Investment Migration: A Remedy for Statelessness

The EU member states have traditionally retained full sovereignty over matters of nationality, but the outcome of the recent European Court of Justice case on Malta’s citizenship by investment program is a stark deviation from this entrenched custom. As a stateless European, I found the ruling to be deeply hypocritical: the very principle of national sovereignty over citizenship has long served as a significant barrier to addressing statelessness, yet it has remained largely unquestioned and politically untouchable. Contrary to prevailing narratives, it is not investment migration programs that undermine the integrity of EU nationality, but rather the continued acceptance of EU mass statelessness within the Union. These programs are overlooked as a complementary and more realistic pathway to addressing statelessness, particularly given the failure of current legal frameworks to address this serious human rights issue. It is this failure that weakens the core of the European nation-state model of governance, its collective trust, and its principles.

Europe’s invisible citizens

The EU continues to uphold a system of mass statelessness within its borders, with the vast majority of the affected being EU minorities who have a genuine and very strong connection to its territory. These minorities — such as the stateless Roma, various former colonial subjects, and the Baltic “non-citizens” ­— have been, for generations, if not for centuries, rooted in Europe. Besides the minority groups, there are native populations, such as thousands of ethnic Latvians and Estonians, who have also experienced statelessness, and some continue to hold “non-citizen” status to this day. Furthermore, not all of the “erased” in Slovenia have been able to resolve their statelessness. Despite these varying realities, in accordance with current EU legal practice and directives, all stateless people in the EU are labeled and treated as “third-country nationals”. This is insulting, but it is also doubly nonsensical: there exists neither a third country nor another nationality to speak of for these differing groups of people, and it is both unethical and geopolitically dangerous to impose such labels upon them. The mislabeling merely entrenches the marginalization of the already marginalized, and it also undermines the credibility of EU institutions.

The stateless EU minorities are EU nationals by fact — an acknowledgement that even the state actors that host them openly admit. The problem is they are not nationals by law. This inexcusable legal loophole, which permits the law to refuse to recognize them, threatens the integrity of EU nationality and undermines such fundamental values as minority rights, democracy, justice, and the rule of law. Ineffective nationality means statelessness, which violates the groundwork of national identity, ripping apart or otherwise degrading the bond between the political community and its members. No amount of rationalization can justify such damage inflicted on human lives and on the entire system of governance, whether politicized interpretations of history or not.

Investment migration programs, available in over 100 countries in the world, are among the overlooked pathways by which stateless people can resolve their statelessness (albeit not without caveats). Because of a lack of awareness of statelessness and the many myths surrounding it, such programs are still not tailored to facilitate the acquisition of citizenship for those who need it the most. The radical imbalance of power between the all-powerful states that create statelessness and the disempowered individuals it affects serves only to reinforce both the invisibility of the issue and the widespread misconceptions surrounding it. The state actors that cause mass statelessness are much better positioned to promote their narratives — typically distorted to abscond state accountability — while those affected are afraid to speak about what they are experiencing. It should come as no surprise that stateless people are often not consciously aware that they are stateless and struggle to put a name to their problem. Even those who ought to be well-informed about statelessness, such as immigration officials, state authorities, and UN agencies, often lack the necessary knowledge and training to fully comprehend it. Awareness of statelessness remains shamefully lacking and undermines efforts to leverage tools such as investment migration to provide viable solutions for some of those affected to address the issue.

Beyond the nation state

It is important to keep in mind that statelessness is not the fault of those who are affected by it: it is brought about by the failure of state actors to guarantee stability and inviolable belonging to their own people. Political winds are unpredictable: no government can offer assurances about which regime might come to power in future, whether through democratic or non-democratic means, nor what divisive or exclusionary ideologies it might adopt, or how it might utilize the state’s monopoly on matters of nationality and legal identity. The definition of “own people” can easily and arbitrarily be left to the whims and shortcomings of an all-too-human bureaucracy and the various interest groups that vie for power, particularly when state actors crumble or drastically shift their stance.

Statelessness, in light of the current nation-state realities and legal frameworks, is here to stay, and it will continue to rear its head in Europe (as recently evidenced by Belarus’ treatment of its exiles, and as a result of Russia’s occupation of Ukrainian territory). To seek answers to the problem solely within the very state-centric frameworks that produce statelessness is a task akin to that of Sisyphus. The international organizations working on the subject, however good their intentions, struggle to comprehend this quandary. This is why it is important to start thinking outside the box, closely bringing in expertise from those who have first-hand experience of statelessness, while utilizing language that state actors better understand. As Einstein once wrote: “We cannot solve our problems with the same thinking we used when we created them.” In short, there is a need not only to match but to surpass the strategic ingenuity of the state actors that generate and perpetuate mass statelessness.

Expanded investment programs

Because the long-term interests of preventing statelessness are often more difficult to perceive, state structures tend to be far keener to perceive interests tied to attracting investment, enhancing reputation, and other such short-term perks. Yet there is untapped opportunity here between addressing statelessness and supporting perceived state interests. Taking advantage of this opportunity can improve governance and stability, while generating benefit for stateless individuals, state actors in good faith, and the international community at large. After all, the integrity of nationality is threatened by state fallibility, not by the existence of options for people to have a Plan B as a safety net to cope with said fallibility. Investment migration programs need to be expanded to facilitate better access for all, and especially for the people who are already paying for the shortcomings of states.

Historically, from Roman times (peculium), to the Islamic past (mukataba), and to the earlier history of the USA (manumission) and many other cultures, slaves were able to buy their way out of the state institution of slavery. The stateless today should at least have the option to buy their way out of their problems that state actors seem helpless to stop manufacturing. The solution would not be a panacea, not least because of the extent to which stateless people are severely limited in their rights, including in their employment rights. But it would certainly create some clear pathways, and hope where none exists. In combination with a few other innovative, outside-the-box approaches, the cumulative effect could cascade into making a meaningful impact, challenging entrenched systems and opening new pathways to resolve statelessness. We simply need to shift our perspective beyond the narrow, state-centered mindset that continues to constrain meaningful solutions.