Marshall Islands abolished its Passport Investment Program in 2001

The Republic of the Marshall Islands once sold passports, and it closed that power by repeal on 18 October 2001. The closure is still doing work a quarter of a century later. The Passport Act, 2020, which commenced on 11 December 2020, defines the Passport Investment Program by name, directs the Cabinet to move everyone on what the Act calls the Master List into the naturalisation process — and, in doing so, to ensure that the programme “and any references to it are forever barred from national legislation and Regulations” — and sets out what a person who bought a passport must produce to renew one.

What was repealed, and when

The power to sell passports was not a statute of its own. It sat as subsection (4) of section 404 of the Citizenship Act 1984, inserted by Public Law 1989-37, and it was removed by Public Law 2001-30, which the consolidated Act records as repealing “subsection (4) dealing with sale of passports” on 18 October 2001. The Nitijela’s list of repealed legislation names whole Acts, and the programme is not on it.

The consolidation does not reproduce the text of what it removed. What survives is the amendment trail, and it carries one hard figure: Public Law 1989-68 lowered the fee for a passport from $200,000 to $100,000. Three later laws — 1991-119, 1991-120 and 1995-137 — amended the subsection again, and the consolidated Act does not say what they changed.

The two statutes also date the programme differently. The Passport Act, 2020 defines it as “the Passport Investment Program established in 1994, but was since abolished in 2001”. The Citizenship Act puts the inserting amendment in 1989. Both are current Marshallese law, and the amendment list on the face of the Citizenship Act does include a Public Law of 1994 without saying what it did. The dates are reported here as the two statutes give them; nothing read for this article resolves which describes the programme as it operated.

What the Compact gives, and what it withholds

The Marshall Islands is in free association with the United States, and the Compact is what gives Marshallese citizens access to it. Describing the rights section 141 provides, the 2003 Act speaks of the right “to enter the United States, to lawfully engage therein in occupations, and to establish residence therein as a nonimmigrant”.

Those rights do not reach a passport that was bought. Section 141(c) of the U.S.-RMI Compact, as enacted in the Compact of Free Association Amendments Act of 2003 and approved on 17 December 2003, provides that no person granted Marshallese citizenship, or issued a Marshall Islands passport, “pursuant to any investment, passport sale, or similar program has been or shall be eligible for admission to the United States under the Compact”.

The tense carries the point. “Has been or shall be” is not a cut-off running from 2003; on its face the clause denies that such a person was ever eligible for admission under the Compact. A second provision reaches wider: those rights do not extend to a naturalised citizen where the circumstances of naturalisation “allow a reasonable inference, on the part of appropriate officials of the United States and subject to United States procedural requirements”, that the status “was acquired primarily in order to obtain such rights”. Naturalised citizens who do qualify come in under section 141(a)(3), which asks for at least five years of actual residence after naturalisation and a certificate of actual residence, or under the parallel category in section 141(a)(4). The exclusion is written into Marshallese law too: a passport issued to a programme buyer on renewal “shall be bound by the relevant provisions of the Compact of Free Association”, as amended.

Where a holder stands now

Renewal is governed by section 1726 of the Passport Act, 2020, and it is a documentary test. The applicant must satisfy the Director and the Passport Review Panel that the passport was lawfully issued under the programme, producing a certified copy of the certificate of citizenship, the last passport issued, and — where necessary — receipts of purchase. The applicant’s name must first be proved to appear on the Master List, defined by the same Act as the original list of persons issued passports under the programme, containing the names of those who “legally bought” one.

Every such application goes to the Panel. The Panel may refuse where an applicant “has not provided sufficient documentation to prove that he/she is a lawful citizen of the Republic”, and the Act states that its decisions, once certified to the Attorney-General, “are final”. Across the Act’s 36 pages the words appeal, aggrieved and judicial review do not appear; the High Court is mentioned only in connection with decrees granting citizenship by registration.

Two things the statutes do not do. Acquisition under the programme is not among the grounds on which the Passport Act allows a passport to be cancelled; those grounds are administrative and criminal. And a naturalisation is not cancelled automatically — the Citizenship Act requires the Minister to apply to the High Court, after a hearing and for cause, on grounds such as concealment of a material fact. The question the renewal process puts to a holder is not whether the programme was lawful. It is whether this holder’s own acquisition can be documented.

The proof problem

That is where the scheme’s paperwork becomes the holder’s problem. Reporting the Auditor-General’s 72nd Semi-Annual Report to the Nitijela, which covered the passport office for 2015 to 2017, Radio New Zealand said in March 2020 that the auditor found management “ineffective”; that 573 passports issued to non-indigenous Marshallese had no corresponding Cabinet Minute, Court Decree or other documentation confirming that lawful citizenship had been granted; that a register of persons who had become citizens had not been maintained over the years, as the Citizenship Act requires; and that “there are no complete records of non-indigenous Marshallese who had obtained passports through a 1990s Passport Investment Scheme”. One family group, the auditor reported, received passports although its cheque bounced.

The Passport Act commenced nine months after that report. It makes a place on the Master List a condition of renewal, and it makes completing the Master List a duty of the Director — a duty written in 2020 in the future tense. The sources read for this article do not establish that the list has since been finished.

What is open to an investor today

Neither of the two instruments read for this article provides a visa granted for investing. The Immigration Act 2006 names eight classes of visa and none of them is investment-based, leaving the Minister power to add others by regulation. Under the Immigration Regulations, 2009, the nearest thing to an investor route is a business visa: valid up to two years with multiple entries, issued to a person holding a Foreign Investment Business Licence and a work permit, with a provisional three-month single-entry visa for a person who intends to seek business in the Republic but does not yet hold the licence. The Act attaches no capital figure to either, and the regulations state the licence and work-permit conditions without one. Neither is the residence visa, which the Act opens to holders of a Certificate of Actual Residence, to naturalised or registered citizens who do not hold a Marshallese passport, and to honorary citizens who do not hold one; capital alone does not bring an applicant within any of those categories.

Naturalisation is narrow on both of its routes. The general route asks for ten years of ordinary residence, domicile, good character and — unless the applicant is prevented by physical or mental disability — the ability to speak and understand Marshallese, and it is capped at ten people a year including dependants. The discretionary route asks for distinguished service to the Republic or a conferral otherwise in the public interest, plus domicile in the Republic, and is capped at five a year.

What to watch

Two questions decide what this means in practice, and the sources read here answer neither: whether the Master List has been completed, and how the Panel has treated these applications since December 2020. Both land on the same person — the holder of a passport bought decades ago, applying under a statute that asks for documents the state’s own auditor reported, in 2020, it could not fully reconstruct. For anyone weighing a Marshallese document today, the certificate of citizenship and a place on the Master List are what to establish first: insufficient documentation is a ground of refusal under the Act, not a formality.