Ombudsman lambastes registrar for violating asylum seekers’ right to marry
Joe Said Pullicino says public registry ‘completely ignorant’ of the fact that human rights are enjoyed by everyone, irrespective of ‘legality of presence’
Matthew Vella
Ombudsman Joe Said Pullicino delivered a stern lesson in human rights to the acting director of the Public Registry, who on several occasions refused the right to marry to ‘failed’ asylum seekers. In a letter to Carmel Abela, the Ombudsman told the registry director that his refusal to allow asylum seekers who had not qualified for refugee status or subsidiary protection, to get married, violated fundamental human rights.
“Your statement that ‘the right to marry… can be enjoyed by any person who enjoys legal status’ is fallacious,” Said Pullicino told Abela.
“Your submissions repeatedly imply a person who has no legal status to be in Malta does not enjoy fundamental human rights. Such statements are extremely dangerous and completely unacceptable. They are even more alarming when made by a Government Department that has the duty to ensure that fundamental human rights are fully respected and protected,” Said Pullicino said.
“Your Department appears to be completely ignorant of the fact that fundamental human rights, including those under review, are to be enjoyed by every human being whether legally or illegally in Malta or elsewhere… the State cannot impose as a limitation the added qualification of ‘legality of presence’ in the national territory.”
Said Pullicino also tore apart the acting director’s claim that rejected immigrants who married in Malta would “enjoy the benefits of Malta’s legal (sic) or social support structures”.
It “is completely false”, the Ombudsman said. “A person exercising his fundamental right to marry does not, automatically by doing so, acquire any right or benefit under ordinary law to which he would otherwise not have been entitled. This is stating the obvious.”
The Ombudsman sent a copy of his final opinion to the Minister for Justice and Home Affairs, informing him that Abela had not accepted his opinion.
“He bases his objection on a number of questionable, and to my mind unacceptable, principles,” Said Pullicino told minister Carm Mifsud Bonnici.
The Ombudsman also asked him to confirm whether the registry director’s opinion reflected government policy.
Said Pullicino's investigation was prompted by complaints from Church’s Emigrants Commission, which said the Registrar was refusing to publish marriage banns lodged by ‘rejected’ asylum seekers.
The registry claimed that marriages could only occur between “identifiable persons”, including refugees and those granted subsidiary humanitarian status.
The Commission said this problem was being experienced in various situations, such as two rejected asylum seekers wishing to marry each other; or a rejected asylum seeker wishing to marry someone enjoying protection, living abroad, or a Maltese national; and to those of Roman Catholic faith who are denied this right due to the existing Church-State agreement.
In one case, an Ethiopian widow whose husband was killed in 2005, had her application for asylum rejected. She wanted to marry an Eritrean who enjoyed humanitarian status, and declared they wanted to get married civilly in Malta and that they had already married here by Moslem rite in mosque. But they are being required to provide the Registrar with official documents from Ethiopia and Eritrea proving their identity.
In another case, a Catholic Ethiopian girl who came to Malta in 2006 and whose application for asylum was rejected, wished to marry an Eritrean citizen who was also Catholic and who came to Malta in 2004 and enjoyed humanitarian status. They were denied the right to marry civilly because she produced only a marriage certificate, and not an official birth certificate. They have a child born in Malta, who was baptised in a Catholic church but they were still being refused marriage in church before they were able to marry civilly.
In his report into the complaints, Said Pullicino said the distinction made by the public registry director, that marriage has to be celebrated between persons who were or who enter Malta legally, was “clearly unacceptable at law”.
The Ombudsman said that while this distinction was not allowed by Maltese law itself, it ran “counter to the very essence of a fundamental human right which seeks to protect the right of every person to establish formal legal relationships with the partners of their choice.”
Even if such a distinction existed at law, Said Pullicino continued, it would be counter to European human rights law.
Said Pullicino said that in the case where rejected irregular immigrants could not produce a birth certificate, not a rare occurrence in itself, the Registrar is bound to accept such other document or evidence “as he may deem adequate for the purposes of this Article”.
“The Registrar could not therefore discriminate between one category of irregular immigrants and another. Indeed he cannot even discriminate between irregular immigrants and other persons in Malta, including Maltese citizens.”
Said Pullicino added that rejected immigrants, upon release from detention, are given a temporary residence permit renewable every six months and therefore in possession of an official identity card. This allows them freedom of movement and the right to work regularly, even though they are liable to be repatriated to their country of origin at any moment.
While international conventions forbid the government from giving rejected immigrants a travelling visa, such a situation leads to cases were rejected migrants form relationships that lead to applications for permission to marry persons enjoying different and better status.
“While it cannot be excluded that some might attempt to enter into a marriage of convenience solely to avoid their rejected status, there is no doubt that other cases were genuine, especially where the relationship was stable and children were born out of it,” the Ombudsman writes in his report.
“The truth is that if a rejected immigrant is allowed to remain in the country he/she cannot be denied the right to marry and found a family. 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, albeit restricted to the national territory and temporarily, are then denied the fundamental right to marry and found a family.”
In his conclusions, Said Pullicino declared the policy of the Marriage Registrar and the Public Registry to refuse marriage banns to rejected immigrants on the basis that they are not identified “a breach or at least a threat to their fundamental right to marry. The policy is, in my opinion, in violation of Article 12 of the European Convention of Human Rights in that it imposes a restriction, limitation or prohibition that is not in pursuit of a legitimate aim and is not proportionate.”
The right to marry
It is established jurisprudence of the European Court of Human Rights that Article 12 of the European Convention secures the fundamental right of a man and a woman to marry and to found a family. This fundamental right is not absolute in the sense that anyone within the jurisdiction is free to marry any other person: the State has the right to regulate its exercise by laying down rules on the capacity of persons of marriageable age to marry.
The Strasbourg jurisprudence requires the right to marry to be treated as a strong right which may be regulated by national law both as to procedure and substance, but may not be subjected to conditions which impair the essence of the right. Moreover, regulation by national law cannot be discriminatory and incompatible with Article 14 of the Convention. It cannot target individuals with measures that interfere with their fundamental right to marry and that go beyond the regulation that Article 12 allows for the enjoyment of this right by all men and women of marriageable age.
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In a letter to Carmel Abela, the Ombudsman told the registry director that his refusal to allow asylum seekers who had not qualified for refugee status or subsidiary protection, to get married, violated fundamental human rights.
