Non-EU parents of Maltese children have the right to live and work in Malta, court says

Non-EU citizens who have Maltese children have the right to work in Malta as long as the children remain their dependants

The Court of Appeal has confirmed a judgment which held that non-EU citizens who have Maltese children have the right to work in Malta as long as the children remain their dependants.

This emerged in the appeal filed by the Director of Citizenship and Expatriate Affairs to a decision by the Immigration Appeals Board in Tanya Mihedova Vs Director of Department for Citizenship and Expatriate Affairs, which had ruled that it was not permissible to refuse non-EU citizens a right of residence or to refuse to grant a work permit if the applicant had children born in the EU who were still dependent on them.

Tanya Mihedova, a Belarussian citizen and mother of two minor children who are Maltese citizens had applied for the grant of a permit for third country nationals to reside for the purpose of work in Malta.

In a letter dated 7 February, 2017 she was informed that her application was refused, due to inconsistencies in the CV she had provided.

In February, 2017 she had filed an appeal before the Immigration Appeals Board and had written to it, explaining that she had been living in Malta for over 12 years, has two minor children who are Maltese citizens  and was seeking employment to have a means of income to contribute towards the upbringing of the children. She added that the inconsistencies in her curriculum vitae were caused by the mistyping of a date and had supplied an affidavit to that effect.        

In July 2017, the Board had upheld her appeal, holding that “there exists sufficient reason for it to see a humanitarian dimension to the case in the sense that the appellant would be seriously prejudicing herself as well as her children were she not to be allowed to work in Malta.”

But the Department for Citizenship and Expatriate Affairs had filed an appeal against that decision, arguing that the Board had exceeded its statutory powers as the woman had only been a trainee and could not supply it with evidence of a work permit.

Judge Anthony Ellul observed that in the relative file there was no information concerning: “the date when she arrived and took up her residence in Malta, the purpose of her entry in Malta, whether a resident permit had been issued at any point in time - although noting that in her appeal she claimed that “… she has never had any problems with the local authorities.”

The court observed that  Article 20 of the Treaty on the Functioning of the European Union (TFEU) precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the union.

“A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect,” said the judge.

Dependency would result in the child, an EU citizen, being obliged to leave the EU as a whole, as a consequence of refusal.

“Therefore it is evident that in such circumstances the right of residence of the third country national is a derivative right from the fact that the parent has children that are EU citizens.”

The appeal was dismissed, with costs against the appellant Department

Lawyers Shazoo Ghaznavi and Helen Caruana were counsel to Mihedova. Lawyer Victoria Buttigieg from the Office of the Attorney General assisted the Department for Citizenship and Expatriate Affairs.

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