Lawyers are at odds with Identity Malta over the interpretation of a law which will result in the eviction of 22 children of non-EU nationals.

National law regulating family reunification has not been transposed correctly to reflect the EU directive on which it is based, according to lawyers Neil Falzon and Arthur Azzopardi, who have both lodged appeals on behalf of clients whose children were refused residence permits.

The children are facing deportation on grounds that their families do not have enough money to sustain them. Identity Malta recently sent out letter refusing the residence permits to children as young as two years old, asserting that as of the date of receipt of these letters, the minors would be in Malta illegally.

When third-country nationals apply for a residence permit for a dependent, Identity Malta require them to prove they earn €19,000 annually, as well as €3,800 for each dependent.

This policy is based on national law requiring the sponsor to provide evidence of stable and regular resources equivalent to the average wage, with an addition of another 20% income for each member.

However, the EU commission has clarified that minimum national wages should be seen as the upper limit of what member states may require, except if they choose to take into account the number of family members, Dr Falzon has pointed out.

The Commission’s Guidance for Application of the Right to Family Reunification also states clearly to member states that family reunification is a right and any derogation to this right must be interpreted strictly, he added. 

However, at a press conference on Tuesday, Parliamentary Secretary for citizenship Julia Farrugia Portelli defended the policy against which children’s residence permits were being refused by saying Identity Malta assessed their sponsors’ income against a figure closer to the minimum wage.

According to Ms Farrugia Portelli, when sponsors failed to satisfy the financial requirements set by Identity Malta, they applied a much more lenient method of means testing, based on the at-risk-of-poverty benchmark established in the Statistics on Income and Living Conditions (SILC).

“If the families failed this test it would indicate they were living under the poverty line and the authorities had a responsibility to refuse their children’s residence permits to safeguard them,” she said.

They are adopting unwritten policy rules instead of transparent, accessible standards

According to Identity Malta chief officer of policy Ryan Spagnol, while the EU Commission had challenged Malta over its policy in 2017, it subsequently accepted the arguments that Identity Malta had put forward regarding its method of assessment and did not require them to amend the law.

However, the families whose children were being evicted, said this method of income assessment, based on the SILC survey, was never explained to them and they were not  aware what this “more lenient” form of means-testing involved.

“I read the statement of Identity Malta. What do they mean when they say accommodation cost should be deducted? No one ever told us that or even calculated that in front of us when we made application,” said Velimir Dulo, whose annual gross earnings total €27,233.

It was also unclear to parents such as Vladica and Dragana Popovic with a combined annual salary of €26,457, or Jelena and Miroslav Nojic with annual earnings of €27,144, how they failed this means test and could not keep their children because they were supposedly living under the poverty line.

Dr Falzon accused Identity Malta of practicing “unwritten policy rules”, instead of transparent and accessible standards.

“Anyone approaching the agency is entitled to know the application procedure and required documentation. They are also entitled to know, or to be explained, the criteria against which their applications will be assessed,” he said.

It is neither acceptable nor fair to have a difference between legal standards and what happens in practice.

“Like everyone and everything else, Identity Malta is subject to the law and it may not create rules, policies and procedures that violate legal provisions, whatever their justification.”

Robert Abela says solution on horizon

Labour leadership hopeful Robert Abela believes there is a solution on the horizon for the children facing eviction, but regulations need to be observed.

At a press conference given on Saturday morning, Dr Abela was asked by Times of Malta whether he would amend policies to prevent the children from facing deportation.

“There are regulations that need to be adhered to but I think a just solution will be found to prevent the suffering of the children soon,” he said.

He said the situation had been discussed at a cabinet meeting and Parliamentary Secretary Julia Farrugia Portelli would be meeting the families of the 22 children facing eviction.

Asked whether he thought the human element was being overlooked in the application of policy, Dr Abela replied that regulations needed to be abided by.

“I love children and I have a daughter of my own. I’d never want to see a situation that inflicts suffering on people, but regulations need to be observed too.”