Selling ‘golden passports’ should remain unlawful
Recent legal opinion on citizenship at EU court should be ignored
It seems selling ‘golden passports’ was lawful after all. On October 4, 2024 Anthony Collins, an Advocate General in the EU, delivered a legal opinion advising the Court of Justice of the European Union (CJEU) that a prior genuine link with a member state was not a requirement of European citizenship because its existence was wholly dependent on national law.
Advocates General provide the CJEU with independent expert opinions in cases that turn on points of law. Although the CJEU follows their advice in the majority of cases it is not certain it will do so in the golden passports case.
As a political court with an agenda to promote an ever closer political union, the CJEU may find it difficult to hold that foreign investors without a prior genuine link to member states are eligible to be granted EU citizenship for money.
The European Commission (EC) – the EU institution responsible for ensuring compliance with EU law – sought a declaration from the CJEU that in passing the citizenship-by-investment law that offered citizenship in the absence of a genuine link in exchange for money, Malta failed to meet its obligations under EU law.
At the time member states joined the EU, citizenship by foreign nationals was normally acquired by long lawful residence or marriage that constituted a prior genuine link. If a state could sell its citizenship when it applied to join the EU it would have been required to harmonise with the EU legal order and the nationality laws of member states all of which required long residence – I leave out of account state prerogative power to grant citizenship exceptionally.
The problem arose a few years after the new crop of member states joined in 2004 when some of them – including Malta and Cyprus – realised there was a lucrative market in their citizenship because of the access it provided to EU citizenship.
Foreign nationals could get two citizenships for the price of one: citizenship of the member state and by automatic extension EU citizenship with full access to all the civil and political benefits of the EU including freedom of movement within the European Economic Area.
Crucially from the point of view of the trade in golden passports, the power to grant citizenship under the Treaty on European Union (TEU) was a matter exclusively in the hands of member states – or so it seemed.
Traditionally nationality is acquired naturally by birth or descent; or by naturalisation through long residence or marriage. Natural born citizens acquire citizenship as of right on proof of birth in a country or descent from a person with citizenship. Foreign nationals acquire citizenship by naturalisation after long lawful residence. In international law both natural born citizens and those naturalised after lengthy residence have a prior genuine link.
The relevance of a genuine link in international law was established in 1955 in the Nottebohm case in which a German national obtained a citizenship of convenience in Lichtenstein shortly after the outbreak of World War II in 1939 to enable him to travel as a neutral national. He then returned to Guatemala where he had been resident since 1905 but was deported in 1943 as an enemy alien. After the end of the war, Lichtenstein claimed compensation from Guatemala for deporting one of its citizens in breach of international law.
The International Court of Justice (ICJ) found against Lichtenstein. It held that Guatemala was entitled not to recognise Lichtenstein as the country of Nottebohm’s citizenship because it was not based on a prior genuine link to Lichtenstein. The ICJ explained that while it was impossible to get international agreement on common requirements for acquiring citizenship, international law was fully engaged because recognition of citizenship by other states in the international plane depended on a genuine link between the state and the citizen seeking recognition.
In his analysis of the impact of Nottebohm case the Advocate General was not alive to the fact that EU law like international law left citizenship to states not because of a carefully crafted balance between the EU and member states that he thought occurred. Rather it was because agreement on common requirements for citizenship was difficult, and because it was not envisaged that member states would be so unprincipled as to pass nationality laws offering citizenship to persons without a genuine link that other member states of the EU could lawfully refuse to recognise under international law.
Thus although questions of nationality law were retained by member states as part of their national law, they still had an obligation under the principles of sincere cooperation to refrain from passing nationality laws granting citizenship to persons without a genuine link that other member states presumed would not happen.
The primary purpose of nationality law is to determine who belongs to a particular state. Just like marriages of convenience are an abuse of the institution of marriage to access the right to live in EU, the availability of golden passports is an abuse of nationality law and contrary to EU law as it jeopardises the EU’s objective of making EU citizenship the fundamental status of nationals of member states.
Advocate General Anthony Collins’ advice to the CJEU that foreign applicants for Maltese citizenship were not required by EU citizenship law to show a prior genuine link with a member state was mistaken about the relevance of international law to the case and should not be followed.
Finally, the CJEU should be mindful of the ever present danger that people will think the law an ass if it allows the trade in golden passports to resume.
Alper Ali Riza is a king’s counsel in the UK and a former part time judge