Court of Human Rights finds Malta discriminated against Briton

Had the boy been born within a marriage he would have been able to obtain citizenship

Malta discriminated against a British teenager, who has a Maltese father, when it refused to grant him citizenship because he was born out of wedlock, the European Court of Human Rights has ruled.

The court found that Maltese citizenship law discriminated against the boy because it did not allow him automatic citizenship since his father, and not the mother, was Maltese.

The boy, now 15, was born in Scotland in 1996. His mother is British. The father refused to acknowledge his son but the paternity was eventually determined both biologically and judicially.

The Maltese courts had rejected a request to grant the boy Maltese citizenship, quoting an article in the law laying down that children born out of wedlock were only eligible for Maltese citizenship if their mother was Maltese. The mother insisted this was discriminatory and that her son had a right to Maltese citizenship.

Six out of the seven judges sitting on the European Court of Human Rights found last week that the boy’s right to private life had been breached as a result of discrimination based on his illegitimacy. Had the boy been born within a marriage he would have been able to obtain Maltese citizenship, the court noted.

Maltese judge Geoffrey Valenzia dissented, arguing that, while there had been discrimination on grounds of illegitimacy, he did not believe this was a case of breach of the right to private life.

Through the Malta High Commission in the UK, the mother had started proceedings to obtain Maltese citizenship for her son the year he was born. In 1996, the High Commission informed her that, since she was not Maltese and the Maltese father was not officially recognised on the birth certificate, the boy was not entitled to Maltese citizenship.

She then instituted proceedings in Scotland where the courts declared the father as the biological parent and amended the boy’s birth certificate. In 2003, the Maltese courts also recognised the father and ordered him to pay maintenance. However, the boy was still not granted citizenship due to the law on illegitimate children born to foreign mothers. The mother filed a constitutional case in Malta claiming that this was discriminatory.

Following a series of constitutional battles, which went on until 2009, the court turned down the mother’s request, which led her to take the case to the European Court of Human Rights, arguing that the Maltese citizenship law discriminated against her son and deprived him of his right to family life and private life.

The government argued that, in 2007, the law had been amended to allow the boy to apply but he had not. However, the mother insisted that the boy should not have to apply because he had a right to citizenship given that one parent was Maltese.

The government justified the disputed provision on citizenship on grounds that “children born in wedlock had a link with their parents resulting from the marriage whereas such link was missing in cases of children born out of wedlock”. In such cases, the government argued, it was always clear who the mother was but this did not apply to the father.

The court rejected this argument saying that “no reasonable or objective grounds have been adduced to justify such difference of treatment of the applicant as a person born out of wedlock”.

The government insisted there was no breach of family life because the boy never had a relationship with his father. But the court noted that, even in the absence of a family life, the teenager’s right to a private life had still been breached.

Lawyers Kevin Dingli, Austin Bencini and Lorna Mifsud Cachia represented the boy.

The government was represented by Attorney General Peter Grech.


(2011-10-19/timesofmalta.com)