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.