Serbian children can appeal refused residency permit, won't have to leave immediately

The 22 Serbian children who had their residence permit denied by Identity Malta, after their parents working on the island do not earn enough money, will not have to leave Malta immediately.

In a reaction to a story which first appeared in The Sunday Times of Malta last week, Identity Malta said in a statement that it had been highlighted in a letter sent to the applicants that they had the right to appeal and may contest the decision with the Immigration Appeals Board, which is an independent and autonomous body.

Until such decision is taken, they shall be authorised to reside in Malta by means of an interim permit (a practice which has been adopted by the Maltese authorities for years).

Following reports, Identity Malta revisited the cases and reaffirmed its decision that the applications turned down in the past weeks did not meet the set income criteria, the agency said.

“The income requisite for family reunification, outlined in Subsidiary Legislation 217.06, is meant to guarantee a decent standard of living to migrant families and their children. If such conditions were to be side lined, migrant families and their children may experience undesirable social conditions,” it underlined.

“The legislation came into force in 2007 and transposes Council Directive 2003/86/EC. In the admittance of family members for the purpose of reunification, the sponsor is required to prove prospects of permanent residence and have stable and regular resources which are equivalent to the national average wage.”

The agency said that, even if applicants do not meet the two requirements, it still gives main sponsors the opportunity to be joined by relatives in Malta by applying more lenient EU regulations known as SILC.

“For such requests to be approved, the income of both parents is taken into consideration and the disposable income must not be lower than the at-risk-of-poverty benchmark established in the Statistics on Income and Living Conditions Survey (EU SILC),” Identity Malta said.

“When calculating the parents’ income, Identity Malta takes into account their basic gross income and deducts national social security contribution as well as accommodation cost (based on the rent contract provided by the applicant). For the purpose of this exercise, the income tax factor is not even taken into consideration.”

The agency also pointed out that each application is examined on a case-by-case basis and that Identity Malta considers all relevant circumstances, including the length of stay of the applicant in Malta and the nature of the employment contract.

“The cases referred to in the media are recently filed new applications of children who never had a residence permit in Malta before. The Serbian family members in question were not admitted to Malta by means of any procedure managed by Identity Malta, but had the opportunity to be physically present in Malta on the basis of their exemption from the visa requirement. Serbian nationals are non-visa nationals, therefore they do not require a visa to stay in Schengen territory for a period of 90 days within any six-month period.”

It underlined that it was imperative to note that all children already residing in Malta by means of a residence permit may continue to renew their authorisation to stay in the country based on the original conditions of their first application.

Identity Malta Agency reiterated that the laws and regulations explained above do not constitute to any preferential or discriminatory treatment based on one’s nationality or country of origin.

“As a matter of fact, in 2018 Serbian nationals amounted to 5,744, resulting in the largest third-country national community in Malta.”

“Finally, Identity Malta Agency shall continue to assist third-country nationals planning to reside in Malta to take the appropriate decision in their best interest and that of their family, before and after leaving the country of origin,” it added.

Fact sheet supplied by Identity Malta 

1.      Income Requisite

The income requisite for family reunification in Subsidiary Legislation 217.06 (which transposes Council Directive 2003/86/EC) is meant to guarantee a decent standard of living to migrant families and their children. If such conditions were to be side lined, migrant families and their children may experience undesirable social conditions.

2.      Right to Appeal

Applicants have the right to appeal and may contest the decision with the Immigration Appeals Board. Until such decision is taken, they shall be authorized to reside in Malta by means of an interim permit.

3.      TCNs not eligible under 217.06

If applicants do not have prospects of permanent residence and their income is below the national average wage, Identity Malta still gives main sponsors the opportunity to be joined by relatives in Malta.

For such requests to be approved, the income of both parents is taken into consideration and the disposable income must not be lower than the at-risk-of-poverty benchmark established in the Statistics on Income and Living Conditions Survey (EU SILC).

The number of third-country family members having a residence permit in Malta who were not eligible under Subsidiary Legislation 217.06 at the end of 2018 was 2,433.