Will Malta’s accession to the 1954 Convention help change a culture of ‘outright exclusion’ of stateless persons?

Jo Venkov - Lawyer and writer on statelessness, identity, citizenship and belonging
/ 7 mins read

Malta finally acceded to the 1954 Convention relating to the Status of Stateless Persons on 11 December 2019 after numerous calls from civil society and UNHCR. Malta has come a long way, but there are further steps needed to implement the Convention and better protect the rights of stateless people. 

Maltese flag overlooking Valetta
Photo: Mike McBey, Flickr - Creative Commons (https://bit.ly/2MD3fiR)

Malta finally acceded to the 1954 Convention relating to the Status of Stateless Persons on 11 December 2019. The move came after numerous calls by Maltese civil society, including ENS member aditus foundation, UNHCR and the European Network on Statelessness. It also followed Malta’s pledge to do so at the High-Level Segment on Statelessness in October 2019. UNHCR welcomed Malta's decision and its commitment to reducing statelessness, describing it as a "commendable step" for the protection of stateless people and for the global fight to eradicate statelessness.

Malta has come a long way, but it can and should do better. A statelessness determination procedure to help identify who is stateless is paramount. Legal measures endowing a stateless status with a set of rights and protections for stateless individuals should be made a priority. Both should be complemented by a transparent process for naturalisation of stateless people (and others). As part of that process, a right to administrative review of or appeal against refusals of naturalisation should be implemented. Such a process will ready Malta to fully comply with its obligations towards its stateless residents and provide onward momentum to the progress it has already made.

Still more to do

Calls for Malta to accede to the 1954 and 1961 Statelessness Conventions reflected wider concerns with the way Malta treats stateless people. There is, for example, very little data on the number of stateless people in Malta and Malta still does not have a statelessness determination procedure.  I’ve set out before how such a procedure is essential to ensure that states can identify and document stateless individuals. Identification and documentation allow the stateless person to regularise their presence in the country, including through the granting of nationality in the host state.  Determining statelessness also reduces the risk that stateless persons will be arbitrarily detained or that they will spend prolonged periods in detention.

Refugees and asylum seekers are disproportionally affected by the lack of procedure to determine who is stateless in Malta. One especially dire consequence of this is prolonged detention. Stateless people, who have no prospect of being returned to their ‘home’ country are at risk of arbitrary detention and are frequently detained for up to 18 months. As the authorities frequently detain for the purpose of removal of an individual, the detention of a stateless person may be unlawful if there no prospect of another state accepting the stateless individual. 

Finally, and the focus of the remainder of this blog, the inadequate procedures available for stateless individuals to apply for Maltese citizenship have also raised concerns. Malta is still to ratify the 1961 Convention on the Reduction of Statelessness and accede to the 1997 European Convention on Nationality. These two Conventions, along with the requirement under the 1954 Convention that states facilitate the naturalisation of stateless persons, are important for ensuring protection for stateless people through the grant of citizenship.

Focus on nationality procedures rather than laws

There are legislative changes that Malta needs to make to ensure compliance with the 1954 Convention. Malta’s Parliament will now need to pass domestic legislation to ensure that its obligations under the Convention have effect. Under its constitutional arrangements, accession on its own does not mean that the Convention has direct effect in Maltese law.  

Amendments to the Maltese Citizenship Act of 1964 will also be necessary.  For example, stateless persons are included in the provisions of the 1964 Act, but the definition of a stateless person in the Act is not in accordance with international law.  Malta should amend Article 2 of the 1964 Act to align it with the definition in Article 1 of the 1954 Convention so that a stateless person means “a person who is not considered as a national by any State under the operation of its law”. There are also discriminatory or unclear provisions in the Citizenship Act which can affect children born out of wedlock or those who are considered foundlings which require amendment. 

Much of the problem, however, lies not only in the law itself, but in the absence of appropriate procedures to apply the relevant legal provisions.  This reflects a wider policy to avoid implementation of international obligations relating to nationality.  Prime examples are the reservation Malta entered to Article 32 of the 1954 Convention which recommends to state parties that they “facilitate, as far as possible, the naturalisation of stateless persons” and to the provisions relating to facilitated naturalisation for stateless persons in the European Convention on Nationality.      

Procedural rights bolster substantive rights

The wording of Malta’s Reservation to Article 32 is as follows: “The Republic of Malta does not consider itself obliged, in terms of Article 32 to provide or to guarantee stateless persons born outside Malta facilities for their naturalisation beyond those accorded to aliens in general”.  This reflects the approach that the Maltese Citizenship Act of 1964 takes, as set out in Article 10(1): “An alien or a stateless person, being a person of full age and capacity, on making application therefor to the Minister in the prescribed manner, may be granted a certificate of naturalisation as a citizen of Malta”.  However, neither the “prescribed manner” referred to in Article 10(1), nor the “facilities” mentioned in the Article 32 Reservation, reflect the challenges faced by stateless persons in applying for naturalisation.  For example, the naturalisation application must be accompanied by identity documents. The fee of €450 to apply for naturalisation and a further €50 EUR, if the application is approved and a certificate issued, may be prohibitive for someone with no status and the need to evidence Maltese residence, such as bank statements, payslips or work permit may present further difficulties.

To add to the problem, decisions are taken on a purely discretionary basis by the Minister responsible for citizenship matters. The Minister need not give a reasoned decision for a refusal to grant naturalisation which is, at the very least, a breach of procedural fairness.  When we consider that there is no route by which a negative decision can be challenged by judicial review or other appeal process, we can see how the odds are stacked against a stateless individual becoming a citizen of Malta.  

If there is no procedure to determine who is stateless and should benefit from the rights under the 1954 Convention, and if there is no practicable way for a stateless person to eventually have full rights as a Maltese citizen, then the supposed protection offered by the 1954 Convention loses its substance. Maintaining pressure on the Maltese authorities to remedy these serious omissions will also help pave the way for Malta to accept the obligations set out in the 1961 Convention and the European Convention.

A twin-track approach to protection

It is too soon to say whether Malta’s accession to the 1954 Convention means a shift in Maltese policy towards engaging with and solving the problem of statelessness. At last October’s High-Level Segment on Statelessness, Malta’s single pledge to ratify the 1954 Convention, suggests that this shift is cautious. By contrast, Lithuania made three pledges, including to clarify why stateless persons are not applying for citizenship, even if they are eligible. Thailand, made seven pledges, including to amend regulations on the grant of citizenship. Turkmenistan made three pledges, including to resolve all identified cases of statelessness through the grant of citizenship.  Nor is it clear whether Malta plans to take up the 2021 Census opportunity to gather data on those who are stateless or of ‘unknown nationality’, despite a clear need and well-reasoned arguments that it should do so.

Given this cautious approach, perhaps it is too much to ask that Malta turns its focus on reducing statelessness by implementing workable naturalisation procedures. But it has to be acknowledged that an incremental approach has not produced enough progress. Even as it celebrates accession to the 1954 Convention, Malta is still downplaying its statelessness problem. 

Making the argument for improved access to naturalisation is not too ambitious an aim. Rather, it keeps the conversation going by sidestepping the authorities’ continued reluctance to engage with the problem, by focusing on a process that is fair, transparent and justiciable and which ensures that those eligible, including stateless people, can apply for naturalisation. It also lays the groundwork for Malta to engage with and accede to the 1961 Convention and to the European Convention on Nationality.  At the same time, as part of a twin-track approach, work can continue on creating processes specific to stateless people, such as identification, determination of status and protection.  These are all different paths to the same end point, a safe haven, and ultimately, a country to call home.

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