Citizenship law ‘should be updated’ to reflect Malta’s changing social reality
Malta’s law on citizenship through naturalisation is unfairly leaving long-term residents at the mercy of the Home Affairs Minister, according to research which urges lawyers to challenge bids for citizenship that have been turned down.
The study – a dissertation by Monique Agius as part of a Bachelor’s in Law – also lays bare the lack of clear criteria for those who wish to be naturalised, when compared to citizenship obtained through so-called golden passport schemes.
Agius says the naturalisation regime needs to either be overhauled by introducing objective and legal criteria or else detailed guidelines need to be issued like in the UK. Should the legislation remain unchanged, legal practitioners representing prospective applicants should make use of the judicial review process more often, she told Times of Malta.
“Malta’s social reality has changed, and its laws should reflect such a change. The country is no longer a country of emigration, but one of immigration. By changing the naturalisation regime to include, rather than exclude aliens within Maltese society, not only facilitates their journey but allows them to participate more actively within the Maltese polity,” Agius says in the dissertation.
When Agius was compiling information for her dissertation in 2021, 22% of the 519,562 people living in Malta were nonMaltese, reflecting a five-fold increase over 2011.
Agius said she was inspired to look into the naturalisation process after a Palestinian friend was granted citizenship nearly 20 years after moving to the island regularly, where she also bought property and eventually married a Maltese national.
Agius is a former candidate of Partit Demokratiku, which, in 2017 had urged the government to grant citizenship to children born in Malta to migrants.
Under the supervision of human rights lawyer Carla Camilleri, Agius analysed whether current provisions on naturalisation in the Maltese Citizenship Act – including the minister’s discretion – have any place in a society that prides itself on the rule of law. She focused on naturalisation by residence, which would apply to people who moved to Malta by choice, refugees, people with rejected asylum and their children born in Malta.
Agius argues that while the law specifies the number of years (five in total) that a person would need to have resided in Malta, the remaining criteria are not quantifiable.
“How do you quantify ‘adequate knowledge of Maltese or English, ‘good character’ and a ‘suitable citizen’? These criteria are broad and vague. On the other hand, applicants for citizenship by direct investment can consult a list that would disqualify a person from obtaining citizenship.”
She adds that the five-year requisite is a minimum standard: in practice, refugees and people with subsidiary protection are made to wait for some 10 and 20 years respectively, despite there not being any distinctions based on the legal status of the applicant at law. Law firms specialising in citizenship meanwhile list a seven- to 20-year residency requirement for naturalisation by residence, Agius adds in her dissertation.
Agius argues that a European Convention on Nationality that Malta signed in 2003 but has not yet ratified would allow people residing here the right to apply after 10 years on the island.
Can one Challenge a refusal?
According to the Citizenship Act – which is structured around the British Nationality Act of 1948 – the minister’s decision is final and cannot be appealed or reviewed.
However, Agius argues that applicants can ask for a judicial review because local courts have deemed the granting or refusal of citizenship to be an administrative act. The Code of Organization and Civil Procedure (through article 469A) allows the courts of justice of civil jurisdiction to look into the validity of any administrative act or declare such act null, invalid or without effect.
Very few have challenged the decision in Malta. In a case in which Halima Zbat challenged the Citizenship Director, the First Hall of the Civil Court observed that the citizenship act was not there for the minister to “act like a monarch, but a politician who is democratically elected by” and answerable to the people.
The court, presided by Judge Toni Abela, notes that reasons on which a decision is based should always be given, unless it damages the State of Malta or is sensitive. However, the court held that in cases where the actual reason for the refusal cannot be given on public interest grounds, this should be stated.
Zbat’s challenge was ultimately unsuccessful as the court upheld the defendant’s plea that it was the minister – and not the director – who accepted or refused applications.
In her dissertation, Agius appeals for a fairer approach to the absolute minister’s discretion. She told Times of Malta that the UK has updated its citizenship rules.
While the BNA notes that naturalisation is a matter within the discretion of the Secretary of State, and UK law does not require the secretary to give any reason for refusal, applicants are allowed to appeal the decision.
In line with this, the UK Court of Appeal ruled that fairness requires the secretary to give the applicant an explanation so that the latter can challenge the exercise of the discretion in the courts.
“How do you quantify ‘good character’ and a ‘suitable citizen’?