Author: Niu Ltd

 

Our world has truly become Global in the 21^st Century. We all Travel, watch TV, are hours on Social Media and cannot live anymore without Internet connection! So why are we restricted by physical borders? For Individuals with means and willingness to look at better opportunities for themselves, their families &/or their businesses around the world there are many exciting options out there thanks to Citizenship by Investment (CBI).

 

Many years back, in 1984, when the CBI Industry was born out a small Caribbean island of St. Kitts no one could imagine that Today it would stand by some estimates at USD3 billion+ & still growing. Slowly and steadily many countries joined the CBI bandwagon but what is most exciting and sometimes scary is the pace of changes in the last 5 year as compared to the first 25 years of this industry. 2016 St. Lucia launched its CBI program followed by Vanuatu in 2017 from the other end of South Pacific. 2018, we all witnessed the launch of Jordan CBI followed by Moldova. 1Q2019 Montenegro launched its much-awaited CBI. The story does not end there, major positive changes to existing CBI programs too! Sep.18 Turkey cut its CBI program cost from USD1M to just USD250k, Mar.19 Grenada announced major changes to its Citizenship program including price reduction in certain area for real estate investment.

 

But all is never rosy, just as the industry kept on growing and many CBI specialists emerged out of nowhere, there were scandals galore starting with CBI companies absconding with peoples hard earned money, fraud, forgery, mis-selling and many incidents implicating officials at government level too. The incidents were not isolated to a single country or program but went all the way from Caribbean, Bulgaria, Greece to UK. As I write this article, 15May19 Cyprus has increased its investment amount & also brought about many key changes to tighten its CBI criteria.

 

In the past, belonging to the Banking industry myself, which is over 600 years old (its first bank, Medici Bank opened in Italy in 1397), millions of competing banks across the globe trying to get a tiny piece of the USD134 Trillion industry, perhaps, there is merit in what EU/ OECD are saying, tred carefully CBI Industry!

 

In Banking, there are in country Central Banks and IMF, World Bank etc. at an international level to police the industry. Standard systems like Swift to have a common working framework and language. What do we have in the CBI Industry? How do we protect the consumer & our industry? Thank God that the Investment Migration Council (IMC) was formed in 2014 towards this objective but it cannot achieve miracles unless each & every one of us commits to contribute. Being such a young industry, we are also lucky that we have the pioneers of our industry still alive and working amongst us. Let us talk to each other, listen, seek advice & together make history by setting standards & the bar higher for ourselves. I look forward to seeing all of you at the Investment Migration Forum in Geneva.

 

Author: Saadiya Saadat, Founder & MD Secondpass Global

 

In recent months, the CRBI industry has been the backdrop for controversy in several cases. In October 2018, Bulgarian officials were found guilty of selling forged documents, allegedly allowing thousands of individuals to buy European passports illegally. In January 2019, under mounting pressure, Bulgaria revoked the citizenship of Russian telecoms millionaire Sergei Adoniev, who had been convicted of fraud in the United States in the 1990s. In March, the European Parliament voted to phase out CRBI programmes.

 

As a due diligence provider for several CRBI programmes globally, S-RM knows first-hand that the recent CRBI headlines paint a skewed picture. This is particularly true for applicants from the Middle East, whose profiles, in fact, closely mirror the wider global political, security and economic trends in the region. The volume of CRBI applications jumped significantly after the 2011 Arab Spring as citizens tried to escape worsening security across the region. From major Iraqi cities, applications now regularly come from engineers and surgeons who are unable to gain secure employment at home after years of conflict and insecurity. Similarly, middle-class Syrians are drawn to CRBI options due to the country’s civil war.

 

While citizens of areas of major civil unrest, not surprisingly, tend to be subject to restricted international movement, business travellers and expats from these regions choose to apply for CRBI programmes in order to gain better employment and education opportunities. A Syrian surgeon living and working in Qatar is ineligible for Qatari citizenship, which is strictly patrilineal, transferred by blood through the male line. However, travelling for business is difficult on a Syrian passport, which grants visa free travel to only 32 destinations, and obtaining a visa can be difficult with many countries cautious that Syrians will then claim refugee status. The surgeon also cannot return to Syria to renew his passport due to safety concerns. The stark differences in opportunity afforded by different passports is illustrated by the Henley Passport Index, a ranking for free movement. In this ranking, Iraq, Syria and Lebanon are placed in 104th, 103rd and 97th place, respectively. This means that Lebanese citizens, for example, can access only 44 out of 195 countries without a pre-arranged visa. Of these, 14 are small island nations — including Niue, the Pitcairn Islands and Tuvalu — not known for their education or business opportunities. A European or Commonwealth affiliated CRBI programme is therefore highly appealing.

 

Statelessness is another reason for CRBI applications. When the UAE was founded in 1971, those who couldn’t prove their presence at unification or lacked the necessary tribal affiliations were not allowed to claim UAE citizenship. NGOs have estimated the number of stateless in the UAE to be between 10,000 and 100,000 people — numbers which persist due to patrilineal citizenship laws assigning statelessness to the children of stateless parents. With the necessary financial backing, many are understandably drawn to apply for CRBI programmes to escape statelessness for themselves and their children.

 

Particularly for Middle East applicants, the coverage of CRBI programmes by newspapers and politicians requires more nuance. Criminals do apply, as do controversial oligarchs. Stringent due diligence investigations are essential to keep out the minority of criminals and other fraudulent applicants. But the very large majority of applicants reviewed by S-RM are professionals and business owners from countries such as Iraq, Syria, Yemen and Lebanon. Most apply not as a cover for illegal activity but because they want better employment and education opportunities. This is a far less headline-grabbing narrative. It is also much more reflective of the motivations of applicants from some of the world’s least secure and most unstable countries.

 

 

Author: Sonia Spencer, Analyst at S-RM

 

The logistics of capturing and sorting through due diligence findings have changed markedly in recent years. A vast amount of information about the average individual is readily available online, driven by the elimination of paper, ease of content creation, and explosion of mobile capture. This volume has the potential to become a challenge in the investment migration industry, where high net worth and ultra-high net worth investors often have a magnified online presence because of their reputation, philanthropy, and business activities.

 

Due diligence providers are increasingly using technology, specifically artificial intelligence (AI), to meet this challenge. The right AI tool can automate the routine tasks of data collection and categorization, reducing false positives and eliminating duplicates to save time. It can quickly search through thousands of sources in multiple languages, processing millions of data points to analyze risk, and then monitor for new red flags in real time.

 

But AI-powered due diligence solutions are only one piece of the puzzle, and do not replace human analysts. Ideally, human and artificial intelligence should collaborate seamlessly; AI can examine and filter through findings quickly and efficiently, while human resources use expertise to critically evaluate and analyze results. Analysts use cultural and jurisdictional knowledge to add context and value to uncovered information. They use their subject-matter expertise in a number of ways, such as evaluating media findings in the context of local press freedom and reliability of sources, reviewing and digging deeper into business affiliations in light of political exposure, and considering litigation findings alongside the cultural attitudes towards the use of courts to settle disputes. Analysts are able to tell a story that the reader can easily understand.

 

Finally, advanced due diligence training for program staff allows for in-depth analysis of due diligence reports. Residency and Citizenship by Investment (RCbI) programs obtain more value from due diligence reports on their applicants by engaging providers that are best able to bring together technology and human expertise to produce superior results. By pursuing advanced certifications and courses focused on due diligence for the RCbI industry and taught by experts in cultural context and risk-based approach, programs can arm their professionals with the necessary knowledge to confidently evaluate due diligence findings from third-party providers, better understand their methodology, and ask astute questions.

 

AI is changing the way due diligence is conducted, but human expertise and knowledge are still critical for both due diligence providers and RCbI programs. Subject matter and cultural experts use technology to efficiently gather data, and then add critical analysis to assemble the pieces into a story about the applicant. Opportunities for advanced due diligence training and certifications similarly allow programs and their professionals to gain a greater understanding of due diligence reports, critically evaluate the story being presented, and incorporate results into their internal risk analysis.

 

Author: Karen Kelly, Director, Strategy & Development, Exiger Diligence

 

A core premise of investment migration is to enhance a country’s economy in exchange for residence or citizenship rights for individual investors. This is a good description of a classic ‘win-win’ formula. However, it is clear that the benefits of residence- and citizenship-by-investment programs for host nations go far beyond extra funding for the national treasury. One of the industry’s most unique and positive attributes is that it can endow nations with a considerable source of sustainable revenue without them having to further increase debt.  This capacity to expand a state’s ‘sovereign equity’ by enlarging the number of citizens who actively contribute has the invaluable potential to reduce inequality within as well as between states. It is a phenomenon uniquely facilitated by investment migration.

 

Sovereign equity in practice

Sovereign equity is a means for governments to improve public finances and support economic growth and employment creation without increasing their debt – meaningfully addressing the growing imbalances and inequalities inherent to traditional sovereign debt financing by engaging with the global community of high-net-worth investors.

 

There are many sovereign states around the world that lack the ability to raise sufficient revenue and may even at times be locked out of traditional financing through capital markets or international lenders. Many countries find themselves locked into a pattern of negative debt and have little opportunity to escape their situation through traditional means. Short of discovering natural resources such as hydrocarbons or minerals, the capacity to reduce debt, increase revenue and attract investments in the country is seriously limited.

 

Debt financing is helpful and often critical in times of crises. But as Dominica has shown in the aftermath of two consecutive hurricanes in 2017 and 2018 which destroyed large parts of the country’s infrastructure and wiped out entire villages, even there the citizenship-by-investment program proved to be a critical if not even the only real lifeline to enable the government to provide immediate support to the population and rebuild infrastructure. Also outside of a crisis, where countries find themselves in a situation involving a lack of fiscal autonomy, they lose the ability to operate as truly sovereign states, forfeiting the gains from their economies to pay off creditors.

 

They also lose the ability to sufficiently invest in core infrastructure, education, and health services that enhance the lives of their citizens. This can lead to a scenario in which society’s best and brightest leave to look for opportunities elsewhere, depriving the country of skills and reducing opportunities and quality of life for the general population.

 

Investment migration is arguably the single most effective means of addressing this dilemma. As a direct injection of liquidity into a country’s economy, it quickly relieves stress on the national treasury without tying the country into debt-based obligations. Moreover, it is not only a source of sustainable income, but a proven driver of important foreign direct investment (FDI). In essence, this twin dynamic can mitigate the problems of many countries related to sovereign debt and lack of investment, which ultimately provides greater national autonomy and prosperity.

 

The key to sovereignty is fiscal autonomy

Prudently managed residence and citizenship programs with proper due diligence on applicants and clear, transparent structures are able to drive investments that meets the needs of governments, without adding to the burden of debt. Such funding can be used to either pay off debt — as countries such as St. Kitts and Nevis have shown dramatically — or can be used directly to create societal value through strategically targeted government spending. This provides governments with significantly increased fiscal autonomy, which is a key factor in how sovereign a country really can be.

 

Investment migration programs also act as a remarkably successful FDI platform that can attract capital and skills to an economy beyond the specific investment requirements of a residence or citizenship program. The numerous benefits of FDI are beyond dispute, but it is in the massive social impact created by this type of investment that real human value is to be found. FDI drives employment opportunities for citizens at all levels. From architects to construction workers, from manufacturing and technology companies, from the tourism sector to other service industries, more business and investment is the result, leading to an overall more dynamic and positive socioeconomic environment. The natural consequence of this is to alleviate pressure on government spending, further increasing fiscal autonomy and ultimately establishing greater prosperity.

 

Proven socioeconomic benefits

In the aftermath of the 2008 financial crisis, Malta’s economy, for example, like all of Europe, was weak. Just years after the launch of the citizenship program in 2014, Malta had one of the highest GDP growth rates and one of the lowest unemployment levels of any EU member state. It is now the best performing economy in the EU by almost any measure. Since 2017, the country has also been able to report an annual budget surplus for the first time in decades.

 

By the end of 2018, Malta had raised almost EUR 600 million in direct revenue, seen property sales exceed EUR 110 million, earned EUR 70 million in rentals, and received over EUR 120 million worth of investments in government bonds. Results like these are not just unthinkable with traditional ways and means of public finance, they are impossible.

 

In the Caribbean, it has been a similar success story since the reform and relaunch of the St Kitts and Nevis citizenship-by-investment program in 2007 and the subsequent investment boom in this country as well as in several other countries in the region who introduced new or enhanced existing such programs.

 

Following independence from Britain, the Federation of St. Kitts and Nevis saw over time all subsidies pulled out of its sugar industry, resulting in a massive financial shortfall, which threatened to undermine its economy. It is thanks to citizenship-by-investment that the country was able to raise hundreds of millions of dollars in FDI, geared towards providing sustainable and holistic solutions for domestic growth and development. Constituting 30% of national annual revenue, investment migration is today, according to Prime Minister Harris, “a pillar in the foundation of the country’s unique future and prosperity.”

 

In Antigua and Barbuda, the country’s citizenship program – created in 2013 – now constitutes approximately 15% of the government’s annual revenue and has become a significant source for the repayment of debt — both domestic and international. When the International Monetary Fund conducted a review of the Antigua and Barbuda economy, it found that the inflows of capital provided by investment migration had significantly “helped to boost public and private sector construction”, raising economic growth and pulling the country out of a deep recession.

 

In Moldova and Montenegro, where the two most recent European citizenship programs have been launched in 2018, the positive impact can be expected to be similar. In addition to boosting fiscal health and economic growth, the enhanced inflow of much needed FDI will enable both countries to become more globally competitive and economically sustainable, which will result in greater autonomy and ability to steer their own futures. From the point of view of sovereign equity, this will also mean less dependence on foreign lending and a greater ability to drive national resources to where they are needed most. For ordinary Montenegrin and Moldovan people, the benefits of a new debt-free revenue stream will be felt directly in economic growth, employment opportunities, better social services, and improved infrastructure and education.

 

Sovereign equity is the future, not further sovereign debt

The concept of sovereign equity is both self-evident and revolutionary. It has the potential to usher in a broad paradigm shift in how sovereign states think about sovereign funding, FDI, and public finance. Fully realized, sovereign equity can also be a means of addressing persistent global inequality. FDI has already shown it can be the lifeblood of developing, recovering, and transition economies, but can also be critical for regional development in large and advanced economies. It is sovereign equity made possible through investment migration, rather than further sovereign debt that will support economic growth and prosperity in a sustainable way.

 

The benefits inherent in sovereign equity turn the fate of a country away from debt and dependency towards independence and stability. All things considered, investment migration continues to represent one of the most important opportunities for growth and economic development, for those countries able to offer it — creating considerable societal value and persuading productive members of the community to stay and contribute to their country rather than to emigrate. Investment migration therefore ought to be embraced as a long-term solution for the future, and contributing to solving the sovereign debt problem.

 

 

Author: Dr. Christian H. Kälin, Chairman, Henley & Partners

 

William Worster presented his article “Human Rights and the Taxation Consequences of Renouncing Citizenship” at the 3rd Annual Academic Investment Migration Seminar in June 2018. His IMC Working Paper on the topic was subsequently published in the St. Louis University Law Journal.

 

In this article, he claims that the taxes that the US imposes on individuals who renounce their US citizenship violate international human rights. The US taxation system is somewhat unique in the world, because the US is essentially the only state in the world that taxes its nationals even when they live outside of the US. This practice inspires many US citizens to expatriate, i.e. to renounce their nationality, and avoid this extraterritorial tax. As a result, the US attempts to discourage renunciation by applying an “exit tax” to persons giving up US citizenship.

 

Worster argues that there is an international human right to renounce one’s nationality, so applying an exit tax is a violation of that right. He bases this right on the explicit statement of the right in the Universal Declaration of Human Rights and the implied right to renounce nationality contained within International Covenant on Civil and Political Rights (ICCPR). This right to leave is repeated in various other treaties in addition to the ICCPR.

 

Renunciation is implied in the ICCPR and other treaties, because it is implicitly contained within the right to leave any state. Any person has a right to leave any state, protected by the ICCPR, but it does not expressly cover the right to give up nationality. Worster examines the negotiating history of the ICCPR and statements made by the states when preparing the ICCPR. He also examined the decisions of the Human Rights Committee interpreting the ICCPR ina  variety of similar cases. All these sources point to an underlying right to renounce within the overall notion of the right to leave any state.

 

Also, Worster provided a large collection of domestic laws that show that most states permit individuals to renounce their nationality because it is seen as a fundamental human right, including the US. This extensive practice established that the right to renounce nationality was not only a treaty right, but also a right under customary international law.

 

Lastly, Worster cited to numerous statements in US Congressional committee reports and court judgments showing that the exit tax was primarily intended to discourage the exercise of the fundamental right to renounce nationality and punish individuals viewed as traitors to the US. These statements show that the exit tax was not enacted as a proportionate response to a compelling government need, and, therefore, that the exit tax could not be a lawful exception to the right to renounce.

 

His conclusion is that the US exit tax is therefore prohibited by international human rights law.

 

Author: William Worster, The Hague University of Applied Sciences

 

 

 

In 2013, the Republic of Cyprus adopted the Scheme for Naturalisation through Investment, now called the Cyprus Investment Programme. In the past 6 years, the programme has been operating with great success and has been amended several times. According to this Programme, any third-country national can acquire Cypriot citizenship if they meet certain economic criteria such as investment in real estate, land development and infrastructure projects, the purchase or establishment or participation in Cypriot companies or businesses, or investment in alternative investment funds or financial assets in Cypriot companies or organisations.[1] The latest amendment, focusing on enhancing due diligence procedures of applicants and adding the criterion of a donation to the Research and Innovation Foundation and the Cyprus Land Development Corporation will be applied from the 15^th of May 2019.[2] The main focus of the present article is on the consequences acquiring Cypriot citizenship through the Investment Programme in light of European Union (EU) law. One of the criteria for the acquisition of citizenship is the investment of 2 million euros in Cypriot banks, immovable property or companies which must be kept in Cypriot territory for at least five years, starting from the 15^th of May. However, immovable property used for residence at the cost of minimum 500,000 euros must be kept in Cyprus forever, otherwise citizenship could be revoked. These criteria raise concerns, particularly in light of European Union law on Citizenship and the Free Movement of Capital. The possible violations of EU law and the conditional nature of the citizenship provided by the programme, which may result in violation of the free movement of capital and restrict the genuine enjoyment of the status of EU citizenship must be examined. 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 provide the tools to ascertain the repercussions of the Cyprus Investment 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.

 

To read full article (page 1265), click here

 

 

Author: Sofya Kudryashova, PHC Tsangarides LLC

 

 

[1] Decision from the Proceedings of the Ministerial Meeting on 13 September 2016, ‘Cyprus Investment Programme’ on the basis of subsection 2 of Article 111A of the Civil Registry Law 114(I)/2002 and ‘Cyprus Investment Programme’ for family members of the naturalised investor according to the decision of the Council of Ministers, available in English on <https://www.moi.gov.cy/moi/moi.nsf/all/A0CAA99287BD0E9DC225806C002988D0/$file/SCHEME%20FOR%20INVESTORS%20NATURALISATION%2013.9.2016.pdf?openelement> accessed on 17 March 2018.

[2] Cyprus Investment Programme on the basis of subsection (2) of section 111A of the Civil Registry Laws of 2002 – 2019, available at <https://www.moi.gov.cy/moi/moi.nsf/all/B29724A670731EE2C22583B2002F2C48/$file/CYPRUS%20INVESTEMENT%20PROGRAMME_15.5.2019.pdf?openelement> (accessed on 03 May 2019); Extract from the Decision from the Proceedings of the Ministerial Meeting on the 13^th February 2019, available in Greek at <https://www.cm.gov.cy/cm/cm_2013/cm.nsf/A6E630627C4A0F2FC22583AD003E501E/$file/86%20879.pdf> accessed on 03 May 2019.

 

The International Court of Justice, in its 1955 judgment of Nottebohm, stated that nationality requires a ‘legal bond having at its basis a social fact of attachment, a genuine connection of existence.’[1] These famous yet contested words, if anything, presuppose an exclusively state-centric view, fixating the decision over in- and exclusion as being solely vested in reference to the sovereign power and control of the nation state.

 

What if this case was decided today? The ‘social facts’ of attachment making a connection between citizen and state ‘genuine’ may since likely have changed. Individual, personal, as well as supranational collective or global perspectives, pertinent to the 21^st century, are missing in Nottebohm. The same is true for the flexibility to accommodate transformations of legal membership mechanisms such as on the example of direct sale of citizenship or for any evolving understandings of statehood as such.[2]

 

Neo-Nottebohmian genuine links (‘NNGL’) may then serve as a conceptual lens to infusing membership rules and policy with a new vision, contributing to a focus on existing and emerging social-legal concepts that may well include municipal references, but can also enrich and add to citizenship’s in-and exclusion paradigm, in effect confronting municipal citizenship with references to the world at large. Possibly reconciling the local and the global, Nottebohm itself contains an open formula of ‘genuineness’ that could be extended by the state’s acknowledgement of references to the social or humanitarian facts of the new perimeters in our complex, globalizing world.[3]

 

An example for NNGL’s may be the protection of long-term residents from deportation and of indigenous non-citizens’ in recognition of their multi-faceted personal and collective actual connections to a territory.

 

The UN Human Rights Committee (HRC) has, in the case of Nystrom v Australia, held by a majority of 10 to 5 that the “deportation of Mr. Nystrom to Sweden, a country where he does not speak the language and has no ties” breached the International Covenant on Civil and Political Rights (ICCPR).[4] Article 12 (4) of the covenant states that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country.’[1] The wording ‘own country’ does not mention citizenship nor nationality and may thus find wider application to other links beyond those concepts. More so, Nystrom confirmed the earlier Warsame v Canada where the HRC found that ‘close and enduring connections’ with a country ‘may be stronger than those of nationality’.[2] Nystrom thus had the Committee expand the scope of art 12(4), finding that it could now apply to non-citizens where they had sufficient ‘ties’ to a country. This has arguably resulted in a significant weakening of the nexus previously required by the Committee in Warsame between art 12(4) and nationality. Both decisions do not mention Nottebohm.

 

Australia has disagreed with the HRC’s majority view in Nystrom and indicated that it would not consider itself bound by the Committee’s findings.[3]

 

This narrow reading of membership could now be challenged: Since April 8^th of this year, two cases are before the Australian High Court. Both could in effect confirm a broader understanding of citizenship, taking into consideration links beyond exclusionary municipal (and at times fictitious) membership narratives, focusing on the actual existing links in a given legal polity: Two Aboriginal-Australian men (who are also alien non-citizens in Australian immigration detention), are currently bringing actions to the High Court for a finding that indigenous non-citizens cannot be deported.[4] The High Court will have the opportunity to iterate on the legal mechanism of ‘genuineness’ in light of factual links to family, indigenous heritage and to the land, and to the questions of residence and automatic naturalization of non-citizen ‘ancient’ people. Will the Court acknowledge the existence of actual links in reference to the social facts of Australia’s real (and not imagined) population, valuing plurality in membership, or even permitting a supranational (Human Rights) override ‘added’ to citizenship as municipal ‘right-to-have-rights’?

 

Author: Michael Krakat IMCM, Doctoral Researcher and Teaching Fellow at Bond University, The Gold Coast, Australia and solicitor admitted to the Supreme Court of Queensland Australian High Court.

 

 

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[1] Mr. Nottebohm had obtained Liechtenstein nationality in 1939 for substantial sums of money and in dispensation of the normal residence and naturalization requirements: Nottebohm Case (Liechtenstein v. Guatemala) (Second Phase), 1955 ICJ REP. 4, 23 (Apr. 6): ‘[N]ationality is a legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual […] is in fact more closely connected with the population of the State conferring nationality than with that of any other State.’

[2] See generally: Michael B. Krakat, ‘Genuine Links Beyond State and Market Control: The Sale of Citizenship by Investment in International and Supranational Legal Perspective (2018) 30 (1) Bond Law Review (Special Issue), 145-184; The theory of statehood, the state as a person at international law, as built on Georg Jellinek’s Allgemeine Staatslehre (3. Auflage 1914), in the Montevideo Convention on the Rights and Duties of States 1933, Dec. 26, 1933, 165 L.N.T.S. 19, 28 American Journal of International Law (Supp.) 75 (1934), outlines the following factors pertaining to statehood: A permanent population; a defined territory; government and an added capacity to enter into relations with the other states.

[3] NNGL’s may in effect connect and reconcile the citizen- and state binary with today’s world at large: See ie. Krakat, n2; The links may focus on both the state as the gatekeeper for the Arendtian state centric ‘right to have rights’ (Hannah Arendt, The Origins of Totalitarianism) as well as on the supranational Human Rights regime based on personhood rather than nationality, bringing both citizens’ and non-citizens’ rights together. This is not a shift from sovereignty-oriented practice toward the Human Rights of the individual but a focus on their co-existence. They could include a wide, purposeful reading of residence and at the same time, instantaneous naturalizations of eligible non-residents, philanthropy, supranational Human Rights, references to both personhood individualism as well as a common, shared humanity, a commitment to mobility and plural citizenship, the ecosphere, including the consideration of the effects of the globalized ‘Citizenship- or Residence by Investment’ membership market, of digital (social) networks as well as of decentralised ledgers blockchain technology as conceptual facts.

[4] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).

[5] It is within article 12(4) of the Covenant that the HRC determined that Mr Nystrom has established that Australia is his own country: Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 July 2011). The HRC affirmed its approach in Warsame, which also dealt with a violation of article 12(4), see Warsame v Canada, UN Doc CCPR/C/102/D/1959/2010. Also see both cases discussed in Devon Whittle, ‘Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 July 2011)’ (2011) Australian International Law Journal, 235-243.

[6] Wasame, at [8.4.].

[7] Australian Commonwealth Attorney-General, Response of the Australian Government to the Views of the Committee in Communication No 1557/2007, Nystrom et al v Australia (18 July 2011) Australian Government Attorney-General’s Department, available at  https://www.ag.gov.au/RightsAndProtections/HumanRights/DisabilityStandards/Documents/ NystrometalvAustralia-AustralianGovernmentResponse.pdf.

[8] Daniel Love and Brendan Thoms argue that the government cannot deport an Aboriginal person who is not a citizen but has at least one Australian parent, came to Australia as a young child and has only left the country for short periods. Both declare to identify, and are recognised, as Aboriginal: Love is a member of the Kamilaroi people, and Thoms is a member of the Gunggari people and also holds native title. Both are also fathers to Australian children: See Brooke Fryer, ‘High Court will decide if Indigenous people without citizenship can be deported’ (2019) 12 April 2019 – 2:55PM, SBS, https://www.sbs.com.au/nitv/article/2019/04/12/high-court-will-decide-if-indigenous-people-without-citizenship-can-be-deported; Hannah Ryan, ‘This Landmark Case Will Decide Whether Aboriginal Australians Who Aren’t Citizens Can Be Deported’ (2019) Posted on April 8, 2019, at 11:01 a.m., Buzzfeed News https://www.buzzfeed.com/hannahryan/love-thoms-high-court-indigenous-deportation; David Love, Australia High Court to Decide if Aboriginals Without Citizenship Can Be Deported (2019) April 28, https://atlantablackstar.com/2019/04/28/australia-high-court-to-decide-if-aboriginals-without-citizenship-can-be-deported/.