Human Rights, International Law and Migrations
A Difference of Class? Malta's Naturalisation Spectrum between Golden Passport Applicants and Refugees
Date: June 8, 2020Author: International Law Blog 2 Comments
By Hera Jay Brown, (she, her) Rhodes Scholar and M.Phil. student, University of Oxford and Allegra Salvini, (she, her) Independent Researcher, Master in International Migration and Public Policy, The London School of Economics and Political Science.
This article explores the class dimensions of naturalisation in Malta using two case studies between those seeking international protection compared to those purchasing passports, popularly referred to as "golden passports," through Malta's Individual Investors Programme (IIP). Primarily, our analysis interrogates the different, and often class-based, requirements between the two case populations and finds that greater naturalisation rates—and, more importantly, relaxed requirements—favour golden passport applicants compared to those seeking international protection. This reality may even violate non-discrimination protections based on property—interpreted by the EU to mean possessions and by us as capital—enshrined in Article 21 of the EU's Charter of Fundamental Rights. This assertion is based on the disproportionate rate of naturalisation for IIP migrants compared to the minority of those seeking international protection in Malta that have the right to pursue citizenship, an issue discussed in this work.
The authors met in Malta during the fall of 2019. Ms Brown—at the time a Fulbright-Schuman researcher to the European Union—was researching Golden Passport Scheme (GPS) programs and refugee naturalisation; Ms Salvini—working at the time for an international organisation in migration policy development—was conducting independent research on the integration of refugees in the European Union. With their separate research projects, they each conducted interviews with key sources in Malta, including leading human rights organizations, law firms acting as agents for GPS clients, and asylum seekers who found safety, though often not hospitality, on the island. They also conducted digital searches online for primary sources such as policy documents from Malta's Labour party, UN and EU legal instruments governing asylum, and laws and policies outlining Malta's IIP. From these sources, they discovered a growing tension in Maltese society, one that bridged class and party. After discussing their initial findings over the previous months, they endeavoured to fuse their work. The authors realized the need to highlight Malta's class-based double standard in its naturalisation policies and the state's legal duplicity in protection status determination.
In this article, the authors use the term "refugee" to refer to anyone outside of their country of origin in need of international protection and "refugee status holder" to refer to those who have been granted refugee status under the United Nations' 1951 Refugee Convention and 1967 Accords. The term "subsidiary protection holder" refers to those who have been granted subsidiary protection under the European Commission's Council Directive 2004/83/EC of 29 April 2004. The use of "asylum seeker" refers to individuals who are currently in the process of seeking asylum under either the Convention/Accords or the Commission's Council Directive. Finally, "Golden Passport Applicant" refers to those applying for citizenship through Malta's Individual Investors Programme (IIP) and "Golden Passport Holder" to refer to the over 3500 individuals who hold Maltese citizenship thanks to the IIP.
Citizenship, Class, and CoronaVirus
As the world adjusts to life under COVID-19, media coverage of the massive stimulus packages in the US and EU have dominated airwaves in Europe. This focus is timely and important, especially given that who has access to that capital, that essential protection, differs. The case is no different in Malta, where the island nation has rewarded those with citizenship (either Maltese or EU) with much-needed support and safeguards while those without citizenship remain precariously beyond the scope of the formal Public Commons and being deemed worthy of employment protections and financial support. Yet, who is deemed worthy of citizenship and how one acquires such is a years-long debate, one that has and will have consequences for some of Maltese society's most disenfranchised individuals. Highlighting some of these disparities were refugee advocacy organizations and journalists.
Since the end of 2019, Valletta, the Maltese capital, has come under increased scrutiny. Investigations linked Former Prime Minister Joseph Muscat and members of his cabinet to the 2017 assassination of Daphne Caruana Galizia, a journalist who—as an aligned supporter of Malta's Nationalist Party—was a critic of Governmental abuses. Her death sparked intense debate throughout Malta, an island fiercely divided between the ruling Labour Party and the Nationalist opposition. Galizia wrote on a variety of topics, but many remember her investigative reporting on the so-called golden passport scheme (GPS) in Malta, wherein investments from wealthy third-country nationals lead to the acquisition of Maltese nationality and in turn, E.U. citizenship. Even after the loss of Galizia, her work on Malta's 2013 GPS—known legally as the Individual Investor Programme—continues to be a point of contention for people on and off the island.
How did Malta Arrive at Selling a Nation-State's Most Valuable Asset?
In 2013, the European Commission noted that the EU had no grounds to prevent Malta from selling citizenship. In January 2014, the European Parliament condemned Malta's GPS (among others) and called on the Commission to further investigate their fundamental legality. The Commission did not complete its review until January 2019, and while it has raised further concerns about money laundering and corruption being regularized through these schemes, the Commission continues to defer to the Member States on the management of citizenship. On January 23, 2019, the Commission said, "The European Court of Justice has found that, while it is for every Member State to lay down the conditions for the acquisition and loss of nationality, they have to do so with due regard to Union law. Member States must, therefore, take into account all rules that form part of the EU legal order, including international law, which requires a 'genuine connection' between the State in question and the person that is granted citizenship." However, the definition of a "genuine connection" has been applied loosely in the Maltese case—if you have cash, that is.
After sitting down with some of the agents—certified law practices who are authorized to bring GPS applications directly to the government on behalf of clients—we found that attitudes were mixed. One interviewee, in particular, noted that despite being an agent, they disagree with the practice. One respondent noted that they thought the practice cheapened the Maltese nationality but said that if they didn't provide GPS services, the firm could lose their clients to other agencies who do represent clients in the IIP and, in turn, might begin totally servicing all the needs of a client. The respondent further noted that many in Maltese society were taken aback by this program, especially given that it was not a published part of the Labor Party's 2013 election manifesto. After winning in March 2013 on a platform completely devoid of any IIP policy, structure, or plan, the Muscat government's most contentious program was brought to Parliament and passed some months later.
A Maltese passport actually costs approximately €1,150,000. A little over a million euros permits one access to the Schengen zone, visa-free travel to 141 countries, labour, voting, and banking rights, and a host of other privileges bound up in Maltese/EU nationality.
Precarity in Protection
On the other end of the citizenship spectrum lies the issues faced by asylum seekers. We talked with a human rights organization in Malta as well as with a number of those seeking and already granted international protection from the Sudanese community, one of the largest refugee communities in Malta. For those facing the Maltese bureaucracy for international protection, statuses can mean the difference between being protected and being excluded. A human rights organization in Malta considered it controversial that some could take part in the Public Commons as citizens so long as they have money while others—such as asylum seekers—could not, despite refugees intentionally working to meet citizenship requirements placed on them such as a knowledge of the Maltese and/or English language and contributing to the national economy through tax revenue. Asylum seekers like Ahmed believe that in order to get citizenship, somebody should, "be legal, get an education, work, pay taxes and help the economy of the country." At the time of the interview, Ahmed, 23, had been in Malta for 7 months and was still waiting for an answer on his asylum application.
Treatment of asylum seekers on the island has been appalling. Despite the fact that employing refugees benefits both the individual and Malta as a whole, the Muscat government has tried illegally detaining migrants under the guise that they pose a "public health" risk to the rest of Malta. This trope relies on inherently racist and classist arguments against those seeking legitimate and guarded access to protection. The judicial system ruled in favour of six migrants who took this atrocious "public health" policy to court. Since 2015, many asylum seekers have been denied refugee status under the 1951 Refugee Convention and 1967 Protocol; rather, four times as many asylum seekers received subsidiary protection rather than refugee status and twice as many were rejected altogether. Maltese policies governing naturalisation only permit an application for citizenship from refugee status holders after 10 years. With subsidiary protection, the waiting period is technically 20 years, but legal advocates were pressed to think of a time when such an application had been accepted by ID Malta, the state's naturalisation authority. For rejected applicants, there is never an opportunity to become a citizen. One could spend their entire life paying taxes to and residing in Malta but never gain access to the rights, privileges, and protections of citizenship.
Mohammed Mousa, 33, has been living for more than 5 years in Malta where he was granted subsidiary protection. He works as an electrician in the capital. However, as he confirmed, "when you have subsidiary protection instead of refugee status it is basically impossible to get citizenship." It seems that Malta's Office of the Refugee Commissioner, the agency handling protection status determinations, has no issue in the large disparities between those getting refugee protection—and thus a path to citizenship—compared to those with subsidiary protection. In 2018, only 7% of applicants successfully received refugee status compared to 26% who received subsidiary protection and 14% who were rejected. For that 7%, they will have to wait another ten years before having the chance to apply for citizenship compared to a six-year residency requirement for other foreign nationals not pursuing international protection or the GPS scheme.
Further, if refugees want to obtain citizenship, they must accept limitations on their mobility. Refugees are only permitted 90 days of travel before they must return to the island to maintain effective residency. Some refugees noted that they aren't able to see family overseas for extended periods because of this limitation. The case for those buying passports is a very different one. As one GPS agency notes, one need not even reside in Malta so long as one can keep "membership of clubs, professional associations, sponsorships, local philanthropy and any business activity in Malta" to satisfy effective residency while abroad. These policies disproportionately place an excessive burden on those fleeing their own countries and seeking international protection.
In Malta since May 2018, Murat, 20, says, "We need to be good people in order to get citizenship, behave properly. However, we know that here in Malta it is almost impossible to get citizenship for us. With Maltese citizenship, it would be possible for us to travel to other EU/Schengen countries, whereas with the refugee status you can only travel for three months. This limitation really prevents people from [finding opportunities to study or work] outside of Malta."Murat adds that he is also aware that the rules to get citizenship are harsher for refugees than for those who, thanks to their wealth, can easily benefit from citizenship's rights without any ambiguous further requirement. Key informants noted that the amorphous requirement of "good character" requested of refugees has typically been understood to mean a clean record with the police, but human rights advocates told us that even refugees meeting this standard are routinely denied.
This work clearly demonstrates this stark reality: Malta has constructed a naturalisation regime designed to disproportionately require those seeking international protection to work, reside, and pay taxes while keeping them precariously blocked from accessing citizenship and thus the Public Commons. This created precarity has severe consequences. Now, in a COVID19-tinged world, massive swathes of the global population find themselves unable to work and in dire economic straits. While Malta has provided aid to its citizens and other EU nationals, those seeking international protection do not enjoy those same benefits. Stuck with the burden of performing the tenets of citizenship such as acquiring Maltese or English fluency, effective continual residency, and "good character," those seeking international protection are left with less support during this global pandemic because of the disproportionate, class-based requirements Malta has mandated. Since 2015, there have been roughly 6,000 sea arrivals of people seeking international protection, none of whom meet the requirements for citizenship, compared to over 3,000 individuals who acquired citizenship through the IIP and now enjoy extraordinary support and newly-bought rights in Malta during the global COVID19 pandemic. More recently, the Maltese government has recruited private vessels to apprehend asylum seekers at sea to block them from seeking their right to asylum.
These realities beg the question to the Maltese government: Does €1,150,000 make an individual more worthy of saving during this pandemic than someone seeking international protection? Malta's policies lead us to believe this sad possibility is, in fact, the administration's belief. We flatly reject this notion and will continue partnering with local organizations in Malta on collaborative research and advocacy efforts to redress these fundamental failings while centering and furthering refugee livelihoods on the island. We encourage readers to also reject this reality and assert to the Maltese government that everyone is unconditionally worthy of equal protection and support. This is the Public Commons we continue to envision and work towards with advocates in Malta, today.
Photograph by Delphine Virnot (she, her).
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