MINIMUM STANDARDS ON SANCTIONS AND MEASURES AGAINST EMPLOYERS OF ILLEGALLY STAYING THIRD-COUNTRY

OF ILLEGALLY STAYING THIRD-COUNTRY NATIONALS

SUBSIDIARY LEGISLATION 217.14

MINIMUM STANDARDS ON SANCTIONS AND

MEASURES AGAINST EMPLOYERS OF

ILLEGALLY STAYING THIRD-COUNTRY

NATIONALS REGULATIONS

4th November, 2011

LEGAL NOTICE 432 of 2011.

(1) The title of these regulations is the Minimum Standards

on Sanctions and Measures against Employers of Illegally Staying

Third-Country Nationals Regulations.

(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

"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;

" e m p l o y m e n t " m e a n s t h e e x e r c i se o f a c t i v i t i e s c o v e r i n g

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

ap p l i ca b l e M al t e se l aw, e x ce p t f o r St at e s o r p u bl i c b o di e s

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

OF ILLEGALLY STAYING THIRD-COUNTRY NATIONALS

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,

i n c o m p l i a n c e w i t h M a l t e s e l a w, c o n c l u d e s c o n t r a c t s o f

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

w h o i s n o t a p e r s o n en j o y i n g t h e C o m m u n i t y r i g h t o f f r e e

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.

OF ILLEGALLY STAYING THIRD-COUNTRY NATIONALS

(1) An employer shall be liable, on conviction and in

addition to any penalty imposed by the Court of Magistrates

(Malta) 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

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

OF ILLEGALLY STAYING THIRD-COUNTRY NATIONALS

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

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

these regulations is the director, manager, secretary or other

principal 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

OF ILLEGALLY STAYING THIRD-COUNTRY NATIONALS

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.