Stateless people and refugees fleeing Ukraine

 

Chris Nash, Director of the European Network on Statelessness*

*Reblogged from the Network website

As the number of refugees fleeing Ukraine nears two million, we and our members on the ground have been mobilising to try to get a handle on the particular protection needs of stateless people forcibly displaced by the crisis.

We know from past experience, including research under our Stateless Journeys initiative, that stateless people fleeing conflict typically face additional issues and challenges crossing borders and accessing protection. We also know that statelessness is both a cause and a consequence of forced displacement.

Upon hearing anecdotal reports of difficulties experienced by stateless people trying to escape the war in Ukraine, we wanted to better understand the situation as quickly as possible. This week we have published an initial briefing to help inform refugee response actors on the ground so that problems can hopefully be anticipated and addressed before they become entrenched.

Statelessness in Ukraine

The last census in Ukraine in 2001 recorded 82,550 stateless people, and UNHCR estimated there to be 35,875stateless and people with ‘undetermined nationality’ in 2021. Other sources suggest there could be many tens of thousands more including a significant proportion of the Roma population as well as children born in Crimea, Luhansk and Donetsk since 2014. The World Bank recently estimated there to be 999,000 people aged over 15 in Ukraine without a national ID card. Although not all of these individuals will be stateless, many will be at increased risk of becoming so if the crisis becomes more protracted.

It is estimated that 10-20% of Romani people in Ukraine lack the civil documentation needed to acquire or confirm their Ukrainian citizenship. Other profiles of stateless people include former citizens of the USSR who were unable to demonstrate permanent residence in Ukraine in 1991 and so could not acquire Ukrainian nationality. Some, who have been unable to acquire any nationality, have since passed their statelessness on to their children. People living in non-Government controlled areas, Crimea, and those internally displaced in Ukraine have faced significant barriers to obtaining or renewing personal documents since 2014, leaving an estimated 60,000 children born in these areas without birth certificates and at risk of statelessness.

In addition to these significant in-situ stateless populations, there are asylum-seekers, refugees, and migrants (and their children) who were residing in Ukraine and were stateless before leaving their countries of origin (e.g., Palestinians, Kuwaiti Bidoon, Kurds); or who may have since become stateless due to displacement, discrimination or gaps in nationality laws, State succession, or deprivation of nationality practices.

In May 2021, Ukraine introduced a statelessness determination procedure to determine who is stateless on its territory and grant protection to stateless people, but this only recently became operational, and by 31 December 2021 only 55 people had been granted a temporary residence permit through the procedure. The vast majority of stateless people living in Ukraine will lack any documentation proving that they are stateless. This not only poses insurmountable barriers for stateless people trying to move within Ukraine given current circumstances, but also significantly impacts on their ability to move to relative safety within the country, cross borders, and access protection.

Current situation at Ukraine’s Western borders

The initial response of Ukraine’s western neighbours has been generous, with both government actors and civil society doing their utmost to welcome and receive unprecedented numbers of refugees. Hungary, Slovakia, Poland, Romania, and Moldova have all stated that they are currently admitting everyone fleeing the war in Ukraine, including stateless people, those at risk of statelessness and/or undocumented people. A brief summary of policies in each of these countries is available in our briefing.

However, the picture is fast-moving and there is a need for vigilant monitoring given emerging evidence of inconsistent practices and racial profiling at different border crossings (e.g., in Hungary and Poland) with non-Ukrainians facing barriers to accessing the territory, or additional ‘secondary screening’ procedures, including in detention-like conditions in Poland.

Equally, early information from ENS members suggests that stateless people and those at risk of statelessness fleeing Ukraine are likely to face additional barriers and differential treatment depending on their residence, nationality, and/or documentation status. More time and further research are needed to understand the detailed picture in terms of how different profiles of stateless people are likely to be affected.

Application of the EU Temporary Protection Directive and protection owed to stateless people

A big question mark about the level of protection likely to be available to stateless refugees from Ukraine centres around how the EU Temporary Protection Directive (TPD) will be applied by different countries.

The Directive, invoked by EU Member States on March 4, grants immediate protection in the EU (other than Denmark) to Ukrainian nationals and those who had international protection in Ukraine prior to 24 February 2022. Stateless persons who can prove they held a permanent residence permit in Ukraine before 24 February and ‘cannot safely return to their country or region of origin’, are also entitled to temporary protection, but Member States can choose whether to apply the TPD or ‘adequate protection under national law’. Member States may also extend temporary protection to others, including stateless persons who were ‘residing legally’ in Ukraine. People granted temporary protection are entitled to a residence permit (initially for one year, extendable up to three years unless safe return is possible), access to the labour market, housing, social welfare, medical care, and access to education for children.

EU Member States are not currently required under EU law to extend temporary protection to most stateless people and those at risk of statelessness who are/were living in Ukraine. People without proof of permanent residence or international protection in Ukraine may need to apply for asylum or another form of protection according to the laws of their host country. This could pose serious issues in terms of their access to rights and services and their ability to obtain protection, if denied access to asylum procedures (e.g. as is the case in Hungary), or, for example, if Ukraine was disputed as their country of origin. So, even if able to escape Ukraine, stateless people are at particular risk of subsequently finding themselves excluded or left in limbo, and, in some cases, also at risk of arbitrary detention.

This in turn highlights the need for greater awareness of the rights owed to stateless people under international law. Almost all European States are Party to the 1954 Convention on the Status of Stateless Persons and so must afford specific rights and protections to stateless people on their territory. Some countries have established a statelessness determination procedure to determine who is due protection under the 1954 Convention and grant protection status or a residence permit to recognised stateless people (other than refugee status or another form of international protection). In other countries, stateless people may access another form of protection or regularise their stay through other routes. The situation in terms of access to protection for stateless people in countries across Europe is by no means uniform. Our Statelessness Index serves as a tool to help stateless people and their legal representatives to understand and advocate for their rights.

The way forward – addressing statelessness as part of the developing refugee response

Our briefing makes a series of recommendations to the EU, European States, international agencies and NGOs to ensure that stateless people from Ukraine can access protection in line with international law.

First and foremost, EU Member States should use their discretion under the TPD to extend temporary protection to all stateless persons and those at risk of statelessness regardless of prior residence status in Ukraine, or at least ensure access to equivalent forms of protection under national law. Linked to this, it is critical that lack of identity documents or other documentation does not prevent stateless people and people at risk of statelessness from accessing international protection or other forms of protection under national law.

Where access to temporary protection is not available, European States should ensure routes to protection and rights for stateless people on their territory in line with their obligations under the 1954 Statelessness Convention, as well as implement safeguards to prevent arbitrary detention.

Critical to this, will be enhancing the ability of border officials and refugee response actors to properly identify statelessness and risk of statelessness among those displaced from Ukraine so as to ensure their access to protection, including legal advice and other services. There is an urgent need to improve the availability of disaggregated data, using standardised guidelines and assessment tools at registration points, in protection procedures, and during legal counselling.

Training will also be key, and here there is a role for several actors, including UNHCR, the EU Asylum Agency, and NGOs and civil society experts. The EU Asylum Agency recently published a Registration Tool that has a section on identifying statelessness, which could be useful in this context. We are also in the process of developing a more extensive statelessness identification tool, which we will make available to all actors in the next few months.

Finally, reports on the ground suggest an important need for refugee response actors to identify and monitor statelessness and risk of statelessness among unaccompanied and separated children, as well as children born in transit and host countries, to ensure their right to a birth certificate, legal identity, and nationality is guaranteed. This is likely to become even more acute if the conflict and related displacement becomes more protracted. UNICEF and other child rights organisations will have a key role to play in this regard.

Next steps and looking beyond the conflict

Over the coming weeks and months, we will continue to monitor the situation, as well as seek to update and expand the scope of information available, including to understand how the Temporary Protection Directive is being implemented for stateless refugees displaced further across Europe. We will also explore other ways to support our members working tirelessly on the ground, including by trying to engage the donor community to support their efforts and to fund targeted assistance for stateless people who otherwise find themselves excluded from Europe’s refugee response.

Equally, there is still a lot we do not know about the situation facing stateless people inside Ukraine. We know from our Ukrainian member organisations working bravely and tirelessly inside the country that stateless people without documentation are unable to move internally or across checkpoints, so find themselves trapped. There have also been disturbing reports of racial discrimination, antigypsyism, and/or differential treatment based on documentation status at Ukrainian borders, which may be preventing some stateless/people at risk of statelessness from leaving Ukraine. More research is needed to better understand and try to address this situation.

Finally, if we allow ourselves to try to be optimistic in looking beyond this unspeakably awful conflict, there will be a critical need to address legal identity, documentation, and nationality issues as part of re-building efforts. The current situation is a sobering reminder of how stateless people routinely suffer from being forgotten and their needs ignored, especially in times of conflict. We cannot allow this to happen, and we and our members stand ready to work with all actors to guard against this.

Photo: Mirek Pruchnicki, Creative Commons

Using litigation to end statelessness – a new case law database

 

Chris Nash, Director of the European Network on Statelessness*

Since founding in 2014, strategic litigation has always been a priority for the European Network on Statelessness (ENS) and its members. As a former practising lawyer myself, I recognise that part of the fight to end statelessness must happen through the courts. Recently we added significant impetus to these efforts with the launch of our Statelessness Case Law Database.

Statelessness in Europe

Europe often likes to see itself as a model of democracy and human rights. But it’s actually home to a surprising number of stateless people – at least half a million in total - many born in Europe itself but also more recent arrivals. By any yardstick, the countries of Europe must do more to solve this solvable issue.

Yet statelessness is not a new phenomenon. An international legal framework that guarantees protection to stateless people and sets clear rules for preventing statelessness has been in place for at least a generation. If all State signatories had translated this into effective national law, the problem would have been eradicated in the region by now. But identity politics, migration debates and questions about who does and doesn’t belong have got in the way of this. State sovereignty and national security have creeped in to take priority over collective responsibility for human rights.

The importance of strategic litigation

Advocacy and awareness-raising to hold governments to account in meeting their international obligations towards stateless people is essential. However, as an isolated strategy this is unlikely to bridge the current protection gap faced by stateless people across Europe. Strategic litigation looks at the bigger picture by pursuing cases that have the potential to set important precedents, influence policy, and ensure that governments are carrying out their responsibilities. Yet, despite its potential, strategic litigation can be challenging for relatively under-resourced organisations. High-risk and resource-intensive, strategic cases require specific legal expertise and often span many years, with no guarantee of securing a positive outcome. At ENS we have been giving careful thought about how best to garner greater momentum and impact with our strategic litigation efforts.

The Statelessness Case Law Database

The Statelessness Case Law Database is a key pillar of ENS’ strategy to increase the capacity and expertise of lawyers in order to help bring about real change to the lives of stateless people and contribute to the development of regional and national law and practice. It’s a free online resource containing jurisprudence from jurisdictions across the region as well as from the European Court of Human Rights, the Court of Justice of the European Union and UN human rights treaty bodies. It is searchable by country, legal instruments, key themes and keywords, and currently includes over 180 case summaries.

We set up the database in direct response to feedback from our members that this was the key tool they needed to be able to support their work. They told us that being able to access relevant case law from other countries or European and international bodies was vital to assist and help stimulate their litigation efforts.

Promoting partnership

ENS’s resources are in some ways limited – a relatively small Secretariat and limited funding – but in others significant: over 170 members who, together, have a full picture of the legal and social realities of statelessness across the continent. Yet without sustained resourcing, a closely coordinated strategy and effective exchange of information, litigation efforts risk becoming siloed and sporadic. The database provides a dynamic and evolving tool to support strategic litigation while ensuring effective and complementary use of available resources.

Another key function of the database is to promote effective partnership and to engage a new generation of lawyers motivated to work on statelessness. A key component of our litigation strategy is to develop pro bono partnerships to help us maintain and develop the database. We are excited to be working with several international law firms – including Akin Gump Strauss Heuer & Feld LLP, DAC Beachcroft, Freshfields Bruckhaus Deringer, Skadden, Hogan Lovells and DLA Piper, as well as our expert partner the AIRE Centre. Over time we intend to further develop these partnerships, and to connect with lawyers working on intersecting and nexus issues such as forced migration, child rights and anti-discrimination.

Building a Europe where everyone has a nationality

At our database launch event recently, we pulled together several prominent experts to debate how we can use strategic litigation to end statelessness in Europe.

As Professor Guy S. Goodwin-Gill pointed out during the debate, “providing for status is one thing, a good thing, but the main challenge is in eliminating and reducing statelessness”. As we celebrate the 60th anniversary of the 1961 Convention, attending to the causes of statelessness will undoubtedly be key to address the issue. With 95 States having acceded to the 1954 Convention and 76 to the 1961 Convention, considerable progress has been made in signing these treaties but “States’ record at the moment is still patchy, and a considerable amount of effort will be required among all of us to push them ahead”. After overviewing ECtHR jurisprudence on statelessness, judge Zalar similarly noted, “to put it simply, these judgments are relevant for judges because this is law, but the more relevant question is why these human rights violations happen so often, and why do we not learn from our mistakes?”. Hence it is crucial to continue increasing knowledge of international and human rights law in order to ensure the effective implementation of regional judgments at the national level, and the database is a tool that may assist in sustaining this progress.

As observed by Nuala Mole from the AIRE Centre, litigating statelessness requires a touch of creativity, and the Strasbourg court has shown that by introducing statelessness in the ECHR through the prism of the right to private life such as in the recent landmark ruling in Hoti v Croatia. Critical principles with regard to the right to private life are also at stake due to recent trends in States’ practices on deprivation of nationality, which considerably impact on children and stateless persons. Finally, as articulated by Laura Bingham from the Open Society Justice Initiative, if we ever needed a reminder of the importance of strategic litigation we need to look no further than the Human Rights Committee’s decision in Zhao v. Netherlands, both for Denny Zhao and for stateless children across Europe and globally. As Laura noted, “the database gives the legal community and the broader community a sense of identity and connectedness that is not there without a tool like this”.

Watch the recording of the online debate.

The way forward – our strategy

Ultimately, our approach is cognisant of the fact that statelessness in Europe is exacerbated by States’ failure to live up to commitments they have made at international and European levels to respect the rights of stateless people, as well as by a lack of clarity in how those commitments should be implemented in line with international and human rights law. These are gaps that the courts are well positioned to address. 

Any litigation strategy makes the assumption that the rule of law is strong enough to guarantee implementation of judgments. But the stateless are among the most marginalised in society. Hence, even where favourable court judgments are achieved, it is imperative to continue to fight alongside stateless people to make sure that their rights are respected in practice. There is a limit to what lawyers can do alone, and ENS is well set up for this further fight, as our membership also includes community activists, researchers, and communications specialists. 

We do not pretend that a few high-profile judgments will solve statelessness in Europe.  But we know that without litigation we will not meet our change objectives.  Armed with our database and a growing network of lawyers litigating on statelessness, we are determined to achieve further judicial landmarks over the coming years, around which we will build a future Europe where everyone has a nationality.

*Reblogged from the ENS website

Photo credit: Keiran Lynam, via Wikimedia Commons

Protecting the right to a nationality for children of same-sex couples in the EU – A key issue before the CJEU in V.M.A. v Stolichna Obsthina (C-490/20)

 

Patrícia Cabral, Legal Policy Officer, European Network on Statelessness*

The enjoyment of LGBTIQ* rights varies across Europe, including the recognition of same-sex partnerships or marriages and the recognition of legal parentage between children and those who raise them as parents – regardless of biology, gender or sexual orientation. As a result, rainbow families in Europe (families where a child has at least one parent who identifies themselves as lesbian, gay, bisexual, trans, intersex or queer) can face problems with recognition of civil status, birth registration and access to birth certificates, leaving some children in these families either stateless or at risk of statelessness.

Such cases have occurred across several countries in Europe and reflect a wider concerning trend within the EU, where LGBTIQ*-related discriminatory laws and practices by Member States impact on the child’s right to a nationality and their access to EU citizenship. The Court of Justice of the European Union (CJEU) will now have an opportunity to address this issue in a pending case concerning a child born to same-sex parents in Spain.

The case before the CJEU

The case before the CJEU, V.M.A. v Stolichna Obsthina, Rayon ‘Pancharevo’ (C-490/20), concerns a child born in Spain, to a British mother and a Bulgarian mother, who had entered into a civil marriage in the UK before the birth of the child. Spain issued a birth certificate, which recorded both mothers as the child’s parents, but which does not specify whether one of the women is the biological mother. The Bulgarian mother subsequently applied for the issuance of a birth certificate for the child in Bulgaria. The Bulgarian authorities refused to issue a birth certificate, on the grounds that no evidence was provided about the child’s parentage with respect to her biological mother, and that the registration of a birth certificate with two female parents was contrary to public policy, as same-sex marriages are not permitted in Bulgaria.

One of the questions asked by the domestic court to the CJEU is whether the Bulgarian authorities can refuse to issue a birth certificate on the grounds that the applicant refuses to provide information on who is the biological mother. The CJEU is also asked to consider how to strike a balance between the national and constitutional identity of the Member States (protected by Article 4(2) TEU) on the one hand, and the right to respect for private and family life and the best interests of the child on the other (Articles 7 and 24(2) of the EU Charter of Fundamental Rights).

The domestic court noted that the refusal to issue a birth certificate by Bulgaria constitutes an obstacle to the issuance of identity documents and may impede the exercise of the child’s rights as an EU citizen, asking the CJEU whether this affects the interpretation of EU law. Even though it recognises that without a birth certificate the child would be unable to acquire identity documents and exercise EU citizenship rights, the domestic court does not explicitly address the impact that this may have on the child’s right to a nationality and the risk of statelessness in its request for a preliminary ruling.

In the request for a preliminary ruling, the domestic court assumes that the child would be entitled to British nationality, considering the impact that Brexit would have in the exercise of her rights as an EU citizen. However, new evidence has subsequently been submitted to the court that the UK has since refused nationality to the child (based on special provisions that do not allow a parent who acquired British nationality by descent to pass on their nationality to a child born outside the UK). As neither of the mothers holds Spanish nationality, although she was born in Spain, the child did not acquire Spanish nationality at birth. She would need to rely on a safeguard in law which ensures that children born in Spain who would otherwise be stateless can acquire Spanish nationality. However, to apply this safeguard it must be demonstrated that the child is unable to acquire any other nationality. The Bulgarian authorities’ denial of access to identity documents, which are essential for the child to evidence her Bulgarian nationality and effectively enjoy her right to Bulgarian nationality, contradict the fact that according to Bulgarian law, the child is entitled to Bulgarian nationality (see below for further elaboration on this point).

This poses a particular and paradoxical challenge in this case, in terms of the ability of the child to provide evidence that she is effectively prevented from acquiring another nationality in order for her to be able to take advantage of the Spanish safeguard. Furthermore, had the child been born in a country without a safeguard that protects children born stateless on the territory, the situation would remain unresolved and the child would be stateless due to discriminatory birth registration practices by the Bulgarian authorities. Given that the UK and Spain have both confirmed the child is neither a British nor a Spanish national, the child is currently stateless, or at least at risk of statelessness. While it is unfortunate that the domestic court did not address the impact on the child’s right to a nationality, the CJEU is free to reformulate the questions referred to it and provide all the elements of interpretation of EU law relevant to the case, including those related to access to EU citizenship and statelessness. This is a fundamental issue that the CJEU must resolve in this case.

In its request for a preliminary ruling, the court asks whether Member States have broad discretion as regards the rules for establishing parentage, however the issue is not the establishment of parentage but rather the recognition in Bulgaria, of the legal parentage established in Spain. In line with caselaw from the CJEU and the European Court of Human Rights (ECtHR), the margin of discretion that Members States have in the recognition of parentage, particularly when this impacts on the child’s best interests and identity, is narrower than for the establishment of parentage. As further explained in this piece, doubts remain as to whether the domestic authorities are refusing to recognise the legal parentage established between the child and her mothers as evidenced by the Spanish birth certificate, or whether they recognise the parentage but refuse to issue a birth certificate. Whichever position the authorities are taking, it has a severe impact on the child’s rights and the refusal to issue a birth certificate results in denying her Bulgarian nationality and thus access to EU citizenship.

Discriminatory birth registration practices negatively impact the fulfilment of children’s rights

Most, but not all of us, have had our births registered. Birth registration involves the official recording of a birth within the civil registry, which records both the fact of the birth and its characteristics. It often results in a birth certificate issued by the civil registrar that provides proof that the child has had their birth registered and is essential evidence of a child's family ties as well as their place of birth. These are key aspects of legal identity and can be critical to establishing the child’s nationality, as nationality is usually acquired either through the parents (jus sanguinis), the place of birth (jus soli), or a combination of the two.

Lack of birth registration is not the same as statelessness, yet it heightens the risk of leaving children without a nationality. Given the key information birth registration provides about individuals and their links to a State, either through the parents or place of birth, not having a birth registered or a birth certificate evidencing registration can contribute to difficulties establishing these links and consequently expose them to the risk of statelessness. Children in this situation face severe obstacles in exercising the rights to which they are entitled under international law such as the 1961 Convention on the Reduction of Statelessness and the 1989 Convention on the Rights of the Child (CRC), including access to education, healthcare and social security. In the case of children born to EU citizens, lack of birth registration and consequent impacts on acquiring a nationality will also impede on their ability to exercise their rights as EU citizens, including free movement rights.

Ultimately, it is never in the child’s best interests to be left stateless, even for a short period of time. As stressed by UNHCR in its Guidelines on Statelessness No. 4, “it follows from Articles 3 and 7 of the CRC that a child must not be left stateless for an extended period of time: a child must acquire a nationality at birth or as soon as possible after birth”.

In its concluding observations to the Bulgarian government in 2018 (CCPR/C/BGR/CO/4), the UN Human Rights Committee noted with concern that same-sex couples married abroad and their children are denied access to civil registration, and made recommendations towards eliminating discrimination on the basis of sexual orientation or gender identity. Such discriminatory birth registration practices against same-sex couples often have a serious impact on the child’s right to a nationality and may render a child stateless, leading to other violations of the child’s rights. This is the situation in the current case, where the Bulgarian authorities have refused to issue a Bulgarian birth certificate for the child on the basis of birth, gender and sexual orientation.

Somewhat paradoxically, in the current case the domestic court has seemingly recognised the legal parentage between the child and the Bulgarian mother, as evidenced by the Spanish birth certificate, through its conclusion that the child would anyway be a Bulgarian national by virtue of having a Bulgarian mother (although see below why this assertion is questionable). Given the legal parentage has been recognised by the Bulgarian authorities in this way, the refusal to issue a birth certificate on the basis of establishing parentage constitutes direct discrimination based on birth, sexual orientation and gender. According to Article 60(2) of the Bulgarian Family Code, the mother of the child is the woman who gave birth to the child, therefore the woman who has not given birth is not considered a mother. However, in a similar situation of an opposite sex couple this issue would not arise, as both parents would be included in the birth certificate without requiring proof of parentage. Such discrimination is not justifiable and requesting information on the biological parentage in this case therefore constitutes a violation of Article 21(1) EU Charter of Fundamental Rights (CFR).

This discrimination based on the sexual orientation of the parents and its impact on the child’s acquisition of nationality is further at odds with the Convention on the Rights of the Child, ratified by all EU Member States, as all children have the right to be registered immediately after birth and the right to acquire a nationality without discrimination of any kind and irrespective of the child’s or their parent’s status (Articles 2 and 7 CRC). The case also raises other important questions beyond the scope of this commentary, but which have been discussed by other experts.

Denial of a child’s nationality in practice, despite entitlement in the law, leads to statelessness

According to the 1954 Convention relating to the Status of Stateless Persons, a stateless person is somebody who is not considered as a national by any State under the operation of its law. This has been authoritatively interpreted by UNHCR as requiring “a mixed question of fact and law”, meaning that statelessness is not just about the letter of the law, but about how the competent authorities apply the law in a specific case. UNHCR also asserts that “under the operation of its law” is not synonymous with “by operation of law”, a term which signifies that acquisition of nationality is automatic in nature, as opposed to other non-automatic mechanisms to acquire nationality (such as through naturalisation).

According to the Bulgarian court, the question of the child’s right to a nationality does not arise in this case as a result of the authorities’ refusal to issue a Bulgarian birth certificate for the child. The court states that the child is still a “Bulgarian national by operation of law”. This suggests that the child would be automatically considered a national under Bulgarian law, but it must be noted that nationality cannot be established by court (Article 4 of the Law on Bulgarian Nationality) and regard must be given to how the law is applied in practice. According to UNHCR’s guidance, asserting whether a person is considered a national under a State’s law and practice requires evaluating evidence issued by the competent authorities. When nationality is acquired automatically, i.e. “by operation of law”, birth registration is usually the document that provides evidence of acquisition of nationality. By refusing to issue a birth certificate, which provides evidence of the legal parentage between the child and her Bulgarian mother, the authorities are also denying the child access to identity documents which are essential for her to evidence her Bulgarian nationality and to effectively enjoy her right to a nationality and all rights derived from it. By extension, the child is also prevented from enjoying her EU citizenship, which the CJEU has reiterated to be “the fundamental status of nationals of the Member States”.

As noted by UNHCR, “where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality” – as in the case at hand, where the authorities are preventing access to identity documents – “it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national”.

Denial of EU citizenship and related rights

Refusing to issue a birth certificate should therefore be interpreted as a refusal to recognise Bulgarian nationality, rendering the child stateless. This would also automatically impact on the child’s access to EU citizenship and on the enjoyment of the rights derived from it. As the CJEU held in the Zambrano case, Article 20 TFEU “precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”. The refusal to issue a birth certificate means she would be unable to evidence the acquisition of Bulgarian nationality and has no entitlement to any other nationality of an EU Member State, which would result in a denial to acquire EU citizenship and entirely deprive the child from enjoying her rights as an EU citizen.

Furthermore, the CJEU has held that the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly. In the Coman ruling (discussed here), it noted that the obligation to recognise same-sex marriages, for the purpose of granting a derived right of residence to a third-country national, does not undermine the national identity of Member States protected by Article 4(2) TEU or pose a threat to public policy. While Member States are free to decide whether to allow marriage between persons of the same sex, they are precluded from imposing national measures which may obstruct the exercise of free movement rights and such measures must comply with the EU Charter of Fundamental Rights. Although in Coman the CJEU addressed the granting of a derived right of residence to a third-country national who was married to an EU citizen, the principles outlined in the judgment could be applied to the present case in V.M.A. v Stolichna Obsthina.

Upholding EU commitments to equality for rainbow families

The EU has made important strides towards recognising and upholding the rights of children of rainbow families and their parents in recent years, not least with the recent introduction of a five-year LGBTIQ Equality Strategy, which includes protecting the rights of rainbow families as one of four key pillars for action between 2020-2025. As President von der Leyen asserted in her State of the Union address, “if one is parent in one country, one is parent in every country”. As part of the strategy, the European Commission commits to bringing forward a legislative initiative on the mutual recognition of parenthood and to explore possible measures to support the mutual recognition of same-sex partnership between Member States. This builds on work in recent years by the Commission under its List of Actions to advance LGBTIQ equality to address free movement and cross-border issues, through its dialogue with Member States to remove obstacles concerning the recognition of birth certificates of children born to same-sex couples in another Member State.

Furthermore, in order to improve legal certainty for EU citizens exercising their free movement rights, and to ensure a more effective and uniform application of the free movement legislation across the EU, the European Commission committed in the LGBTIQ Equality Strategy (as also described in the EU Citizenship Report 2020) to review the 2009 guidelines on free movement in 2022 and to ensure that the updated guidelines reflect the diversity of families, and to help all families, including rainbow families, to exercise their right to free movement.

Through these initiatives, the EU demonstrates the responsibility of both the EU and its Member States to remove barriers to birth registration and to ensure the recognition of birth certificates of children born to rainbow families, the legal parentage of the children and any consequences on the child’s right to a nationality.

In 2021, the EU will publish a 2021-24 strategy on the rights of the child, providing a comprehensive framework for EU action to promote and protect children’s rights, and including recommendations for action by other EU institutions, EU Member States and stakeholders. This presents a further opportunity for the EU to outline action to protect the rights of children of rainbow families, including the right to a nationality.

The role of the courts in respecting the best interests of the child and upholding the child’s right to a nationality

Nationality law usually falls within a Member State’s competency. However, as the CJEU emphasised in Rottman, when exercising their powers in the sphere of acquisition and loss of nationality, Member States must have due regard to EU law, including upholding the EU’s values and the rights enshrined in the EU Charter of Fundamental Rights. (See discussion of later CJEU case law here)

Under its Article 53, the level of protection granted by the provisions of the EU Charter of Fundamental Rights is at least equivalent to the protection granted by the European Convention on Human Rights (ECHR) and international law, including the CRC. It is therefore essential for the CJEU to draw from international jurisprudence on the right to respect for private and family life in the consideration of this case, as well as to consider the right to a nationality, the principle of non-discrimination and the best interests of the child in line with international human rights law.

Case law from the ECtHR affirms that the recognition of parentage and acquisition of nationality fall within the ambit of the right to respect for private and family life (e.g. Mennesson and Genovese), as protected by Article 8 ECHR and Article 7 CFR, and provides guidance to its interpretation. Particularly in Mennesson, the ECtHR has stressed that respect for private life requires that everyone should be able to establish details of their identity as individual human beings, which includes the legal parent-child relationship, emphasising that children have a right to legal identity.

The child’s right to a nationality is further protected under Article 15 UDHR, Article 24(2) ICCPR, and Articles 3 and 7 of the CRC. The UN Human Rights Committee has recently found that failure to identify statelessness and assess a child’s nationality status led to a violation of the right to a nationality (Zhao v Netherlands). Furthermore, in their General Comment No 14, the Committee on the Rights of the Child recognises that the best interests of the child might conflict with other interests, including the public interest, and notes that authorities must bear in mind that the right of the child to have their best interests taken as a primary consideration means that the child's best interests are not just one of several considerations, nor should they be considered on the same level as all other considerations. Rather, they take priority in all circumstances, “especially when an action has an undeniable impact on the children concerned” (CRC General Comment No 14 para 40), as is the situation in this case.

The courts play a key role in interpreting national legislation and thus aligning domestic practice with the regional and international human rights framework. While domestic courts must not lose sight of their international obligations, the regional courts have a further responsibility to ensure that the diversity of national jurisdictions does not compromise respect for fundamental rights or the best interests of the child. Cases similar to the one presently before the CJEU have been reported across Europe, with children born to same-sex couples facing discrimination in recognition of civil status documents and in access to birth registration and identity documents, particularly in Poland, Bulgaria and Ireland. The nationality laws of all Member States must be applied in a non-discriminatory manner and with respect for fundamental rights, especially when they have a direct impact on the enjoyment of EU citizenship. Currently, children are being born stateless or at risk of statelessness in the EU and denied EU citizenship, solely because of a prejudice towards their parents’ sexual orientation. The CJEU therefore has an essential role to play in supporting progress towards a seamless implementation of international standards on statelessness and human rights law in all EU Member States, and towards a Europe where no child is born stateless.

*Reblogged from the European Network on Statelessness blog

Barnard & Peers: chapter 13

Photo credit: Laurent Verdier, via Wikimedia Commons

The EU Migration and Asylum Pact’s Blind Spot on Statelessness Must be Remedied: Here’s How

 

Chris Nash, Director, European Network on Statelessness*

 

Last week the European Network on Statelessness launched its detailed analysis of the EU Pact on Migration and Asylum. Our commentary focuses on the impact the proposals set out by the European Commission in September (discussed here and here on this blog) would have on the fundamental rights of stateless migrants and refugees, and makes concrete recommendations on how these should be addressed as an integral part of negotiations on, and implementation of the Pact.

 

As it was presented, the Pact makes no mention of the rights of stateless people, nor does it provide any clarity on how to respond to the specific protection challenges faced by stateless refugees and migrants. The existing EU asylum and migration acquis contains no reference to the rights due to stateless people under international law, so perhaps we should not have been surprised by the Pact’s blind spot in this area, despite previous dedicated European Council Conclusions on Statelessness, and research clearly showing that whether someone is stateless impacts on their migration journey in innumerable ways.

 

We know that more than 3% of asylum applicants to the EU are registered as stateless or ‘of unknown nationality’. And the true figure is likely much higher given the lack of tools to identify and record statelessness at Europe’s borders. There is currently no mechanism to register statelessness on arrival so stateless refugees and migrants are often wrongly ‘assigned’ a nationality by officials based on their country of origin or the languages they speak. Many more people from countries where discriminatory laws, state succession, nationality stripping, or protracted displacement mean they have lost or never acquired a nationality are invisible in the statistics. We know of people from Syria, Lebanon, Palestine, and the former Soviet Union, among many others, who have struggled for years to have their statelessness recognised by authorities in Europe. Whether someone is stateless not only impacts on asylum decision-making, but also on the nationality rights of their children, as well as on access to related procedures like family reunification or resettlement, not to mention inclusion or the possibility of return.

 

A precondition for a more harmonised and horizontal approach to statelessness across EU asylum and migration acquis is to improve identification and recording of statelessness, referral to appropriate determination procedures (including dedicated Statelessness Determination Procedures (SDPs)), access to protection, and measures to support integration and inclusion. This would help end the harmful cycles of criminalisation, detention, and enforced destitution that many stateless people in Europe currently face. Put simply, we are urging the realisation of the rights that stateless people, including children, are already entitled to under international law.

 

We therefore propose including within the Pact, a clear reference to the 1954 Convention and the definition of a stateless person, as well as a requirement to screen for and record ‘initial indications of statelessness’ at the border and refer people to appropriate determination procedures (including SDPs). Facilitating data collection on statelessness in EU databases will also be crucial as part of proposed plans under the revised Eurodac Proposal. The very nature of statelessness can mean that a stateless person has no country to which they can return. We therefore call for exempting stateless people from return sponsorship, ensuring statelessness-related barriers to return are acknowledged and that referrals are made to SDPs from return procedures.

 

It is positive that, as a measure to facilitate inclusion, the Pact proposals include an amendment to the Long-Term Residence Directive to shorten the period of time that beneficiaries of international protection should have to wait to obtain long-term residence status to three years. We strongly recommend that beneficiaries of protection under the 1954 Convention (‘stateless status’) are explicitly included in this amendment.

 

Mainstreaming statelessness in the work of the Migration Preparedness and Crisis Network and including a subsection on statelessness in the Commission’s Migration Management Reports will be crucial for ensuring that migration-related information on statelessness is collected and shared in a coordinated and integrated manner. In addition, EASO’s welcome attention to the issue of statelessness in recent publications should be built on by ensuring that statelessness is mainstreamed across the work of the new EU Asylum Agency. The positive focus on monitoring introduced in the draft Pact proposals must also involve integrating the rights of stateless people under international law into guidance on fundamental rights monitoring.

 

Further, it is vital to counter residual questions about relevance or competency often mistakenly put forward as stumbling blocks on the path to progress. We are not questioning that EU action must go hand-in-hand with a concerted effort by States to uphold their international obligations, facilitate naturalisation and ensure their nationality laws prevent new cases of statelessness arising. But the EU is lagging behind other regions of the world in global efforts to eradicate statelessness and can no longer ignore the need to harmonise its approach to stateless refugees and migrants if it is to remain credible as a bastion of rule of law and human rights. Stateless people and affected communities must be central to these efforts. We believe that the European Pact on Migration and Asylum could and should be the occasion to make this happen.

 

For further information:

European Network on Statelessness, Statelessness and the EU Pact on Asylum and Migration: Analysis and Recommendations, January 2021

European Network on Statelessness, Stateless Journeys knowledge hub

European Network on Statelessness, Statelessness Index

European Network on Statelessness, No child should be stateless: Ensuring the right to a nationality for children in migration in Europe, April 2020

European Network on Statelessness, Protecting Stateless Persons from Arbitrary Detention: An Agenda for Change, April 2017

 

Barnard & Peers: chapter 26

JHA4: chapter I.5

Photo: (Copyright) UNHCR/Alfredo D’Amato

*This article first appeared in the ECRE Weekly Bulletin

Citizens of Somewhere Else? EU citizenship and loss of Member State nationality

Professor Steve Peers, University of Essex*

*This blog post is adapted in part from the forthcoming second edition of The EU Citizenship Directive (OUP, 2019), co-authored by me, Elspeth Guild and Jonathan Tomkin

Member States’ rules on the acquisition or loss of nationality are in principle a national competence. But this issue is nevertheless central to EU law, because citizenship of the EU is based on having the nationality of a Member State, according to Article 20(1) TFEU:

Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

So in light of the importance of Member State nationality to EU citizenship, can the loss of Member State nationality be reviewed for compliance with EU law? The recent judgment in Tjebbes was the latest of the CJEU’s rare opportunities to rule on this issue, and offers some important clarification of the law.

Background

The first ruling of the Court of Justice on nationality issues was Micheletti. In this case, one Member State’s authorities were reluctant to recognize the nationality of another Member State which Mr Micheletti had acquired, given that he was also (and initially) a national of a non-EU State. The CJEU started by recognizing that ‘[u]nder international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality’ (emphasis added). This wording left the door slightly ajar for possible scrutiny of Member States’ nationality laws, by hinting that Community (now EU) law might place some constraints on national sovereignty on this issue.

However, it took nearly twenty years before the Court began to elaborate on such constraints. In the meantime, in the judgment in Kaur, the Court referred to the principle that Member States could define their own nationals, referring to a ‘principle of customary international law’ to this effect. According to the Court, this left the UK free to define ‘several categories of British citizens whom it has recognised as having rights which differ according to the nature of the ties connecting them to the United Kingdom’. The rights of these persons were defined in a declaration to the UK’s Treaty of Accession, which was updated later following changes in British nationality law, but that declaration did not deprive anyone of any EU law rights, for ‘[t]consequence was rather that such rights never arose in the first place for such a person’.

Subsequently, in the case of Rottmann, the Court began to set out limits to national control of the loss of nationality, as regards a person who (unlike Ms Kaur) had enjoyed the status of EU citizenship, but then was deprived of it. Mr Rottmann was an Austrian citizen and resident by birth, who later moved to Germany following the start of an investigation against him for serious fraud. He applied for and obtained German nationality, with the result that he lost Austrian nationality. But once the German authorities found out about the previous proceedings in Austria, which Mr Rottmann had not disclosed to them, they began the process of withdrawing his German nationality; and it did not appear that he met the criteria for the reacquisition of Austrian nationality either.

The CJEU began by agreeing that in line with a declaration to the TEU and the Edinburgh Decision of Member States’ heads of government of 1992, Member States had competence to determine who their nationals were. However, even if a matter falls within national competences, the exercise of those competences must have due regard to EU law. In this case, the ‘situation of’ an EU citizen who ‘is faced with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status’ of EU citizenship conferred by the Treaties ‘and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law’.

Therefore the CJEU could rule on the ‘conditions in which a citizen of the Union may, because he loses his nationality, lose his status of citizen of the Union and thereby be deprived of the rights attaching to that status’. This ‘does not compromise the principle of international law previously recognised by the Court’ that Member States ‘have the power to lay down the conditions for the acquisition and loss of nationality’; rather it ‘enshrines the principle that, in respect of citizens of the Union, the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union’, such as ‘in particular’ a withdrawal of naturalization as in the Rottmann case, ‘is amenable to judicial review carried out in the light of [EU] law’.

In Mr Rottmann’s case, a withdrawal of nationality due to deception could be compatible with EU law, since it was in the ‘public interest’ and ‘it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality’. Withdrawal of nationality on such grounds was provided for by international law, in particular the 1961 Convention on the Reduction of Statelessness and the Council of Europe’s European Convention on Nationality. It was therefore up to the national court to determine the proportionality of the decision in light of national and EU law. On this point, the national court had to ‘take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family’ as regards the loss of EU citizenship rights, assessing ‘in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality’. While EU law did not ban the withdrawal of nationality before the person concerned obtained again his original nationality – ie there was no apparent ban on making the person concerned stateless – the national court had to consider whether ‘the principle of proportionality requires the person concerned to be afforded a reasonable period of time in order to try to recover the nationality of his Member State of origin’. Finally, the Court made clear that ‘the principles stemming from this judgment’ as regards the effect of EU law on national powers in the area of nationality law ‘apply both to the Member State of naturalisation and to the Member State of the original nationality’.

What is the impact of the Rottmann judgment? First of all, as for the scope of the judgment, it did not seem to be relevant in this case that Mr Rottmann had previously exercised free movement rights; the Court referred to the loss of EU citizenship status in principle, not to the particular impact upon people who had moved within the EU pursuant to the citizens’ Directive or other provisions of EU law.

Secondly, what substantive rules apply? The Court accepts the loss of citizenship can be justified on ‘public interest’ grounds such as deception, subject to the application of the principle of proportionality. However, it did not indicate how the public interest should be weighted as compared to the individual interest in retaining EU citizenship in this particular case. While the Court confirmed its analysis in Rottmann by reference to the Council of Europe Convention on Nationality and the 1961 Convention on the Reduction of Statelessness, it should be noted that the former Convention has been ratified by fewer than half of the Member States, and only a slim majority of Member States have ratified the latter. In fact, ten Member States have not ratified either treaty.

Finally, procedurally, on the facts of Rottman there had to be a ‘reasonable period of time’ to pursue the re-acquisition of the original nationality, as an aspect of the principle of proportionality. However, while the Court mentioned judicial review there were no further details besides a reference to the national court’s obligations to apply the principle of proportionality, and no specific mention of administrative procedural rights.

The latest judgment

Tjebbes concerns four different applicants: a dual citizen (since birth) of the Netherlands and Canada; a Dutch citizen from birth who acquired Swiss nationality via marriage; her daughter, a dual Dutch and Swiss citizen from birth, who was listed on her mother’s passport when a child; and an Iranian national from birth who acquired Dutch nationality.  Each of them, when residing outside the EU, applied for a Dutch passport, but the authorities ruled that they had lost Dutch nationality automatically due to residence outside the EU. This resulted from Dutch law which provides for such loss after ten years’ residence abroad, if the person concerned has the nationality of another State. That loss could be prevented by residing in the EU for a year before the nationality was lost, or by obtaining a declaration regarding the possession of Netherlands nationality or a travel document or Netherlands identity card. There are also special rules on minors, entailing loss of Dutch nationality to correspond with the parent’s loss of that status.

The national court had doubts about the notion of a general rule on loss of nationality (as distinct from a decision to strip a person of nationality in an individual case, as in Rottman), as well as the specific issues relating to loss of nationality by children, and so asked the CJEU to rule on whether the Dutch rules are compatible with EU law.  The Court’s analysis began by specifically pointing out that none of the persons concerned had moved within the EU. So its judgment is concerned with EU citizenship as such, rather than loss of free movement rights.

Reiterating the basic points of Rottmann (loss of nationality has to be consistent with EU law, but a Member State can legitimately ‘protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality’, the Court accepted that in general:

when exercising its competence to lay down the conditions for acquisition and loss of nationality, it is legitimate for a Member State to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality. It is also legitimate for a Member State to wish to protect the unity of nationality within the same family.

Applying that principle to the facts of this case, the ten-year absence criterion in Dutch law ‘may be regarded as an indication that there is no such link’. As for children, ‘the lack of a genuine link between the parents of a child who is a minor and the Kingdom of the Netherlands can be understood, in principle, as a lack of a genuine link between the child and that Member State’.

This interpretation was supported (as in Rottmann) by the Convention on the Reduction of Statelessness which provides for the possible loss of nationality ‘in similar situations’ as long as the person concerned ‘does not become stateless’. The latter risk was ruled out by Dutch law. Also as in Rottmann, the Council of Europe Convention on Nationality is relevant: providing that nationality can be lost in the event of ‘no genuine link between that State and a national habitually residing abroad and, in the case of a minor, for children whose parents lose the nationality of that State’.

The applicable safeguard (a request within the 10-year period for the issuing of a declaration regarding the possession of Netherlands nationality, a travel document or a Netherlands identity card, interrupting the 10-year period) was also relevant.

However, again as in Rottmann, national authorities and national courts had to assess whether the loss of the nationality of the Member State (and therefore EU citizenship) respects the principle of proportionality, as regards ‘the consequences of that loss for the situation of the person concerned and, if relevant, for that of the members of his or her family, from the point of view of EU law’. In particular, loss of nationality ‘by operation of law  would be inconsistent with the principle of proportionality’ if there was no possibility for ‘at any time an individual examination of the consequences of that loss for the persons concerned from the point of view of EU law’, which could, ‘where appropriate’, mean that the person concerned could ‘recover his or her nationality ex tunc in the context of an application by that person for a travel document or any other document showing his or her nationality’. In practice, Dutch law includes this safeguard. It must entail:

an individual assessment of the situation of the person concerned and that of his or her family in order to determine whether the consequences of losing the nationality of the Member State concerned, when it entails the loss of his or her citizenship of the Union, might, with regard to the objective pursued by the national legislature, disproportionately affect the normal development of his or her family and professional life from the point of view of EU law. Those consequences cannot be hypothetical or merely a possibility.

The examination of proportionality must ensure that the national authorities and national courts assess whether the loss of nationality is consistent with the EU Charter of Rights, particularly the right to family life (Article 7 of the Charter) and the obligation to take into consideration the best interests of the child (Article 24). As regards the individual circumstances to be considered, it’s likely to be relevant that the persons concerned:

would be exposed to limitations when exercising his or her right to move and reside freely within the territory of the Member States, including, depending on the circumstances, particular difficulties in continuing to travel to the Netherlands or to another Member State in order to retain genuine and regular links with members of his or her family, to pursue his or her professional activity or to undertake the necessary steps to pursue that activity.

It’s also relevant that the person concerned ‘might not have been able to renounce the nationality of’ a non-EU country, and whether there’s a ‘serious risk, to which the person concerned would be exposed, that his or her safety or freedom to come and go would substantially deteriorate because of the impossibility for that person to enjoy consular protection under Article 20(2)(c) TFEU in the territory of the third country in which that person resides’.

There are particular safeguards for minors: the administrative and judicial authorities must ‘take into account, in the context of their individual examination’, the possibility that loss of nationality resulting from the loss of nationality by a parent ‘fails to meet the child’s best interests as enshrined in Article 24 of the Charter because of the consequences of that loss for the minor from the point of view of EU law.’

Comments

In many respects, Tjebbes confirms the Court’s ruling in Rottmann: national competence to regulate loss of nationality (and therefore EU citizenship) subject to minimum standards developed by the Court due to the importance of EU citizenship; taking account of international treaties as a source of those minimum standards; broad deference to national determination as to what the grounds of loss of nationality should be; a proportionality test which must take account of individual circumstances, including those of family members; and the requirement of judicial control.

However, a number of points are further developed or new. First of all, it’s now clear beyond any doubt that loss of nationality of a Member State raises issues because of the consequential loss of EU citizenship regardless of whether the persons concerned have exercised free movement rights. Secondly, in Tjebbes the Court seems more concerned to avoid the persons concerned becoming stateless.

Thirdly, the Court confirms that the issues which Member States may consider legitimate are not just the public interest concerns arising from the deception in Rottmann, but also the simple lack of residence within the EU for a sufficient period of time. (The Court does not comment on the hypothetical prospect of loss of nationality due to the exercise of free movement rights within the EU, but this would obviously be highly problematic in that it would penalise the use of free movement rights, and therefore deter their exercise. The Court does not comment on the possible relevance of the EU/Swiss free movement treaty as regards one of the persons concerned). It was arguably already implicit from Rottmann that Member States can sanction even more serious offences such as terrorism with a loss of nationality (and therefore EU citizenship).

Fourthly, the Court accepts that nationality can be lost by means of a general rule, not just as a consequence of an individual decision. However, it considers it essential that the general rule on loss be complemented by a general safeguard – in this case, the possibility of forestalling the loss of nationality via an application for an identity document during the ten-year period. Fifthly, in both cases, the Court places strong emphasis upon a review of the proportionality of the loss of nationality, although the standards applicable are necessarily partly different. In both cases, the individual consequences must be assessed, but instead of ‘whether that loss is justified in relation to the gravity of the offence committed by that person’ (Rottmann), the test in Tjebbes is a disproportionate effect on ‘the normal development of his or her family and professional life from the point of view of EU law’, although the argument on this issue cannot be purely hypothetical.

Furthermore, the Court requires the assessment to consider limitations on the exercise of free movement rights and consular protection (which are surely inevitable, except as regards Swiss citizens – although again, the Court does not mention the EU/Swiss treaty) including difficulties in travel to the EU (possibly a bigger issue if a visa requirement would be imposed, as in the case of Iran as distinct from Canada or Switzerland) as regards family links or professional activity. For minors, it is hard to see how the best interests of the child are served by the child’s loss of EU citizenship despite any decision by that child to leave the EU as an adult. Sixthly, the Court emphasises not only judicial control, but also the obligations of the administrative authorities. Finally, the Court places significant stress on the EU Charter of Rights, which it did not mention in Rottmann.

However, there are still a number of uncertain issues. The Court’s degree of concern about the risk of statelessness seems to vary from the relative indifference in Rottmann to the implied safeguard in Tjebbes.  This leaves the important question of the degree of certainty of obtaining the other country’s nationality (an issue in UK case law and disputes) undecided. Also, it’s still unclear how relevant the two international treaties the Court refers to in both cases might be – given that a number of Member States have not ratified one or both of them.   One wonders also if various limits on judicial review or stemming from administrative procedure might be challenged for breach of effectiveness.

Of course, there’s a limit to how much the case law on this issue can develop if the Court keeps receiving about one case per decade. It’s possible that the Court will soon get more though, if the UK soon becomes a non-EU State. This raises a variety of issues, most obviously whether UK nationals – who were citizens of the EU until Brexit Day – lose EU citizenship on that date (unless they hold the nationality of a remaining Member State)? The orthodox view is that they do, on the basis of the Treaty wording: ‘Every national of a Member State shall be a citizen of the Union.’ The obvious implication is that when your State of nationality ceases to be a Member State, you are no longer a citizens of the Union. This interpretation is reflected in the wording of the draft withdrawal agreement, which distinguishes between UK nationals and EU citizens, defining the latter as citizens of Member States but not listing the UK as a Member State. It also is implicit in the case law of the Court of Justice on loss of EU citizenship, which is based on the assumption that EU citizenship is lost when a person loses the nationality of a Member State. This is arguably a quite different issue from a country ceasing to be a Member State.

The counter-argument is that the Treaty only sets out the means of acquiring EU citizenship, not losing it. It follows that Brexit cannot remove EU citizenship from those UK nationals who already had it. A Dutch court initially decided to ask the CJEU to clarify these issues (see discussion here), but an appeal court decided to block the case. The question might at some point be resolved by the CJEU one way or the other. 

Brexit will also raise other issues. In Member States that remove their nationality from citizens resident outside the EU, the UK’s non-EU status will bring more of their citizens within the scope of this rule. At the very least, should time spent in the UK when it was a Member State be ignored for the purpose of this rule? Or should the rule only apply to nationals who move to the UK after Brexit? This raises the broader question of whether time spent in the UK before Brexit day continues to have effect for the purposes of EU citizenship and free movement law (ie for those EU27 citizens who married a non-EU citizen in the UK and then returned to their State of nationality).

More generally, given the importance of nationality to the essence of national sovereignty, the absence of power for the EU to harmonise laws in this field, the TEU declaration and the Edinburgh decision, there’s a strong case that the Court’s case law interfering with the national rules on the loss of national citizenship is unjustifiable in principle. However, this is vitiated by the great deference which the Court gives to Member States on this issue in its case law. Ultimately, the importance of this case law may be as an essential safeguard against any drift towards authoritarianism in a Member State which might want to strip government critics of their nationality for defying the ‘will of the people’. The problem is that any government already inclined to flout the rule of law so flagrantly may well ignore the CJEU’s rulings too. But this is a paradox to explore another day.

Barnard & Peers: chapter 13

Photo credit: igamingtimes.com