Asylum refusals go to judicial review before a rights claim

The Constitutional Court on 2 February 2026 dismissed an appeal by an asylum seeker who wanted a finding that his asylum claims were not fairly heard. It held that he should have used an ordinary civil action to review the decisions against him, so the constitutional courts were right to decline their powers. The case is R.W. vs L-Agenzija Ghal Protezzjoni Internazzjonali, heard by Chief Justice Mark Chetcuti, Mr Justice Giannino Caruana Demajo and Mr Justice Anthony Ellul.

The facts

The applicant arrived in Malta in 2012 and applied for asylum. The Commissioner for Refugees refused the claim in 2013. A later appeal to the Refugee Appeals Board was rejected because it was filed after the 15-day time limit in article 7 of the International Protection Act (Chapter 420 of the Laws of Malta).

He challenged that decision in an ordinary civil action, which failed. In 2019 he was issued a removal order and held in detention under the Immigration Act (Chapter 217), and he filed several new asylum applications, all refused. He was released in July 2019 because he could not be returned without travel documents.

In February 2022 he filed a constitutional case against the International Protection Agency, the tribunal, the ministry, the Commissioner of Police and the State Advocate. He claimed breaches of the right to a fair hearing under article 39 of the Constitution and article 6 of the Convention, and of the right to liberty under article 34 and article 5.

On 11 November 2022 the First Hall of the Civil Court upheld the plea that ordinary remedies had been available and declined to exercise its powers.

What the court held

The applicant raised two grounds of appeal. He argued that the Immigration Appeals Board was not impartial because its chairperson had given the decision under appeal, against the rule nemo iudex in causa propria (no one may be a judge in his own cause). He also argued that immigration law discriminates against people who are not EU citizens.

The court rejected the first ground. The complaint about the board was not in the original application, which concerned the agency and the International Protection Appeals Tribunal, and the appeal did not say which board decision was meant. In any event, nothing stopped the applicant from filing another ordinary civil action alleging a breach of natural justice, as he had done in 2015.

The court added that decisions on the entry, stay and removal of foreigners do not determine civil rights or a criminal charge. It relied on the European Court of Human Rights in X.H. v. Italy (28 March 2024). It also relied on its own judgment of 25 January 2023, which held that a procedural failing before the agency or the tribunal is remedied under the Administrative Justice Act (Chapter 490), not under article 39 or article 6.

On the second ground, the court found that the application had made no complaint under article 45 of the Constitution or article 14 of the Convention. It added that the applicant could not compare himself with an EU citizen, because EU member states are presumed to be safe countries that protect their own citizens.

The court rejected the argument that an ordinary action could not reach the agency's decisions. It held that whether the applicant should receive refugee status "mhijiex materja li għandha tiġi deċiża f’kawża ta’ din ix-xorta" (is not a matter to be decided in a case of this kind).

A wide discretion over remedies in a rights case, the court held, is not enough to defeat the plea. It found that "ir-rimedju li seta’ jingħata f’proċeduri ċivili ma jistax jingħad li ma kienx ikun effettiv, ġaladarba kien iwassal għat-tħassir ta’ deċiżjonijiet" (the remedy available in civil proceedings cannot be called ineffective, since it would have led to decisions being annulled).

The appeal raised no ground against the finding on detention. The court dismissed the appeal, with costs against the applicant.

Why it matters

A person refused international protection who alleges a procedural failing should seek judicial review in the ordinary courts, in time, before turning to the constitutional courts. A constitutional case filed instead can meet a plea under article 46(2) of the Constitution. Every complaint should also be in the original application, because the court noted that a new complaint on appeal was not properly before it.

Where it sits

The case applies the proviso to article 46(2) of the Constitution and article 4(2) of the European Convention Act (Chapter 319). The court may decline its powers where adequate means of redress are or were available under other law. Students learn this as the exhaustion of ordinary remedies, and a remedy does not become ineffective because the applicant lost.

The first court drew on a line of judgments holding that civil courts may review decisions of the refugee board and the tribunal for breach of natural justice or of the law, despite the finality clause in article 7(10) of Chapter 420. Among them were the Court of Appeal (28 September 2012) and the Court of Appeal (30 September 2016).

It also relied on the Constitutional Court (25 June 1999) and the Constitutional Court (27 October 2017) for the rule that a person who lets an ordinary remedy lapse cannot turn to constitutional proceedings instead. It cited the European Court of Human Rights (16 December 2020) to the same effect.

Source

Constitutional Court, R.W. vs L-Agenzija Ghal Protezzjoni Internazzjonali, 79/2022/1, 2 February 2026: 79/2022/1