Article published on 28 August 2011
The rights of the gay community in Malta have been left in disarray after an EU intervention saw a restriction on migration struck off the law books.
Until this year, non-recognition of gay relationships was applied equally to Maltese citizens and to foreign nationals: those in other member states of the EU and in non-EU third countries across the world.
But in 2010, the EU passed a new directive concerning the free movement of EU citizens between states.
The directive instructed member states to allow entry into their country for an EU citizen and a third country national, so long as they are in a “durable” relationship, regardless of their genders.
Malta then enacted legislation, but failed to properly execute the directive, it is being claimed.
The Malta Gay Rights Movement and human rights NGO Aditus have welcomed the government’s amendment but pointed out that it also creates an anomalous situation.
Previously, where one member of a couple was a third country national in a same-sex union, Malta denied the right to freedom of movement by building in an exemption that applied to gays.
Following infringement proceedings by the European Commission, the Maltese government has been forced to strike the clause that said the country only recognised partners “in a durable relationship” if such relationships were not in “conflict with the public policy of Malta”. Malta has a public policy of non-recognition of same-sex unions.
But with the striking down of the clause comes a migrative anomaly: the same-sex partner of an EU citizen can move with that EU citizen to Malta, but the partner of a Maltese resident who already lives in the country, cannot move to Malta.
In other words, an American and a British person in a civil partnership, or any durable relationship, could freely move to Malta, but that American could not move directly to Malta if the partner was a native resident.
A South African national in a relationship with a Belgian citizen would be allowed to enter, reside and work in Malta whereas the same person in a relationship with a Maltese citizen would not, the NGOs said
In effect, the same-sex partner of a British citizen has more legal right to live in Malta than the same-sex partner of a Maltese citizen.
Gabi Calleja, the coordinator of the Maltese Gay Rights Movement, was quoted by PinkNews as saying: “This amendment is welcome but it in no way replaces the necessity for the introduction of comprehensive legislation recognising same-sex couples. It is regrettable that a number of same-sex couples are forced to leave Malta in order to sustain their relationship each year.”
The NGOs added: “Being married or in a registered partnership should automatically qualify as a durable relationship duly attested for the purposes of the directive. Where no such formalization of the relationship exists, other proof might be requested by the local authorities.”
In 2009, the European Union’s Fundamental Rights Agency released its legal analysis of homophobia and discrimination on the grounds of sexual orientation in the 27 member states.
It concluded that Maltese people in same-sex relationships “are not treated in a like manner to heterosexual couples simply because of their sexual orientation.”
However, in a mark of progress, a transgender man who was born female and underwent surgery abroad was allowed to update his official birth records to reflect the change.
A 2009 study found 49 per cent of students at Malta’s university supported gay marriage, compared with a national study three years earlier that put the number at 18 per cent for the general populace.