Court recommends man is given second chance to apply for work permit
Pawan Basnet's initial application for a work permit was refused as JobsPlus believed the prospective employer did not have enough work for him
The Court of Appeal has recommended that a third-country national whose Single Work Permit was rejected by Identità be given an ex gratia opportunity to regularise his position by being allowed to apply afresh.
Pawan Basnet filed proceedings before the Court of Appeal in its inferior jurisdiction seeking to overturn a decision by the Immigration Appeals Board.
The man had applied for a Single Work Permit and a residence permit with Identità in April 2024.
A month later, he was informed that his application had been refused.
The refusal came after JobsPlus carried out a due diligence exercise on Basnet’s prospective employer, Alexia Grima Arafa, and found she had affected redundancies of Maltese nationals, EU nationals or Third Country Nationals within the last 12 months for the same position for which Basnet had applied.
This was taken as an indicative factor that Basnet’s prospective employer did not have sufficient work and therefore did not justify the need for additional workforce within the same role.
JobsPlus objected to Basnet’s application on the basis of the declarations submitted by Grima Arafa, indicating redundancies and a lack of work.
Identità also informed Basnet that he did not hold legal status in Malta, unless he had alternative authorisation to stay in the country legally. He was warned that any further stay may be deemed in violation of the Immigration Act.
He then filed a letter before the Immigration Appeals Board, informing it through his lawyer about his intention to appeal Identità’s decision. Basnet was given 15 days to submit evidence and submissions, but none were filed.
The board rejected the appeal.
Basnet moved to appeal the IAB’s decision before the Court of Appeal in its inferior jurisdiction and requested that the Court revoke that decision and allow him to apply for a Single Work Permit.
He also raised several grievances, claiming that his right to a fair trial had been breached by the IAB, that the IAB’s decision did not contain any legal reasoning, among others.
The Court of Appeal underlined that Basnet, who was duly assisted, failed to bring evidence before the board and that in his letter, he only mentioned his intention to appeal.
It noted that Basnet could not claim a breach of his right to a fair trial when he failed to bring forward evidence.
He also claimed that he was not given a reasoned decision and that he was not allowed to clarify his position. However, the Court of Appeal underlined that it was clear that the shortcoming was coming from Basnet when he failed to substantiate his appeal before the IAB. It deemed the shortcoming “grievous” since he had been duly assisted, and should have known about the deadlines when it comes to filing documents.
Basnet was also aggrieved, claiming that he was being penalised for actions by third parties; however, this had to be substantiated before the board, not at this stage.
The court held that the authorities should not be held responsible for the “unfortunate” situation in which the man found himself.
“While this will not give comfort to Basnet, who came to Malta in search of a better life, he found that the prospective employer was not acting in good faith and neither was trustworthy,” Mr Justice Lawrence Mintoff said.
The appeal was rejected; however, the court highlighted that Basnet is a vulnerable individual for whom it is not easy to understand the bureaucratic processes of the country, even due to cultural and linguistic differences.
The court also highlighted that the prospective employer was not acting in good faith and the man was not properly assisted in the proceedings before IAB, before recommending that the man be granted ex gratia the opportunity to regulate his position and apply for a Single Work Permit without being constrained to leave Malta and incur further expenses.
A copy of the judgement was sent to the permanent secretary within the Home Affairs Ministry, Identità’s CEO and the Principal Immigration Officer.
Mr Justice Lawrence Mintoff presided over the Court of Appeal in its inferior jurisdiction.
Lawyers Adrian Sciberras and Karl Cordina assisted Basnet while lawyer Corinne Pace from the State Advocate's Office represented Identità.