By virtue of the Withdrawal Agreement (the 'Agreement') which came into force on the 1st February 2020, the United Kingdom ('UK') cut its ties and subsequently withdrew from the European Union ('EU') in accordance with Article 50 of the Treaty of the European Union ('Treaty'). The said Agreement was entered into between the EU and the UK in order to establish the terms of the UK's withdrawal from the EU and essentially, to protect the rights of UK nationals and their family members who lived in European countries before Brexit.
Prior to said withdrawal, UK nationals were EU citizens and thus, were entitled to the right of free movement within EU Member States in line with European law and the relevant local laws of the respective state which implemented such laws. In Malta, this right is in fact stipulated in Subsidiary Legislation ('S.L.') 460.17 (the 'Free Movement of European Nationals and their Family Members Order'). As per Article 3 of S.L. 460.17:
"A Union citizen may enter, remain and reside in Malta, seek and take up employment or self-employment therein, and shall enjoy equal treatment with Maltese nationals within the scope of the Treaty."
As a rule, in Malta, EU citizens (and their family members) who choose to reside in Malta either for employment purposes or otherwise, if residing here for more than three months, are requested to submit an application to Identity Malta Agency (the 'Agency') for a residence card.
Who is protected under the Withdrawal Agreement?
UK Nationals who settled in Malta (being the host state) during the Brexit transition period, that is from 1st February 2020 until 31st December 2020, shall enjoy the same rights as those given to UK Nationals who settled in Malta prior to said transition period – thus, they may choose to continue residing in Malta and move freely in and out of the country, as well as other associated rights, as specified in the Agreement.
Such individuals are however requested to apply for a new residence card after residing here for a minimum of three months, and prior to 30th June 2021. Such residence card shall be valid for a term of 10 years and will be renewed automatically upon application, provided the eligibility criteria are still satisfied.
When applying for said residence card, one would need to provide supporting documentation as proof of residence in Malta. Specific documentation such as lease agreements, bank statements showing local transactions, boarding passes, and any other documentation showing proof of settlement in Malta would be required.
In 2020, the Agency, being the responsible authority for residence cards in Malta, reached out to all potential beneficiaries who already had a valid residence document by virtue of their residence in Malta prior to the Brexit withdrawal date, to encourage them to change their status to the said 10-year term, reflecting the terms laid out in the Withdrawal Agreement. On the other hand, UK Nationals who settled in Malta during the transition period, as aforementioned, are required to submit the 'UK Nationals Residence Status' application to the Agency.
In terms of S.L. 217.25 (the 'Residence Status of UK nationals and their family members in accordance with the Agreement on the Withdrawal of the UK and Northern Ireland from the EU and the EU Atomic Energy Community Regulations'), the residence cards of UK nationals who were already in possession of a residence document based on the right to freedom of movement before the withdrawal date, and who would now qualify as beneficiaries in terms of the Withdrawal Agreement, shall remain valid until a new residence document which confers their rights in terms of the Agreement is issued, substituting their original residence card.
In a nutshell, in order to be able to benefit from the Withdrawal Agreement, UK nationals and their family members had to be already lawfully residing in the EU host state (in this case, Malta), in accordance with EU law on free movement on the 31st December 2020 when the transition period ended.
UK Nationals settling in Malta post 31st December 2020
Taking the above into consideration, a UK national who arrived in Malta after the 31st December 2020 (thus, after the cut-off date for the transition period), would, like any other third country national, be permitted to legally stay in Malta for 90 days within every 180-day period if one is not in possession of a residence card. Nonetheless, if one is relocating to Malta for employment purposes, the employer based in Malta would need to apply for a work permit for the UK national. It is the responsibility of both the employer and the employee to ensure that the work permit is obtained before commencing work activities, and that it is renewed every year prior to its expiration.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.