2018 saw some improvement in Malta, but significant concerns about law, policy and practice on the protection of stateless people and prevention of statelessness remain.
The European Network on Statelessness (ENS) has worked with its member aditus foundation to research and compile comparative information on statelessness in Malta as part of the Statelessness Index – an online tool which allows instant comparison of how different countries protect people without a nationality.
Malta provides very limited protection for stateless people. Although it is party to some relevant international and regional human rights treaties, it is not party to any of the core statelessness conventions. Maltese law provides some protections against arbitrary detention, but rights afforded to those detained for removal purposes are very limited.
- There is a non-automatic provision in the Citizenship Act for children born stateless in Malta to acquire citizenship after five years' residence, provided that they have not been convicted of any offence against any State or sentenced to more than five years' imprisonment.
- There is no age limit in the provision and the legal status or residence of the parents has no bearing on the right to acquire Maltese citizenship of a stateless child born on the territory.
- However, there is no information available about how proof of the child/person's statelessness is required or evidenced, the provision is little known, and it does not seem to ever have been used in practice.
- There is a provision in law for foundlings to acquire citizenship automatically.
- The law states that the ‘new-born infant’ shall be a citizen of Malta at the date of birth but it is unclear whether this would apply at a later age.
- The provision says ‘until his right to any other citizenship is established’ so it may be that if the parents are later identified and they are nationals of a country that gives rise to a ‘right’ to citizenship for the child, the child's Maltese citizenship would cease making them potentially stateless until they apply for citizenship. The reference to 'a right to citizenship' could also be construed to mean that it is enough for a foreign national parent to be able in law to pass on their nationality for a foundling's Maltese citizenship to be withdrawn. Whether there are practical barriers to acquisition of the foreign nationality may not be deemed relevant, entailing a risk of future statelessness.
- Dual citizenship is permitted so a child adopted by foreign parents and acquiring another nationality would not automatically lose their Maltese citizenship.
- The acquisition of Maltese nationality by an adopted foreign child is governed by a mix of law and policy. The Citizenship Act distinguishes between children over and under 10 years-old. For children under 10, Maltese citizenship is automatically acquired upon registration, but there is a risk of statelessness if an ascendant of the parent was not born in Malta, as Maltese citizenship law requires both the parent and ascendant to be born on the territory. If the adopted child is older than 10, they can either rely on the same provision (though the inclusion of adopted children here is based on a policy decision rather than an explicit legal provision); or submit an application for citizenship through naturalisation, where it is said to be policy to grant citizenship in such cases, but, again, this is not set in law so there could be a risk of statelessness during the procedure.
- There is a provision in the Citizenship Act for Maltese nationality to automatically be conferred through ius sanguinis to children born to Maltese citizens either in Malta or abroad, but there are discriminatory limitations in the Act, which exclude children born out of wedlock to a Maltese father.
- Under the limitations, in the case of unmarried parents, a child born in Malta on or after 1 August 1989 shall only become Maltese if the mother is a Maltese citizen, which leaves a risk of statelessness if only the father is Maltese and the mother cannot confer her nationality to the child, as long as the safeguard against children born stateless on the territory is not implemented in practice.
- Additionally, under these same limitations, children born abroad to a Maltese father and foreign mother out of wedlock on or after 1 August 1989 would also fail to acquire Maltese citizenship, even if rendered stateless.
- Despite being ruled discriminatory by the European Court of Human Rights in 2011 (Genovese v. Malta), Maltese law still contains these limitations distinguishing between children born in and out of wedlock and between children born to a Maltese mother as opposed to a Maltese father when unmarried.
- There are also current cases of Maltese fathers being required by the authorities to undergo paternity testing for their child's Maltese nationality to be recognised, even where they are married to the foreign mother of the child.
- It is compulsory for all parents, irrespective of nationality or legal status, to register the birth of their child within 15 days of the birth. If parents are unavailable, the duty falls on the doctor, midwife or any other person in attendance at the birth or in whose property the baby was born.
- There are credible reports of births remaining unregistered due to lack of documentation or refusal of parents to register the child.
- There are no mandatory requirements to report people who are undocumented to the immigration authorities.
- It is compulsory for parents to register the birth of their child with the Public Registry office within 15 days. This obligation may at times be difficult to meet, so in practice the timeframe is relaxed, and no penalties incur within the first weeks past the deadline.
- Late registration is allowed, with no cut-off date.
- Identity Malta and Gov.mt provide clear and easy-to-understand information on birth registration, where to register, and services for birth registration (in English and Maltese) on their websites, but there are no proactive campaigns on birth registration.
- In 2018, Identity Malta opened an office at the main public hospital to facilitate birth registration.
- The Government has implemented no other measures specifically aimed at reducing statelessness.
- Renunciation of nationality is only possible in cases where the person holds the nationality of another country, and a declaration should be approved by the Minister.
- Deprivation is provided for in law in certain circumstances. The competent authority is the Minister responsible for Maltese citizenship, who must convene a Committee of Inquiry made up of specific decision-makers. In cases involving a custodial sentence of less than 12 years there is a safeguard against statelessness, but not in other deprivation/loss cases. There is no legal aid and no right of appeal.
- NGOs have reported recent cases of withdrawal of nationality without any due process.