Lucia Bocková

Golden visas and golden passports policy crisis in the European Union

Résumé

In recent years, residence by investment schemes (RBI), so-called “golden visas”, and citizenship by investment schemes (CBI), so-called “golden passports”, have been established in several countries around the world. They are legal mechanisms of states that allow third-country nationals to obtain a residence permit or citizenship in a host country on the basis of a significant financial investment in his/her territory under less stringent conditions than under the standard procedures. Although this topic has received global attention, we analyse, in this article, the present issue in the European Union (EU) regional context. From the beginning, these schemes have been a point of contention between the EU institutions and the Member States that operate them. Such practices are generally perceived as opening up a privileged path for the richest third-country nationals to the EU territory and EU freedoms with an impact on all EU Member States. Due to the problems related to these schemes, combating RBI and CBI has become an EU agenda. Ever since the establishment of golden visas and golden passports policies in some EU Member States, they have been subject to external influence, not only by pressure from the EU but also by other circumstances (home affairs and public opinion in Member States, Covid-19 pandemic, Russia’s invasion of Ukraine) with a direct impact on their functioning and their very existence. This article primarily identifies these circumstances and analyses their implications for RBI and CBI schemes in the EU. At the end of the article, we conclude that in the regional context of the EU, the policies of golden visas and golden passports are in crisis and their existence in their current form is under threat.

Table des matières

Introduction

1Various global or regional circumstances (such as the Covid-19 pandemic and the current Russia’s invasion of Ukraine) are changing many things around the world, and also within the European Union (EU or Union). Residence by investment schemes (RBI), so-called “golden visas”, and citizenship by investment schemes (CBI), so-called “golden passports”, regulated by some EU Member States, are no exception in this respect. These programmes are also known as “investment migration programmes”, “immigrant investor programmes”, or “economic citizenship programmes” (Fernandes, Navarra, De Groot, and Muñoz, 2021, p. 1). Although many policies and legal institutes are regulated at regional level by EU laws, RBI and CBI are subject to national laws. These kinds of national schemes enable investors who make significant investments in the country to gain either a residence permit or, more rarely, citizenship.

2Investment migration programmes are available in number of countries worldwide. They have their origins in Caribbean states in the 1980s, but their history in the EU Member States is much younger. RBI and CBI schemes were launched in some EU Member States as an initiative to sustainably overcome the financial crisis of 2009. States had to find appropriate ways to attract foreign investment into their economies, and investment migration programmes were seen as a relatively costless way of doing so. RBI programmes are much more common. These schemes were offered by twelve current EU Member States: Cyprus, Estonia, Greece, Hungary, Ireland, Italy, Latvia, Luxemburg, Malta, the Netherlands, Portugal, and Spain (Surak, 2021a, p. 15). Hungary suspended its RBI scheme in 2017. The RBI programmes of Portugal, Spain, Latvia and Greece have long been considered the most popular (Surak, 2021b). However, in early 2023, Portugal and Ireland announced the end of their schemes and Spain is considering the same move. Only three EU Member States, namely Bulgaria, Cyprus, and Malta, granted citizenship by investment through CBI schemes. Golden passport programmes were shut down in Cyprus in 2020 and in Bulgaria in 2022. Today, Malta is the only EU country that still has this kind of programme.

3Migration to European countries, including EU migration policy, has been a long-term subject of academic research but in recent years, the literature has also paid special attention to investment migration programmes. “European countries’ experiences of immigration and integration and the corresponding policies have been miscellaneous and conditioned by specific historical and socio-economic contexts, different concepts of nationhood and citizenship, geographical location and regional political constellations” (Gońda, Lesińska, and Pachocka, 2020, p. 24). Investment migration programmes generated controversy in particular because they run counter to the general tendency to move towards stricter immigration laws (Leal, Rodriguez, 2016), including EU immigration policy (Jünemann, Fromm, and Scherer, 2017). A typical feature of these schemes is that they constitute a de facto “sale” of residence rights and citizenship and the authors refer to them as “ius pecuniae” (Džankić, 2019) or “ius doni” (Kälin, 2019). This issue also raises global, European, and national questions about the price of citizenship (Bauböck, 2018). The most recent comprehensive multidisciplinary examination of both citizenship and residence by investment on a global scale is presented in the book “Citizenship and Residence Sales: Rethinking of Boundaries of Belonging” (Kochenov and Surak, 2023).

4“States seek to participate in global exchanges, including cross-border mobility of persons, but have an ongoing interest in control so that they are impelled to find ways to combine both” (Mau, Gulzau, Laube, and Zaun, 2015). Visas, together with passports, are the main instruments for the control of the movement of populations by modern states, which also allow temporary or permanent membership in the community (Salter, 2006). Golden visas are an integral part of states’ visa policy. While the history of visas is closely linked to the constitution of modern nation-states, the Schengen visa is seen as a political instrument of European migration control (Infantino, 2019). “The Visa to Europe is not just a document but also a catalyzer of passionate emotions and broader reflections on the state of (in)equality, (injustice) and (im)mobility” (Infantino, 2019, p. 1). While short-term Schengen visas are regulated by EU legislation (Dupont, 2021), long-term visas remain the responsibility of Member States. Under the modern passport system, states have monopolised the legitimate power to authorise movement within and outside their jurisdiction. Passport are a small paper booklet that allows individuals to move beyond the borders of their home country (Torpey, 2018). They are issued by states to their citizens, and under the Hague Convention on Nationality States, states themselves may decide who their citizens are (League of Nations, Convention, 1930, Article 1). Golden passports are directly related to the issue of acquisition of citizenship by naturalisation (Badenhoop, 2021, pp. 445-455) and are among the pathways to secondary citizenship (Harpaz, 2019). Equally, in the EU context, they are linked to the EU citizenship. Kochenov (2017) analyses the current legal and political status of EU citizenship by examining various issues relating to the internal dynamics in the triad of EU citizenship, citizenship rights and the resulting vertical delimitation of competences in Europe, including far-reaching constitutional implications. At the same time, it should be emphasised that the Court of Justice of the European Union, through its decision-making (see, for instance, Case C-135/05 Rottmann and Case C-221/17 Tjebbes), continues to contribute to the emergence of a distinctive conception of EU citizenship beyond free movement in relation to the potential impact of EU law on national citizenship laws (Shaw, 2021, pp. 608-650). The fact that EU citizenship is derived from the nationality of Member States “intensifies the responsibility of Member States to take the European effects of their nationality laws into account” (Bauböck, Ersbøll, Groenendijk, and Waldrauch, 2006, p. 31).

5The evolution of the RBI and CBI legal mechanisms of EU Member States to date shows that they have been subjected to significant influences with serious consequences on their substance and functioning. Therefore, in this article, we seek to answer the following research question: “What is the impact of various circumstances on RBI and CBI schemes in EU Member States?” We hypothesize that the golden visas and golden passports of EU Member States are in crisis and that their existence is threatened.

6In order to answer our research question, in the first section of the article, we explain and compare the main characteristics of RBI and CBI schemes. The next two sections present an analysis of the popularity and criticisms of golden visas and golden passport policies. In the fourth section, we identify and clarify what we believe to be the most relevant circumstances that have a positive or negative impact on CBI and RBI schemes in EU Member States.

7The research method used in this article is a qualitative method using primary data sources obtained directly from the official websites of EU Member States and EU institutions, and secondary data in the form of a literature review.

Main characteristics of golden visas and golden passports

8In the literature, authors use their own definitions of investment migration programmes. According to Džankić (2018), “immigrant investor programmes are policies developed by countries seeking to attract the wealthy to become their residents or citizens”. Sumption (2021, p. 4) defines these investment schemes as “policies in which the government awards a residence status or citizenship to individuals and/or their family members in return for a financial transaction, with relatively limited requirements to be actively involved in the day-today operations of a business”. European Parliament Research Service study explains that CBI and RBI programmes are “formalised procedures that allow third-country nationals to obtain residence or citizenship in a host country in exchange for a passive financial contribution that may include government bonds, real estate, or bank deposits”. In addition, the study identifies the central elements of the investment migration programmes which should include: “primarily financial conditions that require passive capital investments; minimal to no physical presence requirements; and/or fast track to residency or citizenship in the country compared to traditional channels” (Fernandes, Navarra, De Groot, and Muñoz, 2021, pp. 1-43). OECD (2019, p. 2) clarifies that RBI and CBI schemes “allow foreign individuals to obtain residence rights or citizenship through investment or against a flat fee” and that they “are directed at passive investors, rather than entrepreneurs or investors who will be actively involved in operating a business they have created or in which they have invested as a sole proprietor or as a partner”. Transparency International and Global Witness (2018, p. 8) explain that “investment migration schemes offer fast-track citizenship and residency to foreign nationals in exchange for their substantial investment in the country“.

9Despite the variability of definitions, it is possible to explain the main features of RBI and CBI schemes: official state programmes; a large and passive form of investment; fast-track route to residence or citizenship; low requirements for physical presence on the territory of the host country. Although they share common characteristics, there are several fundamental differences between the RBI and CBI schemes. They confer different sets of rights and carry different implications.

10RBI schemes allow third-country nationals to get a temporary residence permit for a particular EU country in exchange for pre-determined payments or investments. They provide a faster route for wealthy investors coming from outside the EU to settle in their territory. In other words, golden visas offer the opportunity to essentially buy the right to reside. RBI should be distinguished from entrepreneurial and start-up residence programmes, which tend to focus on individual skills and knowledge rather than the financial transaction itself (Lindeboom and Meunier, 2020, p. 2). In RBI programmes, an investor must maintain the investment in order to retain the visa. If the asset is sold, the residence permit is not renewed (Surak and Tsuzuki, 2021, p. 3369). Residence is not inheritable and person with a residence permit receives only a visa in a passport and possibly an identity card (Surak, 2021a, p. 9). But this will give third-country nationals key to the future acquisition of the permanent residence or the national citizenship of the respective Member State and thus European citizenship, usually after several years depending on the country. But the process is longer and more complex than in CBI programmes.

11CBI schemes are official programmes that allow to obtain third-country nationals the citizenship of the EU Member State in return for a substantial investment. They offer an immediate path to the national citizenship which is granted under less stringent conditions than under ordinary naturalisation regime. Citizenship in a nation-State is typically inheritable, it is much more difficult to lose than residence and is typically held for life (Surak, 2021a, p. 9). A specific feature of CBI schemes of EU Member States is their connection with EU citizenship, which is dependent on and complementary to national citizenship. Citizenship confers more rights to an individual at the national and EU levels than residence particularly with regards to passport acquisition and, consequently, wide possibilities for visa-free travel to third countries (Fernandes, Navarra, De Groot, Muñoz, 2021, p. 16-17).

12RBI and CBI schemes currently fall under Member States’ jurisdiction alone. For this reason, there are differences between the investment schemes of EU Member States. There exist no harmonised standards despite the fact that Member States are ultimately offering the same thing: EU citizenship and residency, and the accompanying benefits (Transparency International, Global Witness, 2018. p. 4). However, these schemes have one thing in common. “Golden visa and passport schemes have turned EU residency and citizenship rights into a luxury good: with enough money, anyone can buy in” (Transparency International, 2022).

13The eligibility requirements for RBI or CBI programmes are different from country to country, but generally they share common features and process steps. The investment should be quite large and can take various forms, such as capital investment in a company and in financial institutions’ instrument, investment in real estate, investment in state bonds, donation supporting an activity contributing to the public good (art, sport, health, culture, education, philanthropy, research), one-time contribution to the state budget, or non-financial investment (creation of jobs) (Džankić, Psaila, Leigh, and Gómez Rojo, 2018, p. 30). For example, Cypriot CBI scheme required a minimum investment of EUR 2 million, together with ownership of property in Cyprus (European Commission, 2019, p. 3). The amount of money required for RBI is usually lower. Among RBI schemes in the EU, the minimum investment level can vary from EUR 60.000 (Latvia) to EUR 1,25 million (the Netherlands) (Fernandes, Navarra, De Groot, and Muñoz, 2021, p. 10). The applicants with clean criminal record have to go through a standard application process, which can take just a few weeks. Family members, such as spouses, children, and sometimes even parents, can be included on the application, securing benefits of RBI and CBI programmes for the whole family.

Reasons for popularity of golden visas and golden passports

14Globalisation has created a class of super-rich individuals who prefer to travel seamlessly across national borders and wish to have a safe place to reside (Thym, 2023, p. 502). Investment migration programmes are aimed primarily at non-EU nationals. The target group is diverse and may include citizens from developing and emerging countries, post-Soviet states, developed countries, and British citizens after Brexit.

15Many people from the developing world have access to resources, however, they desire access to opportunities as well as better education and healthcare, safety, and stability in developed countries. Likewise, some Chinese or Russian citizens saw the substantial growth in their private wealth during the transition from communist to capitalist systems under continued autocratic rule, and this combination stokes their interest in investment migration options (Surak, 2021b). In addition, former colonial or historical ties, for example Portugal-Brazil, GreeceTurkey, Latvia-Russia, also influence the interest of applicants (Surak, 2021b). Citizens of the United Kingdom were EU citizens until 2020, but after Brexit they lost all the benefits of this status. As the circumstances have changed, many British people are trying to secure residency in the EU Member States and even citizenship through golden visa or golden passport programmes.

16Investment migration programmes have been especially popular among Russian oligarchs and wealthy people from China and Middle East. Based on the available data from 2011-2019, the European Parliament Research Service study estimates that Russian nationals may have accounted for about half of approved applications to CBI schemes in two EU Member States (Cyprus, Malta). Chinese nationals could account for the majority of RBI application approvals in six countries (Greece, Hungary, Ireland, Latvia, Portugal, and Spain) except Latvia, where RBI application approvals were dominated by Russians for linguistic and cultural reasons (Fernandes, Navarra, De Groot, and Muñoz, 2021, pp. 15-16).

17Regardless of origin, applicants are simply citizens of third countries who, for various motives, want to obtain additional residence or citizenship of the EU Member State. The question is: “Why are RBI and CBI programmes attractive among non-EU citizens”? It is because foreign nationals are being awarded citizenship and residency, along with all the rights and privileges that come with them. However, citizenship offers more rights than residence. In the case of RBI programmes of the EU Member States, participants also secure benefits outside the granting State, but these are more limited in comparison to those secured by citizenship (Surak, 2021a, p. 37).

18RBI programmes secure the right to reside and CBI programmes guarantee the acquisition of citizenship, in both cases in relation to the specific EU Member State. Rarely, CBI programmes can be a pathway for stateless people with financial means to obtain citizenship (Fernandes, Navarra, De Groot, and Muñoz, 2021, p. 17). Through CBI programmes of the EU Member States, a naturalized investor also becomes an EU citizen, which carries with it extensive rights in other Member States. That is why CBI programmes “present an evident European dimension” (Carrera, 2014, p. 1).

19Residency and citizenship bring travel benefits within and beyond the EU. Beneficiaries of RBI schemes can enter the EU without applying for a Schengen visa, which is important for citizens of third countries that do not have a visa-free regime with the Union. Residence also includes visa-free travel in the Schengen area, which implies the right to enter another Schengen area Member State without a visa and reside on its territory for no longer than 90 days within a 180-day period (Surak, 2021a, p. 22). CBI programmes make it possible to obtain a passport of an EU Member State which affords visa-free travel throughout the world. According to the 2022 Henley Passport Index, passports issued by EU Member States rank among the most valuable globally in terms of the number of destinations their holders can access without a prior visa. The possibility of quick onward movement is an important benefit of golden passports over golden visas which usually require long residence and entail less transnational mobility (Thym, 2023, p. 502). Citizenship of the EU Member State adds a value that, for the rich, is worth paying (Spiro, 2021, p. 89).

20The Covid-19 pandemic showed another travel benefit, which was the possibility to enter Europe despite the closed borders. Travel restrictions also affected wealthy citizens of third countries, for example from the USA or Canada. But since most EU Member States allowed their citizens and their residents to return, the golden passport and golden visa could help in many places (Surak, 2021b). Although Covid-19 probably presented the most serious threat to free movement in the EU’s history, pre-pandemic visa-free travel between other States was already restored (Spiro, 2021, p. 91).

21At the same time, investors acquire additional rights. The holder of residence permit can lawfully live, work, study, get healthcare or do business in the EU country concerned without becoming its citizen. The advantages in the country of residence also include the possibility of buying a home or a second home, diversification of the investment portfolio, or the possibility of holding assets in stable currencies (Surak, 2021a, p. 37). In the case of CBI programmes, the naturalized investor also becomes an EU citizen and all citizens of EU Member States have access to the rights and privileges of EU citizenship. Most notably, EU citizens have the right to move and reside in another Member State; to vote and stand as a candidate in municipal and European Parliament elections wherever they live in the EU; to benefit from other Member States’ diplomatic and consular authorities in the country outside the EU under the same conditions as nationals of that particular Member State, should their own Member State not be represented there; the right to petition the European Parliament, the right to apply to the European Ombudsman, and the right to organise, together with other EU citizens, a citizens’ initiative to call for new EU legislation (Treaty on the Functioning of the European Union, Articles 20-24).

22RBI and CBI programmes may bring a return on the investment to the applicants. Although Sumption argues that the word “investment” is typically used to describe the process of investing money with the expectation of a financial return, many investor programmes provide no such expectation (Sumption, 2021, p. 4).

Reasons for criticism of golden visas and golden passports

23The country’s membership in the EU brings benefits across the Union. EU-level benefits add some value to RBI schemes and significant value to CBI schemes. However, the EU itself does not benefit directly in a significant manner from investment migration programmes. “The resulting configuration bears some likenesses to a free-rider problem” (Surak, 2021a, p. 37).

24RBI and CBI programmes have an economic rationale because these programmes are either aimed at recovering the state’s economy, or to have a positive spill-over on the state’s economy (Džankić, 2012, p. 6). The introduction of investment migration programmes by the EU Member States is therefore often justified mainly by the potential to attract revenue to their economies at low marginal cost. For large economies, the programmes are arguable, and even if successful, the revenues would not be proportionally significant. For smaller states, by contrast, golden visas and golden passports can account for a sizable proportion of states revenues (Spiro, 2021, p. 89). Despite the fact that they can bring benefits to Member States’ economies, they have been often criticized, not only within the Union. While those arguing in favour of golden visa and golden passport programmes tend to focus on economic benefits, criticisms generally focus on non-economic questions (Sumption, 2021, p. 4). The pushback from the EU against investment migration programmes has been driven by several concerns.

25RBI and CBI schemes reduce residence and citizenship to a commodity that is traded for money. The argument against golden visas and golden passports is that residence and citizenship simply should not be “bought and sold”. Transactional vision of residence and citizenship leaves no room for the idea that there are moral limits to markets (Shachar and Hirschl, 2014, p. 249). Residence and particularly citizenship designate membership and belonging to a particular society should thus be reserved for people who are actively engaged, full participants in that society (Sumption, 2021, p. 16). Investor citizenship loses the implication of shared fate, mutual support, and community trust (Spiro, 2021, pp. 88- 89). States that legitimize a transactional variant of citizenship, may also undermine the willingness of members who “habitually contribute to the civic fibre of these societies to continue to do so vigorously when others free ride on their efforts” (Shachar and Hirschl, 2014, p. 249). Giving investors temporary residence permits appear to be much less controversial than offering citizenship. Temporary residence is not a symbol of membership in society, even if it may become a first step on the way to citizenship (Sumption, 2021, p. 18).

26Obtaining residence or citizenship is possible without any genuine link to the EU Member State concerned. “Genuine link” is a doctrine in public and private international law, established in the International Court of Justice Nottebohm case of 1955. This doctrine “is invoked to establish or dispute the right of states to award their nationality and to grant diplomatic protection to or impose duties on individuals whom other States also claim as their nationals” (Bauböck, 2018, p. 44). In both instances, the investors are usually not required to live full-time in the EU country in which they have invested. They merely need to enter the country once a year and stay there for a few days. And this is a suitable concept for those participants in investor programmes who have no intention to move from their ordinary place of residence but instead use the programmes to facilitate short-term international travel, notably within the Schengen area. Their goal is to acquire a second residence or citizenship offering more global rights, regardless of where they plan to live (Sumption, 2021, p. 4). And since investors are not required to have a genuine connection with their new country, they are not really involved in its economic and social life.

27Getting a residence permit and citizenship in a EU Member State automatically confer rights and privileges afforded by the Union. Both, residence permits and citizenship do not just give their holders rights in the country that granted them, but also beyond that Member State’s borders, including free movement across the Union. And this cross-border dimension affects all EU Member States. Member States operating RBI and CBI schemes thereby risk violating the principle of sincere cooperation or loyalty. The principle of “sincere cooperation” with other Member States and the Union laid down by Article 4(3) Treaty on the European Union, obliges Member States to refrain from measures that could jeopardise the attainment of the Union’s objectives (European Commission, 2019, p. 6). This principle “applies to the Member States even when they act within their own competences, or when they operate outside of the Treaty entirely” (Klamert, 2014, p. 24).

28RBI and CBI schemes can have security implications and they have often been criticized for being a gateway to many illicit affairs, including money laundering and corruption. Investors’ funds may originate from crime or corruption in the applicant’s home country, potentially enabling money laundering through these programs, while also posing a security risk as investors gain access to third countries without the usual visa scrutiny. (Sumption, 2021, p. 19). EU residence and passports have already been granted to people who should not receive them. It is because of weak vetting and due diligence of applicants to RBI and CBI schemes in the Member States (Fernandes, Navarra, De Groot, and Muñoz, 2021, p. 30). Due to negative experiences from the past, every application should be subject to strict assessment and due diligence with focus on security aspects, as well as the source of the applicant’s funds used in the investment. When individuals with dubious background gained residency or citizenship through the schemes, it is an EU-wide problem. Member States that profit from selling golden visas or golden passports are putting at risk not only their own citizens, but also other Member States and the EU as a whole (Transparency International, Global Witness, 2018. pp. 3-4). Risks represent shortcomings in the transparency and governance of such schemes. Key information, such as clear statistics on applications received, accepted and rejected, are often missing or incomplete (Watson, 2019). Besides that, these programmes often lead to corruption of public officials. Investor migration programmes can have hidden objectives. They could provide a mechanism for policymakers to give favours to businesspeople whose projects are eligible to receive investor funding, or agents and intermediaries involved the RBI and CBI application process (Sumption, 2021, p. 3). The harshest critics say that these schemes “are not about genuine investment or migration but about serving corrupt interests” (Transparency International, 2022).

Circumstances affecting golden visas and golden passports policies

29RBI and CBI schemes of EU Member States have been, and continue to be, affected by a number of circumstances with a direct impact on their functioning and existence. In this section of the paper, we have identified and analysed these main circumstances. In our view, these include the following external influences: pressure from the EU and other international organisations, home affairs and public opinion in Member States, Covid-19 pandemic, and the Russia’s invasion of Ukraine.

Pressure from the European Union and other international organisations

30In recent years, the EU institutions have issued several documents in which they pointed out shortcomings of the investment migration programmes in the Union. In 2014, the European Parliament adopted resolution on EU citizenship for sale (European Parliament, 2014) in which it expressed its general concerns about CBI practices of some Member States, specifically mentioning Malta. Further, the European Parliament called on the Member States in its resolutions adopted in 2019 and 2020 to phase out all existing RBI and CBI schemes as soon as possible. The European Commission also issued in 2019 a report on investor citizenship and residence schemes that highlighted the inherent risks of such schemes, among them concerns regarding security, money laundering, tax evasion and corruption.

31In October 2021, European Parliamentary Research Service published a study in which it examined five EU-level policy options, and which focus on the treatment of RBI and CBI schemes in the EU as well as those external to the EU. A first option would be to ban RBI and CBI programmes. Consequently, banning these programmes would have economic impact, notable or little depending on the type of the programme, in the Member States concerned. A second option for the EU would be to tax these programmes, which could ensure that the programmes bring economic benefits to the Union itself. A third option would be to regulate conditions, guarantees and safeguards of CBI and RBI programmes regarding: approvals and approval procedures; investment and approval of monies; and the investment migration industry. A fourth option would be to implement stricter residence requirements by, for example, requiring applicants to be physically present in the country for a set period for their visa to be renewed or for citizenship to be granted. A fifth policy option would be to regulate access to the EU by participants in RBI and CBI programmes in third countries (Fernandes, Navarra, De Groot, and Muñoz, 2021, pp. 40-69).

32There are differing views on whether golden passport schemes are legally challengeable, due to the national jurisdiction over citizenship. State RBI and CBI schemes could potentially be indirectly confronted with EU rules on money laundering, tax evasion, and security controls. And the eventual harmonisation of golden visas in the EU would have the advantage of predictability rather than reliance on abstract criteria (Thym, 2023, p. 502). Of course, apart from legal action, political pressure from EU institutions is also highly relevant.

33Despite several initiatives, the EU has not taken sufficient action against RBI and CBI schemes. And Member States have continued to exercise their wide discretionary powers in matters of residence and citizenship. Only the European Commission has taken specific legal steps in relation to the CBI programmes of Cyprus and Malta. On 20 October 2020, the European Commission sent a letter of formal notice to Cyprus and Malta, urging them to end their CBI schemes. With this step the European Commission formally launched infringement procedures under Article 258 of the Treaty on the Functioning of the European Union against these two Member States, alleging that their CBI programmes violated EU laws (European Commission, 2020). On 9 June 2021, the European Commission announced that it had decided to take further steps in the infringement procedures against both countries in this matter. In case of Cyprus, the European Commission issued a reasoned opinion, and in case of Malta, the European Commission sent additional formal notice (European Commission, 2021). And because the reply of Malta was not satisfactory, further steps were taken only against Malta in 2022. The EU’s long-running battle against the Maltese CBI programme, which is linked to the diverging interpretation of the Treaties on competencies relating to citizenship, continues. On 6 April 2022, the European Commission sent a reasoned opinion to Malta regarding its CBI programme, which was the final stage before the infringement procedure would be referred to the Court of Justice of the European Union. And because Malta has failed to address the European Commission’s earlier concerns, on 29 September 2022 the European Commission brought a case against Malta before the Court of Justice of the European Union (Case C-181/23). According to the European Commission, Malta essentially provides the full benefits of EU citizenship in exchange for capital investment (European Commission, 2022c). Now it is the court’s turn to settle the matter by ruling on the interpretation of the Treaties. We can say that the Union has shown its commitment to ending CBI schemes with some success as Cyprus in 2020 and Bulgaria in 2022 stopped their programmes. As of 2023, Malta is the only remaining Member State of the EU offering CBI scheme.

34In addition to pressure from the EU, other international organisations and non-governmental organisations have also highlighted the risks of RBI and CBI schemes. The Parliamentary Assembly of the Council of Europe adopted a resolution in 2020, calling on Member States which still have investment migration schemes to phase them out as soon as possible (Council of Europe, 2020). OECD in its document published in 2018 pointed out that RBI and CBI schemes can be potentially misused to hide their assets offshore by escaping reporting under the OECD/G20 Common Reporting Standard (OECD, 2018). The risks arising from RBI and CBI schemes were highlighted in a critical report published by Transparency International and Global Witness (2018).

Home affairs and public opinion in Member States

35Besides, Member States do not always share the same views on official state policies on golden visas and golden passports. The Member States’ respective governments cannot always strike a balance between the perceived economic benefits of investment immigration programmes on the one hand, and demonstrating their integrity and reputation on the other (Sumption and Hooper, 2014, p. 19). Thus, there have been cases among Member States where internal problems or public opinion have forced politicians to take serious decisions regarding their RBI or CBI schemes.

36Hungary’s golden visa programme was closed on 31 March 2017 after public criticism erupted over the bond-sellers’ opacity. Investors had to buy a special state bond from one of eight companies with exclusive rights to sell them on behalf of the government, but nobody knew who owned most of the companies (Wiedemann, 2018).

37Malta’s CBI programme has not been without controversy. Serious doubts about its running emerged from a media investigation carried out in Malta following the murder of Maltese journalist Daphne Caruana Galizia in October 2017. She had been investigating connections between highranking government officials involved in investor citizenship (BBC News, 2021). Nevertheless, Malta continues to have a CBI programme, although it has tightened the conditions for applicants and made steps towards transparency.

38Cyprus ended its CBI scheme on 1 November 2020, immediately following the launch of infringement procedure by the European Commission, and also due to national protests because of apparent irregularities, corruption, scandals exposed by the media as well as national protests. In 2020, investigative journalists revealed that dozens of convicted criminals, fugitives, and politically exposed individuals had bought Cypriot citizenship (Transparency International, 2021, p. 10).

39Ireland announced the end of the golden visa programme on 15 February 2023. Although the programme has brought significant investment to Ireland since its inception in 2012, according to official statements, it had fulfilled its purpose. Its termination was due to its “implications for wider public policy, such as the continuing appropriateness and suitability of this programme for cultural, social and economic use” (Government of Ireland, 2023). Chinese investors, including those from Hong Kong, accounted for more than 90 % of successful applicants to the Irish RBI programme. According to media reports, the number of Chinese applicants has tripled in 2022 and its closure comes at a time of rising tensions between the West and China over trade and security (Financial Times, 2023b). Reports and findings from international bodies such as the European Commission, the Council of Europe, and the OECD have also been taken into account in the termination of the programme (Government of Ireland, 2023).

40Specific reasons for dissatisfaction with the granting of golden visas have emerged in Portugal, whose RBI scheme allowed foreigners to obtain residency by purchasing property, which arguably contributed to inflated property prices and rents. Property prices in Portugal have risen sharply in recent years, particularly in the two largest cities, Lisbon and Porto. Critics say the golden visa programme is partly responsible for this, as well as the fact that more and more EU citizens are buying houses and flats in Portugal at prices that the Portuguese can no longer afford (Financial Times, 2023a). The Portuguese Prime Minister Costa in his speech of 16 February 2023 announced its intention to cancel the golden visa programme. He said that: “In fact, what we can see is that of the approximately 11.000 golden visas granted so far, more than 9.000 came through real estate investment. A very low rate, not to say almost zero, in job creation and a very low contribution to other activities” (Investment Migration Insider, 2023). This decision is part of a broader package of measures introduced in an effort to tackle the housing crisis that Portugal is dealing with presently and to combat real estate speculation in this country. However, Madeira’s representatives do not agree with the cancellation of the programme, as the country’s economy will suffer as a result (Schengen Visa News, 2023a).

41According to the latest reports from May 2023, Spain is also considering either doubling minimum investment or abolishing the RBI programme due to the rise in housing prices, the lack of clarity about the origin of the money invested as well as pressure from the EU (Schengen Visa News, 2023b).

Covid-19 pandemic

42Recently, investment migration in the EU has also been affected by the global coronavirus pandemic which highlighted how fragile the mobility aspect can be. The impact of Covid-19 pandemic from early 2020 on RBI and CBI programmes in the Union remains to be seen, and it will take some time to appear (Surak, 2021b). However, several studies indicate possible implications and trends: the processing of investor visas and passports and travel to submit biometric information for the applications was slowed or stopped, due to the pandemic (Surak, 2021b); the effect on demand for such schemes is still unclear, but it is expected to increase worldwide (Fernandes, Navarra, De Groot, anc Muñoz, 2021, p. 8); the likeliness that the Covid-19 will bring a change in the demographics of demand because more wealthy people from western countries, suddenly facing limited mobility, search for solutions (Surak, 2021b); interest in dual nationality and CBI as a pathway to its acquisition has increased since the pandemic (Spiro, 2021, p. 91); the increasing importance of RBI and CBI as the economies of the EU Member States have declined (Spiro, 2021, p. 91); the pandemic has underscored the key differences between RBI and CBI (Surak, 2020). Overall, in the context of the Covid-19 pandemic, there have been no reported terminations of EU Member States’ RBI and CBI schemes.

Russia’s invasion of Ukraine

43Currently, the investment migration programmes of the EU Member States are significantly affected by Russia’s invasion of Ukraine, which occurred on 24 February 2022, and the ongoing war in Ukraine. This aggression gave further impetus to the debate. After the outbreak of war, the EU responded to this military aggression by imposing several packages of sanctions on Russia (and its ally Belarus), with a direct impact on RBI and CBI schemes in the EU. Member States are now being urged generally not to grant residence or citizenship by investment to Russian or Belarussian nationals or to withdraw such residence or citizenship in case their beneficiaries are listed on the sanction list or support the invasion.

44However, most EU Member States already impose restrictions on the countries from which they would accept applications and they have their own list of banned nationalities from their RBI and CBI programmes. For example, from the Maltese CBI programme are excluded citizens of Afghanistan, the Democratic Republic of the Congo, Iran, North Korea, Yemen, Venezuela, Libya, Syria, Sudan, South Sudan, Somalia (Global Citizen Solutions).

45For the wealthy elite, investment migration programmes are a means of securing the right to live, work and travel throughout Europe with ease (Transparency International, Global Witness, 2018, p. 18). And Russian oligarchs were among the key beneficiaries. While Russian citizens are not the biggest group on the global citizenship market, this was different in Cyprus and Malta, where they accounted for over 50 and 40 %, respectively, of naturalisations granted on the basis of CBI schemes. In contrast to CBI, there has generally been little take-up of RBI schemes by Russian nationals in the Union. The exception was Latvia, where the vast majority of approvals originated from Russia (De Groot, 2022, p. 1). This particular programme has, however, seen a steep decline in admissions since 2014 when a new coalition government with a nationalist and anti-Russian agenda took power. It dramatically slowed down the processing of applications, long dominated by Russians, and doubled the minimum investment amount in real estate options, leading to a significant decline (Surak and Tsuzuki, 2021). Most RBI scheme approvals have recently occurred in Greece, Portugal, and Spain, where the percentages of Russian applications are lower (De Groot, 2022, p. 1).

46The international community and the institutions of the European Union reacted quickly to the new situation. Firstly, immediately after the invasion, on 26 February 2022, the leaders of the European Commission, France, Germany, Italy, the United Kingdom, Canada, and the United States issued a joint statement on further restrictive economic measures in which they condemned Russian aggression and expressed support for Ukraine. They also committed to acting against the people and entities who facilitate the war in Ukraine and the harmful activities of the Russian government. Specifically, they committed to taking measures to limit the sale of citizenship, so called golden passports, that allowed wealthy Russians connected to the Russian government becoming citizens of these countries and gaining access to their financial systems (European Commission, 2022a). Secondly, in a resolution adopted on 9 March 2022, the European Parliament called on the European Commission to prepare legislation to address the problems linked to RBI and CBI schemes (European Parliament, 2022). Thirdly, the European Commission in a recommendation adopted on 28 March 2022 was urging Member States to act against RBI and CBI schemes and to take immediate steps in the context of the Russian invasion of Ukraine (European Commission, 2022b).

47Following the invasion of Ukraine by Russian military forces, calls towards RBI and CBI schemes have intensified and were reflected in practice. Some Member States have acted in solidarity by immediately suspending their schemes, however, other Member States have shown a greater reluctance to adapt to the new situation. Bulgaria did not bear the pressure caused by the war and on 24 March 2022 announced the end of its CBI scheme. Furthermore, Bulgaria, Cyprus, and Malta announced to review the previous citizenships granted under their CBI schemes and Malta had suspended the processing of CBI applications from Russia’s and Belarus’ nationals. Among the measures introduced by EU countries have been the suspension of the RBI programmes for Russian and Belarus citizens. They would no longer be permitted to apply for, hold or renew investment-based residence permits. The most affected country will probably be Latvia, where most investors came from Russia. It can also be expected that demands for EU golden visas among wealthy Ukrainian citizens will rise and the acceptance rate will likely be high. In this context, since the outbreak of the war, golden visas and golden passports are now being tackled with much greater emphasis. We are thus witnessing that the Russia’s invasion of Ukraine has a direct impact on RBI and CBI programmes of the EU Member States.

Conclusion

48The evolution of the RBI and CBI schemes in the EU Member States so far shows that in the long run, all of them are negatively affected by the pressure from the Union. In the short term, the Russian invasion of Ukraine has had an equally negative impact on investment migration to the European Union. In individual Member States, RBI or CBI schemes have also been negatively affected by home affairs and public opinion, due to various scandals and internal problems. Of all the circumstances analysed, in our view, the Covid-19 pandemic has had the least negative impact on EU Member States’ golden visa and golden passport policies.

49As a result, the following trends currently prevail in the EU in relation to RBI and CBI schemes of EU Member States: CBI schemes need to be banned; RBI schemes must be regulated with adequate checks in place; Member States should review previously awarded golden passports and golden visas, and initiate the process of revoking citizenship or residency from those who should have never received it. Fast-tracked citizenship routes in exchange for investment are widely expected to come to an end. In our opinion, the decision of the Court of Justice of the European Union will be essential not only for Malta and its CBI programme, but also for the very existence of CBI programmes in the EU. RBI schemes of EU Member States are also being reviewed and we assume that the EU will enforce their reform.

50While EU Member States are under pressure in relation to CBI and RBI schemes, non-EU countries continue to practice investment migration programmes. The popularity and demand for residence or citizenship through RBI and CBI programmes among the wealthy third-country nationals is growing worldwide, despite crises such as Covid-19 pandemic or the war in Ukraine. In a global context, buying residence and citizenship rights is a global trend that looks set to stay. In the regional EU context, golden visas and golden passports policies are in crisis and their existence in their current form is threatened.

Bibliographie

Pour citer cet article