The Employer’s Obligation to Submit Necessary Paperwork on Time

The case of Alyasif Bhatti vs Identity Malta Agency dealt with a foreign worker who was initially employed as a construction labourer with a local construction company for the period covering the 1^st of March 2021 until the 10^th of February 2022. On the 26^th of March 2021, Bhatti terminated the employment relationship to pursue other employment which constituted better working conditions. Upon such termination, the worker took care of submitting all the necessary documentation to their new employer who was responsible for informing the relevant authorities of the change in employment.

On the 23^rd of July 2021, Identity Malta proceeded to inform the worker that his residence and work permits shall be revoked and that he must remedy his position within the span of the next ten days. In January of 2022, the worker applied for a new working permit, however, their application was rejected as they were considered to be residing in Malta illegally. Upon such rejection, the worker filed proceedings in front of the Immigration Appeals Board.

It was revealed that the worker was suffering the consequences of their employer’s negligence to register the employment relationship in a timely manner, resulting in the worker to be placed in a very precarious situation. The employer was responsible for ensuring that the worker is registered correctly on the JobsPlus portal; however, it had taken the employer five months to start the application process. Upon deciding in favour of the worker, the appeals board highlighted that numerous employers are failing to submit the necessary paperwork on time resulting in workers being illegally present in Malta to the predicament of their employers.

Identity Malta appealed the decision of the Immigration Appeals Board and stated that the worker’s residence permit was no longer valid from the moment they terminated their employment relationship with the construction company in March of 2021. Furthermore, since the worker proceeded to file a new application in January 2022 such application could not have been accepted since it was in breach of Article 8(1)(c) of Subsidiary Legislation 217.17, which establishes that a third country national can only submit their work permit application from a Member State in which they are legally present in.

The Court of Appeal delved into the systematic issue whereby employees do not have any control over their own work permit application as access to the online portal, as well as the carrying out of the exercise itself is entirely entrusted to the employers themselves. Therefore, no employee can attempt to remedy the situation to ensure they are not considered as residing in Malta illegally. Furthermore, the Court deemed it unjust that Identity Malta insisted that the worker ought leaves Malta and the Schengen Zone and file a new application from their country of origin.

The Court of Appeal upheld the decision of the Immigration Appeals Board and rejected the appeal by Identity Malta in its entirety.