Regulations, 2006

L.N. 278 of 2006

IMMIGRATION ACT

(CAP. 217)

Status of Long-term Residents (Third Country Nationals)

Regulations, 2006

IN exercise of the powers conferred by articles 4A and 36 of the

Immigration Act, the Deputy Prime Minister and Minister for Justice

and Home Affairs has made the following regulations>-

Part I

Purpose, Definitions and Scope

(1) The title of these regulations is the Status of Long-term

Residents (Third Country Nationals) Regulations, 2006.

(2) The purpose of these regulations is to implement the

provisions of Council Directive 2003#109#EC concerning the status of

third-country nationals who are long-term residents in determining>

(a) the terms for conferring and withdrawing long-term

resident status granted in relation to third country nationals legally

residing in Malta and the rights pertaining thereto<

(b) the terms of residence in Malta of a third country national

who was conferred the status of long-term resident in another

Member State.

(3) These regulations shall come into force on the 1

November 2006.

In these regulations, unless the context otherwise requires –

“the Act” means the Immigration Act<

“average wage” means the average annual gross wage

published by the National Statistics Office in the Labour Force

Survey<

“the Board” means the Immigration Appeals Board

constituted under article 25A of the Act<

“the Director” means the Director for Citizenship and

Expatriate Affairs<

“employment licence” means the licence referred to in Article

11(3) of the Act<

“family members” of the third country national granted long-

term resident status means the following persons who are residing

in Malta>

(a)

the spouse who shall be twenty-one years of age or

over>

(b) the unmarried minor children and of his spouse,

including children adopted in a manner recognized by Maltese

law<

(c) the unmarried minor children, including adopted

children, of the long-term resident or of the spouse, as the

case may be, where the long-term resident or the spouse has

custody and the children are dependent on him<

(d) the children of the long-term resident or of his

spouse, whose custody is shared, provided that the other party

sharing custody has given his agreement and who have been

authorized by the Director to reside in Malta with him<

“long-term resident” means any third country national who

has long-term resident status as provided for under regulations 4

to 7 hereof<

“long-term resident’s EC residence permit” means a residence

permit issued by any Member State, including Malta, upon the

acquisition of long-term resident status<

“Member State” means any State which is a member of the

European Union<

“national minimum wage” means the wage published by

means of a national minimum wage national standard order under

the Employment and Industrial Relations Act<

“Principal Immigration Officer” means the person appointed

to such office by the Prime Minister under Article 3 of the Act and

includes, within the limits of any authority granted by the Principal

Immigration Officer under article 3(3), any public officer acting

under such authority<

“refugee” means any third country national or stateless person

enjoying refugee status as defined in Article 2 of the Refugees

Act<

“third country national” means a person who is not a citizen

of a Member State<

“uniform residence permit” means a permit issued under

Article 4A of the Immigration Act and, in particular, any

authorization giving the right of residence within the territory of

Malta to a third country national who is not dependent upon a

citizen of the Union.

(1) These regulations shall apply to third country nationals

who reside legally in Malta.

(2) These regulations shall not apply to third country

nationals who reside in Malta>

(a)

in order to pursue studies or vocational training<

(b) on the basis of temporary protection in line with the

Temporary Protection for Displaced Persons (Minimum Standards)

Regulations, 2005 or have applied for authorization to reside on

that basis and are awaiting a decision on their status<

(c) on the basis of a subsidiary form of protection in

accordance with international obligations, national legislation or

practice or who have applied for authorization to reside on that

basis and are awaiting a decision on their status<

(d) as refugees or who have applied for recognition as

refugees and whose application has not yet given rise to a final

decision<

(e) solely on temporary grounds such as au pair or seasonal

workers, or as workers posted by a service provider for the purposes

of cross-border providers of services or in cases where their

residence permit has been formally limited< and

(f) who are enjoying legal status governed by international

conventions on diplomatic and consular relations.

PART II

Duration of Residence

(1) The Director shall grant long-term resident status to third Grant of long-term

resident status.

country nationals who have resided legally and continuously in Malta

for five years immediately prior to the submission of the application

referred to in sub-regulation (1) of regulation 5.

(2) In calculating the period of five years provided for in

sub-regulation (1)>

(a) periods of residence for the reasons stated in regulation

3(2)(e) and (f) shall not be taken into account<

(b) only half of the periods of residence for study purposes

or vocational training purposes as stated in regulation 3(2)(a) may

be taken into account.

(3) In calculating the period of five years provided for in

sub-regulation (1), a temporary absence from Malta shall not interrupt

such period and shall be taken into account in the compilation of the

said period when the periods of absence are shorter than six consecutive

months and do not exceed the total of ten months within the five year

period>

Provided that, for exceptional reasons of a temporary nature,

the Director may consider a longer period of absence than that referred

to in sub-regulation (3) as not interrupting the said period of five years.

(1) A third country national wishing to obtain long-term Conditions for

resident status shall submit an application in writing to the Director. acquiring

resident status.

(2) When applying for long-term resident status in

accordance with sub-regulation (1), the third country national shall

provide evidence that he has>

(a) stable and regular resources which are sufficient to

maintain himself and the members of his family without recourse

to the social assistance system in Malta and which would be

equivalent to, at least, the amount of the national minimum wage

in Malta with an addition of another twenty percent income or

resources for each member of the family<

(b) accommodation regarded as normal for a comparable

family in Malta and which meets the general health and safety

standards in force in Malta<

(c)

a valid travel document<

(d) sickness insurance in respect of all risks normally

covered for Maltese nationals for himself and the members of his

family<

(e)

met the conditions set out in regulation 4.

(1) The Director may refuse to grant an application for long

term resident status made by a third country national on grounds of

public policy or public security.

(2) A refusal in terms of sub-regulation (1) shall not be

founded on economic considerations.

(3) When taking the relevant decision in accordance with

sub-regulation (1) of this regulation, the Director shall consider the

severity or type of offence against public policy or public security, or

the danger that emanates from the person concerned, while also having

regard to the duration of residence in Malta and the existence of links

therewith.

(1) The Director shall give the applicant written notification

of the decision as soon as possible and, in any event, no later than six

months from the date when the application was lodged>

Provided that, in exceptional circumstances which are linked

to the complexity of the case, the time limit of six months may be

extended by another period of six months.

(2) The Director shall notify the applicant when the period

for the examination of the application is extended.

(3) The written notification shall include information about

the rights and obligations of the third country national that arise under

these regulations.

(4) In the event that the Director fails to give a decision

within the period specified in sub-regulation (1), the application shall

automatically be passed on for appeal to the Board.

(5) If the conditions provided for by Regulations 4 and 5

are met, and the person does not represent a threat within the meaning

of Regulation 6, the Director shall grant the third country national

concerned long-term resident status.

(1) Without prejudice to the provisions on the withdrawal Long-term

resident’s EC

or loss of the status in accordance with regulation 9, the status of long- residence permit.

term resident shall be permanent.

(2) The long-term resident’s EC residence permit shall be

valid for five years and shall be automatically renewable upon

application.

(3) The Director shall issue a uniform residence permit and

shall enter the words “long-term resident – EC” thereon.

(1) A long-term resident shall lose his long-term resident Withdrawal or loss

of status.

status in the following cases>

(a) if it is proved that the resident had acquired his long-

term resident status through fraudulent means<

(b) if the Principal Immigration Officer has issued an order

for his removal in accordance with regulation 12<

(c) if the long-term resident has been absent from the

territory of the European Union for a period of twelve consecutive

months<

(d) if the long-term resident has acquired a long-term

resident status in another Member State<

(e) if the long-term resident is absent for six years from

Malta and is residing in another Member State<

(f) if he constitutes a threat to public policy, taking into

consideration the seriousness of the offence he committed>

Provided that, in the case of specific and exceptional

circumstances relating to sub-regulation (1)(c) and specific

circumstances relating to sub-regulation (1)(e), as may be

determined by the Director, the long-term resident shall not lose

his status.

(2) The Director shall facilitate the re-acquisition of long-

term resident status in Malta when such person was absent from Malta

in accordance with sub-regulation (1)(c) or (1)(e), and, in particular, in

the case of sub-regulation 1(e), when the absence was due to pursuit of

studies.

(3) The expiry of the long-term resident’s EC residence

permit shall not entail the withdrawal or loss of the long-term resident

status.

(4) Where the withdrawal or loss of long-term resident status

does not result in the removal of the third country national from Malta,

and the third country national does not constitute a threat to public policy

or public security, he shall be issued with a residence permit provided

that he meets the conditions referred to in regulation 5.

(1) When notifying the third country national of his

decision, the Director shall give reasons for such decision rejecting an

application for long-term resident status or withdrawing that status, and

shall inform him about the redress procedures available.

(2) Where an application for long-term resident status is

rejected or that status is withdrawn or lost or the residence permit is not

renewed, the third country national shall have the right to appeal to the

Board.

(1) A third country national granted long-term residence

status in Malta shall enjoy equal treatment as Maltese nationals as

regards>

(a) access to employment and self-employed activity, as

long as such activities do not entail even occasional involvement

in the exercise of public authority or are reserved to Maltese

nationals<

(b) conditions of employment and working conditions

including conditions regarding dismissal and remuneration<

(c) education and vocational training, including study grants,

in accordance with the Education Act and regulations made

thereunder<

(d) recognition of professional diplomas, certificates and

other qualifications<

(e) social security, social assistance and social protection

in accordance with Maltese law<

(f)

tax benefits<

(g) access to goods and services and the supply of goods

and services made available to the public and to procedures for

obtaining housing<

(h) freedom of association and affiliation and membership

of an organization representing workers or employers or of any

organization whose members are engaged in a specific occupation,

including the benefits conferred by such organizations, without

prejudice to the general principles of public policy and public

security<

(i) free access to the entire territory of Malta within the limits

provided for by the national legislation for reasons of security.

(2) The equal treatment referred to in sub-regulation (1)(a)

as regards access to employment may be restricted if an order has been

made in accordance with regulation 5(7) of the Immigration Regulations, L.N. 205 of 2004.

2004 by the Minister responsible for employment.

(1) A third country national who has acquired long-term Protection against

expulsion.

resident status in Malta may be expelled from Malta through a removal

order issued by the Principal Immigration Officer when he constitutes

an actual and sufficiently serious threat to the public policy or public

security of Malta with due regard to the following factors>

(a)

the duration of residence in Malta<

(b) the age of the person concerned<

(c) the consequences for the person concerned and family

members<

(d) links with Malta as his country of residence or the

absence of links with his country of origin.

(2) The expulsion referred to in sub-regulation (1) shall not

take place for economic considerations.

PART III

Residence in Malta of Third Country Nationals granted

Long-Term Resident Status in another Member State

(1) A third country national who has been granted long-

term resident status by another Member State other than Malta may

reside in Malta, for a period exceeding three months, subject to the

conditions set out in this Part of these regulations and may do so for the

following reasons>

(a) the exercise of an economic activity in an employed or

self-employed capacity>

Provided that, without prejudice to any rights acquired in

accordance with the provisions of regulation 19, in order to

undertake such an activity the person concerned should be in

possession of an employment licence that has been issued after

the situation of the labour market in Malta has been examined by

the competent authorities<

(b) the pursuit of studies or vocational training<

(c)

other purposes.

(2) In applying the provisions of sub-regulation (1)(a)

preference may be given to EU citizens, to third country nationals when

provided for by Community law, and to third country nationals residing

legally and receiving unemployment benefits in Malta.

(3) This Part does not concern the residence of persons who

have been granted long-term resident status in other Member States

and are in Malta as>

(a) employed workers posted by a service provider for the

purposes of cross-border provision of services< or

(b) providers of cross-border services.

(1) A third country national who has been granted long-

term resident status in another Member State and who wishes to reside

as a second Member

in Malta shall apply to the Director for a residence permit as soon as

possible and, in any case, no later than three months after entering Malta.

(2) (a) The provisions of regulation 5(2)(b) to (e) shall

also apply in this case.

(b) The third country national shall provide evidence

that he has stable and regular resources which are sufficient to maintain

himself and the members of his family without recourse to the social

assistance system in Malta and which would be equivalent to the average

gross wage.

(3) The person mentioned in sub-regulation (1) may be

required to attend and successfully complete a Maltese language course.

(4) The long-term resident shall also submit his long-term

resident permit that had been issued to him in the other Member State

or a certified copy thereof.

(5) In addition to the provisions of sub-regulation (2), the

said person shall also provide the following>

(a) if he has entered Malta for the purpose of carrying out

an economic activity, he shall be required to furnish the

employment licence which has been issued for the purpose<

(b) if he has entered Malta for the purpose of study or

vocational training, he shall be required to furnish documentary

evidence of enrolment in an accredited establishment in order to

pursue studies or vocational training< and

(c) if he has entered Malta for any other purpose except for

those referred to in paragraphs (a) and (b) hereof, he shall be

required to provide documentary evidence, which shall be

determined by the Director, related to the purpose of his residence.

(1) When the long-term resident applies for a permit to Family members.

reside in Malta referred to in regulation 14(1), only the family members

referred to in Regulation 2 paragraphs (a) to (d) residing with him in

the first Member State, shall be authorized to accompany or join the

long-term resident in Malta

(2) With respect to the application to be made for a residence

permit, the provisions of regulation 14(1) shall apply.

(3) A family member referred to in sub-regulation (1) shall,

when applying for a residence permit in Malta, present>

(a) his long-term resident’s EC residence permit or residence

permit or a certified copy thereof<

(b) a valid travel document<

(c) evidence that he has resided as a member of the family

of the long-term resident in the first Member State<

(d) evidence that the long-term resident referred to in sub-

regulation (1) shall have stable and regular resources as required

in Regulation 14(2)(b) as well as sickness insurance in respect of

all risks normally covered for Maltese nationals in respect of the

said family member..

(1) The Director may refuse an application for residence

made by a long-term resident or his family members where the person

concerned constitutes a threat to public policy or public security.

(2) When taking the relevant decision in accordance with

sub-regulation (1), the Director shall consider the severity or type of

offence against public policy or public security committed by the long-

term resident or his family member, or the dangers that are emanating

from such person.

(3) Refusal to grant a residence permit shall not be based

on economic considerations.

(1) The Director may refuse an application for residence

from a long-term resident or members of his family where the person

concerned constitutes a threat to public health.

(2) The only diseases that may justify a refusal to allow

entry or the right of residence in Malta under this Part shall be the

diseases as defined by the relevant applicable instruments of the World

Health Organisation and such other infectious or contagious parasite-

based diseases as are the subject of protective provisions in relation to

Maltese nationals in accordance with the provisions of the Public Health

Act.

(3) Diseases contracted after the first residence permit was

issued under this Part shall not justify a refusal to renew the permit or

expulsion from Malta.

(4) The Director may require a medical examination for

persons to whom this Directive applies in order to certify that they do

not suffer from any of the diseases referred to in sub-regulation (2)

hereof.

(1) The Director shall give the applicant for a residence

permit under this Part written notification of his decision as soon as

possible and, in any event, no later than four months from the date

when the application was lodged>

Provided that, if the applicant does not submit documentary

evidence as required by regulations 13 and 14 or, in exceptional

circumstances which are linked to the complexity of the examination

of the application, the time limit of four months may be extended by

another period of not more than three months.

(2) The Director shall notify the applicant when the period

for the examination of the application is extended.

(3) If the conditions of regulations 13, 14 and 15 are met

and subject to the provisions relating to public policy, public security

and public health in regulations 16 and 17, the Director shall issue a

residence permit to the long-term resident.

(4) The residence permit shall be valid for a period of one

year and shall, upon application, be renewable.

(5) The Director shall keep the responsible authorities of

the Member State which had issued the long-term resident permit

informed about his decision to grant or renew a residence permit under

this Part.

(6) The Director shall issue residence permits to the family

members of the long-term resident, which permits shall, upon

application, be renewable, and which shall be valid for the same period

as the residence permit issued to the long-term resident.

(7) In the case of a decision rejecting an application for a

residence permit, the written notification referred to in sub-regulation

(1) shall include the reasons therefor and details about the possibility of

lodging an appeal with the Board.

(8) In the event that the Director fails to give a decision

within the period specified in sub-regulation (1) of this regulation, the

application shall automatically be passed on for appeal to the Board.

(1) As soon as the third country national who has applied Treatment in the

second Member

for a residence permit in Malta under this Part receives such permit in State.

accordance with the provisions of regulation 18, the provisions of

regulation 11 shall apply.

(2) Long-term residents shall have access to the labour

market in accordance with the provisions of sub-regulation (1)>

Provided that>

(i) such persons who are exercising their right of residence

in Malta for the reasons stated in regulation 13(1)(a) shall not have,

for the first twelve months after having been issued with a residence

permit, access to an employed activity other than that for which

they have been granted an employment licence<

(ii) such persons who are exercising the right of residence

in Malta for the reasons stated in regulation 13(1)(b) shall not have

any, or only restricted, access to an employed activity, after the

situation of the labour market in Malta has been examined by the

competent authorities<

(iii) such persons who are exercising the right of residence

in Malta for the reasons stated in regulation 13(1)(c) shall only

have access to an employed activity after the situation of the labour

market in Malta has been examined by the competent authorities.

(1) Until the third country national obtains long-term

resident status in Malta under this Part, the Director may refuse to renew

or may decide to withdraw the residence permit and oblige the third-

country national concerned and his family members, in accordance with

the provisions of the Immigration Act, to leave Malta in the following

cases>

(a) on the grounds of public policy or public security in

line with the provisions of regulation 16<

(b) where the conditions provided for in regulations 13, 14

and 15 are no longer met<

(c) where the third-country national is not lawfully residing

in Malta.

(2) The Director shall notify the first Member State of his

decision.

(3) In taking a decision on the grounds stated in sub-

regulation (1)(a), the Director may decide to include a permanent ban

on residence.

(4) Until the third-country national has obtained long-term

resident status in Malta, the Principal Immigration Officer may adopt a

decision to remove the third-country national from the territory of the

Union, in accordance with the provisions of the Act and in accordance

with and under the guarantees provided for in regulation 12, on serious

grounds of public policy or public security.

(5) In such cases referred to in sub-regulation (4), the

Director shall consult with the competent authorities of the Member

State which had issued the long-term residence permit.

(6) When a decision is taken in accordance with sub-

regulation (1), the Director shall provide the competent authorities in

the Member State that had issued the long-term residence permit with

appropriate information with respect to the implementation of the

decision.

In the case of a third country national who has been granted Admission to Malta

as a first Member

long-term resident status in Malta and, after having moved to another State of residence.

Member State, has been removed from that State on the grounds stated

in regulation 20(1), the Principal Immigration Officer shall immediately

readmit, without formalities, the person concerned and his family.

(1) Upon application, the Director shall grant long-term Acquisition of long-

term resident status

residents referred to in this Part, the status provided for by regulation in the second

7(4), subject to the provisions of regulations 3, 4, 5 and 6 hereof.

Member State.

(2) The Director shall notify the competent authorities of

the first Member State of his decision.

(3) The procedures laid down in regulations 5 and 7 shall

apply to the presentation and examination of applications for long-term

resident status in Malta under this Part.

(4) The provisions of regulation 8 shall apply to the issuing

of the residence permit.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press