People, Sovereignty and Citizenship the country, proving the means of subsistence or taking the naturalisation test.24 To speed up this process in Romania, so-called ‘Democracy Centres’ were set up with the active support of the Orbán government. These centres represent Hungary beyond its borders and implement this system of preferential naturalisation. 25 Due to this institutional support and the simplified, three-month routine administrative procedure, the rule has led to the naturalisation of more than one million people, mostly from Romania and Ukraine. All this is happening in a country where the resident citizenry had already fallen below ten million and counting. Since 2014, the more than one million new citizens have been entitled to vote in the national elections and helped the Orbán government to stay in power. 26 Although facilitated naturalisation based on cultural affinity is not per se outlawed by international law, the rule should be justified by the established standards of non-discrimination. 27 The principle of non-discrimination 28 is part of virtually all human rights instruments at the international, European and national levels. For instance, the European Convention on Nationality applies this principle to all questions arising from citizenship, including distinctions based on ‘national or ethnic origin’. 29 The non-discrimination requirement in itself does not exclude differentiation based on ethnicity per se, but places a heavy burden on the government to justify its policies when it applies ethnic criteria. And since ethnic discrimination is a form of differentiation based on an immutable characteristic, heightened scrutiny should reasonably be applied to filter out illegitimate state goals and measures. The heightened scrutiny test requires that there should be no less discriminatory way to achieve the otherwise legitimate end. This standard seems to form a solid basis against which we can measure policies of external ethnic citizenship, and it may work well since it can press the government to come forward with its justification, a legitimate end that is in line with fundamental rights standards. 30 And as leading constitutional scholars remind us, a substantially over-inclusive or under-inclusive classification tends to undercut the legislator’s claim that the classification serves a legitimate end. 31 The Hungarian regulation on preferential naturalisation demonstrates this point powerfully. It is substantially over-inclusive because it generally applies to all trans-border co-ethnics and not just to the descendants of those former Hungarian citizens who became citizens of another country because of political boundary changes they could not control. And since no time frame restricts the tracing of Hungarian ancestry, the rule extends the citizenry through an indefinite number of 24 25 26 27 28 29 30 31 Article 4(3) only requires them to have a clean criminal record. Besides, the naturalisation must not threaten public policy or national security. Kriszta Kovács, Zsolt Körtvélyesi and Alíz Nagy, ‘Margins of Nationality: External Ethnic Citizenship and Non-Discrimination’ (2015) 7(1) Perspectives on Federalism 85, 108. ibid 109. ibid 91. For more on discrimination in citizenship, see Natalie Baird, ‘Constitutions, Citizenship and the Shadow of Statelessness’ 2(2) Statelessness & Citizenship Review 377; Julija Sardelić, ‘Citizenship, Constitutions and People on the Margins’ (2020) 2(2) Statelessness & Citizenship Review 384. ECN (n 21) art 5(1). It would be a considerable achievement in the case of secrecy and non-contestability of naturalisation, as is the case with Hungary. Although arts 11 and 12 ECN (n 21) guarantee the right to written reasoning and to review, Hungary applies reservation to these clauses. Kovács, Körtvélyesi and Nagy (n 25) 111. Geoffrey R Stone et al, Constitutional Law (Aspen Publishers 1996) 568. 393