Grave offence outweighs childhood ties in a removal case

The Constitutional Court, composed of Chief Justice Mark Chetcuti, Mr Justice Anthony Ellul and Mr Justice Robert G. Mangion, decided on 13 July 2026 an appeal by the State Advocate and the Principal Immigration Officer from a judgment of the First Hall of 27 November 2025.

The First Hall had found that a return decision and removal order against C.A., an Albanian national who has lived in Malta since childhood, breached his right to private and family life under article 8 of the Convention, and had ordered their revocation. The Constitutional Court rejects the three procedural grounds of appeal, upholds the fourth on the merits, annuls the finding of breach and dismisses the claims, with the costs of both instances on the applicant.

The facts

The applicant came to Malta as a young child and was brought up by a Maltese family, without any formal adoption or fostering. He was educated and worked here and speaks and writes Maltese. In 2017 he assisted the authors of a hold-up at a jewellery shop and associated with others to commit that crime.

On 14 February 2023 he admitted complicity in aggravated theft by violence and criminal association and was sentenced to four years' imprisonment, which he had already served on remand. On his release the Principal Immigration Officer served him with a return decision and a removal order of the same date, carrying an entry ban of five years, and he was detained pending removal.

The Immigration Appeals Board rejected his appeal on 3 August 2023 and the same day he filed a constitutional application asking for the decisions to be declared in breach of article 8 and article 32(c) of the Constitution and revoked, and for damages.

What the court held

On the first ground, the court agrees that nothing stopped the applicant from appealing the Board's decision on a point of law to the Court of Appeal under article 25A(8) of the Immigration Act (Chapter 217).

But where the First Hall has exercised its discretion under article 46(2) of the Constitution and article 4(2) of Chapter 319 and gone on to find a breach, the Constitutional Court will not disturb that discretion and leave the finding hanging, as it held on 19 January 2026.

The third ground, that the action was a disguised third-instance appeal and frivolous under article 46(5), fails because the claims do not attack the Board's findings of fact but ask whether the decisions breach fundamental rights.

On the second ground, article 181B of Chapter 12 vests the representation of the Government in the head of the department concerned, and the State's interest in the removal claims lies with the Principal Immigration Officer, not the State Advocate (Constitutional Court, 24 June 2024).

But the State Advocate was admittedly a proper defendant to the claim against the Board's decision, and a defendant cannot be a legitimate contradictor for some claims and not for others: whether each claim is founded against each defendant is a question of merits, not of standing.

On the merits, a foreigner has no Convention right to reside in a given country, however long settled (European Court of Human Rights, 18 October 2006).

For a settled migrant without a family of his own, the relevant criteria are the nature and seriousness of the offence, the length of stay, the time elapsed and conduct since, and the solidity of ties with the host and destination countries; where the migrant spent his childhood in the host country, very serious reasons are needed (European Court of Human Rights, 23 June 2008).

The offence here is grave, and «Jekk il-parteċipazzjoni tar-rikorrent fil-hold up kinitx ‘fundamentali’ jew le hija irrelevanti għall-finijiet ta' din il-kawża» [whether the applicant's participation in the hold-up was ‘fundamental’ or not is irrelevant for the purposes of this case]: complicity in theft aggravated by violence, means and value is manifestly serious.

On ties, «mill-atti ma tirriżultax dik l-integrazzjoni li għandha tegħleb il-miżien favur ir-rikorrent minkejja ir-reat gravi» [the acts do not show the degree of integration that would tip the balance in the applicant's favour despite the grave offence].

He has no family in Malta, left the Maltese family of his own accord as an adult, moved among other Albanians here and abroad, keeps a close relationship with his grandfather in Albania, speaks the language, holds an Albanian passport and visited often.

The entry ban is limited to five years under regulation 7 of Subsidiary Legislation 217.12 and may be withdrawn on request, a factor that weighs for proportionality (the Strasbourg judgments of 23 June 2008 and 18 October 2006). The decisions therefore do not breach article 8.

Why it matters

A settled migrant resisting removal after a serious conviction must prove integration with evidence of family, work and dependence in Malta, not length of stay alone. The appeal on a point of law under article 25A(8) is an available remedy, but a First Hall that chooses to hear the case anyway will not be second-guessed on that choice once it finds a breach.

Where it sits

The case applies the article 8(2) tests of legality, legitimate aim and necessity in a democratic society, with necessity meaning a pressing social need (European Court of Human Rights, 22 October 1981), through the settled-migrant criteria of Strasbourg judgments against Switzerland, the Netherlands (18 October 2006) and Austria (23 June 2008).

On exhaustion it follows the Constitutional Court judgment of 19 January 2026; on the limits of constitutional review, that of 20 October 2025; on the weight of the offence, Strasbourg judgments against Germany (28 June 2007) and Denmark (12 November 2024); on family ties between adults, a further judgment against Denmark (23 October 2018).

Source

Constitutional Court, 398/2023/1, 13 July 2026: 398/2023/1