Regulations, 2011

L.N. 432 of 2011

IMMIGRATION ACT

(CAP. 217)

Minimum Standards on Sanctions and Measures against

Employers of Illegally Staying Third-Country Nationals

Regulations, 2011

IN exercise of the powers conferred by article 36 of the

Immigration Act, the Minister of Justice and Home Affairs has made

the following regulations:-

(1) The title of these regulations is the Minimum Citation and

Standards on Sanctions and Measures against Employers of Illegally scope.

Staying Third-Country Nationals Regulations, 2011.

(2) These regulations transpose the provisions of Directive

2009/52/EC of the European Parliament and of the Council of 18 June

2009 providing for minimum standards on sanctions and measures

against employers of illegally staying third country nationals.

(3) These regulations shall be without prejudice to the

provisions of article 32 of the Act.

In these regulations, unless the context otherwise requires: Interpretation.

"the Act" means the Immigration Act;

"employer" means any natural person or any legal entity,

including temporary work agencies, for or under the direction and, or

supervision of whom the employment is undertaken;

"employment" means the exercise of activities covering

whatever form of labour or work regulated under Maltese law or in

accordance with established practice for or under the direction and, or

supervision of an employer;

"illegal employment", for the purposes of these regulations,

means the employment of an illegally staying third-country national;

"illegally staying third-country national" means a third-country

national present in Malta, who does not fulfil, or no longer fulfils, the

conditions for stay or residence in Malta;

"legal person" means any legal entity having such status under

applicable Maltese law, except for States or public bodies exercising

State authority and for public international organisations;

"Minister" means the Minister responsible for immigration;

"national minimum wage" means the wage published by means

of a national minimum wage national standard order under the

Employment and Industrial Relations Act;

"particularly exploitative working conditions" means working

conditions, including those resulting from gender based or other

discrimination, where there is a striking disproportion compared with

the terms of employment of legally employed workers which, for

example, affects workers’ health and safety, and which offends

human dignity;

"remuneration of illegally staying third-country national" means

the wage or salary and any other consideration, whether in cash or in

kind, which a worker receives directly or indirectly in respect of his

employment from his employer and which is equivalent to that which

would have been enjoyed by comparable workers in a legal

employment relationship;

"temporary work agency" means any natural or legal person

who, in compliance with Maltese law, concludes contracts of

employment or employment relationships with temporary agency

workers in order to assign them to user undertakings to work there

temporarily under their supervision and direction;

"third-country national" means any person who is not a citizen

of the Union within the meaning of Article 20(1) of the Treaty and

who is not a person enjoying the Community right of free movement,

as defined in Article 2(5) of Regulation (EC) No. 562/2006 of the

European Parliament and of the Council of 15 March 2006

establishing a Community Code on the rules governing the movement

of persons across borders (Schengen Borders Code);

"Treaty" means the Treaty on the Functioning of the European

Union.

(1)

An employer shall be prohibited from employing

any illegally staying third-country national.

(2) Infringements of this prohibition shall be subject to the

sanctions and measures laid down in these regulations.

(3) The prohibition referred to in sub-regulation (1) shall not

apply to illegally staying third-country nationals whose removal has

been postponed and who are allowed to work in Malta.

(1)

An employer shall be obliged to

(a)

require that a third-country national, before taking

up the employment, holds and presents to him a valid residence

permit or other authorisation for his stay;

(b)

ensure that the third-country national is in

possession of a valid employment licence;

(c)

keep, for at least the duration of the employment, a

copy or record of the residence permit or other authorisation for

stay available for possible inspection by the competent

authorities.

(2) An employer who has fulfilled his obligations set out in

sub-regulation (1) shall not be held liable for an infringement of the

prohibition referred to in regulation 3 unless the employer knew that

the document presented as a valid residence permit or another

authorisation for stay was fraudulent.

(1)

An employer shall be liable, on conviction and in Financial

addition to any penalty imposed by the Court of Magistrates (Malta) sanctions

other measures.

or the Court of Magistrates (Gozo), as the case may be, to pay

(a)

any outstanding remuneration to the illegally

employed third-country national. The agreed level of

remuneration shall be presumed to have been at least equivalent

to the national minimum wage, unless either the employer or the

employee can prove otherwise;

(b)

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;

(c)

where appropriate, any cost arising from sending

back payments to the country to which the third-country

national has returned or has been returned; and

(d)

the costs of return of illegally employed third-

country nationals in those cases where return procedures are

carried out.

(2) The provisions of article 45(1)(f) of the Employment and Cap. 452.

Industrial Relations Act shall, mutatis mutandis, apply to the

penalties imposed on the employer under these regulations.

(3) In the application of sub-regulation (1)(a) and (b), it shall

be presumed that the employment contract shall be of at least three

months’ duration, unless the employer or the employee can prove

otherwise.

(4) The provisions of regulations 4 and 5 of the Permission to

Reside for Victims of Trafficking or Illegal Immigration who co-

operate with the Maltese Authorities Regulations shall apply in

respect of criminal offences falling under the provisions of regulation

7(c) and (e).

(5) For the purposes of these regulations, the Court of

Magistrates (Malta) or the Court of Magistrates (Gozo), as the case

may be, may, in its judgment, also order that an employer be subject

to the following measures

(a)

exclusion from entitlement to some or all public

benefits, aid or subsidies, including EU funding managed by the

Government of Malta, for up to five years;

(b)

exclusion from participation in a public contract as

provided in any public procurement regulations on the

coordination of procedures for the award of public works

contracts, public supply contracts and public service contracts,

for up to five years; and

(c)

recovery of some or all public benefits, aid, or

subsidies, including EU funding managed by the Government of

Malta, granted to the employer for up to twelve months

preceding the detection of illegal employment.

(6) The provisions of sub-regulation (5) shall not apply where

the employer is a natural person and the employment is for his private

purposes.

(1)

Where the employer is a subcontractor, the

contractor of which the employer is a direct subcontractor may, in

addition to or in place of the employer, be liable to pay any financial

sanction imposed, and any back payments due, in accordance with

regulation 5.

(2) Where the employer is a subcontractor, and where the main

contractor and any intermediate subcontractor knew that the

employing subcontractor employed illegally staying third-country

nationals, they may be liable to make the payments referred to in sub-

regulation (1) in addition to or in place of the employing

subcontractor or the contractor of which the employer is a direct

subcontractor.

(3) A contractor who has undertaken due diligence obligations

as defined in terms of article 1032 of the Civil Code shall not be liable

under sub-regulations (1) and (2).

The offences referred to in regulation 3 shall be considered Aggravating

circumstances.

to be aggravated when

(a)

the infringement continues or is persistently

repeated;

(b)

the infringement is in respect of the simultaneous

employment of a significant number of illegally staying third-

country nationals;

(c)

the infringement is accompanied by particularly

exploitative working conditions;

(d)

the infringement is committed by an employer

who, while not having been charged with or convicted of an

offence of traffic of persons, uses work or services exacted from

an illegally staying third-country national with the knowledge

that he is a victim of trafficking of persons; and

(e)

the infringement relates to the illegal employment

of a minor

Provided that when the criminal offence is aggravated by

one or more of the aggravated circumstances referred to in this

regulation, the punishment shall be increased by one or two degrees.

(1)

Where the person found guilty of an offence under Liability of

these regulations is the director, manager, secretary or other principal legal persons.

officer of a body corporate or is a person having a power of

representation of such a body or having an authority to take decisions

on behalf of that body or having authority to exercise control within

that body and the offence of which that person was found guilty was

committed for the benefit, in part or in whole, of that body corporate,

the said person shall for the purposes of these regulations be deemed

to be vested with the legal representation of the same body corporate

which shall be liable to the payment of a fine (multa) not exceeding

two thousand and five hundred euro (€2,500).

(2) The provisions of sub-regulation (1) shall apply where a

person is found guilty of an offence under these regulations

sohowever that the body corporate shall for such offence, without

prejudice to any other penalty that may have been incurred under any

other law, be liable to the punishment of a fine (multa) not exceeding

two thousand and five hundred euro (€2,500).

(3) A body corporate may be held liable where the lack of

supervision or control, by a person referred to in sub-regulation (1),

has made possible the commission of the criminal offence referred to

in these regulations for the benefit of that legal person by a person

under its authority.

(4) Liability of a legal person under sub-regulations (1) and

(2) shall not exclude criminal proceedings against natural persons

who are perpetrators, inciters or accessories in any of the offences

referred to in these regulations.

(5) Without prejudice to any other punishment to which the

offence may be liable under any other law, where the offender is a

body corporate liable to punishment under the provisions of sub-

regulations (2) and (3) the Court of Magistrates (Malta) or the Court

of Magistrates (Gozo), as the case may be, may, at the request of the

prosecution, order -

(a)

the suspension or cancellation of any licence,

permit or other authority to engage in any trade, business or

other commercial activity;

(b)

the temporary or permanent closure of any

establishment which may have been used for the commission of

the offence;

(c)

the compulsory winding up of the body corporate.

For the purposes of these regulations, inspections shall be

carried out by the competent authorities as may be prescribed by the

Minister.

€0.54