Monday, 12 March 2012

Rottmann and Genovese: How will Europe’s nationality laws stand up to the scrutiny of its regional courts?

For such a core area of domestic law, that goes to the very heart of the question of who we are and who belongs within our community, it is somewhat surprising how often the rules relating to nationality are held up for review. Just in the past week or so, nationality policy has been in the news again in the Netherlands. The latest proposal centres upon an apparent desire to limit the incidence of dual nationality – i.e. to make it more difficult for people to hold both Dutch and a foreign citizenship simultaneously. The suggested legal reform would result in people automatically losing their Dutch nationality if they were to naturalise abroad, while would-be Dutch nationals will also be expected to forfeit their original citizenship once they have been approved for naturalisation. In itself, such a reform would not necessarily raise any difficulties in terms of the Netherlands’ international legal obligations with regard to nationality policy, since it neither looks to be discriminatory nor should it immediately lead to cases of statelessness. However the further tightening of naturalisation requirements that is also part of this reform proposal will inevitably make access to Dutch nationality more complicated, potentially also for vulnerable groups such as stateless people or refugees for whom facilitated access to naturalisation is of vital importance.

Moreover, the debate surrounding this newest proposal to amend the Dutch nationality act does not address an existing area of discrepancy between the law and the state’s international commitments. As pointed out by numerous actors, most recently in a December2011 UNHCR report, the Dutch nationality act requires a period of “lawful stay” for a child who is born stateless on Dutch territory to acquire citizenship under the requisite safeguard. This is not in conformity with the Netherlands’ obligations under the 1961 Convention on the Reduction of Statelessness, to which it has been a party since 1985. It is unfortunate that the latest debate on Dutch nationality rules concentrates on a fascination with dual nationality – a phenomenon that in reality has both pros and cons for the state, and is not currently a major international concern – rather than a desire to fully implement key international standards relating to the prevention and reduction of statelessness.

The foregoing is somewhat remarkable given that overall legal developments within Europe demonstrate increased scrutiny of domestic nationality policy, precisely with a view to combating statelessness and discrimination. There are, indeed, regional instruments dedicated specifically to steering states’ regulation of nationality in which these principles play a guiding role, including the innovative European Convention on Nationality adopted in 1997. Moreover, the development of jurisprudence by the European Court of Human Rights and the Court of Justice of the European Union and culminating, respectively, in the Genovese and Rottmann rulings demonstrate just how closely examined European states may expect their nationality policy to be in future. Each marks the culmination of developments over a 15-20 year period, during which the respective courts progress from a largely theoretical acknowledgement that they are empowered to scrutinise states’ nationality laws to an actual ruling on the lawfulness of a particular nationality policy. It would therefore seem wise for European governments, including that of the Netherlands, to take this into account if they are considering amendments to the nationality law and keep a keen eye on their international obligations in this field.

In Rottmann, the case centred on the question as to whether a decision to revoke citizenship acquired through fraudulent naturalisation raised problems under EU law, given that it would result in the concomitant loss of EU citizenship and indeed statelessness. The Court of Justice reasserted its position that regulating access to nationality was, in principle, a sovereign matter for each state, but that EU member states must have due regard for EU law when setting the conditions for the acquisition and loss of nationality. As such, it was possible for nationality issues to fall within the jurisdiction of the court and the potential loss of EU citizenship was enough reason for the court to proceed in assessing the legitimacy of such a decision in this case. The court decided that responding to fraud could be legitimate reason for withdrawing nationality, but that the decision to do so in an individual case must weigh the facts of the fraudulent act against the ultimate consequences of loss of citizenship. In other words, a proportionality test needs to be met, taking the person’s overall legal situation into account. Elsewhere in the Rottmann ruling, the court also ponders the question as to whether the influence of EU law – and the reach of the court’s own jurisdiction – also stretches to decisions relating to acquisition of nationality. The circumstances of the case allow the court to defer this question for the time being, but the wording of its assessment suggests that such matters could also be held up for scrutiny in the future. Thanks to the link to EU citizenship, it appears that there is now every scope for the Court of Justice to test EU states’ nationality policy against core EU principles such as proportionality and non-discrimination. Nor is the court afraid to seek further inspiration for its rulings in other areas of international law, such as the 1961 Convention on the Reduction of Statelessness and the European Convention on Nationality, both cited as part of the court’s assessment in the Rottmann case.

Similarly, the Genovese case illustrates how the European Court of Human Rights now deems questions relating to the regulation of nationality to be firmly within its jurisdiction, despite the absence of the right to a nationality in the European Convention on Human Rights. Here, the court determined that even though Malta had gone “beyond its obligations” under the European Convention on Human Rights in creating an entitlement to citizenship by descent within its law, this did not put the law itself beyond scrutiny and it must, as such, meet the non-discrimination test. Maltese legislation failed this test because it discriminated both on the basis of gender (different rights in terms of transmission of nationality to children for men and women) and on the basis of illegitimacy (different rights in terms of acquisition of nationality from a parent for children born in and out of wedlock). Central to the court’s assertion that the Maltese nationality law could be scrutinised in this manner was its recognition of citizenship as a part of a person’s social identity, thereby bringing this issue generally within the scope of the protection offered by article 8 of the European Convention on Human Rights as an element of private life. This broad statement on the meaning of nationality and the link to the European Convention on Human Rights will allow the court a wide margin in the exercise of its jurisdiction over questions of nationality policy in future – on top of which previous jurisprudence already indicated that other articles of the Convention could potentially also be invoked.

The clear recognition of the regulation of nationality as an area over which, given the right circumstances, jurisdiction can be exercised by both these two regional courts should make European states give more careful consideration to this area of policy in future. The inconsistency of Dutch nationality law with its obligations under the 1961 Convention on the Reduction of Statelessness is just one example of the many difficulties that can still be encountered in Europe. Across the region, there is evidence that legislative safeguards that should protect people from statelessness are being implemented inadequately – as seen, for instance, in the citizenship scandal in Denmark that hit the media in 2011. There are also other pockets of evidently discriminatory nationality law or practice, like that of Malta, which was found to violate the state’s obligations under the European Convention on Human Rights in Genovese. Again, Denmark can be cited here, but also Austria and several others. Following the Rottmann and Genovese rulings, there is increased scope for such policy to be brought to the attention of – and struck down by – Europe’s regional courts. So, as nationality law reform is contemplated by any European government in the coming years, this should be informed not only by changes in popular sentiment or notions of public interest, but also clearly guided by the state’s international commitments to the avoidance of statelessness and to a non-discriminatory nationality policy.

An article looking in detail at the Rottmann and Genovese rulings and their position among overall legal developments within the EU and Council of Europe with regards to the regulation of nationality by states has been submitted for publication in the European Journal of Migration and Law. If accepted, the piece will appear in a special edition of this Journal, featuring a series of reflections on the issue of statelessness.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

1 comment:

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