It is not just and equitable that the applicant for a work and residence permit (a Single Permit) application must bear the responsibility for the shortcomings of his prospective employer.
This was held in a judgment delivered by the Court of Appeal (Inferior Jurisdiction) in Camilo Atkinson Galindo vs Identity Malta Agency presided over by Honorable Mr. Justice Lawrence Mintoff on the 30th November 2022.
In this case, the applicant arrived in Malta on the 28th November 2020 following a job offer. As a Columbian national he was allowed to stay in Malta for 90 days without requiring a Visa. During this period, an application for the Single Permit was being handled exclusively by his prospective employer on his behalf, which was submitted on the 5th March 2021. The application was rejected on the grounds that the applicant was illegally staying in Malta at the time of its submission. The applicant appealed this decision.
In the first instance, the Immigration Appeals Board on the 18th April 2022 ruled in favour of the applicant, whereby the decision taken by Identity Malta on 6th December 2021 to refuse the Single Permit application was to be revoked, while giving directions to proceed ahead with the application of the applicant.
Identity Malta lodged an appeal as it felt aggrieved by the decision of the Immigration Appeals Board stating that it gave a wrong interpretation of the law as provided by provision 8(1)(c) of Subsidiary Legislation 217.17 (Single Application Procedure for a Single Permit as Regards Residence and Work and a Common Set of Rights for those Third-Country Workers Legally Residing in Malta Regulations), which provides that for an applicant to apply for a Single Permit, he needs to be residing legally in the Member State where the application is submitted.
The Appellant, Identity Malta, stated that although documents for the Single Permit were submitted on the 5th March 2021, such application was not complete. The Appellant duly notified the prosepctive employer of the applicant, and eventually the applicant upon his enquiries, about these shortcomings which were concluded on the 26th August 2021. According to the appellant this resulted in the applicant overstaying in Malta illegally for several months.
The Court considered the facts of the case and noted that following the application submitted on the 5th March 2021, the applicant received an email from Identity Malta stating that “A Single-Permit Application has been initiated on your behalf by ZP Services Limited and is now awaiting your validation”. The Court stated that the contents of this email prove that although as provided by Article 7 of Subsidiary Legislation 217.17, an application for Single Permit is the responsibility of the applicant, in practice it is the prospective employer that takes care of such a process for third country nationals. The Court states that the applicant was correct in assuming that the application submitted on his behalf was complete after receiving the above-mentioned email.
The Court also considered the fact that the process that the applicant was requested to follow by Identity Malta did not involve a direct interaction from his side as it was also clearly stated that “Once completed, click on Submit to Employer. ZP Services Limited will then submit your application to Identity Malta”. Hence, the Court reflects that the applicant is correct when insisting that if the application was late, he should not be accountable as he had no discretion to present the application on a specific date or to make sure that all documentation were submitted.
Notably, the Court remarked that it is evident that there is a clear conflict between what the law specifies and what happens in practice, and it is not just or equitable that the applicant bears responsibility for the shortcomings of the prospective employer in the submission of the application. The Court adds that these cases concern persons that leave everything behind for search of a better future. Furthermore, the Court affirms that it is neither just and equitable to state that the application was not submitted in time as stipulated by law, since based on the wording of the emails received by the applicant from Identity Malta, it gives the impression that the application was submitted in time.
The Court took into account the fact that Identity Malta replied to the applicant on the 30th July 2021 stating that the application still had some missing documents and that he had to notify his prospective employer to submit them. Furthermore, Identity Malta claimed that these missing documents were then received on the 26th August 2021, and it is on this date that the application was considered to be complete and not on any other previous date.
However, the Court did not agree with this reasoning and concluded that it was clear that the applicant was completely dependent on the prospective employer for such an application to be submitted to Identity Malta. Furthermore, the applicant was also given the impression that such application was complete and being evaluated from the start. The Court also notes that the applicant had no means at any stage to address any resulting shortcomings, which were notified to him several months after the submission, notwithstanding the fact that he took a personal interest in his application to make sure that his status is regularized. In such circumstances the applicant could not foresee at this point that he might have been staying in Malta illegally or without authorization.
Based on these facts, the Court ruled against the appeal instituted by Identity Malta and upheld the decision taken by the Immigrations Appeal Board in the first instance.
The applicant was represented by Dr Gianluca Cappitta.
Avv. Malcolm Mifsud
The article may also be accessed on Malta Today.
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