Removal halted where no one weighed the child's best interests

The Civil Court, First Hall, sitting in its constitutional jurisdiction under Madam Justice Doreen Clarke, decided by decree in chambers on 2 September 2026 a request for an interim measure by C.D., a Serbian national, in his own name and on behalf of his minor son, against the State Advocate and the Principal Immigration Officer.

The applicant asked that he not be removed from Malta while his constitutional case is pending. The court, having granted the request provisionally on 17 August 2026 and heard the parties, grants it, with costs reserved to the final judgment.

The facts

The applicant has lived in Malta continuously since 2017. His last residence and work permit expired on 3 March 2023; he says his employment ended without notice, and he did nothing afterwards to regularise his position. He is divorced; custody of his son had been entrusted to the mother, who died in 2021.

The boy has lived in Malta since 2019 and attends school here. On 15 March 2026 the applicant admitted, and was convicted of, disobeying a lawful order, making a false declaration and driving without a licence and insurance. The same day he was declared a prohibited immigrant, a return decision, removal order and entry ban were issued, he was detained, and the child was placed in the care of third parties.

The Immigration Appeals Board rejected his appeal on 16 April 2026 and the Court of Appeal (Inferior Jurisdiction) rejected a further appeal on 15 July 2026. On 13 August 2026 he filed a constitutional application alleging breaches of article 8 of the Convention, of article 34 of the Constitution and article 5 of the Convention, and of article 13, together with this request.

What the court held

The court applies the five guidelines for interim measures set out in HSBC Bank (Malta) plc v. State Advocate (First Hall, 16 June 2020): no ordinary remedy available; a prima facie case of breach; irreversible harm to vital interests or to the court's examination; an imminent risk; and, where there is a res judicata, only exceptional cases. These mirror the Strasbourg practice, where interim measures mostly concern expulsion and may, exceptionally, protect family life under article 8.

The court stresses that the facts are particular. The orders bind the father alone; there is no order against the son. After the mother's death custody appears to rest with the father, and it remained with him after his detention.

No other relative lives in Malta, so without him the child falls to be entrusted to Maltese third parties. The father says the boy has strong ties to Malta and none, cultural, social or linguistic, to Serbia, and seems to exclude the child accompanying him.

The defendants answer that he brought the situation on himself and cannot now use the child to stay.

At this stage the test is prima facie only, not a judgment on the merits. The court draws on a Grand Chamber judgment of the European Court of Human Rights of 3 October 2014, paragraph 109: where children are involved their best interests must be given significant weight, and national decision-making bodies should assess evidence on the practicality, feasibility and proportionality of removing a non-national parent.

The only facts before the court come from the Board's decision and the Court of Appeal's judgment. The Board was given no evidence substantiating the alleged impact of removal on the child, and gave the allegations little weight; the applicant says his detention left him no time to produce it. The Court of Appeal noted that documents he had filed in a bail request were not in the appeal acts and could not be considered.

The court concludes that there may have been information relevant to the child's best interests, and to the proportionality of the removal order, that could have been brought before and considered by the competent authorities, and that, given the weight those interests carry, «mad-daqqa t'għajn jidher li jista' jkun hemm każ ta' ksur tad-drittijiet fundamentali tar-rikorrenti» [at first sight it appears that there may be a case of breach of the applicants' fundamental rights].

The other elements are also met. Immediate removal would not affect the course of the court's own examination, but the protection of the child's interests during the main proceedings, so that possibly irreparable harm is not done, requires that the orders not be executed for the time being. The request is granted as framed; costs are reserved.

Why it matters

A removal order against a parent whose child stays behind can be held up at the interim stage if the record shows that the child's best interests were never examined on evidence, even where the parent's own conduct is unattractive and his appeals have failed. Practitioners should put the evidence on the child before the Immigration Appeals Board, and again in the appeal acts, since documents filed in a bail request will not be read there.

Where it sits

The decree applies the implied power to grant interim measures under article 46(2) of the Constitution and article 4 of Chapter 319, structured by the HSBC Bank (Malta) guidelines, which rest on First Hall judgments of 14 December 2017 and 9 June 2016, Federation of Estate Agents v. Director General (Competition) (Constitutional Court, 25 September 2014) and a First Hall judgment of 19 April 2016.

On the substance it applies the article 8 balancing for settled migrants set by the Grand Chamber in 2006, with the best-interests principle stated by the Grand Chamber on 3 October 2014, as restated in the Strasbourg guides on article 8 and on immigration.

Source

Civil Court, First Hall (Constitutional Jurisdiction), 268/2026/1, 2 September 2026: 268/2026/1