As it stands today, Part Two of the Immigration Act (Chapter 217 of the Laws of Malta) lays down a list of persons who are exempted from certain important provisions under the Immigration law. To mention a few a person who acquires the status of an exempt person, is exempted from requesting a single work permit to work in Malta.  He is also exempted from requesting a residence permit in Malta and is also exempted from seeking permission to enter Malta.  In other words, unless the Minister responsible from Immigration orders otherwise, the provisions which are related to prohibited immigrants are not applicable to the list of persons under Part Two of the Immigration Act.

The general assumption is that a citizen of Malta is considered as an exempt person but according to Article 4 of the Immigration Act, the exempt person status is also extended to persons who enjoys certain immunities and privileges by virtue of their diplomatic or consular post.  Hence their presence in Malta is regulated by the Diplomatic Immunities and Privileges Act – Chapter 91 of the Laws of Malta.

Furthermore, according to Article 4, an exempt person status could be bestowed upon that person who is a member of the military forces of a nation other than Malta and his presence in Malta forms part of an agreement with the government of Malta or is in Malta at the government’s invitation to serve in an advise or consultative capacity.

Besides the above-mentioned categories of persons, Article 4 also grants the exempt person status to spouses of the above-mentioned persons who are still married to and living together and also to the widow or widower of a Maltese citizen, who at the time of his death the surviving spouse was still living with a Maltese citizen.

Article 4, however, does not limit the exempt person status to the above-mentioned category of persons.  Interesting to note is the fact that Article 4 (1) (f) of the Immigration Act is also being extended to the dependents of the above-mentioned category of persons. This means that according to the legislator a dependent is not only the children up to the age of 21 but also includes the adopted children and the parents or grandparents of Maltese citizens who are fully maintained by that Maltese citizen. In other words, if a third country national who is the parent or grandparent of a Maltese citizen and s/he is fully dependent of the Maltese citizen, the parent or grandparent is considered to have exempt person status and can enter Malta given the fact that s/he is the dependent of a Maltese citizen.

From a reading of Article 4, it is to be understood that once a person acquires the status of exempt person, such status is not reversible.  Article 4 (2) clarifies this matter and states that the Minister responsible for immigration may, by means of an Order, declare that the holder of such status is no longer an exempt person. However, the minister does not have the faculty to revoke without just cause but such revocation should only be made if he is satisfied that the grant of such an exemption to such person is no longer in the public interest.

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Perhaps two of the most heinous crimes threatening modern society are human trafficking and migrant smuggling. From within their very nature, both trafficking and smuggling seek a form of material profit at the expense of severely degrading the lives of human beings. Even though most often the two terms have been used interchangeably, the crimes are in their own right independant and distinct, and this notwithstanding the fact that confusing the terms is sometimes inevitable.

Taking the crime of human trafficking as our starting point, this crime has been mainly defined through various international instruments as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs (Palermo Protocol).” The Maltese legislator has also sought to comply to the afore definition through the introduction of Subtitle VIII Bis (Of the Traffic of Persons) as deduced within article 248A et seq. of the Criminal Code.

From the afore definition, one can easily note the necessary existence of three essential elements for the crime to be able to subsist – in so far as it is essential to have a) the act, b) the means, and c) the purpose. In order to leave no stone unturned and no crime going unpunished, the legislator has specifically defined these three elements within the precincts of the same definition.

Human Trafficking does not distinguish between the person trafficked is a fully grown adult or a young child. In a similar manner, this crime does not either distinguish between race, religion, or social backgrounds. Any individual may become trapped within its clasps. Notwithstanding however, the legislator has added protection vis-a-vis minors who fall victim of the crime of human trafficking in so far as the perpatrator who trafficks a minor, need not engage in violent or threatning means in order for him to be found guilty of human trafficking. The tender age of the victim prevails over seemingly elementary requisites of the crime.

The crime of migrant smuggling has been regulated by the Maltese Legislator through the provisions of the Criminal Code, Chapter 9 of the Laws of Malta, through Sub-title IV B in that article 337A provides for a well-rounded definition of the crime as “any person who  with  the  intent  to  make  any  gain whatsoever aids, assists, counsels or procures any other person to enter or to attempt to enter or to leave or attempt to leave or to transit across or to attempt to transit across, Malta …”. In a nutshell, this crime can be said to encompass the making of profit or a profitable business by means of seizing and abusing of the migrants’ desire and need to leave the confines of a particular country and enter illegally into another with the prospects of a better future.

Perhaps one of the most fundamental features of migrant smuggling is the emphasis imposed by legislators on the “financial or other benefit.” It is an essential requisite for this crime to subsit that the perpetrators must seek some form of benefit whether monetary or otherwise through the displacement of human beings between borders. Consequentially, similar means adopted by humanitarian groups with the intention of moving migrants to safe destinations do not qualify as a crime in terms of the law – and this in order to ensure that those who are aiding migrants improve their position, do not get punished as a result.

Furthermore, the definition provides that migrant smuggling will exist where a smuggler has procured or facilitated a migrant to enter or stay in a country of which the migrant was not a national or permanent resident, and did not have the documents required by that country’s domestic law. It is thus also essential that the smuggler has the required state of mind and therefore the actus reus of committing the crime of migrant smuggling.

As discussed during the course of this article, the crimes of human trafficking and migrant smuggling hold stark differences between one another. However, whilst admitting of similarties, they remain amongst the major growing criminal activities in modern society effecting several countries accross the board.

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Will a third-country national lose his or her long-term residence status if his or her presence in the territory of the European Union is only limited to a few days?

Under EU Law, any third-country national who has been living in an EU Member State is entitled to be granted the status of long-term residence. This status is regulated by Council Directive 2003/109 which sets out the basic principles of such status. Since it is a Directive and not a Regulation, in 2006, the Maltese Government enacted Subsidiary Legislation 217.05 to implement the provisions of this Directive.  Therefore, since it now forms part of Maltese Law, the Status of Long-Term Residents (Third County Nationals) Regulations regulates (a) terms for conferring and withdrawing long-term resident status granted in relation to third-country nationals who are legally residing in Malta and the rights pertaining thereto and (b) it also regulated the terms of residence in Malta of third-country nationals who were conferred the status of a long-term resident by another Member State.

The aim of the Directive/Maltese Law is to ensure that non-EU nationals who have lived in an EU country or in Malta for a minimum of five (5) years will have a permanent and secure residence status. It also ensures to grant these non-EU nationals equal rights to those enjoyed by EU citizens.  Furthermore, it makes it easier for these non-EU nationals to move to other EU countries to work and study.

However, like any other law, the long-term residence status regulations also provide for situations when the holder will lose the status or when such status will be withdrawn.  Article 9 of Subsidiary Legislation 217.05 lays down those circumstances under which a long-term resident shall lose his/her long-term residence status. One of the instances where the long-term residence status may be lost is when “the long-term resident is absent from the territory of the European Union for a period of twelve consecutive months”.

Nevertheless, on the 20^th January 2022 the Court of Justice of the European Union (CJEU) has clarified this matter since it was requested by the Austrian Administrative Court to interpret the directive to ascertain whether the physical presence of the person concerned in the territory of the EU during a period of 12 consecutive months, even if such a presence does not exceed, during that period, a total duration of a few days only, is sufficient to prevent the loss of long-term resident status,  or whether the Member States may set additional conditions such as the condition of having had, during at least part of the relevant period of 12 consecutive months, his or her habitual residence or center of interests in that territory.

In its preliminary ruling the Court of Justice stated that except in the event of abuse, it is satisfactory, to avoid the loss of long-term resident status, for the person concerned to be present, during the period of 12 uninterrupted months following the start of his or her absence, in the territory of the European Union, even if such a presence does not exceed a few days in total.  The Court contended that both the wording and context of the provision in question and the objective pursued by the directive support such an understanding. Once long-term resident status is acquired after a period of at least 5 years, those nationals are eligible to the same rights as EU citizens as regards, inter alia, education and vocational training, social security, tax benefits and access to procedures for obtaining housing.

Moreover, the objective supports an interpretation to the effect that third-country nationals who have already proved that they are settled in that Member State, are, in principle, free, as are EU citizens, to travel and reside, also for longer periods, outside the territory of the European Union,  without that thereby entailing the loss of their long-term resident status, provided that they are not absent from that territory for a period of 12 consecutive months.

This means that the interpretation which was adopted by the Court of Justice can guarantee the persons concerned an adequate level of legal certainty when it comes to interpret Article 9 (1) (c) of the Status of Long-Term Residents (Third Country Nationals) Regulations.

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