Preliminary:
An appeal against the Refusal of Single Permit Application, concerning our client, a Nepalese national.
Facts:
Our client, a Nepalese, who arrived in Malta through legal means, had applied for a change of employer. She diligently followed the prescribed legal procedures to obtain a new Single Work Permit, yet her application was refused due to baseless bureaucratic technicalities. The refusal was grounded on an alleged ‘objection from Jobsplus’, which classified her prospective employer as a ‘temping agency’. However factual evidence clearly demonstrated that their prospective employer is a cleaning and housekeeping company, not a temping agency. The refusal letter’s claim that the employer company and their brand are two separate entities is factually incorrect, their brand is merely a brand operated by the company, not an independent legal entity.
The way our client’s application was handled is an appalling example of bureaucratic negligence, several critical procedural violations can be identified such as despite having the power to request additional documentation under Regulation 16(1) of Subsidiary Legislation 217.17, Identità never asked for clarification or supporting documents, proceeding instead with an outright refusal. The refusal letter was unmotivated, failing to cite any specific legal provision that was allegedly violated. This directly contravenes European legal principles that mandate clear reasoning for administrative decisions. The decision was also made without giving our client an opportunity to respond or provide further clarification, a direct violation of the audi alteram partem principle. This decision disregards the fundamental human dignity of an individual who has made Malta their home, lawfully secured employment, and upheld all legal responsibilities. The case law cited in their appeal demonstrates that Malta has previously ruled in favour of applicants in similar situations, recognising that any wrongdoing by an employer should not unfairly penalise the employee. The decision against our client, however, ignores this crucial precedent, treating them as collateral damage in a bureaucratic misstep. Our client’s case is not merely a legal dispute but a profound moral failing of the system that should be protecting individuals like them. The authorities’ actions have created an undue burden on an individual who has done everything in their power to comply with the law.
Decision Appealed:
Sciberras Advocates appealed this decision for the Refusal of the Single Work Permit. The appeal mentioned the violation of fundamental rights such as:
- Article 23 of the Universal Declaration of Human Rights which is the right to work, denying her the ability to work despite her prospective employers willingness to hire her is a blatant violation of international human rights standards.
- The Right to Family and Private Life (Article 8 of the European Convention on Human Rights, forcing her to leave Malta disrupts her settled life and aspirations, ignoring the human impact of administrative decisions.
- The Right to equal treatment, other Nepalese nationals have been granted employment licenses under similar circumstances, raising serious concerns about discriminatory and inconsistent decision making by authorities.
Our client’s case is an illustration of bureaucratic overreach and systemic disregard for the human impact of immigrant decisions. It was argued that it is imperative for the Appeals Board to declare the refusal of the decision null and void due to its procedural irregularities and lack of legal basis, Allowing our client to proceed with their application and instruct Identità to approve it without hesitation and to rectify the miscarriage of justice by ensuring that Jobsplus and the Immigration Police recognise her right to work and reside in Malta was essential.
Legal Framework:
Subsidiary Legislation 217.17 (Single Permit Regulations):
Regulation 16(1): Jobsplus failed to request further information before refusal.
Regulation 15: The refusal letter was wrongly addressed to the employer instead of our client, violating proper notification procedures.
Directive 2011/98/EC (EU Single Permit Directive):
Preamble 5: Administrative procedures must be transparent, fair and efficient which was not the case for our client.
European Convention on Human Rights:
Article 8: Right to private and family life, forcing our client to leave Malta disrupts her settled life.
Universal Declaration of Human Rights:
Article 23: Right to work and free choice of employment, which was denied to our client despite their legal compliance.
Case Law supporting our client’s case:
Ayesha Shaukat vs Identity Malta (2022) – Established that employer misconduct should not unjustly affect employees.
Mohammed Yasin Ahmed vs Identity Malta (2023) – Recognized humanitarian concerns in work permit decisions.
Ekogiawe Johnbull Ibrahim vs Identity Malta (2023) – Found it unfair to retroactively apply policy changes to legitimate workers.
Decide:
Sciberras Advocates successfully appealed the decision of the refusal of the single work permit and the Appeals Board concluded that the Agency did not provide sufficient proof that the company was a temping agent and therefore decided to rule in favour of the appellant.
Este artigo destina-se apenas a fins informativos e não deve ser interpretado como aconselhamento jurídico.
Article written by Mr Dale Attard, currently reading a Bachelor of Laws (Honours) at University of Malta.
A Sciberras Advocates, fundada pelo Dr. Adrian Sciberras, é uma sociedade de advogados sediada em Malta. A firma orgulha-se de ser multidisciplinar, inovadora e flexível, de modo a responder às mudanças dos tempos e a quaisquer desafios no cenário jurídico local e internacional. Independentemente das exigências complexas privadas ou corporativas, a Sciberras Advocates oferece soluções jurídicas práticas e rentáveis para alcançar os resultados desejados. Pode contactar a Sciberras Advocates por telefone através do +35627795222ou por e-mail em [email protected].
