Starting Work in Gibraltar While Residency Is Pending: The New 90-Day Employment Rule

Starting Work in Gibraltar While Residency Is Pending: The New 90-Day Employment Rule

New Gibraltar employment rules allow conditional employment approval while a residence permit application is pending. Chris Brunt, a Gibraltar Employment lawyer, explains the 90-day rule, what happens if residency is delayed or refused, and the risks for employers and employees.

On 27 August 2026, the Government of Gibraltar introduced an important change to the rules governing people who wish to start work in Gibraltar while their application for residency is still being dealt with.

The Employment (Amendment) (No.3) Regs 2026, Legal Notice 328 of 2026, came into operation on the day they were published. They insert a new regulation 8A into the Employment Regulations 1994 dealing specifically with “Conditional employment pending residency.”

The change is potentially very useful for employers and employees.

It means that, in appropriate cases, an employee does not necessarily have to wait until their Gibraltar residence permit has finally been granted before starting work.

There are, however, important conditions.

In particular:

• the employee cannot simply start work because a residence application has been made;
• the Director of Employment must first approve the employment documentation;
• the approval is conditional upon the employee obtaining a residence permit within 90 days;
• conditional employment approval does not itself give the employee a right to reside in Gibraltar;
• an outstanding residence application at the end of the 90 days can result in mandatory revocation of the employment approval;
• a refusal of residency is treated differently where there is still a right of appeal;
• in some circumstances there is a further 90-day bar preventing any employer from making a fresh employment application for the worker; and
• continuing employment after notification of revocation can amount to a criminal offence.

Those points are considered below.

Who does the new rule apply to?

The Regulations use the wider statutory expression “worker”. For readability, this article generally refers to an employee, although the statutory definition of “worker” can extend beyond a conventional contract of employment, including in some circumstances a person engaged under a contract for services.

This is because the underlying Employment Regulations expressly extend “worker” to contracts of service and contracts for services, unless the person is genuinely in business on their own account.

The new regulation 8A applies where an employer has either:

• made a notification under regulation 6 of the Employment Regulations 1994; or
• applied for a permit under regulation 7,

and the worker is required to make, and has made or proposes to make, an application for a residence permit under Part 2 of the Residency Regulations 2026 which has not yet been determined.

The procedure therefore potentially applies both to workers whose employment is dealt with by way of notification under regulation 6 and to non-entitled workers who require a permit under regulation 7.

Can the employee start work while residency is pending?

Yes, but only after the Director has approved the employment documentation under regulation 8A.

This is an important distinction.

The rule is not:

“I have applied for residency, therefore I can start work.”

The position is instead:

“My employment documentation has been approved subject to residency approval, therefore I may start work during the conditional period.”

Regulation 8A(3) expressly provides that a worker to whom the new regulation applies cannot commence employment in Gibraltar unless the Director has approved the employment documentation.

Once that approval has been given, regulation 8A(4) provides that the worker is entitled to commence and continue employment from the date of approval, subject to the residency condition.

Employers should therefore be particularly careful not to allow somebody to start work merely because the employee can show that a residence application has been lodged.

The employment approval itself must first have been obtained.

What does the approval look like?

The Regulations prescribe the wording which must appear on the employment documentation.

It must bear the endorsement:

“Employment Approved Subject to Residency Approval”.

The Director must also inform the employer that the employee has 90 days from the date of approval to obtain a residence permit and that failure to obtain one, or refusal or withdrawal of the residence application, will result in revocation of the employment approval.

That endorsement is therefore more than administrative wording. It identifies an employment approval which is expressly conditional and time-limited.

The 90-day residency condition

The new regulation defines the “residency condition period” as a period of 90 days beginning on the date on which the Director approves the employment documentation.

The 90 days therefore run from the date of employment approval, not from:

• the date the residence application was made;
• the employee’s first day at work; or
• the date on which the employer offered the employee the job.

Both employers and employees should make a careful note of the actual approval date and the date on which the 90-day period expires.

Conditional employment approval is not a residence permit

This is probably the most important conceptual point in the new legislation.

Regulation 8A expressly provides that conditional employment approval gives only the right to be in employment in Gibraltar for the purposes of the Employment Regulations during the residency condition period.

It does not:

• give the employee a right to reside in Gibraltar;
• give the employee an entitlement to a residence permit;
• give an entitlement to education or any other service or benefit which depends upon holding a residence permit; or
• interfere with the determination of the residence application under the Residency Regulations 2026.

There are therefore two legally separate questions:

Is this person entitled to work in Gibraltar?

and

Is this person entitled to reside in Gibraltar?

Conditional employment approval may answer the first question without answering the second.

That distinction may be especially important for somebody relocating to Gibraltar with a family and assuming that employment approval automatically carries with it access to residence-related rights or services.

It does not.

Nor does conditional employment approval mean that the worker necessarily qualifies for residency. The Residency Regulations 2026 impose their own eligibility requirements, including requirements relating to matters such as employment, earnings, accommodation, age and vetting. Those requirements are determined separately from the employment approval process.

The 90 days does not itself extend a person’s right to stay in Gibraltar

Regulation 8A(6) contains a further important proviso.

Although the residency condition period lasts 90 days, nothing in regulation 8A is to be construed as conferring a right to stay in Gibraltar for more than 90 days in any 180-day period.

Conditional employment approval should therefore not be confused with immigration or residence permission.

An employee must ensure that their presence in Gibraltar is independently lawful throughout the relevant period.

Practical example 1 – the employee starts before residency is granted.

Maria lives outside Gibraltar and accepts a job with a Gibraltar employer.

Her employer submits the necessary employment documentation and Maria submits her residence application.

The residence application has not yet been decided.

The Director approves Maria’s employment documentation on 1 September 2026 and it is endorsed:

“Employment Approved Subject to Residency Approval”.

Maria may start work from the date of approval.

Her 90-day residency condition period also starts running on that date.

If she provides satisfactory evidence during that period that a residence permit has been issued, the Director must cancel and remove the residency condition from her employment approval and, where applicable, from her regulation 7 work permit.

The worker has a seven-day notification obligation

The legislation does not leave responsibility entirely with the employer or HR department.

Regulation 8A(7) places a specific obligation upon the worker.

Within seven days of being notified of the determination of the residence application, the worker must notify the Director in writing of either:

• the grant of the residence permit, providing whatever evidence the Director requires; or
• the refusal or withdrawal of the application.

Employees should therefore not assume that the residence authorities will automatically communicate everything necessary to the Employment Department.

The worker has their own statutory notification obligation.

What happens if the residence permit has still not been issued after 90 days?

This is one of the most important, and perhaps surprising, features of the new Regulations.

If the 90-day residency condition period expires and the worker has not provided the Director with evidence that a residence permit has been issued, regulation 8A(8) states that the Director shall:

• revoke and cancel the conditional employment approval;
• revoke any regulation 7 permit issued subject to the residency condition; and
• where appropriate, require the return of the worker’s certificate of employment.

The wording is mandatory.

Significantly, the legislation does not create an express exception merely because the residence application is still awaiting a decision.

That can produce a potentially difficult result.

Practical example 2 – nothing has gone wrong, but residency is still undecided.

Anna receives conditional employment approval on 1 September.

She immediately submits everything requested in support of her residence application.

She starts work and hears nothing further.

At the end of the 90-day residency condition period, her residence application is still awaiting determination.

Anna has not been refused residency.

She has not withdrawn her application.

She may not have done anything wrong at all.

Nevertheless, if she cannot provide evidence that a residence permit has actually been issued by the end of the residency condition period, regulation 8A(8) requires the Director to revoke the conditional employment approval.

This is a particularly important point for both employers and employees.

An outstanding application should not simply be left unattended on the assumption that employment can continue indefinitely until the residence authorities eventually make a decision.

What happens if residency is actually refused?

Curiously, a worker whose application has actually been refused may, for a period, be in a better position than somebody whose application remains undecided at the end of the 90 days.

Where the residence application is refused or withdrawn during the residency condition period, regulation 8A(9) requires the Director, subject to regulation 8A(10), to revoke the employment approval and any applicable permit.

However, where the application has been refused within the 90 day period, regulation 8A(10) prevents the Director from revoking the employment approval while the period for appealing the residence refusal remains open.

If an appeal is lodged within that period, the approval remains in force until the appeal is withdrawn or determined and the refusal is upheld.

That creates an important distinction.

A worker whose application remains completely undecided at the end of the 90 days does not appear to receive the same express statutory protection as a worker whose application has been refused (within the 90 day period) and who is still within the appeal process.

Practical example 3 – refusal followed by an appeal

David is working under conditional employment approval.

His residence application is refused on day 70.

He has a statutory right to appeal the refusal and does so within the applicable time limit.

The Director cannot revoke David’s employment approval merely because the initial residence decision was adverse while the appeal remains alive.

The conditional employment approval remains in force during the appeal period and, if an appeal is made in time, while that appeal is being pursued, unless it is withdrawn or the refusal is ultimately upheld.

That is markedly different from the position where day 90 simply arrives with the application still undecided – no refusal, no grant, and so nothing to appeal – which triggers mandatory revocation under regulation 8A(8) with no equivalent protection.

What happens after employment approval is revoked?

Where the Director revokes an employment approval under regulation 8A(8) or 8A(9), the Director must notify both the employer and the worker in writing of the revocation and its effect.

The worker then ceases to be entitled to remain in employment in Gibraltar by virtue of regulation 8A.

But in some cases the consequences go further.

A further 90-day ban on a new employment application

Regulation 8A(12) creates a potentially significant trap.

Where:

• the employment approval has been revoked under regulation 8A(8) or (9); and
• at the date of revocation, the worker did not have an independent right to reside in Gibraltar other than through a residence permit under the Residency Regulations 2026,

no employer may submit a fresh regulation 6 notification or regulation 7 application for that worker for a further period of 90 days beginning with the date of revocation.

The Director is also prohibited from approving employment documentation for that worker during that period.

It is important to see that the second condition does not explain why the employment approval was revoked in the first place. That revocation has already happened, under subregulation (8) or (9), for reasons unconnected to the worker’s wider immigration status – either the 90 days ran out without a permit being evidenced, or the residence application was refused or withdrawn. Condition (b) is doing something different. It asks whether, on top of that revocation, the further consequence of the 90-day bar on any employer reapplying should also apply. The statutory test is whether, at the date of revocation, the worker was entitled to reside in Gibraltar otherwise than by virtue of a residence permit under the Residency Regulations 2026. This is not necessarily the same question as whether the worker could lawfully be physically present in Gibraltar at that particular time. A person may, for example, be lawfully present without thereby having an independent entitlement to reside. A worker who does have some other entitlement to reside still loses the conditional employment approval itself, but is spared the additional 90-day restriction imposed by regulation 8A(12).

It is worth being precise about what this bar covers and what it does not. Regulation 8A(12) operates only on the employment side. It stops any employer – the original one or a new one – from submitting a fresh regulation 6 notification or regulation 7 application, and it stops the Director from approving employment documentation, for 90 days. It says nothing about whether the worker may lodge a fresh residence application in that period. That question belongs to the Residency Regulations 2026, not to regulation 8A, and regulation 8A expressly states that it does not affect the operation of the Residency Regulations 2026 or the determination of any application made under them.

The practical effect will nevertheless often be severe. Even if the worker is free to make a fresh residence application, regulation 8A(12) prevents any employer – whether the original employer or a new one – from submitting a fresh regulation 6 notification or regulation 7 application for that worker during the 90-day period, and prevents the Director from approving such employment documentation. In the ordinary case, this will effectively prevent the worker from taking up fresh Gibraltar employment requiring regulation 6 or regulation 7 documentation during those 90 days, irrespective of the progress of any fresh residence application.

The words “no employer” are important.

The worker cannot necessarily solve the problem simply by leaving Employer A and obtaining another job with Employer B.

If regulation 8A(12) applies, the prohibition follows the worker for the 90-day period.

Practical example 4 – changing employer does not solve the problem.

Sarah’s conditional employment approval is revoked because she has failed to obtain the necessary residence permit within the prescribed period.

She does not otherwise have a right to reside in Gibraltar.

Another Gibraltar business immediately offers her a job.

That new employer cannot simply submit another employment notification or permit application the following day.

Regulation 8A(12) prevents any employer from submitting the relevant employment documentation for Sarah during the 90 days following revocation.

That is potentially a serious consequence for somebody who has relocated in reliance upon a Gibraltar job.

Continuing to work after revocation may be a criminal offence

The Regulations also create specific criminal offences.

There is an important distinction here between the revocation itself and notification of the revocation.

Under regulation 8A(11), the Director must notify the employer and worker in writing where employment approval has been revoked.

Regulation 8A(15) then provides that a worker who continues working after being notified of that revocation commits an offence and is liable on summary conviction to a fine at level 4 on the standard scale.

Regulation 8A(16) creates a corresponding offence for an employer who continues to employ the worker after being notified of the revocation.

It would therefore be inaccurate to treat this simply as an administrative irregularity.

Once the statutory notification has been given, continuing the employment may expose both parties to criminal liability.

Practical example 5 – the employer ignores the revocation.

An employer receives written notification from the Director that an employee’s conditional employment approval has been revoked.

The employee is valuable to the business and the employer decides to “keep things going for another couple of weeks” while somebody tries to resolve the residency problem.

That is not a safe course.

Once the statutory notification of revocation has been given, the employee who continues working and the employer who continues employing them may each commit an offence.

The appropriate course is to establish the employee’s legal status immediately and obtain advice if there is any doubt.

What should employers do?

The new procedure should make recruitment easier in many cases, but employers should build the 90-day rule into their onboarding and compliance procedures.

In practical terms, employers should consider:

1. identifying whether the worker is dealt with under regulation 6 or requires a regulation 7 permit;
2. ensuring that the necessary employment documentation is submitted;
3. confirming that the Director has actually approved the employment documentation before work begins;
4. retaining a copy of the documentation endorsed “Employment Approved Subject to Residency Approval”;
5. recording the date on which the conditional approval was granted;
6. diarising the 90-day expiry date;
7. checking the progress of the employee’s residence application before the deadline approaches;
8. ensuring that any grant, refusal or withdrawal is dealt with promptly;
9. checking whether any appeal against refusal has been made and remains outstanding; and
10. immediately reviewing the employment position if notification of revocation is received.

For larger employers, this should probably form part of the formal recruitment and right-to-work checklist.

What should employees do?

Employees should not assume that the employer, the Employment Department and the residence authorities will automatically deal with the process between themselves.

If you are working under conditional employment approval, it is sensible to keep copies of:

• your employment approval;
• the endorsed employment documentation;
• your residence application;
• confirmation that the residence application has been submitted;
• correspondence concerning your residence application;
• the residence permit once issued; and
• any appeal documentation if the residence application is refused.

Most importantly, know the date on which your 90-day period expires.

And remember the separate obligation to notify the Director in writing within seven days of being informed that the residence application has been granted, refused or withdrawn.

Employers should also consider their employment contracts.

The new Regulations may also have contractual consequences.

Where an employee’s continuing ability to work depends upon obtaining and retaining the necessary governmental permissions, an employer should consider whether the offer letter and contract of employment make that clear.

A contractual term may appropriately provide that employment is conditional upon the employee obtaining and maintaining whatever employment and residence permissions are legally required.

Such a clause will not override statutory employment rights or permit an employer to act unlawfully.

It may, however, avoid unnecessary uncertainty if the employee subsequently loses the legal entitlement to continue working.

Other amendments made by Legal Notice 328/2026

The new Regulations do more than introduce conditional employment pending residency.

They also amend regulation 6 of the Employment Regulations 1994 so that the definition of an entitled worker expressly includes an EEA national or a national of the United Kingdom, together with a family member, as defined in regulation 23 of the Residency Regulations 2026, of an EEA national or UK national. For these purposes, “EEA National” includes nationals of states which are contracting parties to the European Economic Area Agreement and nationals of Switzerland.

The Regulations also delete regulation 7A, which contained the former transitional provisions relating to workers from Central and Eastern European accession states, including Bulgaria and Romania.

What about existing employment documentation?

Legal Notice 328/2026 contains an express savings provision. Nothing in the new Regulations affects a regulation 6 notification made, a regulation 7 permit issued or renewed, or a certificate of employment issued before the new Regulations came into force on 27 August 2026. The new conditional residency regime should therefore not be read as retrospectively imposing a residency condition upon employment documentation already in existence before commencement.

The position in summary

The new Regulations are a useful attempt to solve a practical problem.

A Gibraltar employer can now, in appropriate circumstances, employ somebody whose residence application has not yet been finally determined.

But the new system is not simply a general permission to work while residency is pending.

The essential points are:

• conditional employment approval must first be granted by the Director;
• employment may commence from the date of that approval;
• the worker then has a 90-day residency condition period;
• the approval does not itself give the worker a right to reside in Gibraltar or access residence-dependent services or benefits;
• the worker has a separate seven-day duty to notify the Director of the outcome of the residence application;
• if no residence permit has been evidenced by the end of the 90 days, the Director is required to revoke the conditional approval;
• a refusal of residency is subject to special protection while the statutory appeal period or a properly lodged appeal remains outstanding;
• some workers whose approval is revoked face a further 90-day prohibition on any employer making a fresh employment application for them; and
• once employer and employee have been notified of revocation, continuing the employment may constitute a criminal offence.

For employers, the new rules should make recruitment more flexible.

For employees, they may allow employment to begin considerably earlier than would otherwise have been possible.

But the legislation also contains some significant traps, particularly where a residence application remains undecided as the end of the 90-day period approaches.

Anyone approaching that deadline should establish their position before the period expires rather than assuming that an outstanding residence application automatically preserves their right to work.

How I can help

If you have been offered a job in Gibraltar and are unsure whether you can start work while your residence application is being determined, I can advise you on the employment implications of the new rules and the documentation you have received.

I can also advise Gibraltar employers dealing with conditional employment approval, including the terms of employment contracts, the consequences of a delayed or refused residence application and what should be done if employment approval is revoked.

Contact Chris Brunt: Call me for an initial discussion about your circumstances at Phillips Barristers and Solicitors, 292 Main Street, Gibraltar, email me at chris.brunt@phillips.gi or call 200 73900.

All opinions are my own and are provided for information only and do not constitute legal advice. The information and commentary on Gibraltar law contained in this article are provided free of charge for general information purposes only. Every reasonable effort is made to ensure that the information is accurate and up to date, but no responsibility is accepted for its accuracy or for any consequences of reliance upon it. The information and commentary do not, and are not intended to, amount to legal advice to any person on a particular case or matter. Specific legal advice should be obtained about individual circumstances.