[ANALYSIS] Mallia allegations spark debate on citizenship law

Former home affairs minister Manuel Mallia has denied considering in his then official capacity the request of his Romanian wife Elena Codruta for Maltese citizenship, at the time that he was the minister responsible for the sector.

Elena Codruta Mallia, who would have become automatically a Maltese citizen after five years of marriage to a Maltese national, is believed to have obtained her Maltese nationality some time between her marriage to Mallia in 2012, and 2014.

This prompted PN deputy leader Beppe Fenech Adami to allege that the minister’s decision to grant his wife citizenship after a mere two years of marriage was a breach of the law and an abuse of power.

But in a statement issued on Monday evening, Mallia said his wife applied for citizenship by naturalization under article 10(1) of the Citizenship Act and not on the strength of her marriage to him. Anyone granted citizenship under this provision needs the approval of the minister responsible for citizenship, who in this case was Mallia himself.

Foreigners can submit an application under this provision if they have been residing in Malta for five years prior to the date of application.

“My wife satisfied this condition,” Mallia said, adding that his wife had already been resident for 10 years prior to her application and that she had three children, Maltese citizens, at the time.

Controversy centres around whether Mallia used his discretion as minister responsible for citizenship to grant or refuse such applications, which in general tend to take as long as 15 to 20 years to process in order to test the permanence of applicants seeking naturalisation.

Mallia claims that citizenship under such a provision is mainly considered under policy guidelines. 

He pointed out that during the previous legislature it was the established policy that requests, by persons who have been residing in Malta for a period of 10 years and who have children, who are citizens of Malta, even if such persons are not married, would be considered favourably – obviously if such persons are of good conduct and there are no issues that go against the public interest. 

He claims that the current government retained the policy and that several foreigners have been granted citizenship on the basis of these criteria, both in the previous legislature and under the present government.

Irrespective of whether Mallia was following established protocol, the case involving the award of citizenship to the minister’s wife inevitably raises questions on the minister’s discretionary powers.

A report issued by the European Union Democracy Observatory (EUDO) in 2013 had described discretionary powers of a minister as “avenues of potential abuse and conflicts of interest”.

The Maltese Citizenship Act gives the minister responsible for home affairs non-reviewable discretionary powers to decide on who is granted citizenship by naturalisation.

“As I have indicated in several publications, this lack of transparency provides an avenue for abuse and possible conflicts of interest. Malta needs a fair and transparent system of naturalisation in order to dispel the possibility of any such allegations,” Daniela De Bono, a senior lecturer in International Migration and Ethnic Relations (IMER) at the Department of Global Political Studies at Malmo University told MaltaToday.

Speaking in his personal capacity, as the issue has yet not been discussed in the party, opposition MP Jason Azzopardi also thinks that this part of the law should be reviewed.

“We should also abide by the principle that the less discretionary power in the hands of those applying the law, the better things are,” Azzopardi said. 

“This is because human nature is what it is and the less discretion there is the less avenue there is for abuse… we should never forget that everyone may err and therefore it is better to err on the side of caution.”

But Azzopardi also points out that ministerial discretion is still limited by the current law.  

“This is limited by the fact that under article 10 the applicant or his spouse must have rendered exceptional service to the republic or to humanity to be awarded citizenship.” 

How to earn citizenship

Only 2,401 persons acquired citizenship through naturalisation between 1991 and 2013. 

The Maltese Citizenship Act lays out general requirements that applicants need to meet to be eligible for citizenship by naturalisation: being of “good character” and being deemed by the minister as “a suitable citizen” are among the requirements.

One must have also resided in Malta for the 12 months immediately before submitting the application for citizenship and have previously resided in Malta for periods amounting to four years in the previous six years.

In certain “special circumstances” the minister may allow periods of residence earlier than seven years before the date of application.

Persons applying for naturalisation also need two sponsors, one of whom must be either an MP, or a judge, magistrate, parish priest, doctor, lawyer, notary public or an officer in the army, civil service or the police.

These requirements are described as “broad and vague” in the EUDO report and each case is handled on its own merits without any standardised system, like language tests.

In 2013 Joe A. Mizzi, director of the Department of Citizenship and Expatriate Affairs, told MaltaToday that the minister’s discretion is “narrowed down” by cabinet policy guidelines, which are published in a leaflet on naturalisation, and other internal policies which limit the minister’s discretion.

In fact the information leaflet goes further than the Citizenship Act by stating that naturalisation “will only be given favourable consideration if there are humanitarian aspects involved”, such as having children in Malta.

De Bono points out that citizenship acquisition through naturalisation is intended for those individuals who have no blood ties to Maltese society, such as through marriage with a Maltese citizen, or descendants of Maltese citizens. 

“It is also not meant for individuals who apply for Maltese citizenship through the Individual Investor Scheme”, De Bono said. 

This is because naturalisation gives the opportunity to individuals who have built considerable ties and engaged with Maltese society, through work and residence, to be accepted as a full member of Maltese society. 

“This gives additional rights to citizens of the EU and other countries, denotes a sense of permanency and can be seen as one of the stages mapping the integration of migrants.” 

According to De Bono, citizenship acquisition by naturalisation takes on new significance in these times characterised by more international migration, because more people are immigrating without having the traditional blood ties to Maltese society. 

“This does not make their engagement and integration into Maltese society any less or more difficult, and this should be enough to qualify them for citizenship.”

IIP raises issue of discrimination – Jason Azzopardi

One major development is that citizenship through naturalisation can now be awarded to participants in Malta’s Individual Investor Programme.

Jason Azzopardi suggests “there is a strong probability” that the changes to Malta’s citizenship law to introduce the programme has resulted in a “breach of human rights due to discrimination”.

Discrimination applies to all cases where people are arbitrarily accorded different treatment in the absence of any objective reasons. 

One case in point is that while an article of the law stipulates that those applying for citizenship through the IIP programme are awarded citizenship after a residence period of 12 months, people who acquire citizenship through marriage to a Maltese citizen have to wait for five years. 

“It is only a question of time before someone will challenge this state of affairs in the constitutional court,” Azzopardi said.