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
No comments:
Post a Comment