by Mark Sultana – Pardee & Partners Liaison Officer
In December 2011, the European Union (EU) adopted Directive 2011/98/EU on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, better known as the Single Permit Directive. Given the fact that the latter is not directly applicable, the Maltese Government, transposed the provisions of the said Directive into a domestic Law by means of Legal Notice 160 of 2014. This means that following the publication of the said Legal Notice, a single application procedure for third-country nationals to reside and work in Malta has been introduced.
The Directive trails two objectives. It seeks to establish a streamlined and harmonised procedure that a non EU migrant must go through in order to acquire a work and residence permit in Member States. It then delineates a common set of rights bestowed to migrants in order to address the right gap between third-country nationals and EU citizens.
The Single Permit Directive is applicable to two main categories of third-country nationals. The first category covers third-country nationals who apply to reside in a Member State to work. The second group includes those third country nationals who have already been admitted to a Member State for the purposes other than work in accordance with Union or national law, who are allowed to work and hold a uniform format residence permit. Article 3 (2) of the Directive, however, lays down a long list of no less than 12 categories of people who are excluded the Single Permit procedure. The reason behind such exclusion is because they already benefit from an enhanced status, such as being family members of EU citizens or long-term EU residents, hence they are already covered by EU legislation. Others, such as posted workers and intra-corporate transferees (ICTs), are excluded due to their situation since they are not considered to be part of the labour market to which they have been posted. Seasonal workers are excluded too and the reason behind is due to the temporary nature of their status.
The added value of the Directive is the single application procedure, which leads to the issuance of a single permit covering both residence and work permits. This would provide true procedural simplification by reducing the number of steps and authorities involved. It would also make it easier to control the legality and residence of migrant workers. The problem is that the Directive falls short of providing sound harmonisation between member states in several important areas. Firstly, the Directive gives extensive leeway regarding the beginning of the procedure. Member states are able to decide whether third-country nationals or employers – or even both – have to apply for the single permit. Similarly, member states may decide whether applications should be submitted in the country of origin or in the member state. In the case of Malta, it has been established that the application has to be submitted by the employee, but it has to be endorsed by the employer. Moreover, it can be submitted either while the applicant is already in Malta or while he is still abroad.
Upon adopting a decision, the Directive introduces a series of procedural guarantees regarding inter alia the obligation to provide, in writing, reasons for rejecting an application or renewing a permit, to open the door to legal challenges or to provide upon request information regarding the documents required for an application.
The second main aim of the Directive is to provide a common set of rights for third-country workers legally residing in a member state . This help to address a number of different goals by filling in the ‘rights gap’ among migrant workers and nationals of EU member states, harmonising member states’ rules and creating a tool to combat abuse in the workplace as well as a way to protect EU citizens from unfair competition deriving from the rights gap. The Directive grants core rights to migrant workers and other third-country nationals legally residing in an EU member state. Article 12 of the Directive states that migrant workers “shall enjoy equal treatment with nationals of member states” in eight fields. The right to equal treatment includes working conditions, freedom of association and trade union membership, education and vocational training, recognition of qualifications, social security, tax benefits, access to goods and services. While equal treatment is a rule in fields directly linked to professional activities, the Directive enables member states to restrict the right to equal treatment in specific situations.
Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Mark Sultana on mark.sultana@pardee.eu.