EHRM, 21-06-2016, nr. 76136/12

The applicant was born in 1964 in Egypt and currently lives in Hamrun, Malta.

The applicant complained that the decision to divest him of his Maltese citizenship had not been made in accordance with the law. It interfered with his right to private and family life and exposed him to the risk of being separated from his family. The decision had not been accompanied by the relevant procedural safeguards as required under Article 8 of the Convention and the State had failed to fulfil its positive obligation to protect his rights under that provision. Lastly, the applicant complained that the decision had left him stateless. He thus had to live in a state of uncertainty, where he could not even leave the country for fear of not being let back in. The provision reads as follows:

The Government contested that argument.

Article 15 of the 1948 Universal Declaration of Human Rights (UDHR) states that ‘everyone has the right to a nationality’ and that ‘no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’. A similar recognition of citizenship as a fundamental right can be found in other universal and regional legal instruments, such as Articles 1 to 3 of the Convention on the Nationality of Married Women (adopted in 1957 and entered into force in 1958)2., Article 24 (3) of the International Covenant on Civil and Political Rights (ICCPR) (adopted in 1966 and entered into force in 1976)3., Article 9 of the Convention on the Elimination of All Forms of Discrimination against Women (adopted in 1979 and entered into force in 1981)4., Article 29 of the International Convention on the Rights of All Migrant Workers and Members of Their Families (approved in 1980 and entered into force in 2003)5., Articles 7 and 8 of the United Nations Convention on the Rights of the Child (adopted 1989 and entered into force in 1990)6., Article 19 of the 1999 Charter for European Security of the Organization for Security and Co-operation in Europe7., Article 18 (1) (a), (b) and (2) of the Convention on the Rights of Persons with Disabilities (adopted in 2006 and entered into force in 2008)8., and at a regional level, Article XIX of the 1948 American Declaration of the Rights and Duties of Man, Article 20 of the American Convention on Human Rights (adopted in 1969 and entered into force in 1978)9., Article 6 (3) and (4) of the African Charter on the Rights and Welfare of the Child (adopted in 1990 and entered into force in 1999)10., Article 24 of the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms (adopted in 1995 and entered into force in 1998)11., Article 6 (g) and (h) of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (adopted in 2003 and entered into force in 2005)12., Article 7 of the Covenant on the Rights of the Child in Islam (adopted in 2005)13., Article 29 of the revised Arab Charter on Human Rights (adopted in 2005 and entered into force in 2008)14., and Article 18 of the 2012 Association of Southeast Asian Nations Human Rights Declaration.

Other general provisions pertaining to the right to equal protection of the law, the right to the recognition of one's own legal status, the right to freedom of movement and residence within the borders of the State and the right to enter one's own country, like Article 5 (d) (iii) of the International Convention on the Elimination of All Forms of Racial Discrimination (adopted in 1965 and entered into force in 1969)15., Articles 12 (4), 23 (4) and 26 of the ICCPR16. and Articles 3 (2), 5 and 12 (1) of the African Charter on Human and Peoples' Rights (adopted in 1981 and entered into force in 1986)17., have also been interpreted as protecting a right to citizenship and proscribing the arbitrary deprivation of citizenship.

The right to citizenship or nationality implies the right of each individual to acquire, change and retain a nationality18.. Furthermore, anti-discrimination principles make it clear that denying citizenship to individuals on the basis of their gender, ethnicity, religion or other status is arbitrary and therefore impermissible. In terms of the substance of the right, a State cannot discriminate amongst its nationals on the basis of whether they hold their citizenship by birth or acquired it subsequently. As the United Nations Secretary-General's recent report on the arbitrary deprivation of nationality of children put it,

States do not therefore have absolute sovereignty to deny citizenship to any person for any reason, as is also crystal-clear from a purposeful reading of the 1954 Convention relating to the Status of Stateless Persons (the 1954 Convention)20. and the 1961 Convention on the Reduction of Statelessness (the 1961 Convention)21..

The 1954 Convention was adopted on 28 September 1954 and entered into force on 6 June 1960. It does not establish a right for stateless persons to acquire the nationality of a State. However, Article 32 of the 1954 Convention requires that States should facilitate the assimilation and naturalisation of stateless persons, notably, by expediting naturalisation proceedings and reducing the relevant charges and costs. The final act of the 1954 Convention recommends that each Contracting State, when it recognises as valid the reasons for which a person has renounced the protection of the State of which he is a national, consider sympathetically the possibility of according that person the treatment which the Convention accords to stateless persons. This statement provides for the possibility of extending the protection of the 1954 Convention to a certain category of de facto stateless persons.

The major weakness of the 1954 Convention consists in the fact that it only affords protection to the de jure stateless persons and does not have a comprehensive non-discrimination provision. This is compounded by the fact that it does not offer guidance as to the procedures to be used to identify stateless persons, which may lead to failure to recognise stateless persons and result in their inability to effectively enjoy the rights emanating from the 1954 Convention.

While it does offer certain guarantees against expulsion and acknowledges the right to re-enter on the basis of a Convention travel document, on the condition of lawful presence in the country, the 1954 Convention does not regulate the right to enter a State, thereby leaving Contracting Parties free to refuse, detain or expel any stateless person seeking access to their soil without the proper authorisation.

Finally, the absence of a formalised procedure in place for supervising the full implementation of the 1954 Convention or for the receipt of individual complaints by stateless persons also weakens the protection afforded to these persons. In this respect it must be mentioned that, through a series of UN General Assembly Resolutions, the UNHCR has acquired a formal mandate over statelessness22.. In addition to setting detailed guidelines on various aspects of statelessness, including the definition of a stateless person, statelessness determination procedures, the status of stateless persons, and the prevention of statelessness at birth23., the UNHCR has developed a ‘Global Action Plan to End Statelessness: 2014 – 2024’ (the ‘Global Action Plan’), in consultation with States, civil society and international organisations, which sets out a guiding framework made up of 10 actions that need to be taken to end statelessness within 10 years, consisting of resolving existing major situations of statelessness, ensuring that no child is born stateless, removing gender discrimination from nationality laws, preventing denial, loss or deprivation of nationality on discriminatory grounds, preventing statelessness in cases of State succession, granting protection status to stateless migrants and facilitating their naturalisation, ensuring birth registration for the prevention of statelessness, issuing nationality documentation to those with entitlement to it, acceding to the United Nations Statelessness Conventions, and improving quantitative and qualitative data on stateless populations. States parties should introduce safeguards to prevent statelessness by granting their nationality to persons who would otherwise be stateless and are either born in their territory or are born abroad to one of their nationals. States should also have a provision in their nationality laws to grant nationality to children of unknown origin found in their territory (foundlings).

The Convention on the Reduction of Statelessness, adopted on 30 August 1961 and which entered into force on 13 December 1975, aims to prevent, reduce and avoid statelessness by providing concrete and detailed measures to be taken by States parties to the Convention. It focuses on the four main causes of statelessness. Articles 1 to 4 set out measures to avoid statelessness among children. Articles 5 to 7 deal with statelessness due to loss or renunciation of nationality. Articles 8 § 1 and 9 concern measures to avoid statelessness due to deprivation of nationality. However, Article 8 § 2 of the 1961 Convention allows for an exhaustive set of circumstances under which deprivation of nationality resulting in statelessness is permissible. It does not prohibit the possibility of revocation of nationality under certain circumstances, nor does it address the subject of retroactively granting citizenship to all currently stateless persons.

Stateless persons may take the citizenship of the place of their birth or of the place where they were found in the case of a foundling, or they may take the citizenship of one of their parents24.. States shall not deprive people of their citizenship so as to render them stateless, with the exceptions of cases where citizenship has been acquired by misrepresentation or fraud, or of ‘disloyalty’ to the State.

The Executive Committee of the UNHCR, concerned with the precarious conditions faced by stateless persons and the persistence of statelessness in various regions of the world, has consistently urged States to ratify the 1954 and 1961 Conventions in its numerous conclusions25.. It has also dedicated two conclusions exclusively to statelessness, namely Conclusion No. 78 on Prevention and Reduction of Stateless Persons, from 1995, and Conclusion No. 106 on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons, from 2006. The Executive Committee's Conclusion No. 106 covers the UNHCR's four dimensions of the Statelessness regime, namely the identification, prevention and reduction of statelessness and the protection of stateless persons. Under the heading of protection of stateless persons, the Executive Committee requests States to ‘give consideration to acceding to the 1954 Convention relating to the Status of Stateless Persons and, in regard to States Parties, to consider lifting reservations’ and to those States which are not yet parties to the 1954 Convention to ‘treat stateless persons lawfully residing on their territory in accordance with international human rights law; and to consider, as appropriate, facilitating the naturalization of habitually and lawfully residing stateless persons in accordance with national legislation’. It further asks States ‘not to detain stateless persons on the sole basis of their being stateless and to treat them in accordance with international human rights law’ and also calls on States Parties to the 1954 Convention to fully implement its provisions.

While it is a clear tenet of international law that each State has the sovereign responsibility to determine under national law who are its citizens, that role is subject to international principles. In its Draft Articles on Nationality of Natural Persons in relation to the Succession of States, the International Law Commission (ILC) indicated that ‘the competence of States in this field may be exercised only within the limits set by international law’26.. Citizenship can be acquired automatically by operation of law, at birth or at a later stage, or as a result of an act of the administrative authorities. States enjoy a degree of discretion with regard to the criteria governing acquisition of citizenship, but these criteria must not be arbitrary. In particular, international human rights law places a clear responsibility that the State should refrain from implementing citizenship policies that would contribute to the creation or perpetuation of statelessness. In addition to the right to citizenship, two core rights of international human rights law are also of particular relevance to statelessness and the protection of stateless persons. These are the right to equal protection by law and non-discrimination.

The right to a citizenship was neither included in the Convention nor in any of the Protocols thereto. The committee which drafted Protocol No. 4 to the ECHR contemplated inserting a provision to the effect that ‘a State would be forbidden to deprive a national of his nationality for the purpose of expelling him’27.. Although the principle which inspired the proposal was approved by the committee, the majority of experts thought it inadvisable to tackle the delicate question of the legitimacy of measures depriving individuals of nationality. It was also noted that it would be very difficult to prove whether or not the deprivation of nationality had been ordered with the intention of expelling the person concerned. In 1988 the Council of Europe's Committee of Experts for the Development of Human Rights started examining the question of the right to a nationality as a human right and considering the possibility of inserting such right into the ECHR through an additional protocol to the Convention. However, States were not ready to adopt an additional protocol on the right to a nationality. In 1992 an expert committee on nationality initiated a feasibility study for a new, comprehensive convention on nationality.

As a result, the European Convention on Nationality was adopted in 199728..

The principles established by Article 2 of the European Convention on Nationality, such as that everyone has the right to a citizenship, that statelessness shall be avoided, and that no one shall be arbitrarily deprived of his or her citizenship, are principles of such importance for ensuring social interaction of human beings in a democratic society that they must be seen as well-established principles of international law. Beyond the clear and uncontested evidence of a continuing trend in general international law29., these principles have gained the status of customary international law30..

Under Articles 4 and 7 (1) and (3) of the 1997 European Convention on Nationality, providing that statelessness is to be avoided, a given State has an obligation to facilitate the acquisition of its nationality for stateless persons and to refrain from deciding on the loss of its nationality if the person would thereby become stateless, save for cases of acquisition of nationality by means of fraudulent conduct, false information or concealment of any relevant fact attributable to that person31.. This principle should be read in the light of the Council of Europe Committee of Ministers' Recommendation no. (99) 18 on the avoidance of statelessness, which recommends that a State should not necessarily deprive of its nationality persons who have acquired its nationality by means of fraudulent conduct, false information or concealment of any relevant fact, since this decision should take in account the gravity of the facts, as well as other relevant circumstances, such as the genuine and effective link of these persons with the State concerned32.. In order to avoid and reduce cases of statelessness, particularly of children, the Committee of Ministers adopted a Recommendation CM/Rec(2009)13 on the nationality of children. Member States were recommended to take into account in their legislation regarding nationality the comprehensive principles contained in the appendix to the Recommendation.

The Convention organs have consistently held that a ‘right to nationality’ similar to that in Article 15 of the Universal Declaration of Human Rights, or a right to acquire a particular nationality, is not guaranteed by the Convention or its Protocols, and have therefore declared the complaints related to this right incompatible ratione materiae33.. This has also been applied to non-citizens and stateless persons prevented from acquiring the nationality of a State in cases of State succession34.. However, in the Karassev case, the Court did not exclude ‘that an arbitrary denial of a citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such denial on the private life of the individual’35.. There is nothing to suggest that the above principle cannot apply to cases of deprivation or loss of citizenship or to the right to renounce citizenship.

The issue of arbitrary denial of citizenship can also arise under Article 3 of Protocol No. 4, if the purpose of the denial is to evade the prohibition against expulsion of nationals. In Slivenko v. Latvia36., the Court was asked to decide whether the expulsion of a Russian military officer's wife and daughter pursuant to the Latvian-Russian treaty on the withdrawal of Russian troops violated Article 3 of Protocol No. 4.

Finally, it may be mentioned that the European Commission of Human Rights did not exclude that the denial of nationality on the ground of race or ethnicity might also constitute degrading treatment under Article 3 of the Convention37..

In sum, the now well-established prohibition of arbitrary denial or revocation of citizenship in the Court's case-law presupposes, by logical implication, the existence of a right to citizenship under Article 8 of the Convention, read in conjunction with Article 3 of Protocol No. 438..

Furthermore, a systemic interpretation of both provisions in line with the Council of Europe standards on statelessness warrants the conclusion that State citizenship belongs to the core of an individual identity39..

In spite of the fact that matters of citizenship were traditionally considered to be within the domestic jurisdiction of each State, as was codified in Article 1 of The Hague Convention of 1930 on Certain Questions relating to the Conflict of Nationality Laws and recalled in Article 3 of the European Convention on Nationality, there are limits imposed by international law on each State's discretion. The manner in which States regulate matters bearing on nationality cannot today be deemed within their sole jurisdiction.

Taking into account the Convention's Article 8 right to an identity and to State citizenship, States parties are bound by two obligations. In the light of the above interpretation of the Convention in accordance with present-day circumstances and in harmony with international law, and regardless of ratification by the respondent State of the above-mentioned, relevant international treaties40., States parties to the Convention have a negative obligation not to decide on the loss of citizenship if the person would thereby become stateless and a positive obligation to provide its citizenship for stateless persons, at least when they were born — or found in the case of a foundling — in their respective territories, or when one of their parents is a citizen41.. The creation and perpetuation of situations of statelessness should be avoided at any cost in a civilised Europe.

The Government argued that the applicant had to prove the existence of private and family life at the time when the grounds for the deprivation of citizenship had materialised, namely 16 January 199842.. The applicant countered that the relevant moment was the interference with his Article 8 right, namely 31 July 2007, date of the ministerial order of revocation of citizenship43.. In any event, he insisted that his first marriage had not been a fraud and that the judgment of 1998 should not have been relied upon44..

The majority do not address the issue of the temporal scope of the case explicitly, but implicitly indulge in several considerations correlating the two decisions, even stating that ‘the situation complained of came about as a result of the applicant's fraudulent behaviour’45..

I find this approach unfortunate, since the interference with the applicant's Article 8 right to private and family life only occurred with the issuance of the ministerial order revoking his citizenship. In any event, I have the strongest doubts as to the legal and logical soundness of the annulment decision, in view of the simple fact that marriages of convenience do not generally produce children46.. When someone is not genuinely willing to accept a life-long compromise, like marriage, but only enters into the contractual marital relationship to gain a legal advantage, such as access to citizenship, he or she does not normally wish to have a child from this relationship, thus creating a life-long bond between the respective parents. The birth of a child within wedlock is very strong evidence of the genuineness of the compromise accepted willingly by the partners. No elements were provided to the Court to rebut this presumption.

Although the judgment of 19 January 1998 was not challenged and became final, this does not hinder the Court from drawing all logical conclusions for the purposes of assessing the national authorities' conduct from the time of the annulment until the order of deprivation of citizenship.

The 1998 annulment judgment was entered in the relevant marriage register kept in the records of the Public Registry, which is a government department. This obviously means that the national authorities must have been aware of the applicant's legal situation since that date, and therefore the applicant cannot be reproached for not having informed the authorities about the annulment. The Government's argument that the department of Citizenship and Expatriate Affairs, the courts and the Public Registry were different authorities47. is clearly unfounded from an international law perspective, since they all belong to the respondent State, and the lack of communication between them may engage its international liability.

Moreover, after the delivery of the annulment decision, it took the national authorities many years until they reacted. From 19 January 1998, date of the annulment judgment, to 8 May 2006, date of the applicant's notification that an order was to be made to deprive him of his Maltese citizenship on the basis of that judgment, the applicant lived a normal life without being bothered by the national authorities. In addition, his trading permits were continuously renewed48.. This conduct of the competent national authorities over more than eight years led the applicant, as it would indeed have led any reasonable person, to consider that his citizenship was under no threat. And since there was no such pending threat, the applicant could genuinely aspire to create a second family in Malta after the failure of his first marriage. Hence, it cannot be argued, as the Government did, that when the applicant got married for the second time, to a foreigner, he was aware that the persistence of his new family in Malta would be precarious from the outset49..

When the Government submitted that the applicant's failure to inform the national authorities showed his bad faith, it could be countered that, as a matter of fact, the revocation of the citizenship so many years after its lawful cause had been established constitutes venire contra factum proprium, taking into account the fact that the national authorities had, in the meantime, repeatedly acted in such a way as to confirm the lawful status of the applicant as a Maltese citizen and businessman. If anyone is to be reproached for bad faith in the present case, it is certainly not the applicant, but rather the national authorities.

The Government's point that such measure was justified by the protection of public order50. does not help much to understand the ministerial decision, since it is not conceivable why the applicant, who did not put public order at risk for eight years, would in 31 July 2007 represent such a risk. It is also worth noting that the 2007 ministerial decision of revocation of citizenship was not based on the applicant's criminal record. This disregard for his criminal record makes perfect sense, since the act of aggression had occurred in 1994 in the context of an episode of domestic violence, was not followed by any subsequent similar incidents and the applicant was given a mere suspended sentence, which ultimately shows that the competent court did not find the offence serious enough to require imprisonment and, on the contrary, found the offender able to live a crime-free life in Maltese society. I find it very unfortunate, to say the least, that the respondent Government now invoke this argument51. when the competent Minister himself did not find it necessary or even appropriate to do so in 2007. In fact, as it will be demonstrated, his order was totally silent on any public order consideration.

The revocation of the applicant's citizenship was ordered in the following terms:

This order was communicated to the applicant by the following letter:

The decision to deprive the applicant of his Maltese citizenship of 31 July 2007 did not take into account the fact that he had not kept ties with his country of origin and his relatives in Egypt, that he had been living in Malta for over twenty years, that he spoke Maltese and that he was perfectly integrated into Maltese culture and society, having three children of Maltese citizenship living in Malta. Furthermore, it failed to consider that the applicant would become a stateless person as a result of the decision, and that at the time of his application for Maltese citizenship it had been a prerequisite for the applicant to renounce his Egyptian citizenship, which he in fact did, since dual nationality was not possible from an Egyptian perspective.

In sum, the ministerial decision failed to perform the Karassev balancing exercise. As can be seen literally from its text and the subsequent letter of notification, the order was an automatic application of the relevant legal provision, namely Article 14 (1) of the Maltese Citizenship Act. Yet the Minister had to be satisfied that deprivation of citizenship was conducive to the public good. The negative formulation of Article 14 (3) of the same Maltese law, according to which the Minister should not deprive someone of citizenship unless he is satisfied that it is not conducive to the public good that that person should continue to be a citizen of Malta, does not hinder the conclusion that the public good had to be factored into the ministerial decision. But no explicit consideration was given in the ministerial order to this matter, since quite paradoxically Article 19 of the said Maltese law does not even require the Minister's decision to be reasoned52.. The lack of reasoning was further compounded by the secrecy of the decision-making procedure. The committee's final recommendation to the Minister was not made available to the applicant, and the many requests by the applicant's lawyers for a copy of the records of these proceedings remained unsatisfied53.. What is worse, Article 14 (3) only safeguards the position of the stateless person in the case of subarticle (2) (c), which is manifestly insufficient.

One obvious conclusion is clear from the above: Maltese law provides for very poor procedural safeguards in respect of such ministerial orders in comparison with international standards for the protection of stateless persons54..

In addition to calling for an urgent law reform, these serious shortcomings of the revocation procedure call into question the fairness and the proportionality of the measure taken in the present case55..

Not without hesitation, the majority concede that the applicant is currently stateless and that there is no guarantee that the Egyptian authorities would accept him, nor is it likely that he could be removed to another country56.. This legal situation has already entailed many undisputed, negative, practical consequences for the applicant and his family, such as, among others, the loss of his right to unrestricted residence and work in Malta, the loss of his Maltese passport and the loss of his second wife's ‘exempt person status’57..

Nevertheless, the majority argue that the applicant is not threatened with expulsion from Malta and that the applicant's two sons from his second marriage have not lost their Maltese citizenship, nor have there been any attempts in this respect by the national authorities58.. Apart from signalling to the national authorities not to call into question the Maltese citizenship of the applicant's two sons from his second marriage and not to threaten him with expulsion, this line of argument suggests what the majority expect to happen next: the applicant may apply for a work permit and subsequently a residence permit, which could eventually again make him eligible for citizenship59.. The majority's obiter dicta speak loud and clear in favour of the freezing of the applicant's legal situation until his status is regularised in Malta.

I have a principled reservation to this tortuous way of thinking. As in other cases, the Court falls into the temptation of an argumentum ad ignorantiam: the lack of certainty about a future expulsion has been used to justify the present deprivation of a Convention right60.. Although the Government left the applicant in utter limbo and put his entire private, family and professional life in abeyance, the Chamber showed an inadmissible degree of tolerance towards this state of legal uncertainty.

State citizenship being a core element of a person's identity, the assessment of any decision pertaining to the acquisition, change, denial or revocation of citizenship should not depend on the degree of the risk of expulsion, still less on the Court's speculation about such risk and about the maintenance or withdrawal of a work or residence permit. Although work and residence may impact upon an individual's identity, they do not exhaust it. The identity of an individual is determined by much more than his or her place of work or residence. The quintessential question of a person's identity should not be decided on the basis of a prediction of uncertain, future risks, but on the past and present-day relationship that he or she maintains with the State and its people.

Furthermore, nor should the assessment of any decision pertaining to the acquisition, change, denial or revocation of citizenship depend on the status of the family life of the person in question. Whilst practically interrelated, these are, in essence, two very different legal issues, which should not be confused. This amalgam of essentially different issues prejudices an objective evaluation of the case.

As a matter of principle, the right to citizenship of a person without a family is worth no less protection than the right to citizenship of a person with a family.61.

As United Nations High Commissioner for Refugees, António Guterres, formulated it, ‘Statelessness is a profound violation of an individual's human rights’62.. It is high time for the Court to recognise explicitly that State citizenship belongs to the core of someone's identity, which is protected by Article 8 of the Convention. This is an autonomous Convention human right. This right to citizenship should neither be amalgamated with the right of an alien to enter, to reside or to work in a particular country, nor with the alien's right to family life. The right of States to decide who their citizens are is not absolute, since States must comply with their international human rights obligations when adopting practices or laws concerning citizenship. In this connection, three rights are of particular relevance, namely, the right to citizenship, equal protection by law and non-discrimination. In particular, any denial or deprivation of citizenship on arbitrary or discriminatory grounds will be in breach of international human rights law and the Convention.

In view of the above, the Maltese revocation order is at odds not only with the applicant's right to family life, but also with his Convention right to citizenship. The serious procedural shortcomings of the revocation procedure, such as the lack of any public, reasoned balancing exercise by the Minister, to weigh up the individual rights and public interests at stake, as well as the present negative consequences of his decision, show more than just an unfair and disproportionate decision. They reveal that the procedure for revocation of citizenship in Malta is in need of urgent reform, in order to enshrine openly the basic principle of prohibition of statelessness and to secure the necessary procedural safeguards.