13 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN MALTA
statelessness or the risk of being stateless, and on that
basis grant international protection.45
As there is no formal recognition of statelessness, a
stateless person or someone at risk of statelessness has
no entitlements linked to his/her particular situation. The
individual will remain a third-country national46 (although
this wording sounds rather incongruous for a stateless
person), either with a residence permit linked to
protection under the Refugees Act, or with leave to
remain from the Immigration Police in the case of failed
asylum-seekers, or with no documentation if no contact is
made with the authorities (e.g. persons overstaying their
visas yet remaining undetected). The leave to remain does
not equal a residence permit but acknowledges the
individual’s tolerated stay on the territory pending
removal. In the case of persons to be removed, the
Immigration Police systematically sends a request for
documentation to the countries of origin of migrants,
although in practice very few of these are actually
concluded by an effective removal.47
Non-Maltese nationals have the opportunity to apply for
citizenship through naturalisation. Detailed provisions on
citizenship were originally found in Chapter III of the
Constitution of Malta,48 eventually transferred to the
Maltese Citizenship Act,49 which thereby became the
main law regulating citizenship, while the Constitution
now only contains the general principles on citizenship. In
fact, there are no legislative provisions relating to
statelessness apart from those found in the Citizenship
Act of 1965, providing for children born stateless in
Malta.50
According to these provisions, a child born out of wedlock
to a Maltese father and registered with ‘unknown father’
shall not be a citizen of Malta. It is significant to note that
children born in Malta of foreign parents are
automatically recorded in Malta as having the nationality
of their parents. However no individual assessment is
conducted as to whether or not the parents – one or both
– can actually transmit their nationality to the child. For
example, Somali mothers are unable to transmit
nationality to their children according to Somali
Nationality Law.51 Therefore if the father is registered as
‘unknown’, for whatever reason, the nationality
supposedly acquired from the mother would not
materialise, rendering the child stateless.
According to the Maltese Citizenship Act, “"stateless"
means destitute of any nationality and "stateless person" shall
be construed accordingly”. 52 Substantial reforms to the
Maltese Citizenship Act modified the process related to
acquisition of citizenship but not that related to
naturalisation. A stateless person may apply for
citizenship through naturalisation if he proves:
“that he has resided in Malta throughout the period of twelve
months immediately preceding the date of application; and
that, during the six years immediately preceding the said
period of twelve months, he has resided in Malta for periods
amounting in the aggregate to not less than four years; and
that he has an adequate knowledge of the Maltese or the
English language; and
that he is of good character; and
that he would be a suitable citizen of Malta.”53
The final decision on such a request remains at the entire
discretion of the Ministry, with no duty to give reasons
and no appeals/remedies in cases of negative decisions.
The Act also provides for the possibility to acquire
Maltese citizenship by registration on the basis of
marriage with a Maltese national, after five years of
married life.54 Although in an isolated case, an Egyptian
national had renounced his Egyptian nationality and had
married a Maltese national, and later applied for Maltese
citizenship, which was granted. As he was condemned by
the national Courts in a smuggling case, his citizenship
was revoked as a consequence.55
Interestingly, in 2014 Malta introduced subsidiary
legislation to the Citizenship Act offering the possibility to
purchase Maltese citizenship for 650,000 Euros for the
main applicants, together with a series of other prerequisites such as the purchase of a real estate worth a
minimum of 350,000 Euros, health insurance coverage,
and investment obligations in a National Development
and Social fund.56 This scheme attracted criticism from
Aditus foundation insofar as it highlighted the
“unworthiness of migrants and refugees who, for years, have
been contributing to Maltese society in several ways by
paying taxes and social security contributions, being
employed in Maltese companies, establishing their own
business ventures, engaging in social activities with Maltese
people and generally doing their utmost to integrate into what
is, ultimately, an extremely challenging environment for them
to integrate in.” Aditus foundation stressed that this
scheme perfectly captured Malta’s treatment of migrants,
particularly in relation to the possibility of them acquiring
Maltese citizenship.57
2.3 DATA ON STATELESSNESS AND
DETENTION
There is limited data on statelessness as no identification
or determination procedure is in place. Available data is,
at most, quite confusing in its use of terminology.
According to the ‘Demographic Review 2013’, published
by the National Statistic Office, one stateless person
acquired Maltese citizenship through naturalisation or
registration,58 although the document’s section providing
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