The Employment of Foreign Workers in Malta
Since Malta’s accession in the European Union (EU) and the implementation of the Free Movement of European Nationals and their Family Members Order (the “Order”) – in terms of the European Union Act (Chap. 460 of the Laws of Malta) – which Order implements inter alia the provisions of Council Directive 2004/38/EC of the European Parliament, a Union citizen may enter, remain and reside in Malta, seek and take up employment or self-employment in Malta and shall enjoy equal treatment with Maltese nationals and such right shall, subject to certain requirements, be applicable to family members accompanying or joining the Union citizen, including those family members who are not nationals of a Member State.
A Union citizen and his family members accompanying or joining him may reside and move freely within Malta on the same conditions as Maltese nationals for a period of three months without conditions or any formalities, which period is extendable to a six-month period in the case of a person who provides evidence that he is genuinely seeking employment and has a genuine prospect of securing employment by the end of the said six month period.
Where a Union Citizen wishes to taken up employment in Malta no such employment can be undertaken by a Union citizen unless a licence has been issued, which licence however shall not be withheld. It is interesting to note that in terms of the Order a “Union citizen” includes a citizen of the European Economic Area and therefore the requirements for the issuance of an employment licence in favour of an EU citizen and an EEA citizen are not differentiated in any manner.
The procedure for the issuance of an employment licence for a Union citizen is relatively straightforward. Applications for an employment licence may be made directly buy the applicant and must be countersigned by a Director or a person holding a senior managerial position in the establishment where the Union citizen or the spouse or dependant of such citizen is to be employed, and submitted to the Employment and Training Corporation (ETC) which is the public agency in Malta on employment service set up in terms of the Employment and Training Services Act (Chap. 343 of the Laws of Malta). A photocopy of a valid travel document such as a passport or an Identity Card is to be provided with the said application together with payment of the relevant fee. If the employee is the spouse or dependant of a Union citizen he/she has to provide documentary evidence to this effect.
On submitting the application, the applicant will be provided with a provisional employment licence which entitles the employee to start work immediately. Such a provisional employment licence is valid for thirty (30) days from the date of submission of the application and until such time as another licence is issued in respect of the same employee in terms of the Order following verification by the ETC of the information provided by the applicant. It is noteworthy to mention that the thirty (30) day time-frame has been established by the ETC merely as an internal deadline within the agency in order to ensure that the licence is issued within the said period, meaning that if another licence is not issued by the ETC within thirty (30) days, the provisional employment licence remains valid until such time as another licence is issued. The employment licence is valid for a maximum period of one year and must be renewed if employment continues after the expiration date.
Once a Union citizen obtains an employment licence in Malta he/she acquires the right to reside in Malta which right extends to his/her family members even if they are third country nationals. Moreover if a Union citizen has resided legally in Malta for a continuous period of five years and his family members who are not nationals of a Member State and who have resided with him in Malta for a continuous period of five years, may reside permanently in Malta and obtain a permanent residence certificate to this effect provided that relevant documentary evidence is produced to the Director of Citizenship and Expatriate Affairs in Malta.
It is worth mentioning that in spite of the right of free movement granted to EU nationals in terms of the Order, Malta has retained the work permit system as described above to, amongst other things, provide a safeguard on the right of any foreign national to work in Malta. Consequently Malta may be able to withhold work permits in the case of a threat or a disruption in its labour market which is of an urgent and exceptional nature. To date the only restrictions imposed were on Bulgarian and Romanian nationals whose application must go through a screening process. These safeguards however can only be applied up to the year 2011 and after this period, in the event of a disproportionate influx of EU workers, Malta may still seek a remedy, this time acting through EU institutions, rather than unilaterally. This arrangement once reached will apply indefinitely and will cover Malta’s position at any time in the future in the event of possible difficulties relating to the movement of workers to Malta.
Third Country Nationals
The entry into Malta and the employment of third country nationals – who are not spouses or family members of a Union Citizen – is regulated by the Immigration Act (Chap. 217 of the Laws of Malta). A third country national may be permitted to enter Malta for a visit the duration of which must not exceed three months provided that he/she, amongst other things (i) holds a valid passport (ii) holds a valid visa and (iii) submits before entry into Malta, documents substantiating the purpose of the planned visit.
As in the case of a Union citizen, a third country national may not exercise any profession or occupation or hold any appointment without the appropriate employment licence. However, in respect of third country nationals, a high degree of discretion is granted to the Principal Immigration Officer in Malta to determine whether or not to grant an employment licence . Moreover, the application must necessarily be submitted to the ETC at least three months before the third country national is due to start work by the prospective employer and not by the proposed employee, and it must be signed by a Director or a person holding a senior management position in the establishment concerned.
The application for an employment licence – together with payment of the relevant fee – must be supported by the following documents:
- Detailed Curriculum Vitae , clearly indicating education, work experience and previous employers in;
- Copies of any employment references, certificates and/or any other qualifications that the applicant may have;
- Authenticated copy of the applicant’s passport;
- 1 passport-type photograph;
- If the proposed employee is in Malta, a copy of his/her entry visa;
- A certificate of good conduct issued by the authorities in the applicant’s country of residence certifying that applicant has had no criminal convictions in that country;
- The completion of a job description information document by the prospective employer pertaining to the following:
- the company’s activities;
- the nature of the position to be occupied by the employee;
- the employee’s duties;
- working conditions;
- Evidence of the efforts made by the company to employ Maltese or EEA/Swiss Citizens.
The employment licence in respect of a third country national is valid for a period of one year and if the proposed employee’s services are required beyond the said period an application for the extension of his/her employment licence must be submitted three months before it is due to expire.
A third country national in possession of an employment licence shall also acquire a Maltese residence permit for the period in respect of which the employment licence is issued, which permit must therefore also be renewed on an annual basis. The residence permit is in the form of a sticker affixed in the holder’s passport.
A third country national who has resided legally and continuously in Malta for a period of five years shall be granted a long-term resident status by the Director of Citizenship and Expatriate Affairs subject to the provision of the required documentation and provided the prescribed conditions are met. The long-term resident status shall be evidenced by a residence permit with the words “long-term resident – EC” entered thereon by the Director of Citizenship and Expatriate Affairs