Debating Transformations of National Citizenship

Front matter

Re ae — IMISCOE Research Series

Rainer Bauböck Editor

Debating Transformations of National Citizenship

Preface

If we can measure the success of a political concept by the frequency with which it is used in speeches and texts, then ‘citizenship’ has been hugely successful. A quick search on Google Scholar shows 1.87 million academic texts where the English version of the concept comes up. The use of the concept in all English language texts registered by Google peaked first around 1920, declined then continuously until the early 1980s, and has since risen steeply to a new record frequency around the turn of the millennium.

Since so many authors talk about citizenship the content associated with the concept is likely to become less precise. Citizenship is indeed used today in many contexts where it would have seemed oddly out of place in the past. Big companies advertise their ‘corporate citizenship’, users of internetbased social networks are addressed as cyber citizens and political philosophers and activists campaign for animal citizenship. The present volume sticks to the core meaning of citizenship since the times of the Athenian and Roman republics as a status of equal membership in a political community. Since the French and American Revolutions, citizenship has become most closely associated with nationality: a legal status that attributes responsibility for individuals to states and a bundle of rights and obligations assigned to individuals by states. The broad new literatures on citizenship of minorities or on citizenship as a practice of contestation in social movements generally assume national citizenship as a stable background. They discuss inequalities and exclusions among those who share the same legal status and rights of national citizenship. This is an important agenda, but it needs to be broadened by examining how the presumptively stable background of national citizenship itself is gradually shifting.

This question drives the four debates collected in the present volume. The first of these raises a question that is not entirely new in historical perspective, but that has gained new salience in contexts of globalisation, mobility and rising global inequalities of income and wealth: Should citizenship be for sale? And does the sale of passports to investors change the very nature of citizenship by turning it from a stable legal bond into a marketable commodity?

The second debate examines another phenomenon that had been common in ancient and medieval republics: banishing citizens from the polity as punishment for law-breaking or as a precautionary removal of those who

Vii viii Preface have become a threat. These practices have witnessed a recent comeback in liberal democracies that deprive terrorist suspects of their nationality in order to make them deportable or to prevent them from returning. How concerned should we be about this trend given the small numbers of affected individuals and the severity of the threat they pose? Does it signal an erosion of the idea that liberal states may control admission to citizenship but should not have the power to deprive citizens of their nationality — abdicating thereby also their responsibility to protect or to punish them?

The third and fourth debates look more explicitly towards the future and consider how changing social norms and new technologies may affect the substance and salience of national citizenship. National citizenship is always acquired by birth and all states use a principle of ius sanguinis. In the large majority of countries, citizenship is bestowed upon those born to citizen parents independently of their country of birth. Ius soli, i.e. citizenship acquired by birth in the territory is the dominant principle only in the Americas, but even there second generations born abroad are citizens by descent. The debate on the future of ius sanguinis asks how this most basic and widespread rule for citizenship attribution is going to be affected by new patterns of family relations and new reproductive technologies. Will biological descent continue to count for more than social relations of children to their caregivers? And will these changes provide opportunities for abandoning ius sanguinis altogether and replacing it with territorial citizenship based on birth and residence in a country?

The fourth and last debate challenges this possible conclusion by pointing to another major transformation of contemporary societies: the digital revolution that offers also new opportunities for global citizenship. Can blockchain technology provide every human being with a single global legal persona and will it permit the creation of political communities without territory? Would such developments complement or replace the existing functions of citizenship in territorial states? Or will the latter instead capture new digital technologies in order to enhance their control over society?

The debates collected in this volume follow certain rules. The texts are not freestanding submissions to a blog or edited volume. Each author was invited to respond not only to the introductory kick-off essay but also to the comments previously published online. Authors were invited based on their expertise and stances on the topic, with the aim of representing a broad spectrum of reasonable views. This unusual format avoids repetition and simulates a conversation among people who disagree with each other but are ready to listen and address each other’s arguments.

Preface ix

The outcome provides those who lack the time to plough through thick piles of journal articles and books with a concise overview of debates that are not purely academic, since they are conducted in a non-technical language and reflect concerns that are widely discussed among policy makers and engaged citizens. Together with its companion volume ‘Debating European Citizenship’ this book will hopefully also be used widely for teaching students what citizenship is about and what challenges it currently faces.

San Domenico di Fiesole, Italy Rainer Bauböck

Part I: Should Citizenship Be for Sale?

Summary: Global, European and National Questions About the Price Of Cifizenship sormianne Sa 3 Rainer Bauböck

Dangerous Liaisons: Money and Citizenship ssesarerariorareinarisi 7 Ayelet Shachar

Citizenship for Those who Invest into the Future of the State is Not Wrong, the Price Is the Problem .i....cccccccsscesseesteeseees 21 Magni-Berton Raul

The Price of Seling CHIC Pussinen e 25 Chris Armstrong

Global Mobility Corridors for the Ultra-Rich.

Roxana Barbulescu

The Maltese Falcon, or: my Porsche for a Passport! ..c.ccsccesccessesseeteesees 33 Jelena Dzankié

What Is Wrong with Selling Citizenship?

What Money Can't Buy: Face-to-Face Cooperation

REE EOE DEMOTORES 43 Paulina Ochoa Espejo

If You Do not Like Selling Passports, Give Them for Free

Vesco Paskalev

Dimitry Kochenov xi xii Contents

David Owen

Jo Shaw

Linking Citizenship to Income Undermines European Values. We Need Shared Criteria and Guidelines

I PEPEE E EAEE A ee 69 Ayelet Shachar

Part II: Bloodlines and Belonging lus Filiationis: A defence of Citizenship by DesCeNnt..c...cccccscccccsssereecees 83 Rainer Baubéck

Tainted Law? Why History Cannot provide Jannis Panagiotidis

Scott Titshaw

Abolishing lus Sanguinis Citizenship: A Proposal

Toa Resa aad Too Radical eusie irei EA E 103 Kristin Collins

Cinzenship Wihout MARIO secca en i 109 Lois Harder

The Janus-Face of lus Sanguinis: Protecting Migrant

Children and Expanding Ethnic Nations ....ccccccccccccsceseceseceteseeeeseseeaes 113 Francesca Decimo

David Owen

Dit Me EO ntsc ter A A E A E IAs 121 Kerry Abrams

Law by Blood or Blood by LAW? .cssisccisiinvqaconciaterantnorssnieunareais 127

David Armand Jacques Gérard de Groot

Contents xiii

Limiting the Transmission of Family Advantage: Tus Sanguinis with an Expiration Date .sssisssseinusroinsinarniornnniieena 131 Iseult Honohan

Retain lus Sanguinis, but Don't Take it Literally! ..ccccccccccescecscssseeteeeees 137 Eva Ersbøll

Distributing Some, but Not All, Rights of Citizenship Aecordino 16 Puis BORG oa e T R 143 Ana Tanasoca

Learning from Naturalisation Debates: The Right

Katja Swider and Caia Vlieks

Part III: The Return of Banishment The Return of Banishment: Do the New Denationalisation

Fokeies Weaken CERS RID ienne E AREE OA 163 Audrey Macklin Terrorist Expatriation: All Show, No Bite, No Future ....ccccccccccccsssseesees 173

Should Those Who Attack the Nation Have an Absolute Righi to Remain Tis CHZENS? arerio ee runn E E 177 Peter H. Schuck

Terrorists Repudiate Their Own Citizens hi D enriucaniarsmenanernnraci 181 Christian Joppke Its Not About Their Citizenship, its About OUTS sessssreessrririns 185

Vesco Paskalev

You Can t Lose What You Haven t Got: Citizenship Acquisition ana LOSS TH AIOE ioiai ea A A 189 Bronwen Manby

Revocation of Citizenship of Terrorists: A Matter öf Tonncal PPD OR OY orinn a a 197 Kay Hailbronner Whase Bad Guys Are TOTT orari AAEE 201 xiv Contents

Human Rights for All Is Better than Citizenship Pas Tor SOE o E ce aiey tots eaeeanduaule 207 Daniel Kanstroom

Denationalisation, Assassination, Territory:

Beware States Piercing Holes into Citizenship ...ccccccccccesccessessesseessennes 219 Matthew J. Gibney

DOWNS SONS on cia eae ee 225 Reuven (Ruvi) Ziegler

Our Epoch s Lile Baris Tieni orrs ana N 229 Saskia Sassen

Deprivation of Citizenship: Is There an Issue of EU Law? ...cccccccccccees 233 Jo Shaw

On Producing the Alien Within: A Reply ...ccccccccccscccsscesscetsceteeeseesseesseeaees 239 Audrey Macklin

Part IV: Cloud Communities Liav Orgad

Ciizenship in Cloud Cuekoo Land? nesrin or ir nan E amines 261 Rainer Bauböck

Primavera De Filippi

Global Citizenship for the Stay-at-HOmes ..cccccccccccescesseesseeteesseeeeesseeaes 279 Francesca Strumia

A World Without Law; A World Without Politics c...e 285 Robert Post

Virtual Politics, Real Guns: On Cloud Community,

A World Wide Web of Citizenship ox scisscssssdscssasstsusapssataesisetesasesiaiein oaeeensnaes 295

Contents XV

Citizenship Forecast: Partly Cloudy with Chances D ATOT ois ca sees tsi east Score thon caleancaetnad death aensonaeb Seen uetawepuae 299 Costica Dumbrava

The Separation of Territory and State: a Digital PO VOT OGL? aa r edie notion sate nd atnaens 305 Yussef Al Tamimi

A Brave New Dawn? Digital Cakes, Cloudy Governance BEE CHD LCP e A S 311 Jelena Džankić

Old Divides, New Devices: Global Citizenship Jor Only Halj af he Warid oc iene N mated 317 Lea Ypi

Dimitry Kochenov

Stefania Milan

Cloud Agoras: When Blockchain Technology Meets Arendt s Virtual Publie Spaces oissccisiu sata us eaasunvanstasuisuhdens spiniainivabbedereune 337 Dora Kostakopoulou

Ehud Shapiro

Liav Orgad

Correction to: You Can t Lose What You Haven't Got: Citizenship Aenne Oe LOSS AN as a E El

About the Editor

Rainer Bauböck is currently a part time professor at the Robert Schuman entre of the European University Institute. He held the chair in social and political theory at the Department of Political and Social Sciences of the EUI from 2007 to 2018 and was Dean of Graduate Studies from 2012 to 2016. Rainer Baubéck is also a corresponding member of the Austrian Academy of Sciences and chair of its Commission on Migration and Integration Research.

His research interests are in normative political theory and comparative research on democratic citizenship, migration, European integration, nationalism and minority rights. Together with Jo Shaw (University of Edinburgh) and Maarten Vink (University of Maastricht), he coordinates GLOBALCIT, an online observatory on citizenship and voting rights.

His most recent book publications are: Democratic Inclusion. Rainer Bauböck in Dialogue, Manchester University Press: Manchester, 2017; The Oxford Handbook of Citizenship (Ayelet Shachar, Rainer Baubéck, Irene Bloemraad, Maarten Vink, eds.). Oxford: Oxford University Press, 2017; Transnational Citizenship and Migration (Rainer Baubéck, ed., London: Routledge, 2017).

xvii

Contributors

Kerry Abrams Professor of Law, University of Virginia

Yussef Al Tamimi PhD Researcher, European University Institute

Chris Armstrong Professor of Political Theory, Department of Politics and International Relations, University of Southampton

Roxana Barbulescu University Academic Fellow in New Migrations in UK and Europe, School of Sociology and Social Policy, University of Leeds Michael Blake Professor of Philosophy, Public Policy, and Governance, University of Washington

Linda Bosniak Distinguished Professor of Law, Rutgers, The State University of New Jersey

Kristin Collins Professor of Law, Boston University School of Law Primavera De Filippi Permanent Researcher, National Center of Scientific Research (CNRS) in Paris, Faculty Associate, Berkman-Klein Center for Internet & Society at Harvard University and Visiting Fellow at the Robert Schuman Centre for Advanced Studies at the European University Institute David Armand Jacques Gérard de Groot PhD Researcher, National Center of Competence in Research — The Migration-Mobility Nexus, University of Bern

Francesca Decimo Associate Professor in Sociology, Department of Sociology and Social Research, University of Trento

Costica Dumbrava Postdoctoral Researcher in the Department of Political Science of Maastricht University and Executive Coordinator of the Maastricht Centre for Citizenship, Migration, and Development

Jelena Dzankic Research Fellow, Robert Schuman Centre for Advanced Studies, European University Institute

Eva Ersbøll Senior Researcher, Danish Institute for Human Rights Matthew J. Gibney Professor of Politics and Forced Migration at the University of Oxford, Official Fellow of Linacre College, Oxford, and Director of the University of Oxford Refugee Studies Centre

Kay Hailbronner Emeritus Professor, University of Konstanz, Germany Lois Harder Professor and Chair of the Department of Political Science, University of Alberta

Iseult Honohan Associate Professor, UCD School of Politics and International Relations, University College Dublin

Christian Joppke Professor of General Sociology, Institute of Sociology, University of Bern

XX Contributors

Daniel Kanstroom Professor of Law and Thomas F. Carney Distinguished Scholar, Boston College Law School

Dimitry Kochenov Chair in EU Constitutional Law, Faculty of Law, University of Groningen

Dora Kostakopoulou Professor of European Union Law, European Integration and Public Policy, School of Law, University of Warwick Audrey Macklin Director, Centre for Criminology and Sociolegal Studies and Professor of Law, University of Toronto

Magni-Berton Raul Professor of Political Science, Sciences Po Grenoble Bronwen Manby Visiting Senior Fellow, Centre for the Study of Human Rights, London School of Economics and Political Science

Stefania Milan Associate Professor of New Media, University of Amsterdam, Associate Professor (II) of Media Innovation, University of Oslo

Paulina Ochoa Espejo Associate Professor of Political Science, Haverford College

Liav Orgad Head of the Project Group ‘International Citizenship Law’, WZB Berlin Social Science Center, Director of the Research Group ‘Global Citizenship Governance’ at the European University Institute and Associate Professor at the Interdisciplinary Center Herzliya

David Owen Professor of Social and Political Philosophy, Division of Politics and International Relations, University of Southampton

Jannis Panagiotidis Junior Professor for the Migration and Integration of Russian Germans, Institute for Migration Research and Intercultural Studies, University of Osnabriick

Vesco Paskalev Lecturer, School of Law and Politics, University of Hull Robert Post Sterling Professor of Law, Yale Law School

Saskia Sassen Robert S. Lynd Professor of Sociology and Co-Chair of the Committee on Global Thought, Columbia University

Peter H. Schuck Simeon E. Baldwin Professor Emeritus of Law, Yale Law School

Ayelet Shachar Director, Max Planck Institute for the Study of Religious and Ethnic Diversity, Professor of Law and Political Science, University of Toronto

Ehud Shapiro Professor of Computer Science and Biology, Weizmann Institute of Science

Jo Shaw Salvesen Chair of European Institutions, School of Law, University of Edinburgh

Peter J. Spiro Charles Weiner Professor of Law, Temple University Francesca Strumia Senior Lecturer, University of Sheffield School of Law Katja Swider PhD Researcher, Amsterdam Centre for European Law and Governance, University of Amsterdam

Contributors XXi

Hannes Swoboda Former Member of the European Parliament, International Institute for Peace

Ana Tanasoca Postdoctoral Research Fellow, Centre for Deliberative Democracy and Global Governance, University of Canberra

Scott Titshaw Associate Professor of Law, Mercer University School of Law

Caia Vlieks PhD Researcher and Lecturer, Department for Public Law, Jurisprudence and Legal History, Tilburg University

Lea Ypi Professor in Political Theory, London School of Economics and Political Science and Adjunct Professor in Philosophy, Australian National University

Reuven (Ruvi) Ziegler Associate Professor in International Refugee Law, School of Law, University of Reading

Part I: Should Citizenship Be for Sale? Abstract

On 12 November 2013 the Maltese Parliament decided to offer Maltese and European citizenship at the price of € 650,000, but implementation of the law was postponed due to strong domestic and international critiques. On 23 December, the Maltese government announced significant amendments, including a higher total amount of € 1,150,000, part of which has to be invested in real estate and government bonds. Several other European states have adopted ‘golden passport’ programmes. Should citizenship be for sale? In November 2013 EUDO CITIZENSHIP invited Ayelet Shachar of the University of Toronto Law School to open a debate on these controversial policies. Twelve authors have contributed short commentaries, most of which refer to the initial law adopted by the Maltese Parliament. An executive summary by Rainer Baubéck provides an overview over the main questions raised in our Forum.

The contributions to this Forum on ‘citizenship for sale’ were published and disseminated to Members of the European Parliament shortly before a plenary debate on 15 January 2014 in the European Parliament. After hearing a statement by EU Commissioner Viviane Reding, the EP passed a resolution condemning the Maltese policy.

Keywords

Citizenship acquisition - Investor citizenship programmes - European citizenship - Commodification - Malta

Summary: Global, European and National @ Questions About the Price of Citizenship sge

The Forum Debate ‘Should citizenship be for Sale?’ collected comments representing a wide range of views and some highly original arguments. They can be summarised by distinguishing global, European and national perspectives.

(1) Global questions

From a global perspective, several authors argue that citizenship has become primarily a resource for mobility. Globalisation has already deeply undermined national citizenship as a bond between individuals and states and the sale of passports is just a symptom of an irreversible commodification of citizenship (Spiro). The primary value of citizenship lies in the mobility rights attached to passports. The high price put by the Maltese Parliament on Maltese passports reflects the instrumental value of free movement rights attached to EU citizenship for the wealthy and mobile global elites.

Some authors defend the sale of citizenship by pointing out that it is less arbitrary and more transparent than other ways of acquiring citizenship (e.g. Kochenov), while others suggest that giving the ultra-rich privileged access to ‘global mobility corridors’ (Barbulescu) raises concerns about fairness and justice (e.g. Owen). Instead of offering their citizenship for money, democratic states could bestow it on persons who are threatened by persecution or who fight for democratic values as a means of protection or exit option (Paskalev).

(2) European questions

Several comments emphasize that selling EU passports amounts to freeriding on the shared EU assets of free internal movement and external visawaiver agreements created jointly by all Member States (e.g. Magni-Berton). Investor-citizenship programmes are, however, not the only instance. Many EU countries offer privileged access to EU citizenship to large populations

© The Author(s) 2018 3 R. Baubéck (ed.), Debating Transformations of National Citizenship, outside the EU territory on grounds of distant ancestry or co-ethnic identity, obliging thereby all other Member States to admit immigrants from third countries to their territories and labour markets as EU citizens (Shaw).

Since EU citizenship is derived from Member State nationality and determining the latter remains an exclusive competence of Member States, EU law does not provide much leverage against either the sale of EU passports or other policies of creating new EU citizens without genuine links to any EU country. Several authors raise, however, the question whether the principle of proportionality established by the Court of Justice of the EU if withdrawal of Member State nationality leads to a loss of EU citizenship could also be applied to national rules regulating the acquisition of citizenship (Shaw, Shachar, Swoboda).

Independently of the issue of legality these authors suggest that the European Parliament is the institution that is best suited for addressing the issue. Instead of asking for intervention against particular Member States, they call for a broader debate on shared principles that ought to guide Member State policies in matters of citizenship.

(3) National questions

Most authors in our Forum defend a conception of citizenship as membership in a democratic community. From this perspective, selling membership seems odious in the same way that selling the franchise in elections is (Shachar, Baubéck). Citizenship is considered as the kind of good that money should not be able to buy (Ochoa).

Magni-Berton argues, however, that monetary investment can be a way of contributing to the common good of a political community and should therefore not be summarily dismissed as a legitimate reason for acquiring citizenship. In his view, the high price indicates the real problem, which is artificial scarcity created through exclusionary rules for access to national citizenship.

Authors disagree on whether citizenship acquisition based on purchase or investment is more arbitrary than the common rules of ius sanguinis, ius soli or residence-based naturalisation. Some consider all of these membership mechanisms as essentially arbitrary or discriminatory (e.g. Armstrong, Kochenov), whereas Baubéck defends them as supporting equal membership in intergenerational communities.

From a global justice perspective, ‘golden residence programmes’ that provide investors with privileged access to permanent residence status seem

Summary: Global, European and National Questions About the Price... 5 to be just as unfair towards the poor as ‘golden passport programmes’. From a democratic citizenship perspective, however, the former are less problematic since they maintain a condition of residence and thus a ‘genuine link test’ for access to citizenship (e.g. Dzankic, Shachar, Owen).

Other authors acknowledge that states have legitimate interests in ‘inviting the rich, the beautiful and the smart’ (Kochenov) and that investor citizenship is not essentially different from the widespread practice of offering citizenship to prominent sportsmen and -women (Owen). Chris Armstrong observes that some states offer citizenship to foreigners who have served in their army or have otherwise provided exceptional service to the country. If investors really help to save a country from financial breakdown, offering them citizenship may be justified on grounds of emergency relief. Other authors are, however, sceptical that those who are only interested in additional mobility rights can be made to invest their wealth permanently and productively (Dzankic).

Apart from the lack of a ‘genuine link’ criterion, a global market for citizenship status is also seen as corrupting democracy by breaking down the wall that separates the spheres of money and power. Several contributions argue that there is a broader trend towards relinking citizenship acquisition to social class, which manifests itself, on the one hand, in offering citizenship to the rich and, on the other hand, in income and knowledge tests for ordinary naturalisations of foreign residents (Shachar, Barbulescu, Dzankic, Baub6éck, Owen, Swoboda).

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Ayelet Shachar

Vogue predictions that citizenship is diminishing in relevance or perhaps even vanishing outright, popular among jetsetters who already possess full membership status in affluent democracies, have failed to reach many applicants still knocking on the doors of well-off polities. One can excuse the world’s destitute, those who are willing to risk their lives in search of the promised lands of migration in Europe or America, for not yet having heard the prophecies about citizenship’s decline. But the same is not true for the well-heeled who are increasingly active in the market for citizenship: the ultra-rich from the rest of the world. They are willing to dish out hundreds of thousands of dollars to gain a freshly-minted passport in their new ‘home country.’ That this demand exists is not fully surprising given that this is a world of regulated mobility and unequal opportunity, and a world where not all passports are treated equally at border crossings. Rapid processes of market expansionism have now reached what for many is the most sacrosanct non-market good: membership in a political community. More puzzling is the willingness of governments — our public trustees and legal guardians of citizenship — to engage in processes that come very close to, and in some cases cannot be described as anything but, the sale and barter of membership goods in exchange for a hefty bank wire transfer or large stack of cash.

Everybody knows that immigration is among the most contentious policy issues of our times, and recent years have witnessed a ‘restrictive turn’! with respect to ordinary immigration and naturalisation applicants, such as those who enter on the basis of a family reunification claim or for humanitarian reasons. The situation is different, however, for the world’s moneyed elite, who can sidestep many of the standard requirements for settlement by ‘buying’ their way into the political community. The public act of naturalisation — of turning a non-member into a citizen — has always borne an air of legal magic, with the result that it is the ‘most densely regulated and

! Joppke, C. (2007), ‘Beyond National Models: Civic Integration Policies for Immigrants in Western Europe’, West European Politics 30 (1): 1-22; Orgad, L. (2010), ‘Illiberal Liberalism: Cultural Reflections on Migration and Access to Citizenship in Europe’, American Journal of Comparative Law 58: 53-106.

© The Author(s) 2018 7 R. Baubéck (ed.), Debating Transformations of National Citizenship, most politicized aspect of citizenship laws’’. At stake is the regulation of the most important and sensitive decision that any political community faces: how to define who belongs, or ought to belong, within its circle of members. Not everyone knows, however, that governments are now proactively facilitating faster and smoother access to citizenship for those who can pay. Revealing insights about the current state of citizenship can be gained, I will argue in this short essay, by examining who is given this red-carpet treatment, and on what basis.

Consider the following examples. Affluent foreign investors were offered citizenship in Cyprus as ‘compensation’ for their Cypriot bank account deposit losses. In 2012, Portugal introduced a ‘golden residence permit’ to attract real estate and other investments by well-to-do individuals seeking a foothold in the EU. Spain recently adopted a similar plan. On 12 November 2013, Malta approved amendments to its Citizenship Act that put in place a new individual investor legal category that will allow high-net-worth applicants to gain a ‘golden passport’ in return for € 650,000; this sum was later increased to 1.15 million, opening a gilded backdoor to European citizenship. Under these cash-for-passport programmes, many of the requirements that ordinarily apply to those seeking naturalisation, such as language competency, extended residency periods or renunciation of another citizenship, are waived as part of an active competition, if not an outright bidding war, to attract the ultra-rich. Portugal, for example, offers a fast track for qualified applicants that entitles them to a 5 year permanent residence permit, visa-free travel in Schengen countries, the right to bring in their immediate family members, and ultimately the right to acquire Portuguese citizenship and with it the benefits of EU citizenship. This package comes with a hefty price tag: a capital transfer investment of € 1 million, a real estate property purchase at a value of € 500,000, or the creation of local jobs. The investment needs to remain active in Portugal for the programme’s duration. Alas, the individual who gains the golden permit bears no similar obligation. Simply spending 7 days in Portugal during the first year and fourteen days in the subsequent years is enough to fulfil the programme’s requirements. So much for the conclusion of the International Court of Justice in the 1955 Nottebohm decision that ‘real and effective ties’ between the individual and the state are expected to undergird the grant of citizenship.

2 Baubéck, R. & S. Wallace Goodman (2010), ‘Naturalisation’, FUDO Citizenship Policy Brief No. 2, available at http://cadmus.eui.eu/handle/1814/51625, p. 1.

In Malta, recipients of the golden passport will be vetted in accordance with a discretionary ministerial act that puts in place little transparency and accountability. Government officials have made clear that applicants can expect an expedited treatment, meaning that they will not have to ‘stand in the queue’ like everyone else. In addition, the names of golden passport recipients would remain confidential, making it close to impossible ever to know to whom the polity has sold a precious part of its soul. This last provision has raised the ire of the opposition. Their concern is that concealing the identity of those who gain membership by literally purchasing citizenship makes it so that ‘Maltese [a]re now being denied the right to know who is Maltese’*. The secrecy provision was eventually withdrawn in the eleventh hour, but the basic structure of the programme remains intact: privileged and fast-track naturalisation, allowing ‘any Tom, Dick and Harry ... [to] buy a Maltese passport without ever setting foot on Maltese soil.’ A recent survey* shows that the vast majority of the population opposes the sale of citizenship in principle, and rejects this scheme in particular, detached as it is from any residence or other requirements that would establish ties with the passportgranting country and society.

Beyond Europe, those seeking a new passport can look to St. Kitts and Nevis, where economic citizenship can be purchased for as low as $ 250,000 (for a lump sum) or $ 400,000 (if monies are directed to a real estate project), and issued within months. They might also consider Antigua and Barbuda, which is the latest in a growing list of countries to roll out a citizenship-by-investment programme or the Commonwealth of Dominica. Whereas ordinarily the law requires significant residence periods for those seeking naturalisation in these island nations (fourteen years in St Kitts and Nevis, seven years in the Commonwealth of Dominica and in Antigua and Barbuda, respectively), the residency requirement is reduced to merely seven days — a short vacation under the tropical sun — or even waived altogether for those who purchase their fast-tracked passport.

The citizenship-by-investment programmes that I have just described fall into the category of what we might call unfettered cash-for-passport exchanges. No ‘nexi’ between the country and the passport recipient are

3 ‘Updated. Mario de Marco: “Opposition will not support prostitution of Malta’s identity, citizenship”, Malta Today, 9 November 2013, available at https://www.maltatoday.com.mt/news/national/3 1325/opposition-proposeschange-of-name-to-individual-donor-programme-20131109#.Ws3jxHK-nZs ‘Contentious citizenship scheme approved’, Malta Today, 12 November 2013, available at https://www.maltatoday.com.mt/news/national/3 1402/contentiouscitizenship-scheme-approved-20131112#.Ws3i9XK-nZs required; only the investment monies must ‘reside’ in the country for a fixed term. This is to be distinguished from more traditional programmes, themselves the subject of perennial critique, under which migrant millionaires (to borrow David Ley’s apt term) can receive an admission visa through a designated business-investment stream, but would then have to more or less comply with standard residency and naturalisation requirements’. Such programmes are found in, among other places, Australia, New Zealand, Hong Kong, the United Kingdom and the United States. Both kinds of programme raise serious ethical quandaries, but the unfettered cash-for-passport programmes are more extreme and blatant than the traditional investment programmes. They contribute to some of the most disturbing developments in 21*-century citizenship, including the emergence of new forms of inequality and stratification. Instead of retreating to the background as some theorists had forecasted, states are proactively creating and exacerbating inequalities through their selective and managed migration policies, setting up easy-pass citizenship for some while making membership more restrictive and difficult to achieve for others. This new world order reveals tectonic pressures and introduces urgent dilemmas about the proper scale, scope and relations of justice and mobility, citizenship and (selective) openness. These developments also bear a profound impact on immigration law and policy on the ground, since they entail processes through which the boundary between state and market is constantly being tested, eroded, and blurred.