Ramadan v. Malta: When will the Strasbourg Court understand that nationality is a core human rights issue?

This post was published by the Strasbourg Observers earlier today. I am grateful for their permission to re-publish it here.

It does not seem an exaggeration to say that the recent judgment in Ramadan v. Malta suggests that citizenship revocation is not generally problematic under the European Convention on Human Rights. How else might one understand the statement according to which ‘an arbitrary revocation of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual’ (para 85)? Strictly speaking, the quoted words appear to indicate that a revocation of citizenship, even when arbitrary, could fail to violate the Convention. How is this possible? One should not have to argue that arbitrary revocations of citizenship are unfathomable in a human rights perspective. The phrasing adopted by the Fourth Section of the European Court of Human Rights is unfortunate, to say the least. So are its reasoning and verdict of non-violation. A change of perspective is needed. Nationality matters enormously – it matters so much that it has to be a core human rights issue, and it is high time the European Court of Human Rights should recognise this.

We have unfortunately become accustomed to the Strasbourg Court refusing to measure the seriousness of nationality issues, as I explain in my book When Humans Become Migrants (see esp. Ch. 5, VI). One might have nonetheless hoped that the Court would not have turned away from taking steps towards recognizing the existence of a right to citizenship in Ramadan, given that the revocation resulted in the applicant’s statelessness. This was not even a ‘hard’ case in which to re-affirm the duty for states to refrain from making individuals stateless: the applicant was not a national security risk. Admittedly, there had been a criminal conviction, but this was in the distant past and the sentence had been suspended.


It is worth exposing the facts of the case before turning to the Court’s defective reasoning. The applicant had been overstaying his tourist visa in Malta for a couple of years when he met and married a Maltese teenager in 1993. Consequent to the marriage, about six months later, he became Maltese. He renounced his Egyptian nationality, a move that was approved by the Egyptian authorities and led to his Egyptian passport being withdrawn. There were serious marital problems. The applicant physically assaulted his pregnant wife, for which he received a suspended sentence. He left the matrimonial home. His wife instituted proceedings for the annulment of their marriage, arguing that he had married her only to be able to remain in Malta and acquire citizenship. Despite a child having been born, the argument that there had been only a simulation of marriage was accepted by the Maltese judge, who annulled the marriage in January 1998.

The applicant remained in Malta. Five years later, he married a Russian citizen. His wife applied to be granted ‘exempt person status’, entitling her to full freedom of movement, through her marriage with him. This was granted. In the course of examining this application, the Maltese authorities -presumably dealing with immigration matters- came across the judgment annulling the first marriage. In May 2006, they informed the applicant that an order was to be made to deprive him of his Maltese citizenship as the latter appeared to have been obtained by fraud. Hearings were held, during which the applicant contested the basis of the annulment decision and the criminal finding. The following year, the Minister of Justice and Internal Affairs ordered that the applicant be deprived of his citizenship with immediate effect. By then, two children, both Maltese, had been born from the new marriage. The applicant lodged an application at Strasbourg in 2012. His complaint that Article 8 had been violated was rejected on 21 June 2016.


The Court’s verdict followed a reasoning marred with weaknesses, four of which I shall identify in this post. My first criticism is that the Court treats in the same way a revocation of nationality and a lack of access to nationality.

The statement I quoted at the very opening of this post is a transposition of a slightly different statement, which the Court borrowed from its earlier case law. It reads: ‘it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual’ (paras 84 and 62). This makes perfect sense. What is problematic is that the Court, finding that both citizenship’s revocation and denial can impact a person’s private and family life, goes on to say that ‘there is no reason to distinguish between the two situations and the same test should therefore apply’ (para 85).

Although I am no fan of the Court’s timid case law regarding the denial of access to nationality at birth or through naturalisation, I am well aware that international law has long recognised the sovereign right of states to decide who their nationals are (even if I regret that this exercise in sovereignty is not explicitly or implicitly more circumscribed by human rights considerations, as my book makes clear). By contrast, international law has never found revocation of citizenship to be as straightforward an exercise of sovereignty.

Revocation is a situation where a state has granted nationality out of its own free will, so to speak, and then proceeds to take away this status. To be found acceptable under human rights law, this decision must be subjected to a far more stringent test than would a ‘natural’ denial of citizenship to an individual deemed never to have had a close relationship to the state – for example because he has always lived outside its territory and was born of non-citizen parents.

Second, rather astoundingly, the Court seems to suggest that it does not matter that the applicant is rendered stateless. Perhaps in order to justify this position, the Court notes that the applicant need not fear deportation as he is not deportable anywhere, having no nationality (paras 56 and 90). For a lawyer who has been used to hear that statelessness is the bane of international law – remember the 1961 Convention on the Reduction of Statelessness, this is certainly a new perspective. Having a nationality is important, indeed crucial, in the present world. This is why the Universal Declaration of Human Rights and other instruments such as the American Convention on Human Rights have not hesitated to elevate nationality to a human right. Any other status stops short of giving an individual the guarantees nationality attracts. The European Court of Human Rights should know better than being satisfied with the idea that ‘as the situation stands to date, it cannot be said that [the applicant] is under a threat of expulsion’ (para 56). This is neither here or there. The applicant has flimsily been made stateless by Malta, and this should be considered intolerable under the European Convention on Human Rights.

Third, despite what has been said above, the Court allows itself to doubt that the applicant has actually become stateless. It regrets that he did not produce the proof that his renunciation of Egyptian nationality had been confirmed ‘with any official document (such as a presidential decree, which appears to be issued in such circumstances) [or] information as to the possibilities of re-acquiring Egyptian nationality (in the event that he has truly renounced such nationality)’ (para 92). Earlier in the judgment, the Court had reported that the Egyptian authorities had approved the applicant’s renunciation of his Egyptian nationality in September 1994 (para 10). What is going on? One cannot help thinking that it is Malta, the defendant state at Strasbourg, which argued before the Court that the applicant may not have been rendered as stateless as he said. If so, given that the applicant had made a reasonable case for his loss of Egyptian nationality (para 10), it would have seemed fair for the Court to require Malta to bring the evidence for its claim, rather than leaving it to the applicant to bring a proof of something that may have been inexistent. This is not a small matter. As I explain in my book (e.g. pp. 437 and 450), the insistence by the Court that the applicant brings impossible proofs is not exceptional. It inevitably favours the defendant state and puts the applicant in a difficult position.

Fourth, the Court repeatedly blames the applicant for the situation in which he is. This is another characteristic of the migrant case law highlighted in my book. In Ramadan, the Court suggests that the applicant should have taken into consideration the precarity of his situation before choosing to marry again in 2003 and going on to have two children (para 89), even though the Maltese authorities did not question his citizenship for years, indeed until after he married again. According to the Court, the applicant should have tried the various possibilities apparently (it does not appear sure) open to him, such as applying for a work permit and a residence permit (para 29), and ‘no valid explanation has been given for his inaction’ in this regard (para 91). In the Court’s view ‘if he feared returning to Egypt, he could have applied for refugee status or humanitarian protection’ (para 79). He is also criticised for having ‘failed to submit his [Maltese] passport to the authorities and continued to reap its benefits until 2014, when his passport expired’ at which time he ceased to be able to travel out of Malta (para 93). One suspects any person would have acted like the applicant, as Judge Pinto de Albuquerque, dissenting, suggests in regard to the second marriage (para 15 of his dissenting opinion).


The lack of sympathy shown by the Court for the predicament of the applicant is startling. This is worrying in a world where revocations of citizenship have started to happen at an accelerated rate. Even outside this alarming context, it should be clear that migrants generally need to be able to access and then keep the nationality of their new state if they are to be able to make the most of life in their new country. There is no justification for taking away these opportunities lightly once they have been granted.

Most Europeans have been able to afford to be complacent about nationality issues. Because they have felt this did not concern them, they have tended to dismiss nationality problems encountered by others as not constituting human rights issues. Perhaps this off-handed attitude will have changed overnight for some European citizens. Two days after the European Court delivered its judgment in Ramadan, the Brexit referendum took place in the UK. Its outcome spurred a record number of British citizens with Irish ascendency immediately to search Google to find out how they might acquire an Irish passport. UK citizens are applying to become Swedish like never before. Whether or not to become British is all the current talk among EU nationals living in England. One sour political event has sufficed to wake up quite a few Europeans to the importance of securing for themselves and their family as secure a status as possible, which citizenship seems able to deliver.

Being a citizen holds the promise of having ‘the right to have rights’, to use Hannah Arendt’s useful expression, where one lives. One might have hoped that the judges of the European Court of Human Rights would have long understood the importance of the right to access or to retain a particular nationality. Ramadan v. Malta is a regrettable reminder that they have not. In his strongly worded dissenting opinion, Judge Pinto de Albuquerque expresses the hope that the Grand Chamber will seize the opportunity, on a referral by the applicant, of affirming the existence of a Convention right to citizenship. Let us indeed hope so, not only for the sake of European citizens suddenly anxious at the prospects of an uncertain future but also for the myriad of individuals who have long had to live with the reality that a secure status is for them unattainable.

The 30 podcast episodes of When Humans Become Migrants are now all in one place

Creating a blog for disseminating the main arguments of my book When Humans Become Migrants beyond a readership of academic specialists has proved a good idea. The resulting podcasts have attracted lots of positive feedback. However, it has also become clear that the blog form makes it rather difficult to consult any given podcast after it has been listened to at the moment of its blog publication. I have therefore reorganises the podcasts in one place, as you will see by clicking the heading ‘The book in 30 podcasts’ above. I hope my collection of short podcasts can become a useful resource, especially for teachers and students. I look forward to your feedback.

Migrants’ avoidance of the European Court of Human Rights concerns us all

This post was published by the Strasbourg Observers earlier today. I am grateful for their permission to re-publish it here.

Every year towards the end of January, the President of the European Court of Human Rights holds a press conference that takes stock of the previous year. This year, President Raimondi reported in his speech that the situation of the Court was ‘generally satisfactory’. Can we be so sure?

Performance even in as sensitive an area as human rights is now often measured in quantitative terms. In line with this trend, the President noted that over 45,000 cases were decided in 2015. Whilst in 2011 the backlog stood at an all-time high of 160,000 pending cases, this has now been reduced to 65,000 cases. Better still, it looks like it will be possible to reduce the backlog further in 2016. The end of the press conference reserved some words for the migrant crisis. Having gripped Europe since the summer, so far, the crisis has not put the Court under strain, although a plan of action is in place in case an influx of Rule 39 requests suddenly materialises.

First an explanation: Rule 39 allows an applicant to request an interim measure. If granted, the Court orders the defendant state to do something during the time it takes for the merits of the applicant’s complaint to be ruled upon. Thousands of migrants have resorted to Rule 39 over the years. They typically ask the Court to order a European state to stay the execution of their removal to their country of origin or another country with which they have links. Many lawyers used to regard Rule 39 as their last chance to ensure that their clients were not taken to a place where they would face torture or possibly even be killed. To cite a famous case, the journalist Gebremedhin would have been removed to Eritrea in 2005, had the Court not ordered France to wait. A Rule 39 interim measure has no incidence on whether the removal will ultimately be ruled to be contrary to the European Convention on Human Rights in the main proceedings. This question is addressed by the Court in due time, after both parties have submitted their arguments and proper deliberation by the judges.

In his recent press conference, Judge Raimondi noted that 24 requests for the application of Rule 39 had been received in 2015 regarding removals to Hungary. These requests emanated from Afghans, Palestinians, Syrians and others who were refusing to be returned to Hungary by states such as Austria, Slovakia, France, Finland or Sweden. Nine of these requests were granted. The latest statistics of the Court indicate that would-be returnees to Hungary were not the only persons to have made Rule 39 requests in 2015: about 1,500 requests were received by the Court (without information being readily available as to how many originated from migrants). Out of these, 161 interim measures were granted. The Court has confirmed to me that half of these (about 80) concerned removals. The other half was mostly about the situation in Crimea and Eastern Ukraine.

The figures are astonishing and thus worth repeating in a slightly different form: migrants are now experiencing such a low rate of success in their Rule 39 requests that not even 100 managed to persuade the Court to stay their removal in 2015. The situation was rather different in 2010. Then, 1,440 requests were granted – out of 3,680 requests made (almost exclusively by migrants). It would be nice to think that the staggering five-year drop in Rule 39 requests made by migrants on the one hand and accepted by the Court on the other is due to migrants having become far more welcome, thereby alleviating their need to seek and receive support at Strasbourg. Unfortunately, a more convincing explanation is that the Court has purposively discouraged migrants from resorting to Rule 39 by instigating internal policy changes that lead it to refuse requests more systematically.

As migrants encountered more and more difficulties in Europe, they increasingly turned to Strasbourg. And as Rule 39 increasingly came to act as a life line for migrants, it also became the bane of the Court. Things came to a head in January 2011. The Court had received 2,500 requests in the previous four months, and it looked like numbers would keep mounting if nothing was done. The Court described the situation as ‘alarming’. This was not in order to denounce the difficulties experienced by migrants but in order to highlight its own case processing difficulties. In response, the Court said it was not an immigration tribunal and therefore could not be expected to intervene, bar in truly exceptional cases. The great majority of the thousands of requests it had recently received were obviously considered run-of-the-mill rather than exceptional.

Judge Costa, the then President of the Court, issued a statement which urged governments to provide effective and fair national remedies that were suspensive. This had no discernible effect on the situation on the ground. For example, to this day, few expellees are informed well in advance of the details of the flight on which the authorities plan to remove them. The President’s statement also addressed applicants and their representatives. They were told they must provide the Court with all the necessary documentation and in good time if a Rule 39 request was to have any chance of success (as if it was their slack work that was generally responsible for last minute and incomplete applications). Coupled with a transformation in the procedure followed to deal with these requests (on which, see my book, p. 435), this changed everything. Suddenly request after request was refused. Learning their lesson, migrants’ legal representatives have virtually stopped lodging Rule 39 requests, triggering the number of Rule 39 requests to drop. The result is the 2015 statistics.

The Court is happy: it can function properly. But is it really functioning as it should? The policies put in place by the Court may be an unmitigated success from a case management perspective. But from a human rights perspective?

The unprecedented number of refugees currently in Europe raises serious challenges for European states and populations. One would wish that the European Court of Human Rights was joining the chorus of voices who affirm that we must remain driven by a sense of common humanity. For a variety of reasons explored in my book, since its inception the Court has tended to side with the state rather than with migrants. Who would say this is not a regrettable and dangerous orientation?

Episode 30: The right to be humane should be recognised paramount

When Humans Become Migrants ends by asking whether the right to be humane should top any human rights list. The question has lost none of its pertinence since the book was written. It also ends this podcast series.


Episode 29: Let us also think about the Strasbourg procedures

Procedures are very important. Before a court, they can make or break a case. This is as true at the European Court of Human Rights as anywhere else. This podcast highlights three areas of concern in relation to migrant cases.


The first concerns provisional orders. The Court can order a defendant state to keep a migrant on its territory, until it actually decides whether sending back this person would violate or not the European Convention on Human Rights. However, such provisional orders are increasingly rare, with predictable negative effects on applicants.

The second area of concern is that the Court encourages parties to reach ‘friendly settlements’. Even if the dispute is satisfactorily resolved for the applicant (which it not always is – for example, the state may grant a residence permit, but only for a limited period), there remains the problem that no general lesson can be drawn from a case that ends on a friendly settlement. The underlying problematic situation, if any, will probably remain unchanged.

Thirdly, it is regrettable that the Court hardly allows itself to discuss reparations. In other words, it declares whether a violation has occurred but it normally does not say what the state must do to repair the violation. In other words, what should happen after the judgment is not spelt out, leaving room for interpretation as to what human rights law requires.


Episode 28: The way forward is to expand ECHR guarantees

As we come towards the end of this series, it is important to think about ways to remedy the weaknesses that have been identified. In this podcast, I recommend that the European Court of Human Rights expands its interpretation of especially three articles of the European Convention on Human Rights.


Article 3 concerns inhuman and degrading treatment. Its application is dependent upon a ‘high threshold’ being met. Judges should try to put themselves in the shoes of migrant applicants before accepting the idea that this threshold is not met.

Article 6 is about having access to an independent and impartial judge and to be legally represented. As previously stressed, it is simply terrible that Article 6 is held not to apply to immigration matters. Maaouia must be reversed.

Article 14 concerns the prohibition of discrimination. The Court tends not to use it very much in its case law, preferring to focus on substantive rights. However, it is very important that the Court starts recognising and denouncing practices of discrimination more often – including on ground of nationality.

To download a copy of this podcast, right-click the following link: HRM28 The way forward- Expanding Articles 3:8, 6 and 14 ECHR

Episode 27: Jesus Vélez Loor has a story worth turning into a film

No one human rights institution can deliver a perfect world. This is true even of the Inter-American Court of Human Rights which has been greatly praised in this series.


One weakness is that the Inter-American Court decides only a few cases a year. As a result only a limited number of victims find redress at San José. For example, Jésus Vélez Loor, whose case was discussed earlier, was extremely lucky that his case was processed up to the Court. But his complaints were not all accepted. Most importantly in his perspective, the Court did not declare he had been tortured.

The judgment also could not give him back his health or previous life. What Jésus would nonetheless have liked was to have his ordeal and the Inter-American proceedings turned into a film. But the Court did not order this to happen (although it ordered many other things).

Still, if there is any filmmaker interested out there, Jésus would surely love to hear from you!

To download a copy of this podcast, right-click the following link: HRM27 Jesus Vélez Loor has a story worth turning into a film

Episode 26: Can a child ever be just a ‘fait accompli’?

Can a woman be expelled to her country of origin when she has a young child who is a national of the would-be expelling European state and her expulsion would mean child and mother are separated?


In one famous case, the European Court of Human Rights decided that the mother’s expulsion would violate the European Convention on Human Rights. It did this even though it had previously made clear that it was not ready to interpret the European Convention on Human Rights as containing the right to a residence permit.

In this case, the Convention’s doors opened up, so to speak. However, the doors quickly shut up again when the Court refused to give way to what it described as the ‘fait accompli’ of a child’s birth.

In my opinion, the case law in this area is best described as a lottery. The dice are nonetheless weighted against giving rights of residence to people whose presence in a state the law considers illegal.

To download a copy of this podcast, right-click the following link: HRM26 Can a child ever be just a ‘fait accompli’?.

Episode 25: The stateless of Europe

All through the summer, the immediate needs of the unprecedented number of refugees arriving in Europe has held the media spotlight. We should not forget, however, that long term migrants can also face great difficulties. This episode draws attention to the plight of people who live in Europe without enjoying any status in law.


The law says their presence is not authorised. But the fact is that they are here. Granted no residence permit, they can neither work legally nor access social benefits. A great number of them cannot be returned to their country of origin. This can go on for years and for decades. They are de facto stateless. How can they live in dignity?

Strangely, the European Court of Human Rights has found that this situation does not raise any issue under the Convention. This is because of its past interpretations of Article 3, Article 8 and Article 6 ECHR.

In other words, by respecting the logic of its previous case law, the Court ends up reaching a conclusion that is entirely illogical from a human rights perspective …

To download a copy of this podcast, right-click the following link: HRM25 The stateless of Europe


Episode 24: Vainly knocking on the shut doors of Strasbourg

When a door is firmly shut, getting it to open can be very difficult. This image is useful to understand the effect of a finding by the European Court of Human Rights that a provision of the European Convention on Human Rights is either not applicable or not violated.


(If you have problems with the embedded player use this link to listen).

Strasbourg negative rulings are often categorical. They tend to get repeated from one case to the next, in a fairly automatic manner. They result in applicants being summarily rejected when they come knocking on the Strasbourg doors.

A violation verdict is less categorical. It effects an opening – but how wide this opening is typically needs to be tested over time.

Maaouia is an example of shut doors that was examined in the last episode. In this episode, I discuss other examples: Abdulaziz, Cabales and Balkandali (no right to family reunion), N. v. UK (return to an early death), and Saadi v. UK (immigration detention for administrative convenience).

To download a copy of this podcast right-click this link and choose ‘Download Linked File’ or ‘Save Link As…’.

Please note that the podcast will take a short break over the summer and return for the final six episodes in September.