Malta News

Malta’s new procedure for the Inspection of Illegally Staying and Illegally Employed Third-Country Nationals

Malta’s new procedure for the Inspection of Illegally Staying and Illegally Employed Third-Country Nationals and the Monitoring of Third-Country Nationals enrolled in Educational Establishments (Regulations)

The steady growth in Malta’s economy has brought new challenges with it, amongst which the increased and urgent demand for employees with the right skills or qualifications, particularly in the financial services and iGaming industries.

This in turn has led to an increase in the number of employees from non-EU countries (“third country nationals”), who would need to obtain a “single permit”, also known as a “work and residence permit”, from Identity Malta, in order to legally reside and work in Malta. The process for the obtainment of a single permit for a third-country national employee takes between ten to twelve weeks, and a number of documents, including qualifications and reference letters, have to be submitted, in the correct format, in support of an application for a specific job with a specific employer, before the application can meet with Identity Malta’s approval.

Local media has exposed various instances where third country nationals were not only working illegally in Malta, but also residing in Malta unlawfully and were consequently deported. While there was always a legal framework criminalising illegal employment, the Maltese Government recently passed Legal Notice 112 of 2019 entitled ‘Procedure for the Inspection of Illegally Staying and Illegally Employed Third-Country Nationals and the Monitoring of Third-Country Nationals enrolled in Educational Establishments Regulations’, which came into force on the 4th of June 2019.

In virtue of this Legal Notice, Officers of Identity Malta have been given authority to:

  • Enter any premises without prior notice, at any reasonable time where third country nationals work, reside or study including school premises, school annexes or places where private tuition or distance learning is being conducted, provided that, if the premises are residential, assistance by the Police is required;
  • Carry out in such premises any examination or inquiry which they deem fit in order to make sure that the requirements for the single permit are being observed;
  • Require any person to provide any documentation, extracts from any books, registers, attendance sheets, records relating to any activities carried out that goes on to confirm the conformity with the requirements for the single permit; and
  • Retain any copies of the above-mentioned documentation for such period as may be reasonable for further examination.

Should the Officers of Identity Malta, through the inspection visit, conclude that the individual in question is residing or working in Malta illegally, they are authorised to report their conclusions to the relevant Police authorities, and should a third country national be found guilty of working and residing in Malta illegally, he  would be deported to his country without delay.

On the other hand, in line with Subsidiary Legislation S.L 217.14 of the Laws of Malta, the employer would be liable, on conviction and in addition to any penalty imposed by the Court of Magistrates, to pay any outstanding remuneration to the illegally employed third country national, an amount equal to any taxes and social security contributions that the employer would have paid had the third country national been legally employed, including penalty payments for delays and relevant administrative fines, any cost arising from sending payments to the country to which the third country national was deported to, and the costs of the deportation.

It still remains to be seen on what basis the Officers of Identity Malta are going to target specific premises or individuals, in order not to fall into the trap of racially profiling people based on race, colour, language, religion, nationality or national or ethnic origin, while achieving the scope of this Legal Notice, which at its core, is intended to support the legal framework which is already in place to curtail abuse, protect the individual, and safeguard the Maltese economy.

 

This article was co-authored by Dr Charlotte Attard and Dr Davinia Cutajar.