Treatment of non-EU nationals

Alfred Grech writes:

I was reading your article about the passport chips and ID cards to be used instead of passports when travelling to EU countries.

I married a Malaysian lady who is now a permanent resident in Malta and also obtained a Maltese ID card. She still carries a Malaysian passport and won't be able to obtain a Maltese passport until five years of marriage. In case we want to visit Italy or other EU nations, can she use her Maltese ID card or does she also have to produce her Malaysian passport?

As EU citizens, Maltese nationals have certain rights when travelling to other EU countries. These rights include the freedom to travel within the EU without any visa requirement, simply using a passport or an identity card. But these rights apply to us as EU citizens. They do not apply to non-EU nationals.

However, non-EU nationals who are married to EU citizens, such as in this case, acquire certain rights - or "derived rights" - when travelling with their spouse within the EU. This also applies to their dependent children.

For instance, if the family member who is not an EU citizen has a nationality which requires a visa to enter an EU country then this visa must be granted free of charge and without undue formalities by the relevant consular authorities. In other words, in this case, the non-EU national would benefit from certain preferential treatment when travelling within the EU.

However, if the non-EU family members travel on their own they are not entitled to these special arrangements. These arrangements only apply when they travel with the family member who is an EU citizen.

In this particular case, this should not be an issue because Malaysia is included in the list of countries whose nationals do not require a visa to enter EU countries. Therefore, there is no visa requirement for this person to go to Italy.

As to whether, in this case, the wife should take her Malaysian passport or her Maltese identity card, I have found nothing in the law that covers this specific situation. My understanding is that it would be safer for her to carry along her Malaysian passport and not just her Maltese identity card. The reason is that, as such, EU rights are acquired on the basis of a person's EU nationality (that is, Maltese national) and not on the basis of a person's place of residence (Malta). A passport denotes nationality whereas an identity card merely denotes residence.

This means that she would be required to pass through the immigration controls reserved for non-EU nationals rather than the blue channel reserved for EU citizens. Of course, all this would become irrelevant once she acquires Maltese nationality by virtue of which she would also acquire EU citizenship with its consequent rights.

Moreover, all this would also become irrelevant once Malta joins the Schengen area.

The Schengen area consists of 13 EU countries that removed all immigration controls on all movement within their respective territory irrespective of the nationality of the persons who cross from one Schengen country to another.

This means that family members who are not EU nationals and wish to travel from one Schengen country to another may do so freely and without any visa or passport. They need only carry with them an identity document, such as an identity card or a residence permit.

There are currently 13 EU countries that are part of the Schengen area - all the "old" 15 members except for the UK and Ireland. In addition, Iceland, Norway and now Switzerland are also part of the Schengen area.

Malta, along with the new EU members that joined last year, are expected to join the Schengen area by the end of 2007.

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