Brexit: What will happen to Residence Statuses?

As you may now, Brex­it is no longer a spec­u­la­tion. How­ev­er, there were no imme­di­ate changes, or at least not yet. The tran­si­tion is still in process; how­ev­er, many Euro­pean Coun­tries are show­ing that the preser­va­tion of sta­tus quo is of their utmost impor­tance, includ­ing Mal­ta. The Mal­tese gov­ern­ment took into con­sid­er­a­tion a pos­si­ble no-deal Brex­it and strived to clar­i­fy the uncer­tain­ties amongst its peo­ple tak­ing into con­sid­er­a­tion British Cit­i­zens.

From a lawyer’s per­spec­tive, the changes that Brex­it impos­es will not be felt for now… how­ev­er, what will hap­pen after the end of the tran­si­tion peri­od?

Giv­en that the Unit­ed King­dom (UK) with­drew from the Euro­pean Union (EU), one needs to exam­ine the sit­u­a­tion in Mal­ta, in the sense of what should UK nation­als and their rel­a­tives do.

Legal Notice 63 of 2019

Last year, the Gov­ern­ment of Mal­ta issued a legal notice to clar­i­fy some uncer­tain­ties which were being raised giv­en that there were the dis­cus­sions on when Brex­it will hap­pen.

Legal Notice 63 of 2019 pro­vid­ed for a bet­ter clar­i­fi­ca­tion regard­ing the immi­gra­tion sta­tus of British cit­i­zens who reside in Mal­ta upon the date of with­draw­al of the UK from the EU. The Reg­u­la­tions strived to ensure a lev­el of con­ti­nu­ity post-Brex­it for British Cit­i­zens as-well as their rel­a­tives.

British Cit­i­zens along­side their fam­i­ly mem­bers, who were then law­ful­ly occu­pant in Mal­ta and were in Mal­ta before the Brex­it date will be qual­i­fied for con­tin­ue liv­ing, work­ing and receiv­ing med­i­c­i­nal ser­vices and instruc­tion with­out the require­ment of an employ­ment per­mit so long as they have enough assets to main­tain them­selves and main­tain their insur­ance.

This Legal Notice was repeal Repealed by Legal Notice 18 of 2020.

The Agreement — What Happens Now?

Hint: Noth­ing will change…

…Wait, but that is only until Decem­ber.

The Agree­ment on the With­draw­al of the UK came into effect on 31st Jan­u­ary 2020. What does this mean? As you may already know this means that the UK shall be con­sid­ered to be a third coun­try to the EU. How­ev­er, it is impor­tant to note that the Agree­ment allows for a tran­si­to­ry peri­od until the end of the year (2020).

The tran­si­to­ry peri­od may be extend­ed by a fur­ther one or two years how­ev­er such exten­sion may only be grant­ed if an addi­tion­al agree­ment is reached between the UK and the EU.

In the tran­si­to­ry peri­od, the Union Law shall still be applic­a­ble to the UK. Dur­ing such peri­od nego­ti­a­tions will com­mence at EU lev­el with regards to the UK’s rela­tion­ship with the EU.

This Agree­ment, in par­tic­u­lar Part 2 (Cit­i­zens Rights) guar­an­tees the rights of the EU nation­als and UK nation­als in each respec­tive ter­ri­to­ry and the rights of res­i­dence of the ben­e­fi­cia­ries and their fam­i­ly mem­bers.

Fur­ther­more, the Agree­ment also cov­ers:

  • Res­i­dence con­di­tions: where­as EU res­i­dents will still have the same rights that they cur­rent­ly have under EU Law;
  • Social Secu­ri­ty: Rights of UK nation­als to health­care, pen­sions and oth­er social secu­ri­ty ben­e­fits will be main­tained in the same way as EU nation­als;
  • Employ­ment: the right to take up employ­ment or be self-employed and the rights of the work­ers shall fall under EU Law;
  • Pro­fes­sion­al Qual­i­fi­ca­tions: Any deci­sion tak­en before the end of the tran­si­tionary peri­od, which per­tains the recog­ni­tion of pro­fes­sion­al qual­i­fi­ca­tions would remain valid. If deci­sions are still pend­ing upon the end of the tran­si­tionary peri­od, they would still be finalised under the same con­di­tions.

Agree­ment may be read and accessed here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12019W%2FTXT.

Malta-UK in 2020

brexit

No — we are not wor­ried whether Mal­ta will receive its 12 points from the UK in the Euro­vi­sion. What is of a con­cern is the immi­gra­tion sta­tus of UK Cit­i­zens and their fam­i­ly mem­bers.

UK nation­als and their fam­i­ly mem­bers resid­ing in Mal­ta shall con­tin­ue to reside in Mal­ta based on the con­di­tions pro­vid­ed for in the With­draw­al Agree­ment and Mal­tese leg­is­la­tion. In this regard, the Gov­ern­ment of Mal­ta has pub­lished a legal notice which reg­u­lates UK nation­als’ res­i­dence sta­tus fol­low­ing the UK’s with­draw­al from the EU.

Mal­ta has adopt­ed its Reg­u­la­tions regard­ing Chap­ter 217 of the Laws of Mal­ta enti­tled: ‘Res­i­dence Sta­tus of Unit­ed King­dom nation­als and their fam­i­ly mem­bers in accor­dance with the Agree­ment on the With­draw­al of the Unit­ed King­dom and North­ern Ire­land from the Euro­pean Union and the Euro­pean Atom­ic Ener­gy Com­mu­ni­ty Reg­u­la­tions, 2020’.

If you are a UK nation­al, Mal­ta will pro­tect your rights by adopt­ing tran­si­tion­al mea­sures. The Reg­u­la­tions pro­vide that the Rights con­cern­ing the Ben­e­fi­cia­ries which are men­tioned in the Agree­ment, can be enjoyed in Mal­ta. How? — By apply­ing for a Res­i­dence Doc­u­ment.

L.N. 18 of 2020 may be read and accessed here: https://www.gov.mt/en/Documents/LN%2018%5b2%5d.pdf.

Practical Examples

Let us have a bet­ter under­stand­ing of the Brex­it Sce­nar­ios involv­ing UK Nation­als and their sta­tus in Mal­ta.

If a UK Nation­al has a res­i­dence doc­u­ment issued under EU Law then that res­i­dence doc­u­ment will be con­sid­ered as a tem­po­rary per­mit for two years (from 1st Feb­ru­ary 2020.) Dur­ing the tran­si­tion­al peri­od, an appli­ca­tion for a new res­i­dence per­mit is to be sub­mit­ted. With the tem­po­rary res­i­dence per­mit, res­i­dence in Mal­ta shall con­tin­ue (to work, look fro employ­ment or study). The exist­ing doc­u­ment shall con­tin­ue to remain valid until the new res­i­dence doc­u­ment is issued.

If a UK Nation­al does not have a res­i­dence per­mit, an appli­ca­tion for a res­i­dence per­mit needs to be sub­mit­ted.

Please note that UK nation­als and their rel­a­tives who were not resid­ing in Mal­ta pri­or to the with­draw­al date but will be arriv­ing in the coun­try by the end of 2020 will also ben­e­fit from the rights pro­vid­ed for in the Agree­ment.

If the UK Nation­al is already reg­is­tered with Iden­ti­ty Mal­ta on the basis of free move­ment with­in the EU, an appli­ca­tion for a new res­i­dence per­mit is to be sub­mit­ted with­in two years of the date of with­draw­al of the UK from the EU.

UK nation­als, who will be res­i­dents of Mal­ta on the basis of Treaty rights as EU nation­als before or on the last day of the tran­si­tion peri­od, they will be enti­tled to con­tin­ue to reside in Mal­ta and move freely as per the pro­vi­sions of free move­ment under EU Law.

Fur­ther­more, they will also ben­e­fit from oth­er asso­ci­at­ed rights, as spec­i­fied in the Agree­ment. These rights also extend to fam­i­ly mem­bers, who fall under the pro­vi­sions of the With­draw­al Agree­ment. It is impor­tant to note that fam­i­ly mem­bers, oth­er than chil­dren, will only be cov­ered by the Agree­ment if their rela­tion­ship would have start­ed before the end of the tran­si­tion peri­od.

Also, UK nation­als and their fam­i­ly mem­bers who want to set­tle in Mal­ta dur­ing the pro­vid­ed tran­si­tionary peri­od (unless an exten­sion is agreed until July 2020), they may apply for a new res­i­dence sta­tus with the Expa­tri­ates Unit EU Sec­tion, after 3 months of their arrival in Mal­ta.

For more detailed infor­ma­tion: https://identitymalta.com/uk-nationals-residence-status-following-brexit/.

 

Dis­claimer: The above-men­tioned arti­cle is sim­ply based on inde­pen­dent research car­ried out by Dr. Wern­er and Part­ner and can­not con­sti­tute any form of legal advice. If you would like to meet up with any of our rep­re­sen­ta­tives to seek fur­ther infor­ma­tion, please con­tact us for an appoint­ment.

About Dr. Rebecca Mifsud

Dr Rebec­ca Mif­sud, born 6th May 1994, attend­ed the Uni­ver­si­ty of Mal­ta and is an LLB Hon­ours grad­u­ate. She also grad­u­at­ed in the Mas­ters in Advo­ca­cy and will be sit­ting for her Mal­ta War­rant Exam in 2019. She suc­cess­ful­ly defend­ed her dis­ser­ta­tion enti­tled: ‘Imput­ing respon­si­bil­i­ty for foot­ball injuries inflict­ed by minors in the Mal­tese sce­nario,’ in 2017.

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