Research papers

Research Papers

Investment Migration Research Papers are peer-reviewed multidisciplinary working papers of original research in progress dedicated to the analysis of citizenship and residence by investment around the world.

Investment Migration and State Autonomy: A Quest for the Relevant Link – IMC-RP 2019/4 By Matjaž Tratnik and Petra Weingerl
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  • Create Date: 23-09-2019
  • Last Updated: 23-09-2019

Abstract

The paper explores limitations imposed on State autonomy in matters of nationality by international law and EU law and its implications for investment migration. State autonomy is in international law to a large extent unlimited, although it may not encroach upon international obligations in the area of protection of human rights. In the EU, Member States are (by their nationality rules) gatekeepers to the EU citizenship. When exercising their national autonomy they must observe EU law, most notably the principle of proportionality and the principle of sincere cooperation. The principle of proportionality plays a more important role in cases of loss than in cases of acquisition of nationality, as the cases Rottmann, Kaur and Tjebbes have demonstrated. Yet, the role of EU law is very limited. The principle of sincere cooperation may play an important role as regards defining the grounds for the acquisition of Member State nationality, and thus also for the investment migration. If a Member State lays down rules that enable citizenship by investment, the EU institutions might react, as the Maltese example shows. So far only the political institutions have reacted in this matter, without sensible legal arguments, though. Most recently, the Commission in its 2019 Report deployed a genuine link-based narrative that is at odds with established principles of international and EU law and highly problematic from the viewpoint of the principle of sincere cooperation. When and if the matter reaches the CJEU, the Court should be very restrained when assessing national investment migration rules. To this end, bringing a ‘romantic’ 19th century genuine link-like criteria into the realm of EU law is not desired.

KEYWORDS: EU Citizenship, Nationality, National Autonomy, Proportionality Principle, Principle of Sincere Cooperation, Genuine Link, Relevant Link, Investment Migration

Matjaž Tratnik, PhD, Professor of International, EU and Comparative Law, University of Maribor, Faculty, Faculty of Law.

Petra Weingerl, DPhil (Oxon), MJur (Oxon), Assistant Professor of the Department of European and International Law and International Cooperation, University of Maribor, Faculty of Law.

The Sale of Conditional EU Citizenship: The Cyprus Investment Programme under the Lens of EU Law – IMC-RP 2019/3 By Sofya Kudryashova
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  • Create Date: 11-2-2019
  • Last Updated: 06-06-2019

Abstract

This article focuses on the consequences of the acquisition of Cypriot citizenship through Cyprus’s new Investment Programme, adopted in 2013. One of the criteria for the acquisition of citizenship is the investment of EUR two million in Cypriot banks, immovable property or companies which must be retained on Cypriot territory for at least three years. However, immovable residential property to a value of EUR 500,000 must be retained in Cyprus indefinitely or there is a risk of citizenship being revoked. These criteria raise concerns, particularly in light of EU law on citizenship and the free movement of capital. This article analyses the possible violations of EU law in this context and argues against the conditional nature of the citizenship provided by the Programme, which results in violation of the free movement of capital and restricts the genuine enjoyment of the status of EU citizenship. Case law by the European Court of Justice and academic literature analysing the right to the free movement of capital and revocation of citizenship in an EU context will be examined to determine the repercussions of the Cyprus Programme. This topic is extremely relevant today, as it sheds light on the developing nature of EU citizenship and the relationship between EU citizenship rights weighed against the national interests of the Member States.

KEYWORDS: investment migration, EU citizenship, free movement of capital, non-discrimination, Cyprus Investment Programme

Sofya Kudryashova, Corporate Administrator at PHC Tsangarides LLC. [email protected] I would like to express my gratitude to Professor Dimitry Kochenov for his guidance and encouragement throughout the entire process of writing this paper.

This work has been defended as a thesis at the University of Groningen and does not in any way reflect the views of the IMC or the author’s current employer. The final polished version of it is due to appear in the European Papers (2018).

EU Competence and the Attribution of Nationality in Member States – IMC-RP 2019/2 By Daniel Sarmiento
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  • Create Date: 23-01-2019
  • Last Updated: 23-01-2019

Abstract

The EU’s limited competences in the field of immigration introduce significant limits on the EU’s ability to harmonize or introduce uniform rules in the laws of nationality of its Member States. This paper will portray the EU’s competences in the field, as well as the Court of Justice’s position in the matter. It will be argued that the cases in which EU law can interfere in Member State’s laws on nationality concern cases of restrictions of EU rights, but not cases in which the attribution of nationality is a source of EU rights for the individual. It will be argued that the EU can only introduce measures in this area of national law on the grounds of Article 352 TFEU, and even in this case it must comply with strict requirements, such as the existence of a genuine need to improve the goals in the Treaties, as well as a unanimous vote in the Council.

KEYWORDS: Nationality, EU competence, Micheletti, Rottmann, EU citizenship, Immigration

Daniel Sarmiento, Professor of EU Law, Universidad Complutense de Madrid. Former legal secretary at the Court of Justice.

Nottebohm and ‘Genuine Link’: Anatomy of a Jurisprudential Illusion – IMC-RP 2019/1 By Peter J. Spiro
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  • Create Date: January 23, 2019
  • Last Updated: January 23, 2019

ABSTRACT

The ICJ’s 1955 decision in the Nottebohm Case famously set forth an aspirational conception of nationality requiring a “genuine link” between an individual and a state for purposes of international law. The formulation was controversial from its inception as a departure from the prevailing rule that states enjoy sovereign discretion over nationality practices. At no time has “genuine link” represented a general rule of international law. The putative doctrine has a poor track record in subsequent international proceedings (including before the European Court of Justice), effectively limited to supplying secondary support for the “dominant nationality” approach in the narrow context of international claims involving dual nationals. “Genuine link” is even less appropriately applied in the wake of globalisation, in which states have increasingly enabled the conferment of nationality to individuals with tenuous connections to the state, for example, through ancestral descent. Although some political theorists have deployed the “genuine link” label to advance a liberal nationalist agenda, Nottebohm has been rejected by a growing consensus of legal scholars.

KEYWORDS: nationality, citizenship, international law, Nottebohm, naturalization, dual nationality

Peter J. Spiro, Charles R. Weiner Professor of Law, Temple Law School.

Policy Briefs

Investment Migration Policy Briefs are peer-reviewed multidisciplinary working papers dedicated to specific policy aspects of programmes of citizenship and residence by investment around the globe. They can include country profiles, legal commentaries, short research notes on particular policies and reports from practitioners.

Investment Residence in the UK: Past and Future By Alina Tryfonidou
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  • Create Date: 15-02-2017
  • Last Updated: 15-02-2017

Abstract

In 2008, the UK introduced its (current) golden visa programme, officially known as the ‘Tier 1 (Investor)’ route, replacing the previous ‘Investor Immigrant’ category, firstly introduced in 1994. Despite the fact that golden visa programmes are not as controversial as golden passport programmes, which, at the moment, are operative in a handful of countries, the UK programme has been criticised mainly for its lack of transparency, for its inability to return any benefits to UK residents, and for creating the danger of transforming the UK into a safe haven for money launderers. These criticisms have, in fact, formed the main rationale behind the amendments effected to the programme
in recent years, and (possibly) for the proposals for the abolition of this programme, which have been very recently laid on the table. The aim of this article is to trace the development of the UK’s (current) golden visa programme, from the moment of its inception in June 2008 to today. An assessment of the strengths and weaknesses of this programme is also offered, as well as a consideration of the possibilities for its development (or abolition) in the future.

Dr Alina Tryfonidou is Associate Professor in EU Law, School of Law, University of Reading.