An analytical study of citizenship in relation to the individual investor programme

Abstract

This thesis aims to analyse the significance of citizenship in relation to the ‘Individual Investor programme’(IIP), given that the main amendments which altered the programme by way of L.N 47 of 2014, were allegedly goaded on due to the traditional interpretation of citizenship as the bond between an individual and a State. While the IIP is undoubtedly an investment programme, it is also an extension of naturalisation under article 10 of the Maltese citizenship Act (MCA), whereby applicants/investors may be naturalised as Maltese citizens and by default EU citizens, for all intents and purposes of law. For such reasons, the initial programme was targeted by the EU institutions, where they mainly criticized the programme for the absence of a ‘genuine link’ in line with the requirements of public international law. Yet such argument does not appear to be rooted in any international or EU legal obligations on States when drafting their nationality laws, but rather, it is more of a standard which States are naturally expected to maintain. In fact the ‘genuine link’ principle is a determining mechanism which is usually applied when determining the effective nationality pertaining to persons having dual and multiple citizenships in cases concerning diplomatic protection disputes. It is also a legitimate ground for the loss of citizenship, where States are free to withdraw their nationals’ citizenship owing to the establishment of a ‘genuine link’ to a foreign State. Yet the fact that the link argument was so closely connected to the ‘principle of sincere cooperation’ enshrined under article 4(3) of the Treaty on the European Union, seems to have instilled a considerable amount of authority therein and now possibly serves as a valid legal ground for EU interference in relation to its vested interest in EU citizenship. On the other hand, Malta has legally speaking satisfied the ‘genuine link’ requirement through its effective residence provisions, even though it is debatable as to whether by doing so it has created a ‘legal fiction’. Moreover, the IIP is negatively affected by the existing legislative gaps owing to Malta’s reluctance to ratify a number of international conventions regulating the loss of citizenship and statelessness. What is more, is that the IIP has contributed to such gaps by establishing a new form of loss of citizenship, which only persons naturalised as Maltese citizens via the IIP may be subject to, even though such new ground for such deprivation of citizenship under article 10 of S.L 188.03, does not seem to be in line with international law.