The blanket revocation of citizenships granted through the cash for citizenship scheme would be “highly problematic” under international and EU law, according to several academics who analyse citizenship laws and policies in Europe.
On Monday, the Opposition filed a judicial protest calling on the government and the scheme’s agents, Henley and Partners, to inform all those buying Maltese nationality that the Nationalist Party would revoke their citizenship when it was next elected.
The protest said the scheme to sell EU citizenship was illegal and invalid, and would only be applied for as long as the Labour government was in office.
The government plans to sell Maltese citizenship through its Individual Investor Programme in return for €1.15 million in fees and investments. While the Opposition has not published the legal advice it has received on revoking the passports, the Attorney General has said such a move would be unconstitutional.
Seeking an independent view from outside Malta, this newspaper spoke to two members of EUDO Citizenship, an arm of the EU Observatory on Democracy, which is an independent academic organisation producing periodic assessments of democratic practices within the EU.
“From the perspective of EU law, the general principle of ‘proportionality’ would be very important,” said Maarten Vink, an associate professor of political science at Maarten University.
He was referring to the need for national courts to weigh considerations relating to the national interest against the significance of revoking EU citizenship.
Dr Vink cited the EU Court of Justice ruling on Janko Rottmann, who had his recently acquired German citizenship revoked in the 1990s when it became clear he had undeclared criminal proceedings against him in Austria.
Dr Rottmann had automatically lost his Austrian citizenship when he became German, rendering him stateless and no longer an EU citizen.
Since his status as an EU citizen was at stake, the court ruled that this fell under the remit of EU law.
“It is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality,” the court ruled.
Dr Vink also pointed out that revoking IIP passports en masse could be a breach of the European Convention on Nationality, which Malta has signed but not ratified.
The Explanatory Report of that Convention provides for the possibility of states having rules that imply the loss of citizenship due to “lack of a genuine link between the State party and a national habitually residing abroad”.
“From the perspective that the individuals concerned have recently acquired Maltese citizenship, it would be highly problematic to argue that their genuine link to Malta cannot be evidenced, given that they have recently expressly declared their intention to be a citizen of Malta,” Dr Vink said.
“Also, the prohibition of arbitrary deprivation would be very important,” he added.
His fellow EUDO Citizenship contributor, Jelena Dzankic, felt that the only possible way to revoke the citizenships would be through Article 14 of the Maltese Citizenship Act. This means a future PN government would have to prove that the person who was granted citizenship obtained it in a fraudulent way.
The second possibility for deprivation could be Article 14(2 a-d), but that would depend on future criminal/disloyal actions by the new citizen.
Even if the EU took action against the scheme after it was fully operational and Malta decided to stop it completely, “I do not believe that it would have legal grounds to withdraw the citizenships that were [previously] granted, because at the time they were granted the scheme was legal and in force,” said Dr Dzankic, an expert in investor citizenship programmes and a Marie Cure Fellow at the European University Institute (EUI) in Florence.
EUDO Citizenship is hosted at the Robert Schuman Centre of the EUI. It involves another four partner institutions: University College Dublin, University of Edinburgh, Maastricht University and Migration Policy Group.