immigrants who are refused refugee or humanitarian status to produce a birth certificate to obtain the banns when this was clearly impossible.
"I can see no reason why rejected immigrants, who for whatever reason cannot be expelled from the country, are rightly given the enjoyment of other fundamental rights like freedom of movement and freedom to work... and then denied the fundamental right to marry and found a family," Ombudsman Joseph Said Pullicino said.
He added that the government was risking being accused of discrimination and breaching basic human rights.
Dr Said Pullicino handed down the decision on a complaint filed by Monsignor Philip Calleja, the head of the Emigrants' Commission.
Mgr. Calleja argued that the marriage registrar's policy was in breach of the right to marry.
He produced examples of cases (see box) when immigrants applied for their banns that were not issued because they did not produce birth certificates. However, in the case of people granted refugee or humanitarian status, the registrar issued the banns on the strength of documentation issued by the Refugee Commissioner and no birth certificate was required. This was discrimination.
The marriage registrar argued that marriage could only take place between identifiable people. Those granted refugee or humanitarian status were considered identifiable as opposed to rejected immigrants.
Dr Said Pullicino found that, according to the European Convention of Human Rights, all people of marriageable age had a right to marry, irrespective of whether they found themselves in a country illegally or legally.
This right applied so long as it was according to national laws that, however, could not restrict fundamental rights. The issue revolves around the need to produce a birth certificate to obtain the marriage banns. The law allows the marriage registrar to exercise discretion in cases then it is satisfactorily proven that it was difficult to obtain the certificate.
The Ombudsman said that it was known that, in certain cases, it was outright impossible for irregular immigrants to obtain the certificate that may not even exist in their war-torn countries.
Faced with such an impossibility, the registrar was duty bound to apply criteria that did not discriminate between those who obtained refugee status and those who did not. He was bound to accept other documentation - such as those issued by immigration authorities or sworn statements.
The Ombudsman found that the registrar's current policy was in breach of immigrant's fundamental right to marry and was discriminatory.
He recommended that the registrar take note of his conclusion and act accordingly to ensure fundamental rights were safeguarded.
For better of for worse: Three stories presented to the Ombudsman
• An Ethiopian widow came to Malta in July 2007 and her application for asylum was rejected. She wanted to marry an Eritrean man she met in Malta who enjoyed humanitarian status. After marrying in the mosque, they wanted to register a civil marriage. They are being requested to prove their identities through documentation from their homelands.
• An Ethiopian immigrant came to Malta two years ago and his application for refugee status was rejected. He wished to marry an Ethiopian woman who lived in the US and travelled to Malta for the wedding. The man produced a baptism certificate and a sworn statement. He was refused the right to marry as he failed to produce a birth certificate. The wedding had to be called off.
• A Catholic Ethiopian woman and Eritrean man wished to get married in Church. The couple have a child together but were denied the marriage banns because she failed to produce an official birth certificate. The Church did not allow them to marry before they obtain their civil marriage for which they need the certificate.