Non-EU parents of Maltese minors have ‘undisputed right’ to reside and work in Malta - Appeals Court

Non-EU parents of Maltese minors have ‘undisputed right’ to reside and work in Malta - Appeals Court

'A derivative right'

Parents from non-EU countries whose children are Maltese citizens have an undisputed right to reside and work in Malta while their offspring were still dependent on them.

This right was acknowledged by a Court of Appeal, echoing similar pronouncements by the European Court of Justice, irrespective of whether the laws of the State imposed any limitations on the exercise of such right.

The matter revolved around an application by Tanya Mihedova, a Belarusian woman seeking to obtain the necessary permit to earn a living in Malta where she is currently bringing up her children.

The mother of two minors, both Maltese citizens, had settled down in Malta 12 years ago and had applied for a single permit for residence and work.

A letter from the department in February 2017 had informed her that her application was being refused on account of ‘inconsistencies in the CV provided’.

Challenging this decision before the Immigration Appeals Board, Ms Mihedova succeeded in overturning the department’s ruling, with the board declaring that there existed “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.”

The decision prompted an appeal by the Director of Citizenship and Expatriate Affairs before the Courts, where it was argued that the board was bound to apply local legislation rather than ignore legal requisites relative to the granting of a single permit to such non-EU nationals residing in Malta.

However, the appeal was thrown out by the court, presided over by Mr Justice Anthony Ellul, declaring that “this is not a matter of humanitarian consideration but a right” irrespective of whether the applicant had a right to apply for such permit in terms of law.

“The member state has an obligation to ensure that the parent is not hindered in his/her right to reside and work in the particular member state,” Mr Justice Ellul declared.

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

“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.

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