107 tal-2012

L.N. 107 of 2012

EUROPEAN UNION ACT

(CAP. 460)

Free Movement of European Union Nationals and their Family

Members (Amendment) Order, 2012

(1)

The title of this Order is the Free Movement of

European Union Nationals and their Family Members (Amendment)

Order, 2012, and shall be read and construed as one with the Free

Movement of European Union Nationals and their Family Members

Order, hereinafter referred to as "the principal order".

(2) The purpose of this order is to amend the Free Movement

of European Union Nationals and their Family Members Order so as

to further implement the provisions of Directive 2004/38/EC of the

European Parliament and of the Council of the 29 April 2004.

Article 1(3) of the principal order shall be substituted by

the following

"(3)

This Order implements, inter alia, the provisions

of Directive 2004/38/EC of the European Parliament and of the

Council of the 29 April 2004.".

Article 2 of the principal order shall be amended as

follows

(a)

immediately after the definition of "employment

agency” there shall be added the following new definition

" "exclusion from Malta" means a restriction on the

right of entry or residence or a removal order which has

been enforced;”;

(b)

the definition of "Member State” shall be

substituted by the following

" "Member State" means a Member State of the

European Union (other than Malta) and a state of the

European Economic Area

Provided that a State of the European

Economic

Area

means

Norway,

Iceland

and

Liechtenstein;”;

(c)

the definition of "the Treaty” shall be substituted

by the following

" "Treaty" means the Treaty on the Functioning of

the European Union;” and

(d)

the definition of "worker" shall be substituted by

the following

" "worker" means a worker within the meaning of

Article 45 of the Treaty on the Functioning of the

European Union.”.

Article 3 of the principal order shall be amended as Amendment of

article 3 of the

principal order.

(a)

sub-article (4) thereof shall be substituted by the

following

"(4) The period of three months referred to in sub-

article (3) is extendable to a six-month period, in the case

of a person who is seeking employment."; and

(b)

sub-article (6) thereof shall be substituted by the

following

"(3) A Union citizen or a person referred to in

paragraph (1), who arrives in Malta and who is not covered

by the provisions of article 31 of the Act applicable to

places of accommodation for reward shall, within one

month of his arrival, report his presence in Malta to the

Principal Immigration Officer by reporting at any office

designated by the Principal Immigration Officer, and shall

be issued with an acknowledgement in writing of such

report.".

Immediately after article 4(3) of the principal order there Amendment of

article 4 of the

shall be added the following new sub-article

principal order.

"(4)

In specific cases where there is a reasonable doubt

as to whether the persons mentioned in the preceding sub-

articles satisfy the conditions stated therein, the Director may

verify if these conditions are fulfilled

Provided that this verification shall not be carried

out systematically.".

Article 8 shall be amended as follows

Amendment of

article 8 of the

principal order.

(a)

the provisos to sub-article (1) thereof shall be

deleted;

(b)

sub-article (2) thereof shall be substituted by the

following

"(2) The Minister responsible for employment

may, by Order restrict the labour market, entirely or

partially, for nationals of Member States in line with the

arrangements stipulated in the Treaties of Accession to the

European Union that may be applicable during a specified

period of time.”; and

(c)

subarticle 7(a)(ii) thereof shall be substituted by

the following

"(ii) with a confirmation of engagement from the

employer or a certificate of employment;".

The words "article 3(7)” in article 9(3) of the principal

order shall be substituted by the words "article 3(5)”.

Article 10(5)(b)(iv) shall be substituted by the following

"(iv) the provisions of article 8(7)(b)(ii) to (vi) relating

to the issue of a registration certificate or a residence card, as

applicable, shall apply mutatis mutandis in respect of family

members and other family members of the Union citizen who is

a student.".

The second proviso to article 13(1) of the principal order

shall be substituted by the following

"Provided further that without prejudice to the provisions

of this Order, a removal order shall not be issued in the case of a

person who is a worker, or a self-employed, or a job-seeker,

who can provide evidence that he is continuing to seek

employment and that he has a genuine chance of being engaged,

or the family members of such persons.".

Article 14 of the principal order shall be amended as

follows

(a)

in sub-article (1) thereof, the words "interests of

the security of Malta.” shall be substituted by the words

"interests of the security of Malta:" and immediately thereafter

there shall be added the following new proviso

"Provided that, where applicable, the said person

shall be informed of the time allowed to leave Malta

except in duly substantiated cases of urgency, the time

allowed to leave Malta shall not be less than one month

from the date of notification.";

(b)

sub- article 2 thereof shall be substituted with the

following new sub-article

"(2) The Director shall inform the person referred

to in sub-article (1), in writing, of such person’s right to

lodge an appeal to the Board and the time limit for the

appeal and the Board shall allow for an examination of the

legality of a removal decision, as well as of the facts and

circumstances on which the proposed measure is based,

ensuring that the decision is not disproportionate,

particularly in view of the requirements laid down in

article 13.";

(c)

sub-articles (3), (4), (5) and (6) shall be

renumbered as (5), (6), (7) and (8) respectively;

(d)

immediately after sub-article (2) thereof there shall

be added the following new sub-articles

" (3) Where the application for appeal against a removal

order is accompanied by an application for an interim order to

suspend enforcement of that order, actual removal from Malta

may not take place until such time as the decision on the interim

order has been taken, except

(a) where the removal decision is based on a

previous judicial decision; or

(b) where the person concerned has had previous

access to judicial review; or

(c) where the removal decision is based on

imperative grounds of public security under article 13(4).

(4)

The competent authorities may exclude the person

concerned from its territory pending the redress procedure, but

such person may not be prevented from submitting his defence

in person, except when his appearance may cause serious

troubles to public policy or public security or when the appeal

or judicial review concerns a denial of entry to the territory.";

and

(e)

sub-article (5), as renumbered, shall be substituted

by the following new sub-article

"(5) A person, who is removed from Malta or

whose free movement has been restricted in accordance

with this Order, on grounds of public policy or public

security, may submit to the Principal Immigration Officer

an application in writing for the lifting of his exclusion

from Malta after a reasonable period, depending on the

circumstances and in any event after the lapse of three

years from the enforcement of the final exclusion from

Malta and put forward arguments to establish that there has

been a material change in the circumstances which

justified the decision ordering the said exclusion and the

Principal Immigration Officer, in consultation with the

Director shall reach a decision on the application within

six months of its submission and such person shall have no

right of entry into Malta pending the consideration of his

application.".

€0.45