SCHEMBRI v. MALTA
Inadmissible
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
1. The applicant, Ms Concetta Schembri, is a Maltese national who was born in 1944 and lives in Rabat. She was represented before the Court by Dr M. Camilleri, a lawyer practising in Valletta. The Maltese Government were represented by their Agent, Dr Peter Grech, Attorney General. 2. The facts of the case, as submitted by the parties, may be summarised as follows: 3. In 2004 S., a Pakistani citizen of Afghan origin, arrived irregularly in Malta by boat and was detained under the applicable immigration laws. While in detention, S. met C., the applicant’s brother, who worked with the detention services. 4. Following his release from detention in 2005, S. maintained contact with C. and started carrying out some maintenance work in the latter’s house. S. eventually started living in that house in October 2005 and met the applicant, with whom he started a relationship. It appears that for some time the applicant also lived there while renovation work was being carried out in her own place. Three months later S. wanted to marry the applicant, but she did not agree. According to the Government, the applicant and S. had only gone out together once and S. spoke little English; however, during the domestic proceedings (see paragraphs 5, 12 and 15 below), the applicant stated that she had originally got to know S. online and that after they had met they had sometimes gone out together – when asked whether their outings had been romantic she replied that they had been normal outings. 5. After some time, in 2006, once his asylum application (at first instance) had been rejected, S. entered Italy unlawfully and went to Naples. According to the applicant’s testimony S. contacted the applicant around a month later by phone and the two remained in contact via telephone calls around twice a week. An appeal against the asylum decision was never examined since S. could not be traced. 6. In November 2007 the applicant went to Milan on holiday and met S. again; she then prolonged her stay. In December 2007 her brother and the latter’s daughter joined them and on that occasion the applicant and S. decided to get married. According to the applicant she lived with S. for some time and then returned to Malta for a few months before returning to Italy in March 2008. The Government submitted that there was no evidence of their cohabitation. 7. On 19 March 2008 the applicant married S., who was thirty years her junior, under the regime of separation of estates. The rest of the applicant’s family (save for C.) was not informed. They married in Milan, Italy and their marriage was registered in the Public Registry of Malta in the same year, given that one of the spouses was a Maltese national. 8. According to a declaration by two Italian lawyers (who had assisted the applicant) dated 2011, to their knowledge the applicant and S. lived together before and after their marriage until they went abroad. 9. In April 2008 the applicant and S. went to the Maltese embassy in Rome in order to apply for a visa for S. He was interviewed in that connection. According to the applicant, following the interview S. was informed verbally that he would not be granted a visa to enter Malta. No written decision was issued nor was he informed about any possibility of appeal. The applicant alleged that it had been suggested to S. that he go back to Pakistan wherefrom he could apply for an entry visa. The embassy denied this (during the domestic proceedings), their position being that his visa had been refused because during the interview it transpired that S. had been lying, in particular concerning the status of his stay in Italy and the means by which he had entered Italy, and his means of subsistence. In her testimony the Consul stated that she had consulted the Central Visa Unit in Malta (“the Visa Unit”) and submitted a report to this effect, and subsequently, on an unspecified date, a letter had been sent to S. rejecting his application. 10. In May 2008 the applicant went back to Malta to ask for a review of the decision taken by the embassy and to try to obtain a visa for her husband through the Visa Unit in Malta. She was informed that she had to write a letter to the Visa Unit outlining her request. She followed this instruction on 5 August 2008 and then returned to Italy on 8 August 2008. She continued communicating with the Visa Unit, but no decision was communicated to her. 11. In October 2008 S. returned to Pakistan to try and obtain an entry visa from there. However, the Italian embassy in Islamabad could not provide assistance. 12. In the meantime the applicant had returned to Malta and continued pursuing the application for an entry visa from there. She was sent from one office to another to no avail. On an unspecified date, at a meeting with M.C. and J.M. (two employees of the Visa Unit), the applicant, who referred to having met S. online, was told that if the visa were to be issued she would have to give personal guarantees with regard to the financial support of her husband. She accepted that responsibility. No attempts were made to contact S. and no decision ensued. 13. It appeared that an internal board had started to investigate the applicant’s complaint. It also transpired that the authorities suspected that the applicant’s marriage to S. had been one of convenience, which was why a visa would not be issued. Moreover, it appeared that S.’s intention was to stay in Rome. The Visa Unit submitted their conclusions to the department of Citizenship but no decision had been formally issued by the time the proceedings hereinafter mentioned were instituted. In any event, according to the applicant, the law did not appear to provide for a possibility to appeal against any such decision (unless it had been taken by the Principal Immigration Officer, which did not appear to be so in the present case). 14. On 23 July 2009 the applicant instituted constitutional redress proceedings complaining that the refusal to issue her husband a visa had been unlawful and had constituted a violation of Article 8 of the Convention. 15. The court heard evidence from a number of witnesses including the applicant (who reiterated the facts as mentioned above), but not S., who did not testify. 16. J.M., the director of the Department of Citizenship, stated that S. was an exempt person but that his status had not yet been confirmed. He explained that exempt status was an inherent right of a spouse of a Maltese citizen, unless the spouses did not live together or if there had been an order by the Minister responsible. He explained that he had been in contact with the Visa Unit and the embassy in Italy and that his role was to ensure that the legislation was not abused, particularly in the light of marriages of convenience, which were not rare and which could be detected through an EU Council Resolution which gave pointers on identifying such situations. He further testified that even with exempt-person status an individual could not automatically enter the country and a visa was still required. J.M. noted that the exempt-person status of S. had never been confirmed. At the same time he also stated that there was no application to be lodged, since an individual should not have to apply for something which belonged to him or her by right. He explained that there was an enquiry form requiring details of the exempt person and when this was filled in, a letter confirming the status would be sent out. However, J.M. stated that this was simply a formality because the exempt-person status was acquired as soon as the marriage was contracted. S. had never filled in this form, as he had never entered Malta following his marriage. Nevertheless, J.M. testified that an informal request had been made by the applicant, who had been accompanied by a lawyer. 17. M.S., another employee of the Visa Unit, stated that S.’s visa application had been refused but that there was a right of appeal – he later stated that it was not an appeal but a review or reconsideration. He declared that the Visa Unit had reviewed the case and decided that the application should be refused because there had been a suspicion that it had been a marriage of convenience. M.S. explained that the file had been sent to the Department of Citizenship and that the case had not yet been concluded, and no decision letter had been sent out. 18. By a judgment of 29 November 2011 the Civil Court (First Hall) in its constitutional jurisdiction dismissed the applicant’s claim. 19. The court rejected the Government’s objection as to non-exhaustion of ordinary remedies. It considered that the reconsideration procedure as undertaken by the Visa Unit in the present case could not be considered an effective remedy – it had taken too long, despite the Visa Unit having had all the relevant information from the Maltese embassy in Rome. Indeed the Visa Unit had had no reason to prolong issuing a decision, to the extent that it was never rendered. Furthermore, the procedure eventually came to a halt with the institution of the constitutional redress proceedings. Moreover, such a remedy was not independent of the Visa Unit since it was decided upon by the same unit. It followed that, having regard to the totality of the procedure and its ineffectiveness, the court had to exercise its constitutional competence to assess the merits of the complaint. 20. It also held that the applicant had had a juridical interest in lodging the complaint in her name, since her complaint was that as a result of the impugned actions or omissions, her own family life was being violated. 21. In connection with the merits, the court referred to the testimonies of the applicant, M.C. and J.M. and that the latter officials considered that S. needed a visa in order to enter Malta. This would have enabled him to apply for a residence permit and to travel in the Schengen area. 22. The court noted that the couple had never cohabited in Malta, and that the applicant had never had the intention to marry S. when he had been in Malta. Referring to general principles of the Court’s case-law, it considered that the couple had never envisaged having a family life together, and why the applicant had changed her mind and decided to marry S. in Italy was a mystery. The court was not convinced that the applicant’s decision to marry had been genuine – not once in her testimony had she declared her love for her husband, nor had she in the slightest touched on the level of intimacy she had with her husband, who was thirty years her junior; neither had she given an explanation about her change of mind, nor why she had not wanted to follow her husband to Pakistan. She had also admitted that she had not been living with her husband as he had been in Pakistan, thus implicitly admitting that she had been de facto separated. Thus, S. could not have expected to obtain exempt status, nor could it be said that there had been family life in the present case, and the authorities had simply applied the law. Furthermore, S. had shown a total disregard for the proceedings, having chosen not to submit any written testimony corroborating the applicant’s statements or challenging those of the authorities. The court considered that it was not for it to decide whether there had been a marriage of convenience; it sufficed to find that the authorities refusal to issue S. with a visa had not breached Article 8 of the Convention. 23. The applicant appealed. By a judgment of 26 April 2013 the Constitutional Court rejected the applicant’s appeal. 24. It considered that when they had been in Malta the applicant and S. had not formed a family, and their encounters had been rather ambiguous, tenuous and lacking any commitment towards each other. The same appeared to be the case of their life in Italy. While it was true that they had married there, the only commitment undertaken appeared to have been for S. to acquire a visa. The Constitutional Court pointed out that according to the Court’s case-law it was only genuine marriages undertaken according to law which were protected by Article 8 of the Convention. While the Constitutional Court was ready to accept that the marriage had been contracted according to law, it had to address the State’s argument as to whether the marriage had been a genuine one. 25. The Constitutional Court noted that the applicant had been aware of the precarious situation S. had been in (since he had been a third country national, thus requiring a visa to enter Malta) despite her claim that he had not required a visa. Nevertheless, S. had never instituted an ordinary remedy to challenge the refusal. It could not be ignored that the applicant had refused to marry S. when they had been in Malta, and had only changed her mind in Italy after a few months and despite the age difference between them. Their cohabitation in Italy had been temporary and they could not have aspired to making it permanent owing to a variety of reasons, specifically S.’s irregular status in Italy, the applicant’s refusal to follow him to Pakistan (which she had not proved would have been problematic), and the visa refusals by the Maltese authorities. Furthermore, the court was struck by the lack of commitment towards, and interest in the proceedings by S., who had not even bothered to submit written testimony, or at least to attempt to send a letter or make use of letters of request or other means which were available to persons not on the territory of the State. 26. All the above led the Constitutional Court to conclude that there had been no family life, within the meaning of Article 8 of the Convention, in the present case and that therefore there had been no breach of the applicant’s rights. 27. Part IV of the Immigration Act deals with “Prohibited Immigrants” and requires all, except those with a right of entry and residence according to the provisions of the Act, to obtain permission to enter Malta from the Principal Immigration Officer. 28. Part II of the Act concerning “Exempt Persons” provides that Part IV of the Act does not apply to exempt persons. The relevant provision, namely Article 4 (1) reads as follows: “The provisions of Part IV of this Act shall not apply to any person - (a) who is a citizen of Malta; or ... (g) who is the spouse of any person referred to in any of the foregoing paragraphs and is still married to and living with that person; ...” 29. The Act as applicable at the time of the present case provided, in its Article 25 A (5), for a review of a decision only in limited circumstances. It read as follows: “Any person aggrieved by any decision of the competent authority under any regulations made under Part III, or in virtue of article 7, article 14 or article 15 may enter an appeal against such decision and the Board shall have jurisdiction to hear and determine such appeals.” 30. For the purposes of comprehending the above, Part III of the Act concerns special provisions connected to the European Union, Article 7 concerns residence permits, Article 14 concerns removal orders and Article 15 concerns carriers. It follows that visas, which are dealt with in Article 8 (Part IV) of the Act are in theory excluded from any available review according to this provision. 31. Nevertheless, Regulation 19 of Subsidiary Legislation 271.04 provided, amongst its miscellaneous provisions, that “Any person aggrieved by any decision of the Principal Immigration Officer may appeal to the [Immigration Appeals] Board as provided for in article 25A(5) of the Act.” 32. In 2012, the situation regarding visa appeals was clarified by means of Regulation 2 of Legal Notice 2 of 2012 which reads as follows: “The Immigration Appeals Board has the competence to hear appeals related to the refusal, annulment or revocation of the visa with reference to the provisions of paragraph 3 of Article 32 and paragraph 7 of Article 34 of the Regulation (EC) No. 810/2009 of the European Parliament and of the [EU] Council of 13 July 2009 establishing a Community Code on Visas (Visa Code).” 33. The time limit of such an appeal was three days, eventually extended to fifteen days by Legal Notice 20 of 2013. 34. Article 38 of the Marriage Act reads as follows: “(1) Any person who contracts a marriage with the sole purpose of obtaining - (a) Maltese citizenship; or (b) freedom of movement in Malta; or (c) a work or residence permit in Malta; or (d) the right to enter Malta; or (e) the right to obtain medical care in Malta, shall be guilty of an offence and shall on conviction be liable to imprisonment for a term not exceeding two years. (2) Any right or benefit obtained by a person convicted of an offence under subarticle (1) on the basis of the marriage referred to in that subarticle (1) may be rescinded or annulled by the public authority from which it was obtained. (3) Any person who contracts a marriage with another person knowing that the sole purpose of such other person in contacting the marriage is one or more of the purposes referred to in subarticle (1) shall be guilty of an offence and shall on conviction be liable for the same punishment laid down in subarticle (1).” 35. Articles 1 to 5 of the (EU) Council Resolution of 4 December 1997 read as follows: “1. For the purposes of this resolution, a ‘marriage of convenience` means a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State. 2. Factors which may provide grounds for believing that a marriage is one of convenience are in particular: - the fact that matrimonial cohabitation is not maintained, - the lack of an appropriate contribution to the responsibilities arising from the marriage, - the spouses have never met before their marriage, - the spouses are inconsistent about their respective personal details (name, address, nationality and job), about the circumstances of their first meeting, or about other important personal information concerning them, - the spouses do not speak a language understood by both, - a sum of money has been handed over in order for the marriage to be contracted (with the exception of money given in the form of a dowry in the case of nationals of countries where the provision of a dowry is common practice), - the past history of one or both of the spouses contains evidence of previous marriages of convenience or residence anomalies. In this context, such information may result from: - statements by those concerned or by third parties, - information from written documentation, or - information obtained from inquiries carried out. 3. Where there are factors which support suspicions for believing that a marriage is one of convenience, Member States shall issue a residence permit or an authority to reside to the third-country national on the basis of the marriage only after the authorities competent under national law have checked that the marriage is not one of convenience, and that the other conditions relating to entry and residence have been fulfilled. Such checking may involve a separate interview with each of the two spouses. 4. Should the authorities competent under national law find the marriage to be one of convenience, the residence permit or authority to reside granted on the basis of the third-country national’s marriage shall as a general rule be withdrawn, revoked or not renewed. 5. The third-country national shall have an opportunity to contest or to have reviewed, as provided for by national law, either before a court or before a competent administrative authority, a decision to refuse, withdraw, revoke or not renew a residence permit or authority to reside.”