On the 30th July 2021, the Court of Appeal (Inferior Jurisdiction) (the “Court”), presided over by Mr. Justice Lawrence Mintoff considered the time limit for the filing of an appeal from a decision of the Immigration Appeals Board. The facts of the case in the names of Mayong Chen vs. The Director of the Department for Citizenship and Expatriate Affairs, were as follows.
Mayong Chen (the “Appellant”) had applied for a single permit with the Director of the Department for Citizenship and Expatriate Affairs (the “Respondent”), which refers to a residence permit allowing third-country nationals to reside legally in Malta for the purpose of work. This application was lodged in terms of the ‘Single Application Procedure for a Single Permit as Regards Residence and Work and a Common Set of Rights for those Third-Country Workers Legally Residing in Malta Regulations' (Subsidiary Legislation 217.17 of the Laws of Malta) (the “Single Permit Regulations”). The Identity Malta Agency rejected the application for a single permit since this was not recommended for approval by JobsPlus because there was no evidence that the Appellant was eligible to the investment criteria. The Appellant availed of his right to appeal to the Immigration Appeals Board in terms of regulation 20(2) of the Single Permit Regulations and claimed that the investment criteria does not apply to persons who have a long-term residence permit issued by another member state of the European Union. However, the Immigration Appeals Board observed that the appeal was filed outside the time limit afforded by the law of three working days from the decision subject to appeal, and therefore declared the appeal null.
The Appellant then lodged a second appeal to the Court requesting the annulment of the Immigration Appeals Board's decision to reject the first appeal. The Court analysed the facts of the case and noted that the Identity Malta Agency issued its decision to reject the single permit application on Thursday 17th September 2020. No evidence was presented as to the manner in which the Appellant was notified of this decision and the Court therefore assumed (from the point of view most suitable to the Respondent) that the decision was notified to the Appellant on Friday 18th September 2020, at least one day after it was posted.
The ‘Immigration Act' (Cap. 217 of the Laws of Malta) provides that an appeal must be filed in the registry of the Immigration Appeals Board within three working days from the decision subject to appeal. The Court noted that the ‘Code of Organization and Civil Procedure' (Cap. 12 of the Laws of Malta) states that “any legal or judicial time the running of which is dependent on an act requiring service or publication, shall commence running from the day on which such act has been duly served or published”. It also states that “where any legal or judicial time is to be reckoned from a stated day, such day shall not be considered as included in the time itself; and where it is to be reckoned by hours, the hour in which service is effected shall not be considered as included in the time”.
As a result, the Court established that if one considers that the decision of the Identity Malta Agency was notified to the Appellant on the 18th September 2020, this date should not be included within the time limit for the filing of the appeal. The 19th, 20th and 21st September 2020 were also to be excluded since they fell on the weekend and a public holiday. The Court, therefore, concluded that the appeal to the Immigration Appeals Board was filed within the time period prescribed by law, since it was filed on the 24th September 2020. The Court quoted the Latin maxim dies a quo non computator in termino (meaning the day from which is not counted in the term) and ordered that the acts of the case be returned to the Immigration Appeals Board for consideration of the merits of the appeal.
Originally Published by The Malta Independent
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