Council of Europe watchdog flags unfair citizenship laws

The Council of Europe's anti-racism commission has called into question Malta's standing citizenship laws, saying they left government with a large margin of power to decide who gets naturalised as a Maltese citizen, without any right of appeal.

A new report by the European Commission against Racism and Intolerance (ECRI) today welcomed positive developments, but regretted that a number of concerns persisted.

"A national action plan against racism and xenophobia has been developed but has never been adopted or published by the authorities," ECRI chair Eva Smith said.

Interestingly, after just one week since revelations that Malta will be selling a fast-track naturalisation for €650,000, ECRI pointed out that Malta's Citizenship Act leaves a large margin of discretion in decisions on naturalisation and there is no right to appeal. The report concerns events up to December 2012, and does not take into consideration the Labour government's plan to sell citizenship to high-end customers.

Under the Maltese Citizenship Act, non-nationals can acquire Maltese citizenship in a number of ways, including through naturalisation and registration after marriage. But under Article 10 of the Citizenship Act, a person seeking naturalisation "may" be granted citizenship if the authorities are satisfied that she or he, amongst other requirements, is of a good character and would be a suitable citizen of Malta.

ECRI noted that these two criteria leave a very wide scope of appreciation to the authorities and are not based on objective and measurable criteria.

"The discretionary nature of these decisions has been confirmed by the authorities. Guidelines issued by the authorities specify that the application must be sponsored by persons that are deemed trustworthy and who are not related to the applicant... in this respect, ECRI notes that this requirement may de facto greatly limit effective access to naturalisation.

"In addition, civil society has stated that even when the above-mentioned requirements are satisfied, in practice, it may take up 15 to 20 years to obtain naturalisation."

ECRI recommended that the refusal of naturalisation is given a right of appeal in the courts, and to amend the discretionary power of the minister to deprive naturalised citizens of their citizenship if they are sentenced to prison for over 12 months or if they demonstrate "disloyalty or disaffection towards the Maltese President or the Government".

"Not only do they apply, as far as loss of citizenship is concerned, distinct and less favourable treatment to persons who have been naturalised Maltese or have been registered as Maltese citizens; they may also restrict the fundamental right of freedom of speech of this category of citizens (Article 10 of the European Convention of Human Rights), who may be disinclined to express their political views out of fear of the legal consequences," ECRI said.

In its sole response to this aspect, the government sad it had "taken note" of ECRI's recommendation.

In other aspects, ECRI said that Malta had made remarkable efforts to improve the asylum determination procedure, which law now includes the principle of non-refoulement and provides for subsidiary protection, and case-workers are properly trained. The National Commission for the Promotion of Equality had taken steps to raise awareness of the provisions in force against racial discrimination and available remedies. And a Migrant Health Unit had been set up to address and respond to the specific needs of migrants.

ECRI called for three priority changes to Maltese laws, namely amend the Citizenship Act, provide non-custodial alternatives to migrants' detention, and to ensure free legal aid to asylum seekers.

The report was prepared following ECRI's contact visit to Malta in April 2012 and takes account of developments up to 6 December 2012.

Maltese government's response

In its critical response, the Maltese government pointed out that "non-facts and factual errors" had been found in 12 paragraphs, and that the report revealed "inadequate knowledge of Maltese law and its interpretation" in 14 instances.

"ECRI's report makes many recommendations but does not proceed to cost them, let alone to provide the necessary funds for their implementation. The report also fails to make any economic, social or environmental impact assessment of the challenges of irregular migration in Malta," the government said in its response.

A bizarre response from the government pertains to ECRI's sources: "We regret that ECRI's report, like its predecessors, relies heavily on anonymous sources. We have identified more than 20 instances of such phrases as 'ECRI has been informed'... Maltese NGOs are well known, operate freely in public and have access to public funds. ECRI's efforts to hide the identity of its sources are, therefore, regretted and out of place."