PROCEEDINGS

ILEC CONFERENCE

WHO OWNS EU CITIZENSHIP?

LOSS AND ACQUISITION OF CITIZENSHIP AND THE ROLE OF THE EU

TUESDAY 29TH APRIL 2014

Centre for European Policy Studies

1 Place du Congrès, Brussels

Conference Room

9.30 – 17.30

Speakers and discussants: Sergio Carrera, René de Groot, Chiara Adamo, Kay

Hailbronner, Hans Ulrich Jessurun d’Oliveira, Rainer Bauböck, Alenka Prvinsek, Barbara

Walentynowicz, Elspeth Guild, Maarten Vink, Judith Tóth, Eva Ersbøll, Amanda Weston,

Roxana Barbelescu, Patrick Wautelet, Adrian Berry, Kristine Kruma, Joris Groen.

Present: Aurelia Álvarez, Joanna Apap, Censina Apap, Mohamed-Raja'i Barakat, Ilya

Bayanov, Chiara Bellani, Jakob Bork, Myriam Buyse, Valeriia Cherednichenko, Flavio

Ciriaci, Marie De Somer, Wilfried Derflinger, Jim Dratwa, Alexandra Duncan, Jelena

Dzankic, Katharina Eisele, Maxim Ferschtman, Nigar Gasimi, Georgia Georgiadou, Majid

Golpour, Istvan Hegedus, Nathalie Hesketh, Hyusein Musa Hyusein, Friederike Kamm,

Constantina Karagiorgi, Markus Lammert, Dunja Landmann, Karlis Lapsa, Vladimir

Lincautan, Marie T. Lubs, Jacques Malache, Elena Mancusi, Guayasén Marrero González,

Serena Minazio, Miriam Mir, Pawel Nalewajko, Lara Natale, Gregor Oberhofer, Aila

Omarova, Yan Omelchenko, Imogen O'rourke, Giuseppe Papa, Maria Pedersen, György

Péteri, Chrystalla Petridou, Alice Ross, Marie Saglio, Markus Schlüter, Clara Taeymans,

Fausta Todhe, Henk Van Goethem, Noriko Yasue

CONTENTS

1. Proceedings

1.1 Welcome Panel

1.2 Opening Panel: National developments in citizenship legislation: the cases of

Germany, Malta and Spain.

1.3 Panel I: General principles of European law and nationality: what implications

for member states autonomy?

1.4 Panel II: Loss of Citizenship

1.5 Panel III: Quasi-Loss of Citizenship

1.6 Concluding remarks

1. PROCEEDINGS

1.1. Welcome Panel

Sergio Carrera began the meeting by welcoming the partners and giving a brief

overview of the different panels around which the conference was structure. He made

special remarks on the participation of the DG Justice from the European Commission,

Chiara Adamo; emphasizing the fact that the ILEC project and the mid-term conference

came in a moment of reflection at EU level on the role of EU in nationality matters.

Chiara Adamo then took the floor in order to give a brief outline of EU citizenship

policy. She defined the EU citizenship as a tangible status since it brings with it

concreted fundamental rights that are owned by the nationals of the member states.

She also mentioned the CJEU dogma of the primacy of EU citizenship as being the

fundamental status of nationals of the member states. It is not an autonomous status

since it derives from member states nationality, as an addition but not a replacement of

member states nationality, as reiterated in the declaration attached to the Treaty of

Maastricht. So the question of whether an individual possesses the nationality of a

member state shall be only solved by reference to the domestic law of the member state

concerned. That does not mean that member states can act freely regarding nationality

law, she stressed. As made clear by the CJEU even when the matter falls within the

competences of a member state when there is a nexus covered by the EU law, nationals

rules must pay due regard to the EU law. Chiara Adamo referenced the Rottmann case.

The fact that the power to deprive or withdraw an individual’s nationality falls within

the legal competence of the member states, did not preclude the concurrent application

of EU law in this area. The exercise of that member state power against its own

nationals also directly affects the rights conferred on that member state’s

national via EU citizenship status. The CJEU puts limits to the member states autonomy

when the decision taken to withdraw a nationality has the effect of also withdraw EU

citizenship.

Regarding acquisition of nationality, Chiara Adamo stated that it is more a grey area.

Although it must be recognized that the CJEU in the Rottmann decision mentioned the

exercise by member states of the power to lay down the conditions for the acquisition

and loss of nationality in general. Therefore, it cannot be excluded that the CJEU might

extent in the future its reasoning to the acquisition of nationality.

A number of key rights, pointed Chiara Adamo, are attached to the EU citizenship: right

to freely move and reside in another member state, equal treatment, rights with an

important civic component, political rights (right to vote), right to receive consular

protection abroad by an embassy or consulate of another member state when the own

member state is not represented in a third country in equal conditions, EU citizenship

initiative.

As regards EU Citizenship reports, the last of them was issued by the European

Commission in 2013. The European Commission puts forward the initiative to further

promote EU citizenship and its rights, making sure EU citizens can exercise their

citizenship rights in the same way whenever they are in the EU and without obstacles.

The Commission considered the EU citizenship a concrete status which brings benefits

to citizens. So granting the nationality of a member state to an individual also means

granting all those benefits and concrete rights and therefore naturalization decisions of

the member states cannot be considered neutral anymore with regards to other

member states and to the EU as a whole. In the words of the AG in the Rottmann case,

“That is the miracle of Union citizenship: it strengthens the ties between us and our States

(in so far as we are European citizens precisely because we are nationals of our States)

and, at the same time, it emancipates us from them (in so far as we are now citizens

beyond our States)”. So, in this line, the European Commission considers that member

states are thus expected to act in the spirit of sincere cooperation and to compare

norms and obligations in international law which form part of the EU legal order and

the criteria from which the member states traditionally build their nationality laws

which require when granting their nationality member states ensure that there is a

bond, the genuine link between the applicant or the citizens and the State concerned.

This is also mentioned by the CJEU: the special relation of solidarity and good faith,

reciprocity of right and duties which form the back work of the bond of nationality. This

is linked with the recent public discussion on criteria to grant nationality to foreign

investors in some countries. In that context, the EP recently adopted a resolution in

January inviting the Commission to assess the so called investor schemes in some of the

member states. In this vein, the Commission took action to avoid the mercantile

approach toward citizenship for sale and started a dialogue with member states about

it. These member states recently re-write their citizenship investor scheme with the

due to introduce such a bond, the genuine connection between the country and the

applicant. She highlighted that the European Commission is currently analysing similar

schemes in other member states.

She made the following conclusion remarks:

1. Setting the conditions for acquisition and loss of nationality is a competence of

the member states but when deciding so they have to act with due regard to EU

law.

2. Decisions of member states in the field of nationality are not neutral with the

regards other member states and the EU. This can lead to tensions when member

states depart from the traditional criteria in which nationality laws are based.

Hence, it is important exchanging and cooperating together to avoid such

tensions.

3. In order to strengthen the knowledge in a relatively novel area it is a priority on

the Commission financial programme to fund projects relating to citizenship like

the ILEC project.

4. For the future, what we intend to do is to have a more structural approach so in

2014 annual programme of fundamental rights and citizenship it is a priority to

create a network of academics on EU citizenship matters to discuss and consult

EU citizenship issues at large.

Sergio Carrera took the floor again and highlighted that it is in light of the response of

the Commission to the Malta case becoming increasable relevant and necessary for the

Commission to provide more information and guidelines on this issue. He remarked

that the ILEC project shows how important the academic input to policy debate is.

René de Groot took the floor. He stressed the idea that the nationality of a member state

is the master key of EU citizenship since only nationals of the member states are EU

citizens. In that light it is very important to study the grounds for loss and acquisition of

the nationality of member states and to compare them. In principle, member states are

still autonomous regarding the determination of the grounds for loss and acquisition of

nationality, but they have to respect international law and the principles of EU law.

Moreover, he pointed that the differences between member states regarding the

grounds for acquisition and loss of nationality should not be large. Member states have

an obligation to provide some explanation to other member states and the EU when

departing from the traditional criteria for the acquisition and loss of nationality. The

ILEC project focuses on involuntary loss of the nationality of a member state and, due to

the link between member state nationality and EU citizenship, also on the loss of the EU

citizenship. The overall goal of the project is to acquire and to exchange knowledge on

the grounds of loss of nationality, to identify promising practices and common

guidelines for policy makers and practitioners.

Rules on voluntary renunciation are not included in the project due to its voluntary

nature. However, rules of the extension of the loss of nationality as a consequence of

renunciation of nationality by parents with children are included. He pointed that the

reason is the following: the parents can renounce voluntarily but if the loss is extended

to their children, it is not voluntary loss for the child.

The main focus will be on the loss of member states nationality but also some attention

will be paid to acquisition of nationality. He pointed out that the central question to

discuss in the conference is the influence of EU law on the autonomy of the member

states in nationality matters. He remarked the Rottmann case as a paramount example,

although more recently one could witness that other influences of the EU law in

nationality matter can exist, in particular in the naturalisation procedure in some

member states, the citizenship for sale issues. And in the context of that discussion

concepts such as sincere cooperation and the genuine link appear. The genuine link

concept is also relevant for some of the loss of nationality provisions. He raised the

question whether it is right that the nationality of a member state and therefore the EU

citizenship is lost despite of an obvious continuation of the genuine link with the State

involved. For example, when the person concerned continues living in the territory of

that State (does it matter that he or she live in the territory of the State?) or in the

territory of the EU in another member state. On the other side of the coin, whether is

there a right to continue to possess the nationality of a member state when the genuine

link is lacking due, for instance, to continuous residence abroad (outside of the EU)

since several generations. And some situations are on the borderline between

acquisition and loss. The same type of cases may be classified as a loss of nationality in

some member state and as a ground for non-acquisition in other member states. These

situations, he said, are object of discussion under the label quasi-loss of citizenship.

1.2. Opening Panel: National developments in citizenship legislation: the cases of

Germany, Malta and Spain.

René de Groot took the floor to introduce the speakers of the opening panel.

Floor was given to Kay Hailbronner. He began by providing a brief introduction of basic

history of German Nationality Law. Many modifications have been made in the German

Nationality Law. A look at the current figures, he stated, evidence the link between

nationality law and immigration law (approximately 120.000 naturalisations per year

take place). He also highlighted the fact, in 2012, of the 81 million (total German

permanent resident population) 16.3 million have what is called migration

backgrounds. 9,4 million persons have acquired German nationality and only 6,9

million of persons were in possession of a foreign nationality. These figures show the

complex migration composition of Germany.

He stressed that a cornerstone of the reformed legislation in1999 was the introduction

of a new mode of acquisition of German nationality for children of a permanently

residing foreigner with a lawful habitual residence of at least 8 years or right to free

movement as EU citizenship or equivalent treaties. The new mode of acquisition of

nationality placed Germany on the top list of progressive nationality legislation if it had

not be accompanied by the so called option clause, said Kay Hailbronner. Children of

foreign parents born in Germany have to declare between the age of 18 and 21 whether

they want to remain German nationals (in which case they have to provide until the age

of 23 either a proof of renunciation of their foreign nationality, usually acquired from

their parents, or receive a so called permit of exception, Beibehaltungsgenehmigung, of

their foreign nationality) or not. The permit of exception is basically modelled

according to an exception previously introduced in German naturalisation law, which in

principle requires renunciation of the foreign nationality but with some large

exceptions, it is impossible or unreasonable for legal reasons or create substantial

difficulties. On average the German authorities naturalised more than 50% with dual

nationality so the rate of acceptance of dual acceptance has gone beyond half of the

applications.

Kay Hailbronner pointed that the option model was a political compromise between

the more conservative Christian Democratic Party (which considered the principle of

one nationality only as an essential element of German nationality law) and the Social

Democratic Party and the Green Party (which wanted to abolish the principle of one

nationality only and introduce the dual nationality on a general level). The option to opt

at reaching the age of adulthood remains quite unique in Europe. When the new

legislation became effective in Germany it came under attack, particularly from Turkish

organisations and political parties that considered themselves as guardians of migrants

rights; he stressed that the main attack was directed against the principle of one

nationality only. Dual nationality was considered a waiving flag for an open society of

people of different origins and cultures living together. Thus, the dual nationality has

become in recent discussions the very expression for an open-minded and dual

nationals work in organised campaigns requesting to refuse to give up their parents’

nationality as an indispensable element of identity. Critics received support and legal

practitioners pointed to administrative efforts to apply the new rules and the prospect

of having administrative court procedures on the right of the so called exceptional

permit which may last 25 years and eventually deprive a dual national of his/her

German nationality after 25 years of possession of German nationality, which somehow

does not quite fit in to the overall concept of German nationality law.

In March 2014, the big coalition between Christian Democrats and Social Democrats

agreed on evolution of the option obligation for children who have grown up in

Germany. The requirements are the following: 8 years of permanent residence in

Germany and 6 years of school attendance or the acquisition of a German school

diploma or a diploma of professional formation. Only when these requirements are not

fulfilled the obligation to opt applies with the same exception of either impossible or

unreasonable renunciation, explained Kay Hailbronner.

Reacting to strong opposition by some of the Länder Governments that openly declare

their intention to boycott the legislation if adopted and many groups advocating dual

nationality, the Federal Government inserted a new clause stating that the requirement

of having growing up in Germany is also deemed to be fulfilled if the applicant has a

comparably close relationship to Germany and the obligation to renounce the foreign

nationality will constitute in his or her especial case a particular hardship; an hardship

clause was additionally inserted in the law.

Besides the criticism of the incoherence of the rules dealing with the legal status of

children of foreigners born in Germany, Kay Hailbronner pointed out that the

Government itself has more and less admitted that the duty to renounce the foreign

nationality will only apply for a very small group of persons who do not fulfil the

residence requirement. In this point he raised the question whether the exceptions

justified the maintenance of administrative examination procedures and potential court

proceedings with the highly complex task of interpreting the hardship clause and the

new rules. Thus it is quite clear, he stated, that we are dealing with what may be

considered a symbolic legislation; a theory that in principle is no longer efficient

element of German nationality law. The legal background is the maintenance of the

principle of one nationality only as a political principle and the automatic loss of

German nationality based on the voluntary acquisition of a foreign nationality.

As regards to legal aspects, Kay Hailbronner raised the question whether the proposed

legislation is violating constitutional or EU law. Regarding constitutional law, there are

already some groups of lawyers that announced the intention to attack the legislation if

adopted before the constitutional court and the CJEU. He made brief remarks on the

constitutional principle of absolute prohibition to deprive a German national of his or

her German nationality, according to Article 60 of the basic law. The Constitutional

Court basically draws a line between admitted loss (also foreseen in the Constitution)

and absolute prohibition of deprivation following the so called test of influence.

Deprivation is forbidden if the person cannot avoid it by reasonable and possible

behaviour; thus as example the Constitutional Court has explicitly accepted the

automatic loss of German nationality in case of voluntary acceptance of a foreign

nationality.

The question of compatibility with EU law seems to be less clear, he pointed out.

German dual nationals enjoy undoubtedly free movement rights. There is no second

class of German nationality or EU citizenship. Hence dual nationals will not fulfil the 8

years of permanent residence requirement by having habitual residence in another EU

member state or having acquired a school diploma in another EU member state will not

be dispensed of the obligation to renounce the foreign nationality at the age of 18 if

they want to keep the German nationality. Kay Hailbronner highlighted that opponents

therefore have been really quick to argue the incompatibility with freedom of

movement for EU citizenship and the principle of proportionality set up by the CJEU in

the Rottmann case.

In his view this arguments are unfounded. Regarding the free movement the argument

is missing an essential link. The loss of German nationality is not a consequence of

making use of the free movement rights (in which case it would be clearly incompatible

with EU law). It is linked to the obligation to renounce a foreign dual nationality at the

age of adulthood, an obligation which basically intends to establish equal treatment

with naturalisation of immigrants that happen to be born abroad. Thus making use of

free movement does not trigger the loss of German nationality and EU citizenship. The

purpose was to enable equal treatment of children for the sake of unimpeded

integration while maintaining at the same time the principle of avoidance of dual

nationality.

Looking at the new legislation from this perspective, it does not raise any other issues

than the existing option model since 18 years. It does not introduce new barriers to

maintain German nationality and it restricts its applicability by admitting additional

exceptions, Kay Hailbronner stated.

Is the option model as such violating EU law? He does not think so. The CJEU has

repeatedly confirmed that nationality legislation is within the competences of the EU

member states. The limits indicated by Rottmann judgement are clearly not reached

when a member state is maintaining a principle of one nationality only in naturalisation

and provided for a loss of a foreign nationality voluntarily acquired.

Does it made the differed option obligation at the age of adulthood unreasonable? In his

view is not the task of the CJEU to decide on the efficiency of legislations and its impact

on German integration scheme. This may also be relevant for the debate of the principle

of proportionality. The loss of German nationality may only occur in the exceptional

case of a dual national that does not fulfil the residence requirement and is not willing

to give up a foreign nationality of a country to which normally there is no other kind of

connection than a cultural one. It is really non-proportional to require a residence for 8

years or a school diploma to maintain permanently the acquire status? EU citizenship is

not a status on its own but complementing national citizenships, thus when assessing

the grounds for acquisition or loss of a member state nationality in the light of

proportionality and reasonableness focus must primarily being on the national

perspective. Kay Hailbronner stressed that, at the end, it is not European integration

what are we dealing with when discussing the requirements, it is integration into the

living conditions of the State concerned. So, in conclusion, it will be legitimate to

require integration into the German living conditions rather than European living

conditions.

In his final conclusions, he remarked that, besides the legal objections, primarily the

political assessment is a totally different measure and one may ask whether the

symbolic maintenance of a principle it really worth the effort. With no doubt, Germany

is on the way to give up the principle of one nationality only. The number of dual

nationals will increase. Thus, is Germany on the way to become multicultural republic

of dual nationals? It has been discussed over and over that dual nationality does not

present any answer to the legal problems related to the conflicts of laws, diplomatic

protection and human rights. Dual nationality works in international relations only in

area of cooperation and legal coordination. The advocates of dual nationality tend to

overlook the fact that dual nationality has legal effects in international relations and

with regard to individuals. It is not just an expression of a culture attachment. A

republic of dual nationals does raise questions of exercise of political rights,

particularly in a system like the German which does not allow depriving a German

national of that status. Finally, this is not without any risk with regard to the exercise of

personal jurisdiction. Unfortunately none of these seems to have been discussed in the

political discourse; no effort has been made to discuss the political implications of a

large number of German-Turkish dual nationals in the scenario of Germany and

Turkish relations. Nobody has considered it necessary to warn the young Turkish-

German dual nationals that they may be dragged to Turkish military service after

suspension of German obligatory military service.

He concluded by stating that there are very good reasons to facilitate access to German

nationality and accept dual nationality. However, political decisions on questions of

nationality could have far reaching consequences. Potential advantages and

disadvantages that should be discussed in a broad political discuss.

René de Groot gave the floor to Sergio Carrera.

How much does European citizenship cost in the EU? Sergio Carrera highlighted that

this question has raised so much controversy in the light of the Maltese citizenship-for-

sale programme. It also has encouraged him to make research, looking carefully to the

case and the response of the EU institutions.

Back to question of the conference. Are member states free when dealing with

nationality issues? Or is there EU supervision and accountability taking place? Was

Malta free to do what it wanted regarding the investor citizenship programme? Or was

there a legitimate EU intervention?

He focused on the legal backgrounds and unprecedented EU response in light of a

measure of a member state dealing with the acquisition of its nationality. It is

remarkable that Malta is not the only EU member state counting with a citizenship for

sale programme so he provided a comparative overview. It is also surprising the way

the Maltese case developed since scholars pointed that there was no legal ground for

the Commission to interfere in the Maltese decision. Despite that, the Commission

succeeded to persuade the Maltese authorities to change that initiative.

Sergio Carrera made a brief explanation of the legal backgrounds of the Maltese

decision. At the end of 2013 the Maltese Government announced a programme that

basically meant that any foreigner donating to the Maltese State €650,000 will acquire

Maltese nationality. Due to the link between a member state nationality and the EU

citizenship, the Maltese programme also meant selling the EU citizenship status

together with the Maltese nationality. The legislative initiative was really controversial

at domestic level (e.g. the question of the nature of the donation, the amount itself,

applicable criteria) and the Maltese Government increased the quantity to

approximately €1.15 million. A remarkable point of this initiative is also the

intervention of a private actor dealing with the implementation and publicity of the

programme. In its website, the acquirement of Maltese nationality is published as the

acquirement of the possibility to move freely within the EU. At this point Sergio Carrera

raised the question of what it is really on sale.

He also highlighted the unprecedented responses at EU level. The Vice-President of the

European Commission, Viviane Reding, in the framework of the plenary debate in

Strasbourg dedicated to ‘citizenship for sale’, stated that “Citizenship must not be up for

sale” and that naturalisation decisions adopted by one member state have to take due

account to the impact of such decisions to others member states, in particular from the

perspective of sincere cooperation. The Commissioner also mentioned the necessity to

respect the usual criteria for acquiring nationality, that is, the genuine link. A genuine

connection is needed between the member state and the applicant (not to the applicant

wallet).

Also unprecedented, the European Parliament adopted a Resolution condemning

member states’ citizenship for sale programmes, with specific reference to the Maltese.

The European Parliament also declared that Maltese programme undermined the very

concept of European citizenship and stated that the EU citizenship cannot have a price

tag attached to it. The genuine link criterion was also highlighted in its Resolution.

Although some scholars said that there was not legal ground for EU intervention since

nationality is a matter that falls within the competence of the member states, it was

announced that the Commission was considering launching infringement proceedings

against Malta.

Actually, he explained, a meeting took place in Brussels in January between the Maltese

authorities and representatives of the DG Justice of the European Commission where

the investor programme and its compatibility with EU law were discussed. According to

a joint press statement both parties reached a common understanding and the Maltese

programme will include a genuine link and following the Commission demands for a

criterion to be added, the effective residence was established. In consequence the

programme currently includes the so called functional residence in addition to an oath

of allegiance for wealthy foreigners that apply for this fast track naturalisation.

Is it Malta the only case in the EU? Surprisingly, the answer is no. Sergio Carrera

pointed that there are other member states with citizenship for sale programmes and

also migration schemes facilitating fast track residence and visa. What are the

components of these schemes? A depth overview is provided in his paper in which also

the price of citizenship of the Union and residence across the EU is analysed. Cyprus

and Bulgaria have also citizenship for sale programmes introduced in 2013. It is

interesting to ask why in the same year as Malta? Austria is an especial case since there

is no an official recognized citizenship for sale programme, but it does have an

unofficial citizenship investor programme which is negotiated with applicants on case-

by-case basis. In terms of residence and visa, he pointed out that there are a group of

nine EU member states that are actually selling residence permits and visas to wealthy

foreigners.

He then analysed the common features of these programmes. Sergio Carrera explained

what make the Maltese and Cyprus schemes so distinct are the donation element and

the fact that the residence requirement is not the same as the one that applies in the

normal naturalisation track, being this the point in which the Commission insisted so

much. As regards investor residency programmes, it is relevant for the debate to point

out that some of them indirectly facilitate access to nationality. It has raised some

controversies in the cases of Portugal, Spain or Greece because of the fact that

throughout these programmes residence and even Schengen visa are being sold to

applicants that buy property in those member states.

Regarding the legal grounds of the EU intervention in the Maltese case the following

consideration were made by Sergio Carrera. If member states are autonomous as

regards questions related to the regulation of nationality how did the Commission

manage to lead to substantive amendments of the Maltese initiative in this

unprecedented situation? The case for a legal obligation under the Treaties to moderate

this type of national citizenship policy seems rather weak as pointed by Jo Shaw. And

actually the AG Maduro Opinion in the CJEU ruling Rottmann would not be applicable in

the Maltese case because the effects of the Maltese provisions will be marginal in terms

of number and thus have little impact on other member states. Although irrelevant

from a quantitative point of view, the issue is not irrelevant at all and the Commission

still managed to intervene. How did this happen? Sergio Carrera explained that the

intervention was based on two principal legal grounds: first, supranational legal

standards and judge-made general principles of law (the so called genuine link theory

developed in the Nottebohm case); and second, the EU principle of sincere or loyal

cooperation. The last has not being paid too much attention in the academic literature,

he stated, but it has very central and important effects in a number of areas, including

those areas in which member states have exclusive competence. How does the principle

apply to nationality, to an area of exclusive competence of member states? He found

two arguments: first, the coherence of the internal market; and the second, the very

status of EU citizenship. What Malta was selling and publishing was mobility, moving

and residing elsewhere; definitely, selling something that does not belong exclusively to

Malta. Perhaps the interest of the applicants is not the Maltese nationality but the

possibility to freely move and establish within the EU. The commercialisation of the EU

citizenship went even one step further by the introduction of a private-sector actor as

the intermediary between the state and foreigners seeking to purchase citizenship.

One of the main arguments of the paper is that while the quantitative implications of

this kind of programmes would be limited in relation to the number of applicants

benefiting from the scheme and potentially moving/residing in other EU member

states, the qualitative repercussions attacks the basis of the very concept of citizenship

of the Union and put at risk the substance of Union citizenship.

However Sergio is critical in his paper with the EU institutions insistence on the

genuine link, the need for Maltese nationality law to ensure a genuine link between the

applicant for naturalisation and the country in the form of an effective residence

requirement. What is this genuine link really about? The use of the genuine link is a

double edge argument, on one hand it can be said that residence is rather objective

criterion for granting nationality, but what is effective residence? What is habitual

residence? What is functional residence? There is no a commonly definition agreed on

this and Malta is taking advantage of this situation. What is this genuine link? Link to

what? How can the link be tested? According to Sergio Carrera, by focusing on the

genuine connection argument, the EU institutions are paradoxically strengthening

nationalism. The EU institutions require to member states to test this genuine link, and

in doing that member states are going deeper in nationalism since on the basis of the

genuine link criterion restrictive domestic policies on the acquisition of nationality can

arise (integration/assimilation tests). The compatibility of such measures with other

EU general principles, such as that of non-discrimination, diversity and fundamental

rights, remains at stake. From a legal point of view, the CJEU already prohibits the

member states to question the citizenship decisions of other member states and follow

strictly the Nottebohm line of reasoning on the genuine link. In the Micheletti case, the

CJEU held that member states are not permitted to look at the existence of a link, in

order to justify restrictions to EU citizenship rights and freedoms. Also exemplary is the

case of the British nationals from East Africa who were excluded from residency in the

UK under the Commonwealth Immigrant Act of 1968. The European Commission of

Human Rights of the Council of Europe declared the Act to be inhuman and degrading

treatment by discriminating on the basis of race or colour. Last point that brought his

attention is that, actually, in Nottebohm the conferral of nationality was in fact valid in

spite of lacking a genuine link. So why does the Commission insist on this criterion of

the genuine link?

In his conclusions, he proposed the question of how to address this dilemma? It is

necessary, said Sergio Carrera, to further explore the consequences of the principle of

sincere cooperation. He pointed out that particularly problematic is the free-riding

logic. Malta and other EU member states with similar programmes are acting as free

riders, charging a price for people to buy something that other EU member states

provide and pay for. On top of that there is the matter of commercialization. And both

matters affect the very concept and substance of EU citizenship. So he suggested that

EU institutions should have focused on the principle of sincere cooperation. This

principle has some procedural components, already developed in the area of migration

throughout the Council decision 2006/688/EC. EU member states have the obligation

to report to the European Commission and other EU states on the adoption and

implementation of these schemes as they clearly have an impact on Union’s citizenship

and free movement objectives. And this obligation is not being fulfilled in the area of

citizenship.

Perhaps the most relevant finding of the Maltese case is the relevance of an increasingly

important framework of post-national principles of accountability, a set of European

and international principles providing a post-national constellation of normative and

accountability channels and venues affecting the State’s discretion on the attribution,

limits or revocation of citizenship rights to individuals.

René de Groot gave the floor to Hans Ulrich Jessurun d’Oliveira.

Hans Ulrich Jessurun d’Oliveira started by introducing the topic of his presentation,

that is, the voluntary acquisition of a Spanish and Portuguese nationality by the so

called Sephardic Jews. The backgrounds of the current legislative measures of the

mentioned member states have to be found in the fateful year 1492 when los Reyes

Católicos (Ferdinand and Isabella) issued a decree banishing non-Christian moors and

jews from the Spanish territories in order to build up a Catholic kingdom. However,

Sephardic Jews had already been subjected to the harassment by the Santa Hermandad

and the Spanish Inquisition. Sephardic Jews migrated to Northern Africa, Italy, Greece,

Palestine, Syria and Turkey. After the establishment in Portugal of the Holy Office in the

sixteenth century, a second diaspora ensued, which had as destinations the Balkans,

Italy, Flanders, South America and the Caribbean. He pointed out that Amsterdam

became the most important settlement of the so called Portuguese Jews, denomination

adopted because it was considered to be saver than Spanish Jews, since the influence of

the Spanish Inquisition in these territories.

Hans Ulrich Jessurun d’Oliveira explained that back in the present, on the 7th of

February 2014, the Spanish Minister of Justice presented a draft bill amending the rules

on acquisition of Spanish nationality by Sephardic Jews in order to redress the harm

done to Spanish Jews. Already in 1982 and with the aim to address the historical debt

towards Sephardim, they were given a place among those groups that could acquire the

Spanish nationality by naturalisation after a shorter period of time (two years) of legal

residence but with the requirement of renunciation of their previous nationality. The

new draft bill removes this last requirement, even in the case of nationalities of

countries with which no bilateral treaty had been concluded. With this measure, the

Spanish government tries, on one hand, to repair the harm done to the Sephardim and,

on the other hand, the reestablishment of a kind of cultural community of which the

Sephardim formed part in the past.

According to Hans Ulrich Jessurun d’Oliveira, the difficulties when applying for the

Spanish nationality arise in the demonstration of the link with the Sephardic expellees.

More or less the same situation can be found in Portugal, where the legislation was put

in place in 2013. The new piece of legislation grants, under certain conditions, the

Portuguese nationality by naturalisation to the descendants of Portuguese Sephardic

Jews if they are able to demonstrate to belong traditionally to a Sephardic community

of Portuguese origin. Interestingly, there is no residence requirement, so it is possible

for them to stay in their home countries while applying for the Portuguese nationality.

He highlighted that in both countries, Spain and Portugal, there is no requirement to

give up your original nationality. It is progressive from the perspective of Spain and

Portugal, but what would the countries of origin say? For instance, in the Netherlands

the voluntary acquisition of a foreign nationality is a ground for automatic loss of the

Dutch nationality. But if a foreign national acquires the Dutch nationality, he or she

does not always need to give up his or her previous nationality according to the Dutch

legislation. It is not necessary to do so, if this would be unreasonable. Hans Ulrich

Jessurun d’Oliveira stated that this is unreasonable and seems to be also arbitrary. Why

may a Dutch Sephardim only acquire the Spanish or Portuguese nationality by losing

automatically their Dutch nationality? The lack of an exception of reasonableness in the

Dutch regulation for Dutch citizens acquiring voluntarily a foreign nationality, opens

the door to arbitrariness, which is contrary to the European Convention on Nationality.

Regarding EU law and its influence on the member states regulation concerning

nationality, he said that he has a conservative position. Starting with the Micheletti

case, Hans Ulrich Jessurun d’Oliveira understood that the case was wrongly decided.

The CJEU has no jurisdiction on matters of nationality of the member states. For the

CJEU and the EU institutions at large, it would be necessary a transfer of competences

in this area according to the Treaties in order to intervene in this issue, he stated. And

there is no autonomous member state without the right to determine who their citizens

are. And there will be no States anymore if the competence to determine who their

citizens are is transferred. If the States are not autonomous, not sovereign to define, as

an aspect of their statehood, who their citizens are, there are no States. He pointed out

that Micheletti was not about the acquisition or loss of a member state nationality, it

was about recognition by member states of the European consequences of the

undisputed possession of a member state nationality, the consequences for EU law. It

was not about Article 3, section 1 of the European Convention on Nationality (each

State shall determine under its own law who are its nationals) but section 2 (this law

shall be accepted by other States in so far as it is consistent with applicable

international conventions, customary international law and the principles of law

generally recognised with regard to nationality). Not only the CJEU stressed its

competence in this field, but the Commission and the European Parliament took

positions although they have no competence to do so. Due regard to the principle of

subsidiarity implies, according to Hans Ulrich Jessurun d’Oliveira, that in order to have

something to say in this matter a formal transfer of competence, in this sensitive area

which concerns the existence itself of the member states, is needed.

Despite the previous comments, it remains to answer the question of the possible

influence of the EU law on the new nationality regulations of Spain and Portugal

regarding Sephardic Jews. One may make a distinction between the situation in which a

Sephardic EU citizen acquires the Spanish or Portuguese nationality and the situation of

a Sephardic third country national acquiring such nationalities. In the first case the

person involved remains EU citizen. The rights and duties conferred and protected by

the EU are not affected in principle, he explained. But what about those situations, for

instance under the Dutch legislation, in which a Dutch Sephardic who accepts the

invitation of one of the Iberian member states automatically losses the Dutch

nationality? Persons have the right to shape their own identity, including their

affiliation to countries throughout the nationality bond. This right is protected by

Article 8 of the European Convention of Human Rights and that could lead to a situation

in which a person decides to have two nationalities. It is completely possible that by the

exercise of shaping one own identity one feels attached not only to one country. And

the own preamble of the European Convention of Nationality reflects this by stating

that in matters concerning nationality, account should be taken both of the legitimate

interests of States and those of individuals. So is not only the interest of States but the

persons concerned that shall be taken into account. And, he pointed out that in this field

of human rights, and specifically in the light of the Genovese v. Malta case, dual

nationality situations shall be permitted.

In the case of a third country Sephardim acquiring the Spanish or Portuguese

nationality, he made some remarks in the light of the Nottebohm case and the genuine

link. The Liechtenstein nationality was not discussed in that case, the dispute was about

the consequences under international law of the Liechtenstein nationality in terms of

diplomatic protection. One may imagine that the same question arises in terms of EU

law: although a third country Sephardim acquires without doubt the nationality of

Spain or Portugal, whether the EU citizenship is attached to that status is a matter of

recognition. There may come a moment in which not all nationals of member states

enjoy the fundamental status of EU citizen, and not all non-nationals of member states

may be excluded from this status. The one-to-one nexus between the nationality of a

member state and EU citizenship will ultimately be loosened up in both directions.

Back to the question of who are the descendants of the Sephardic Jews living in the

Iberian Peninsula 500 years ago. How to proof that origin? Paradoxically, that was a

vital issue for Sephardim in the Netherlands during World War II, he stated.

Individually and collectively they sought to escape deportation and death in the

concentration camps. One of these collective endeavours was to mount a reasoning

claiming that Sephardim were in reality no Jews, but that they belonged to

Mediterranean or alpine races. The German race theory with its store of race

characteristics of Jews was in fact used to show that the Sephardim did not fit into that

race. In the Netherlands there existed the opportunity, and in this it differed from

Germany, to attack the listing as Jew with all the consequences. He explained that this

arrangement, to allow evidence against Jewish, was the work of a German lawyer, Dr

Hans Calmeyer, who ran a small office of the German occupational apparatus in The

Hague. The Dutch population had been required to report the number of Jewish parents

and grandparents on the basis of which they were considered Jewish themselves

according to classifications along the line of the Neurenberger Gesetze. Some member of

the Sephardic community had commissioned an anthropologic research that should

show that the Sephardim were, in reality, not Jews but belonged to races prevalent in

the Iberian Peninsula. They asked Dr Arie de Froe, a young medical scholar who had

worked already in this field, which had issued a large number of individual affidavits,

mostly with fraudulent data, stating that the person involved was not Jewish. He

accepted and produced eventually an impressive report on the basis of measurements

of a large number of physical characteristics such as craniometrist of a considerable

number of Sephardim. His conclusion was that the Sephardim showed clear differences

with the Ashkenazim and with the Dutch population generally. A similar research had

already been conducted before the war by an internationally distinguished scholar,

Prof Ariëns Kappers, who had come to the same conclusions and who approved with

his authority De Froe’s report. The Sephardim, according to the report, had merged

with the Iberian population before their banishment and has assumed the

characteristics of these peoples. Dr Calmeyer, who already nurtured similar opinions,

was inclined to accept the report and to exclude the Sephardim from deportation. He

was, however, surrounded by other forces in the German occupational administration

and by Dutch collaborators, specialized in genealogy, and this lead in the end to a

disaster. On February 1 1945 a razzia took place for the few hundred Sephardim left on

Calmeyer’s list, ascertained in the Durchgangslager Westerbork as rassisches

Untermenschentum and almost all, after a stay in Theresienstadt, murdered in

extermination camps, mostly Auschwitz.

Hans Ulrich Jessurun d’Oliveira highlighted that it is a strange whim of fate that the

efforts made in World War II to show the Iberian lineage in order to escape the Nazi

scourge, are now, seventy years later, available for those Sephardim who desire to

acquire the Spanish or Portuguese nationality and by that token accept the

Wiedergutmachung for the atrocities of half a millennium ago perpetrated by State and

Church in these countries.

Researches to show that the Dutch Sephardim were not Jews at all now are used to

show that they are, he concluded.

René de Groot took the floor again in order to start and led the questions and answers

turn.

Adrian Barry took the floor and addressed the following questions/considerations to

Sergio Carrera. In terms of requiring a genuine link, looking at the residence test, it

seems that a person applying for nationality in Caribbean countries in which a donation

system applies, one of the advantages is the acquiring of a visa free travel possibility

within the EU. And this situation is accepted by EU States. Regarding the Maltese case,

is it not more respectful to the EU treaties to say, that so far the EU law does not govern

the circumstances of the acquisition of an EU member state nationality; it is left to

Malta according to the principle of subsidiarity to do something that Malta is

completely entitled to do. The reason of this consideration is that the real question in

number terms is not the Maltese government selling its citizenship to a couple of

hundred persons, it is about other EU countries like Italy and Romania conferring

nationality by descent to people in South America or Eastern Europe and that does not

seem to be problematic for the European Commission.

Sergio Carrera agreed with comments of Adrian Berry. In the paper are highlighted as

the most relevant issues from a European point of view. The consequences of those

decisions for the freedom of movement, for the mobility, that is one of the most

distinguished featured components of the EU citizenship. The intra EU mobility is still a

key determining factor. And what Malta is selling is that, the consequences of selling

Maltese nationality are actually the selling free movements. And as regards to the

genuine link, he thinks that it is important for the EU institutions not to get there.

Sergio Carrera agreed that this is a matter within the autonomous competences of the

member states. There has to be a debate not only from a quantitative point of view but

also about the qualitative implications that member states action or inaction creates.

Going deeper into the genuine link takes us to fields in which the EU institutions should

not have gone, which is strengthening nationalism with the risks already mentioned in

the field of human rights.

Maxim Ferschtman took the floor addressing a question to Kay Hailbronner. Since EU

nationals are exempted from the new option legislation, it seems that it creates a

different treatment between EU double nationals and mainly German-Turkish double

nationals, or other nationalities such as Moroccans. At the end there is a group of

people that have to fulfil more obligations in order to keep the German nationality. Is

this situation changing?

Kay Hailbronner pointed that this situation is unchanged, although it is only applicable

to the limited number of people that does not fulfil the residence requirements. EU

citizens are totally excluded from the system so they can keep the dual nationality

without any further requirements. However, the situations of Moroccans and other

Maghreb countries nationals cannot be defined as discriminatory or differential

treatment, since they fall into the general clause of impossibility to renounce the

foreign nationality (because the national law of those countries does not allow to do

so). He made a brief remark on the arbitrariness which is being frequently raised on the

debates, stating that it is necessary to distinguish between arbitrary or discriminatory

treatment and coherent legislation, which are two completely different concepts.

Georgia Georgiadou took the floor to make a comment on the two different

perspectives to address the Micheletti doctrine exposed by Sergio Carrera and Hans

Ulrich Jessurun d’Oliveira. She pointed that the ruling of the CJEU in that case was

inevitable, although it dealt with an area of competence that it is in principle out of the

limits of the EU, but have effects on rights conferred by an EU status such as EU

citizenship; the field at stake is the consequences of granting member states

nationalities and, therefore, EU citizenship. The Commission acts as guardian of the

Micheletti doctrine in order to make sure that it is respected. With the Maastricht

Treaty all member states seem to reach to a common understanding about the

existence of similar criteria regarding granting nationality, and where one of them

seems to depart from them it is when the tensions arise.

1.3. Panel I: General principles of European law and nationality: what

implications for member states autonomy?

The chair person, Natalie Stockwell, took the floor to introduce the topic of the panel,

that is, the question of the autonomy of the member states in the field of citizenship and

introduce the speakers and discussants.

Floor was given to René de Groot. He pointed out the existence of a paper available on

the ILEC website that offers a picture of the obligations existing under international and

European law in respect of the loss of nationality. However, he noted the importance of

highlighting certain national and international rules and case law relevant for the topic

of loss of nationality. That is the main purpose of his presentation.

The first obligation is already enshrined in Article 15 of UDHR according to which

arbitrary deprivation of nationality is forbidden. The point here is what arbitrary

deprivation is. The lack of comprehensive documents dealing with arbitrary

deprivation of nationality is remarkable, so he suggested that in the framework of the

ILEC project it would be nice to bring some light on this issue. In this line, he mentioned

a not really well known 2009 Report of Secretary General UN to Human Rights Council

that addresses the topic of arbitrary deprivation of nationality.

For Europe, René de Groot highlighted the importance of European Convention of

Nationality in which an exhaustive list of acceptable grounds for loss of nationality is

laid down in Articles 7 and 8. Causing statelessness is only acceptable on the basis of

one single ground, that is, in case of the discovery of fraud. Regarding the ratification

status of the Convention, 20 States ratified the European Convention of Nationality, that

is not a majority of the EU member states and in recent years no ratifications have

taken place.

René de Groot continued by mentioned the Recommendation 2009/13 of the Council of

Europe on the nationality position of children that elaborates on a couple of principles

of the European Convention of Nationality but also goes beyond the rules of the

Convention. This document mainly deals with the right of acquisition of nationality but

also some rules on the loss of nationality. And it is important, stated René de Groot, the

principle of protection of legitimate expectations enshrined in the Recommendation.

Also expressly mention is needed of the 1961 UN Convention on the reduction of

statelessness, from which the drafters of the European Convention of Nationality took

inspiration, although both documents are different. States that have ratified both legal

documents have to obey the rules of both conventions. The number of ratifications has

increased in the last few years (the last State that decided to ratify was Belgium, in

April 2014), reaching the current number of 55 States. As regards to the main principle,

the 1961 UN Convention establishes the prohibition of loss or deprivation of nationality

if statelessness is caused with some exceptions. Those exceptions are permanent

resident abroad, fraud and, if there is a declaration of retention of the State involved,

behaviour seriously prejudicial to vital interests of the State. This declaration of

retention is object of a very recent discussion in the UK. Under his view, the word

retention implies that if the State concerned does not maintain this ground for loss

anymore (with statelessness as consequence) it is not possible to reintroduce this.

It is also important to identify other documents related to the 1961 UN Convention. The

UNHCR did a lot of work the past few years on promoting the accession to the

convention but also on the interpretation of the rules of the convention. In this line, a

year ago the Guidelines No. 4 on the interpretation of Articles 1-4 of the convention

were published and, currently, work is in progress on the interpretation of the loss

provisions of the convention. Although the outcome is not still available, one can make

a picture of its content by reading the Summary Conclusions of 2013 Tunis Expert

Meeting convened by UNCHR. He stated that it is really relevant for the discussion and

the overall goal of the ILEC project to identify policy brief to pay attention to the

guidelines in that Summary Conclusions.

As regards to the influence of EU law, the Rottmann case had been already treated so

René de Groot moved on quickly to the influence of the ECHR. In this line, it is

unavoidable to mention the Genovese v Malta decision, dealing with the acquisition of

nationality, in which the ECtHR stated that nationality is as part of the social identity

and the social identity part of the private life protected by Article 8 ECHR. Although the

issue in Genovese v Malta was acquisition of nationality, René de Groot has the position

that it could be applicable a fortiori for loss of nationality. If the ECtHR stated that

nationality is as part of the social identity, the loss of nationality has as well

consequences for the social identity. In this sense, a reflection on Genovese v Malta is

needed in the context of the ILEC project.

As regard to arbitrary deprivation, René de Groot identified a set of rules or principles

following from this obligation to avoid all arbitrariness.

1. A loss or deprivation of nationality must have a firm legal basis.

2. A legal provision regarding loss or allowing deprivation of nationality may not be

enacted with retroactivity (nulla perditio, sine praevia lege). However, restrictions of

a loss provision may be given retroactivity.

3. In case of the introduction of a new ground of loss, a reasonable transitory provision

has to be made to avoid an individual losing his nationality due to an act that had

already started before the introduction of the new ground of loss.

4. A legal provision regarding the acquisition of nationality may not be repealed with

retroactivity.

5. The principle tempus regit factum, i.e. to establish whether a person acquired or lost

a nationality by certain acts or facts, the legislation which was in force at the

moment these acts or facts happened has to be applied. Transitory provisions may

make exceptions, but not contrary to principles 2 and 3 above.

6. Loss or deprivation provisions must be easy accessible and predictable. They may

not be interpreted by analogy (applied on facts which are not evidently covered by

the wording of the provisions involved).

7. The grounds given for a deprivation decision must be proportional, in the light of

the Rottmann case. It is remarkable that the UN Secretary-General already in 2009

identified this principle in a Report submitted to the Human Rights Council.

8. The administrative practice based on loss or deprivation provisions may not be

discriminatory.

9. It must be possible to challenge the application of loss-provisions or acts of

deprivation in court. Procedural safeguards are essential to prevent abuse of the

law. During the procedures the person concerned should be treated as a national

and only when all the possible remedies are exhausted, the deprivation or loss of

nationality can be effective.

The floor is given to Rainer Bauböck. He introduced his presentation as a reflection on

the EU dimension of the member states policies on acquisition and loss of citizenship,

although mostly focus on acquisition. It is not by accident that the CJEU has picked up

the case of loss of EU citizenship and just eluded any pronunciation on the acquisition.

As regard to withdrawal the impacts is on individuals as bearers of EU citizenship

rights. EU institutions have the responsibility to make sure that member states respect

this status and the rights that nationals have as EU citizenships it is obvious that the

CJEU will be concerned if member states through their policies on withdrawal of

nationality can just deprive individuals of the EU citizenship and the rights attached to

that status. With regard to acquisition it is different because it actually implies giving

individuals the access to the EU citizenship status, an additional benefit. There is no

loss involved but something that it is gained. So what would be the potential concerns

that could raise in the EU institutions? It seems that primarily it has an impact in other

member states rather than an impact on the individual acquiring the status. Member

states have the power to control access to their territory regarding migrants (third

country nationals), control on the labour market and control access to the social

benefits system. If other member states can transform third country nationals into EU

citizenships without any concern on how this will impact in other member states, there

is obviously an EU dimension.

As regards to withdrawal, since the topic has been already explained extensively by

previous speaker, so Rainer Bauböck just mentions briefly the Rottmann standards and

the cases of UK (“if conducive to the public good” clause) and Germany (option system).

Back to the main topic of his presentation, the EU member states norms for acquisition

of nationality and the debate of sincere cooperation and genuine link, in past opinions

(René de Groot and the AG Opinion Maduro in the Rottmann case) only the hypothetical

case is discussed of a member state engaging in massive extraterritorial

naturalisations, without consultation, of third country nationals that then can get

immediately access to the rest of the member states. That would be considered to

violate the duty of sincere cooperation. Interesting in politic observation is that it can

be said that massive naturalisation had happened although not in an obvious way. In

some member states, including Italy, Spain, Romania and Hungary, there has been very

large number of extraterritorial naturalisations. And in most of these cases it was clear

that the incentive of the applicant was gaining access to the EU labour market rather

than acquiring the nationality of the member state involved. So, although the EU

dimension seems obvious, the Commission has been quite hesitating. The interesting

development is now the Maltese case, in which the intervention of the Commission and

the European Parliament was unexpected and surprisingly strong. The Maltese case

raises questions regarding the future standards of sincere cooperation and genuine link

in attribution of member states nationality and EU citizenship.

Regarding the so called golden residence permits is interesting to observe that if a

member state sells the resident permit it can only be used for the purpose of residence

in that member state and no in other EU member states. The one legal title that could

potentially give access to residence in other EU member states is the EU third country

national long term residence permit, and this permit cannot be sold by member states.

This constitutes a paradox: member states cannot sell the long term residence permit

but they can sell their own nationality that grants third country nationals the access to

the rest of the member states. In this scenario, Rainer Bauböck pointed out that the

Commission has been very consistent in saying this is not just about Malta so

nationality policies in other member states have to be investigated. But beyond listing

this kind of practices in the member states, it is necessary to bring some light in the

interpretation of the principles of sincere cooperation and the genuine link that

underlies the intervention in the Maltese case. At the end the concern is not the

quantity but about the substance of EU citizenship and the matter that it should not be

a commodity, should not be possible to turn it into a tradable good.

In this point Rainer Bauböck identifies the problem of the own definition of the

substance of the EU citizenship. Beyond the rights attached to that status, there is need

to define what is in the substance of the EU citizenship that makes it illegitimate to do

what Malta has done.

As a political theorist, Rainer Bauböck speculates with four different hypothetical

scenarios (commodification, nationalisation, territorialisation and integration) in which

the substance of the EU citizenship may change according to the way EU institutions

and the member states behave and develop different conceptions of the substance of

the EU according to the different outcomes of the different scenarios.

Commodification. This is the Maltese case scenario in which citizenship is traded

as a commodity and tool for economics gains. If all the member states are

encourage to trade with their nationalities, the price will fall, although an EU

coordinated auction system could also raise the price of the citizenship. From

economic point of view, this scenario will bring fiscal and economic benefits but

the national and EU citizenship will be devaluated.

Nationalisation. This could be a possible model in which the citizenship is used

as a tool for nation-building purposes outside the territories of the member

states. This could imply either a global diaspora or a neighbouring kin-minority.

Many member states have currently the potential to develop this policy in their

nationality laws simply through ius sanguinis in combination with the toleration

of multiple nationalities. This scenario has the benefit of open the door into the

EU to a potentially large number of third country nationals but the negative

effects of the discriminatory selection, the quantitative impact in other member

states and the potential conflicts between kin States and kin minority host States.

Territorialisation. This constitutes a currently utopian model aiming to the

building of an EU federal state. The idea is to assert the genuine link criterion not

with the member states but with the EU. And a genuine link with the EU can only

be conceivable territorially (the EU is a community of deeply divided cultures).

How can this be done? First step would be direct access to EU citizenship for long

term residents, following by a second more radical step such as the

establishment of the ius soli in the EU territory. Within this scenario it is possible

to compensate third country nationals for the current exclusion of EU

citizenship. As regards to negative effects, it could be detrimental for the

integration of third country nationals into the member states, it will add political

pressure against free movements and, the mainly, it is contrary to the purpose of

the EU as a union of member states.

Integration. In this last model the EU citizenship derives also from the member

states nationality. There are still four main reasons to assert the existence of an

EU concern on member states nationality policy and those reasons should be

object of negotiations. The dialogue between EU and the member states could

reach to different outcomes, sometimes constrains, amendment of the treaties or

the development of guidelines to follow on the field of nationality. Those four

reasons are the free movement rights (Rottmann standards), the own substance

of the EU citizenship (prevention of commodification and nationalisation of the

EU citizenship), the integration policy (regarding the integration of long term

residents and third country nationals) and the fair and equal representation

(voting rights and political representation).

Natalie Stockwell then gave the floor to the first discussant, Alenka Prvinsek, which

provided the standpoint of the Council of Europe on the topic. She started by

highlighting that the definition of nationality has to be further clarified, as it falls within

the framework of the debate about the sovereignty of the member states and the EU

role on this field. When in the Council of Europe works were conducted to develop the

European Convention on Nationality, long time was taken by the experts to come up

with the following definition of nationality, as listed in the convention, “It’s a legal bond

between the State and the individual, and does not indicate an ethnic belonging.”

Despite this definition, there is a terrible mixture of what nationality means, especially

regarding the position of the nationality laws of candidate member states to the EU in

which the ethnic principal is still prevalent.

She commented one of the points already raised by Prof Bauböck about the genuine

link and what it means in correlation to nationality in terms of the Council of Europe

instruments and in correlation to the existing citizenship within the EU. Taking into

account her background as a law practitioner, she provided also a practical approach.

Taking as a starting point the possible ways to harmonise or create a common standard

in the field of EU citizenship mentioned by Prof Bauböck, it is important to address and

reflect on the consequences arising from the conflicts and tensions between member

states related to the ethnic grounds of certain nationalities.

With the purpose of drawing the attention on this situation she explained her personal

experience during the evaluation of the one candidate country in which a big case

appeared dealing with the State practice of granting its nationality to a person who was

the former Prime Minister of a south Asian State. The reaction of the political

representatives of the State at stake to the report, which was based on the Nottebom

case, was requiring an explanation on the practice of other States, already EU member

states that have similar systems on their legislation. And the reflection made by these

political representatives was that they do not see the membership to the EU in a close

term period.

Alenka Prvinsek also remarked, in relation to the previous presentation of René de

Groot, the idea of the avoidance of arbitrariness in the States’ practice. In this line, the

European Convention of nationality contains provisions that cover the procedural

safeguards. From a practical point of view this implies, stated Alenka Prvinsek, that

each State’s decision on acquisition or loss of nationality should contain explained

reasons. This would bring much more transparency to the proclaimed principles in the

preamble of the convention, taking into account the legitimate interest of the individual

and, specifically, the balance between State interest and individual interest. Another

aspect highlighted by Alenka Prvinsek was the fair application of the right to appeal.

In the Council of Europe legislature framework it still stands that the right to

nationality is human right per se. The political position in the Council of Europe could

be considered slightly more directed or close to the individual and, according to Alenka

Prvinsek, this position could be translated into an additional protocol to the

convention. However, she indicated that Europe is lagging behind on this issue in

compare to Africa (African Charter of Rights and Welfare of the Child) or America

(American Convention on Human Rights). If the EU member states, which are also the

members of the Council of Europe, do not acknowledge the need that nationality is a

human right but indirectly many rights and obligations can be attached to its content,

then one can question the meaning of nationality in relation to the EU citizenship.

Alenka Prvinsek went a step further and, taking as a starting point the dissolution of the

former Yugoslavia, she asked the following question: What happens if a small part of

the territory of the EU member state does proclaim its independence? What will

happen then with the concepts of the nationality, acquired rights, retroactivity,…?

Barbara Walentynowicz took the floor and gave her approach in the light of her work in

the European Economic and Social Committee. She explained the last outcomes of the

work in the European Integration Forum and the European Economic and Social

Committee.

European Integration Forum constitutes a dialogue platform with the participation of

the European Commission with the goal to enable dialogue between European

institutions and several society organisations (EU platforms and nationals NGOs

dealing with integration of immigrants). The forum meets twice a year dealing with

different subjects and the one treated in the 10th forum (November, 2013) is interesting

for the present ILEC project since the title was “Participation of migrants in democratic

process - Towards a more inclusive citizenship”. Barbara Walentynowicz explained that

part of the debate was focused on citizenship, although it is a topic that falls within the

sovereign competences of the States, and a declaration was adopted by the

participating civil society organisations. Previously to that declaration, the European

Economic and Social Committee released an own-initiative opinion on a more inclusive

citizenship open to immigrants which contains as key points recommendations to

national governments and to EU institutions and a proposal of a treaty modification.

The main idea of the opinion is that access to citizenship for migrants improves

integration and their image within the country. In order to achieve this goal, Barbara

Walentynowicz indicated that some proposals were suggested to the member states,

i.e., barriers in the procedures to acquire nationality should be removed; dual

nationality should be possible and member states should sign and ratify the 1997

European Convention on Nationality and the 1992 Convention on the Participation of

Foreigners in Public Life at Local Level. As regards the recommendations to EU

institutions, the Commission should investigate the barriers that in some member

states still hamper implementation of the long-term resident status and the Blue Card

and further develop the concept of EU citizenship. Regarding the treaties reform, it was

proposed that Article 20 TFEU should be amended so that third-country nationals who

have stable, long-term resident status can also become EU citizens. The declaration

follows, as indicated by Barbara Walentynowicz, the same lines of the own-initiative

opinion.

Assya Kavrakova took the floor to make a brief presentation on the role of the

European Citizen Action Service (ECAS), a non-profit organization providing services to

civil organisations and individuals on how to lobby, fundraise, and defend European

citizenship rights. Assya Kavrakova highlighted the existence of a legal service dealing

with problems that appear in the exercise of EU citizenship rights. From the practical

experience of this service she indicates that it has been detected that member states

have found more imaginative ways to hamper the free movement rights; last year the

legal service received 1,100 questions per month and the current year this number has

risen till 2,000 questions. For the most complicated cases which require legal

intervention, the ECAS counts with the collaboration of the University of Ghent that last

year dealt with 60 cases of complex breach of human rights, 40% of them originated in

the UK. Assya Kavrakova also remarked the role of the ECAS in the European Citizens’

Initiative.

According to the experience of the ECAS, Assya Kavrakova brought the following two

points to conclude her intervention. First, the ECAS realised that even in the EU

countries that are not selling explicitly their nationality, there is a cost involved (fees

that migrants have to pay in the naturalisation procedure) that is different in each

member state, from €1,000 to €0. Second, the different policies of the member states

have a very big impact in the access to the content of the EU citizenship, i.e., the rights

attached to that status. She gave the next example: as a consequence of the mixture of

two regimes (passport regime and residency regime) and the own regulation of the

European Citizens’ Initiative, there are around 11millions EU citizens that cannot sign a

European Citizens’ Initiative.

Natalie Stockwell took the floor to open the turn of questions and answer. Floor was

given to several participants who raised the following questions and considerations.

The first remark made dealt with the commodification of citizenship and the different

approaches that can be analysed. If one uses the Nottebohm approach, one can

conclude that it is a cultural commodity; it is about genuine link. If one uses the Russian

approach, that is, handing out passports in eastern Ukraine, it’s a political commodity, o

be used to achieve political goals. If one does the Hungarian move and hand it out to

people in your neighbouring country you are doing a political move but you are also

doing a territorial move, so it is a territorial commodity. And there is the traditional

approach: Citizenship is an inheritable commodity (it is inherited from parents). Clearly

there are many ways of thinking of citizenship and the examples illustrate the different

types of commodification. Thus, if citizenship can be defined as a commodity, what kind

of commodity is it?

The next question was related to the paradox between countries being able to sell EU

citizenship and the paradox of them not being able to do so regarding long term

residence permit. But is not the paradox inherent in the nature of EU citizenship which

is directly related to the acquisition of national citizenship, whereas for the actual long

term residence permit one is required to stay for 5 years in a member state. So it does

not seem that much of a paradox because the golden residence programmes essentially

offer to the investor the opportunity to stay in that country.

Sergio Carrera took the floor. He expressed his interest in the consequences of selling

citizenship or citizenship freedoms. That is the reason why in his paper Sergio Carrera

argued that EU citizenship should not get to the field of the genuine link, to issues

related to acquisition of nationality because it could lead to nationalism and against the

EU, as a machinery of legitimizing exclusionary practices at national level. And when

reflecting on the role of the ILEC project in developing guidelines of good practices, this

is a question that has to be carefully considered, he stated. There is an apparent

contradiction there. One can observe that, when the EU tries to coordinate member

states policies, it ends up trapped in a nationalistic project, into integration, into a

genuine link. The role that the EU has been taking in supporting member states with

good practice and guidelines is actually doing that; justifying restrictive integration

policies, which has been highly criticised from the CEPS, Sergio Carrera stated. He

suggested that this situation should be taken into consideration.

Hans Ulrich Jessurun d’Oliveira took the floor. He referred firstly to a provision of the

18th century from the French nationality legislation that already showed the

merchandising as a commodity of being French. He pointed that this is a very

traditional practice in many countries. He also commented the issue of naturalization of

sportsmen. What one can see is that countries buy foreign sportsmen, he stated. That is

the commodity for the states to buy great sportsmen in order to let them win their

medals in the international championships. So here the commodity is for the state and

not for the counterpart, the big sportsman. What he wanted to stressed was that states

have their own interests in granting nationality for purely reasons of being able to

show their sports abilities and other similar things. Therefore, he concluded that one

has to be very conscious in narrowing down grants for acquisition and loss of

nationality. Secondly, there are already elements in nationality laws of member states

which refer directly to residence in other member states as counts as residence for the

state involved, in terms of residence requirements for naturalization. So he pointed out

that something is coming up already in this greater territorialisation of the European

area.

Floor was given to Eva Ersbøll. In connection to the comment of Hans Ulrich Jessurun

d’Oliveira she stressed that in the naturalisation of sportsmen at least there is a

connection with the country; a person who wants to live there and a country who

wants that individual person. But in the Maltese case there is no connection, it is a

complete non-personalization: a rich person wants to have access to EU citizenship and

he would choose Malta, but that person could choose another country if the same

programme is offered; in fact he would just go for the cheapest country.

Rainer Bauböck took the floor. He firstly agreed with Hans Ulrich Jessurun d’Oliveira

that merchandising citizenship is a very old practice. It is not a new thing but has

always created a moral outrage of some kind. There is something about the integrity of

citizenship that is being damaged when it is being sold, stated Rainer Bauböck. In

relation to the emerging territoriality, he showed himself very surprised on how weak

it really is. If one looks at the number of states that facilitate naturalization for citizens

of other member states, it is very low. So it is not a consistent pattern that member

states would, with regard to acquisition and loss of nationality, make a distinction

between EU citizens and third country nationals. He stated that the idea of EU

citizenship as being something special in this regard, it is not very strong precisely

because member states think that they have absolute sovereignty over nationality and

it is not an EU matter. In relation with idea expressed by Sergio Carrera, that it is wrong

to sell free movement, Rainer Bauböck pointed out that an economist will ask what is

wrong with that. An economist will say that EU citizenship is a jointly produced value,

like in a cooperative, and if you can enhance the income of the cooperative by letting

each member sell the jointly produced goods, that is economically completely rational.

If not only Malta, but each member state do it, what would be bad about this? And here

is the point where the genuine link argument cannot be avoided; it changes the

substance of citizenship, gives it a different quality, a transit into a tradable commodity

rather than the criterion of membership in community. But here raises the question of

whether the genuine link criterion has a potential to be interpreted restrictively, in a

nationalistic way and consequently supports restrictive citizenship acquisition laws.

Rainer Bauböck said that in the Nottebohm case that was the point. What were

discussed are the minimum criteria. It was not said that if someone meets all of these

criteria then he or she can become a citizen, it was rather as soon as someone meets

these criteria then he or she can be reasonable qualified as citizen or the state can

provide diplomatic protection because that person actually has been a resident for long

enough. He explained that a different interpretation of the genuine link can serve as a

very strong argument for naturalization claims of immigrants on the ground of long

term residence; being the most obvious cases the children born in the territory or the

long term residents of first generation immigrants. Those have stronger genuine links

than the first generation born in Argentina with an Italian ancestor. Rainer Bauböck

stated that there the genuine link is much weaker. He argued that a proper

interpretation of genuine link will undermine the nationalist argument, a genuine link

based in actual social ties to a political community. Residence is the strongest indicator,

but not the only one. There is still a reason, he stated, why citizenship is a lifelong

status that you do not lose if you take up residence elsewhere.

He also remarked that one should not ask what kind of commodity citizenship is, but

what kind of good it is. The commodity idea suggests that there is a market in which it

can be traded. The two philosophers who reflected about this, Michael Sandel and

Michael Walzer, proposed that it should be considered as a good, that is, not a tradable

commodity. Walzer argument in 1983 already was that citizenship is the primary good.

Liberal societies have achieved to distribute goods such as work, honour, even love; but

before proceed to the distribution it was necessary to establish to whom these goods

will distribute. Citizenship must not be exchangeable with the other goods, especially

money but also political power. Power should not give you the possibility to buy

citizenship and money should not give you the possibility to buy citizenship, because

that corrupts the essence of what it means to be a member of the community.

Finally he addressed the question of what is wrong with citizenship in our present

world and its inheritable nature. He reflected about the concept of inheritance within

the framework of acquisition of nationality. If one inherited something from a relative

that means that the relative must have been dead, this is not the case when someone

gets the citizenship by birth from his or her parents. He also pointed that the

possession of that nationality does not make someone different from all the others who

have also been born acquiring the citizenship of their parents. Ius sanguinis makes

everyone equal with regard to rest of those born in the same circumstances regarding

nationality. Nobody inherits the nationality from parents; it’s a regime of equality

among people who share the accidental circumstance of being born into that

citizenship. In that sense it is not different from acquiring citizenship by ius soli, which

is equality among citizens who share the accidental circumstance of being born in a

certain state territory. The accidental element is different but in any case it is not a

difference between inheritance and non-inheritance.

René de Groot took the floor in order to endorse the issue of the relevance of residence

in other member state; its relevance in the context of having access to nationality of a

certain state, when taking into account that someone has already build up a link with

the EU, but also with some member states, in terms of loss of nationality and therefore

EU citizenship. He suggested keeping the researches in that line. Regarding investor’s

programmes, he asked what happens if the investor does not keep the investment and

what if member states allow in such cases the deprivation of nationality but this is a

point to discuss in the light of the declarations of a Maltese political party that stated “if

we come to power we will take back the naturalisations”. In his opinion this would be

an arbitrary deprivation of nationality and therefore of European citizenship.

1.4. Panel II: Loss of Citizenship

Elspeth Guild, the chair person, took the floor to introduce the topic of the panel, that is,

the question of loss of citizenship (what loss is, how to understand loss in terms of

citizenship and linked to EU citizenship), and also to present the speakers and

discussants.

Floor is given to Maarten Vink, who introduced the presentation on the framework of a

joint research paper co-written with René de Groot and build on the material collected

in the context of the ILEC from the country experts.

The paper deals with involuntary loss of citizenship, taking a relatively broad approach

to the concept of involuntary: all grounds of loss that are not an explicit expression of

individual’s will to renounce citizenship were considered. Among the grounds which

fall within the scope of the paper there is room to discuss to what extent some of the

grounds are really involuntary. He stressed the examples of voluntary acquisition of a

foreign nationality or the voluntary foreign military service and non-military public

service. However, he pointed out that, in their view, the consequences attached to these

cases are not voluntary.

The paper essentially analysed the different grounds of involuntary loss of citizenship

in the light of international legislation, specifically the European Convention on

Nationality and UN 1961 Convention on the reduction of statelessness. Procedural

aspects were also taken into account, specially the proportionality test as established in

the Rottmann decision.

Maarten Vink addressed the first ground of involuntary loss studied in the research,

which is the voluntary acquisition of a foreign citizenship. The international framework

regarding this ground is based on 1963 Convention on the Reduction of Cases of

Multiple Nationality and Military Obligations in Cases of Multiple Nationality, although

increasable fewer countries are part of this instrument. Only two countries (Denmark

and Norway) are bound without exceptions and two other contracting States with some

exceptions (Austria and the Netherlands); and in the case of the Netherlands because of

the exceptions provided by the 1993 Second Protocol which give more leeway under

certain categories to allow dual nationality situations (as regulated in Article 7(1)(a) of

the European Convention on Nationality).

He pointed that this ground is progressively disappearing in the legislation of the

European countries, however there are 10 out of 28 member states in which this

ground still applies. In most cases is an automatic ground of loss (meaning that as soon

as a foreign nationality is acquired the previous one is lost). Notwithstanding, the trend

is to gradually abolish this ground, being the Czech Republic the last country to do so in

2014. Additionally, some states like Germany, the Netherlands and Latvia keep this

ground but they have introduced exceptions.

He addressed fraud as the second ground for loss, regulated in Article 7(1)(b) of the

European Convention on Nationality and remarked its relevance since the states can

deprive individuals of their nationalities even if that causes statelessness. In the

European Convention on Nationality this is an exception to the general rule, only in this

case deprivation may cause statelessness (Article 7 (3)). Linked to this ground there

are some problematic questions: What if fraud committed by legal representative? Who

has the blame of the fraud (culpability)? Should there be a causal link between the

fraudulent act and the acquisition of citizenship?

Maarten Vink stressed that this ground is the most common among the member states.

It could be found on the legislation of 24 member states. Only Croatia, Italia, Poland and

Sweden do not foresee this ground of loss of citizenship. The absence of this loss

provision could be discussed from an EU perspective, since it means giving an

individual the citizenship, and consequently the EU citizenship, even he or she lied

about the identity or residence requirements.

As regards to the procedure, most of the member states have a withdrawal procedure

(loss takes place in the moment of withdrawal) although nullification procedures can

also be found on some of them (nationality is deemed never to be acquired). Another

important question analysed regarding fraud is the time limit in which the loss can take

place since the acquisition of the nationality, in which lapses differ from one state to

another. He remarked the fact that the time limit can reach more than 10 years and this

situation can be considered in the light of genuine link and legitimate expectations. In

relation to the protection against statelessness, this in only provided by Bulgaria,

France and Luxembourg.

Then Maarten Vink moved to the application of the Rottmann doctrine and specifically

four aspects of that ruling. First one, whether there is a causal link between fraud &

acquisition, that is, the fraud committed is material for the acquisition of nationality.

And in cases in which the fraud is not decisive, should it lead to the loss of the

citizenship? He pointed out that from a proportionality test perspective, it should not

be the case; therefore, the fraud should be material for the acquisition. This is the case

on most member states (17), in Romania and Slovakia it is not and in other 5 member

states the situation is unclear.

When assessing the degree of culpability in the fraud, the number of member states in

which this circumstance is considered, is lower in comparison to the previous point. Is

the individual that actually lose the citizenship the one to blame for the fraud? Here is

really important the position of the children that acquired the nationality together with

the parents in the naturalisation procedure, when the parents lied about certain

circumstances, i.e., committed the fraud. In Cyprus, Greece, Ireland, Slovakia and

Slovenia culpability is not required.

The person’s situation should also be considered, especially in the light of the genuine

link. It is necessary, said Maarten Vink, to assess whether the person concerned has

developed a genuine link with the state based, e.g., on a long period of residence. In this

sense, only few member states nationality laws regulate legitimate expectations.

According to the national experts, there are 10 member states in which the personal

situation is not material for the loss of citizenship.

Regarding the consequences for family members, this category does not deal with the

family members that also lose the nationality but with other consequences such as legal

residence. Only in 3 member states this circumstance is taking into account.

Regarding other grounds of involuntary loss, he named some of them like the non-

renunciation of previous citizenship (when a person is required to renounce to the

nationality of origin and the person voluntarily do not do so or re-acquired it),

voluntary foreign military service and non-military public service, seriously prejudicial

behaviour (especially in the UK and Denmark), permanent residence abroad, loss of

family relationship, loss of citizenship by a parent or parents and the loss of a

conditional citizenship.

Finally, Maarten Vink made the following concluding reflections:

There is a lot of variety in terms of grounds for loss of member states nationality

and, therefore, EU citizenship and also regarding the procedures.

Contrasting trends were observed, some grounds of loss like voluntary

acquisition are progressively removed from national legislation while other are

getting more attention (loss due to fraud or seriously prejudicial behaviour).

It is necessary to highlight the situation of vulnerable groups such as children.

Floor is given to Judit Tóth who, in reference to previous presentation and regarding

loss and acquisition of nationality, started by categorising Hungarian nationality law as

a system of easy acquisition of citizenship for natives and really hard loss of citizenship

also for natives and Hungarian nationals in general. With just a look at the principles in

the Hungarian Constitution and in the nationality law is necessary to realise that it is a

hard task losing Hungarian citizenship. She stressed that the principle of ius sanguinis a

patre et matre applies regardless the place of birth or residence. Furthermore, multiple

citizenship is strongly tolerated; bilateral agreements excluding dual citizenship were

terminated in the early nineties and, additionally, a whole set of legislation was passed

in order to facilitate rehabilitation for unjust loss (which was translated in the

regulation of reinstatement and re-naturalisation procedures). Moreover, ethnic

Hungarian applicants can get through naturalisation the Hungarian citizenship in a

really beneficial way.

Regarding grounds for loss, Judit Tóth stressed that it is not possible since 1929 to lose

the Hungarian nationality based on the fact that the national left the country for more

than ten years. So it is possible to find persons with Hungarian nationality all over the

world.

Combating statelessness by birth also appears in the legislation and linked to that there

some problems regarding the interpretation of conditional acquisition on the grounds

of ius soli and preferential naturalisation.

She pointed that deprivation of citizenship as arbitrary, discriminative form of loss (as

inherited from the Hungarian communist past) was deleted by the Constitution.

As regard the existing legal titles for loss, there are two. The first it is not really relevant

for the ILEC project, according to Judit Tóth, since the renouncement is a ground of

voluntary loss. However, she briefly mentioned the requirements for the renouncement

to be effective: residence abroad and submit a declaration addressed to the President of

the Republic. After the President’s acceptance, the Hungarian nationality is lost if he or

she does not become statelessness (statelessness protection mechanism).

The other legal title is withdrawal, which operates when citizenship is acquired

through unlawful means. The legislation provides with some examples of the concept of

unlawful means: the applicant's conduct aimed at misleading the authorities by

disclosing false or untrue data, or by concealing any relevant data or information. There

is also a time limit of ten years during which the disclosure of this abusing conduct can

lead to the withdrawal of nationality and the withdrawal (President’s resolution) is

published in the Official Hungarian Gazette.

Judit Tóth illustrated her intervention with some statistics on renouncement and

withdrawal. Regarding renouncement the number of applicants per year is not so high,

around 100, with a high level of acceptance. And in relation to withdrawal there is only

one case in ten years. She explained the facts that lead to this only case of withdrawal.

The person involved was from Ukraine and had acquired Hungarian nationality

through accelerated naturalisation. He misleadingly provided false or untrue data on

his identity (name and birth data) to the authorities. His abusive conduct was released

after his citizenship oath had taken. The press release of the Office of the President

contains no explanations of the decision; there is no reason and no legal remedy to

address this decision. The daily newspaper gathering information on the story (because

of the novelty character of the situation) considers that upgraded speed in

naturalisation procedures may increase the public security risks because the

authorities have no proper time on individual check and hazard analysis.

Judit Tóth elaborated on the ideas of security risk in naturalisation. The amendment of

the Act on Hungarian Nationality introducing the accelerated and super-preferential

naturalisation produced a unique rising number of applications. Furthermore, since

residence was no required for the accelerated and super-preferential naturalisation,

the Hungarian authorities have no more information than the one provided by

applicants. Additionally, the capacity of authorities had to be upgraded within a short

period.

Thus, according to Hungarian laws, if a non-Hungarian national applicant has a clean

criminal record, he or she has to show evidences that his or her ascendant is or was a

Hungarian citizen or whose Hungarian origin is made probable. She remarked the

complex nature of this concept of “Hungarian origin”. The applicant also has to prove

Hungarian language knowledge. Judit Tóth named this naturalisation procedure as

ethnic preferential for kin-minority. She also explained briefly the so-called preference

for spouse of kin-minority/diaspora naturalisation procedure. In this case, the

nationality is granted after ten years living in lawful marriage and in the household of a

Hungarian national or after five years living in the household of a person in lawful

marriage with a Hungarian citizen. In both cases are required a clean criminal record

and a proof of the Hungarian language knowledge.

Finally, she made reference to the re-naturalisation procedure through which a person

whose Hungarian citizenship was terminated and who proves Hungarian language

knowledge may be re-naturalised if his or her naturalization is not considered to be a

threat to the public order and national security of Hungary.

She showed some statistics about re-naturalisation procedure before and after the

amendment of Hungarian law that introduced the accelerated procedure. Re-

naturalisation since the entry into force of new legislation (2012) and through the

super-accelerated procedure (500,000) already exceeded in large the number of re-

naturalisation since 2005 through regular procedure (47,011). She stressed that

Hungary is one of the EU countries that more EU citizens introduced in the EU from

third countries.

Regarding quasi-loss of citizenship situations, she stressed that competent authority

(OIN) interprets that a ceased family link terminates the Hungarian nationality. There

were 4 court cases in which a foreign mother’s child acquired Hungarian nationality

due to declaration of paternity by a Hungarian national but the court finally rebutted

the presumption of paternity, and children lost the Hungarian nationality by birth

(despite the fact there is no regulation dealing with that matter). There is one pending

case at the Supreme Court because the Appealing High Court refused the interpretation

of OIN on conditional ius sanguinis by (false or untrue) paternity declaration.

In relation to the conditional acquisition of nationality, she explained that this means a

presumption that may be rebutted without deadline regarding cases in which the

persons concerned is born in Hungary of stateless persons residing, with registered

address, in Hungary and children born of unknown parents and found in Hungary.

The verification of Hungarian citizenship was also pointed out as an intricate and

hidden way to loss Hungarian citizenship through which the authority in charge of

nationality affairs shall issue a Certificate of citizenship to certify the existence or

termination of Hungarian citizenship at the request of the person concerned or the

authorities. The figures shows around 6,000 verification requests per year. She

stressed the fact that there is no legal remedy regarding the verification procedure.

She also remarked that the preferential, accelerated naturalisation may terminate

existing citizenship of applicant if voluntary acquisition of second nationality is a

ground for loss that citizenship.

In her conclusions she stressed that the citizenship regulation regarding legal titles and

procedures for loss is quite fragmented. In practice, there are two legal titles of formal

loss and four legal reasons of quasi-loss, without precise legal basis, reasoning and/or

legal remedy in legal merit.

The rules on family ties and registry of birth, marriage and death and registry of people

are competing with rules in Act on nationality.

Statelessness is not fully avoided in practice due to the existence of conditional

acquisition, withdrawal of nationality and the cases of naturalisation of applicant with

exclusive citizenship.

Mass naturalisation of applicants without residence, without integration or a genuine

link to Hungary would increase withdrawal, security risks and disturbance in regional

connections violating the principle of loyalty to the EU law.

Thus, according to Judit Tóth, in fact one may lose the Hungarian nationality despite of

legal principles.

Eva Ersbøll took the floor. Her presentation dealt with the loss of citizenship

(involuntary and voluntary grounds) in the Nordic states, including the three EU

member states. She stated that the Nordic perspective is quite interesting since they

share a common past and have a common cooperation regarding citizenship law since

the 1890’s that makes the Nordic citizenship Acts almost alike until 2000. Before this

point, the following grounds of loss could be identified in the citizenship laws of the

Nordic countries:

Voluntary renunciation of citizenship.

Voluntary acquisition of a foreign citizenship.

Acquisition of a foreign citizenship by entering the public service of another

country.

Birth and continuous residence abroad until the age of 22.

Loss of citizenship by a parent.

After 2000, one can observe a divergence in Nordic citizenship legislation. From five

common loss ground provisions, currently there are only three common grounds for

loss of nationality in Nordics nationality legislation. The reason for this situation is that

Sweden has now few grounds of loss, mainly the common three that are:

Voluntary renunciation of citizenship.

Birth and continuous residence abroad until the age of 22.

Loss of citizenship by a parent.

Around 10 modes of loss of nationality can be found in the Nordic citizenship acts but

only the three mentioned are common. Eva Ersbøll pointed that one of these modes or

grounds are only applicable in one of the Nordic countries, generally Norway. If the two

extremes, that is, Norway and Sweden are compared, one can observe that in Sweden is

easy to get the nationality and hard to loss it while in Norway is the other way around,

citizenship is difficult to acquire and easy to lose. If the rest of Nordic states are

included, Denmark will be located close to Norway, Iceland in between and Finland

close to Sweden.

As regard the degree of toleration of dual citizenship, Sweden was the first country

allowing dual nationality, due to the fact that the Sweden envisaged a further Nordic

cooperation. Eva Ersbøll pointed that at that time, around 1999, Norway showed

favourable to dual citizenship, although this question became really controversial at

politic level. Consequently, in 2005, Norway reinforced the principle of non-toleration

of dual citizenship.

Thus, Denmark and Norway do not tolerate dual citizenship. However, Norway is the

only country that applies as a ground for loss the non-renunciation of a foreign

citizenship. In Denmark, the consequences are, however, just as serious, since it is a

precondition for being listed in a naturalisation Bill that the applicant agrees to

renounce his or her present citizenship within 2 years; unless the applicant loses that

citizenship automatically by naturalisation, release is required –and must be

documented– as a condition for acquisition of Danish citizenship. Eva Ersbøll stressed

that there are examples of persons who have been listed conditionally in a

naturalisation Bill and who fruitlessly have struggled for 2 years to be released – and

then lose the right acquired from having been listed in a naturalisation Bill.

Then she moved to some grounds for loss that are problematic in practice, like loss due

to the disappearance of family relations. Until 2000 there were no provisions regarding

this ground, although that did mean that it did not apply in practice, leading to quasi-

loss situations. However, this scenario changed due to the implementation of the

European Convention on Nationality, and specifically its Article 7(1)(f) according to

which regulates the loss when it is established that a precondition for acquisition of

citizenship is not any longer fulfilled. Notwithstanding, Sweden still does not have a

provision on its nationality legislation dealing with this ground, but this kind of

situation falls within the scope of constitutional protection.

As regards quasi-loss due to administrative errors, she remarked that this ground is not

covered under Article 7 of the European Convention on Nationality according to the

explanatory report (Article 7 does not refer to cases in which there have been

administrative errors which are not considered in the country in question to constitute

cases of loss of nationality). However, Finland has included a provision on the effect of

such errors in its citizenship Act, being the only Nordic country to do so.

She finally addressed the loss due to birth and residence abroad; all 5 Nordic states

apply the same provision on automatic loss at the age of 22 for citizens who are born

abroad, possess another citizenship and have never resided in their country or another

Nordic country for at least 7 years. She remarked the relevance of this requirement of

residing in “another Nordic country” for future developments within the EU member

states nationality legislation. However, when interpreting this provision in the light of

the prevention of loss, some divergences appear so it is easier to lose the nationality in

some Nordic countries than in others. In Denmark, one year of residence will prevent

the loss while in Norway is 6 months; the use of the passport (in Sweden) or a simple

notification to the embassy (in Finland) is enough to prevent the loss of the nationality.

Finally, in order to illustrate the implications from the EU perspective, Eva Ersbøll

explained a Danish case, still pending, involving a Danish-Syrian girl (Danish mother

and Syrian father) born in 1991. She got in 2009 the Danish passport. Due to the civil

war in Syria she moved to Denmark in June 2013 and, previously, in March she turned

22. She just found out that, according to the Danish authorities, she had lost the Danish

nationality. From the EU perspective and linked to the case, she stressed the role of the

exercise of EU citizenship free movement rights and its possible consequences for the

case at stake. Although the case is pending, the outcome will be different whether the

girl has moved first to Sweden, used her Danish passport there and then moved to

Denmark.

Floor was given to the first discussant, Amanda Weston. She made some reflections on

the current situation in the UK court case regarding the deprivation of citizenship in the

context of national security and the so called unacceptable behaviour. In the last few

years, after 9/11, some changes in the UK legislation took place that lead to lower the

threshold of deprivation from effectively treason to conduct seriously prejudicial to the

vital interests of the State and to the extension of power to deprive the nationality of

those who were naturalised as British citizens to those born in the UK as British. Thus,

since 2002 a person born British in the UK can be deprived of his or her nationality on

the basis of an unacceptable behaviour. The next change to happen, remarked Amanda

Weston, was relating the procedural protection, with the amendment of the 2004

Emigration Act, the suspension effect of the appealing was rescinded. Before, if a

decision from UK authorities was appealed, the government could not enact a

deprivation order until that appeal was solved. She explained that the justification

given by the government at the time was that they had to be able to bring concurrent

deportation and deprivation procedures because they cover the same territory; they

did not want to have successive rights of appeal in order to do everything at one.

Amanda Weston stressed that in practice, only in very few cases the deprivation took

place while the person concerned was inside the UK. In almost all cases the person was

outside the UK and, she remarked that in at least two cases the government

deliberately waited until that person temporarily left the UK with their family in order

to send them at their home address in the UK the deprivation order.

Having generating this evisceration of procedural rights, the government then lowered

the threshold of deprivation even further in the 2006 to be applicable in the context of

deportation of foreign nationals. The current situation is that legally the government

has a discretion to sign a deportation order, almost immediately having served the

notice of the decision that the citizenship has been taken. And the effect of signing the

deprivation order is that you become a person subject to emigration control.

This procedural unfairness has resulted in horrible consequences not only for the

individual concerned but for his or her family, including dependent adults and children.

Procedurally, she commented that there is another problem because people cannot

appear at their hearings and they cannot communicate securely with their lawyers.

Amanda Weston raised the question of how unfair the procedure has to be before it

becomes pointless. In this line, she is involved in a project that aims to analyse what is

in the tool box for people in this situation and what motives in this tool box the court of

appeals is rejecting.

Roxana Barbulescu took the floor and made several remarks and considerations on the

topics of the previous presentations. As regard to the paper co-written by René de

Groot and Maarten Vink, she stressed the lack of convergence regarding some grounds

for loss of citizenship where one can expect more harmonised practice such as

procedural aspects or prevention of statelessness. Despite the legal framework

provided by international conventions, like the European Convention on Nationality

and the existence of an institutional setting available to promote convergence, why is

no more convergence regarding grounds for loss? In the same line, she also addressed

to Eva Ersbøll the question of why and how the convergence took place between the

Nordic states.

Roxana Barbulescu also commented gender aspects of loss of nationality; historically

citizenship has been transmitted on the male side and mothers were not allow to pass

their citizenship and they usually lost their nationality after marriage. Taking as

starting point the presentation of Hans Ulrich Jessurun d’Oliveira and the idea

nationality law does not only deal with migration law but is also a law field were justice

can be made, she asked whether there are any efforts taken in order to reactivate the

citizenship lost by marriage.

Regarding arbitrariness of loss, she asked whether there are reasons specified on each

certificate issued by the authorities regarding loss of citizenship. Roxana Barbulescu

pointed that the fact that these certificates include a reasoning for the depravation

reduce the room for arbitrariness and it would be helpful for future generations in a

scenario in which nationality laws change and different political agendas are

implemented.

To Judit Tóth she addressed the question of the application of the principle of sincere

and loyal cooperation regarding the fast-track acquisition procedures in force in

Hungary.

Finally, she commented on the numbers in relation to the acquisition of EU member

state nationality and made the following reflection: there are 28 named EU member

states but there are around 23 million people living in the EU that do not have the

nationality of any member state, so theoretically there is a 29th non-named member

state with a huge population that sooner or later will acquire the nationality of a

member state and, consequently, the EU citizenship status. This will add more

complexity to the already complex system of loss and acquisition grounds in nationality

legislation.

Elspeth Guild took the floor to open the turn of questions and answer. Floor was given

to several participants who raised the following questions and considerations.

Mohamed-Rajaˈi Barakat asked a question dealing with discrimination. When a British

citizen goes to Syria and fights with the rebels, if he come back to Belgium he is put in

jail and the UK will take his nationality back, can that be seen as discrimination?

Rainer Bauböck addressed a question to Maarten Vink. Is there any country that allows

only for voluntary renunciation but no mode of involuntary withdrawal? He pointed

that he made a quick search and it seems that Poland is the only one. He remarked that

loss of nationality can also take place by a change of legislation; he proposed the

hypothetical situation in which a new government in Malta will revoke the current

citizenships granted to the investors, what are the relevant principles that could be

applicable to prevent this situation?

Wilfried Derflinger took the floor to address the topic of the dual citizenship within the

EU. He highlighted that the situation within the EU is not homogeneous at all, but in

some of the member states that do not tolerate the dual citizenship as a rule there is a

possibility to ask for an individual permission to acquire a second nationality.

Hans Ulrich Jessurun d’Oliveira commented the ground for loss of citizenship based on

voluntary foreign military service. This ground has served as a basis for later re-

naturalisation, that’s a situation that had happened in several countries of the EU. In the

Netherlands, for instance, the case of Dutch nationals enlisting in the army of the

occupational forces during the WWII that could reacquire the Dutch nationality after

the end of the conflict or the Dutch nationals enlisting in the International Brigades

during the civil war in Spain and fighting in defence of the government of the II

Republic lost their nationality and became statelessness. He stressed that it is dubious

ground for loss of nationality giving that the re-naturalisation efforts are made by the

country that in first place cause the deprivation or the statelessness.

Finally, a question about data collection was addressed to Maarten Vink.

Floor was given to the speakers in order to answer and react to the questions proposed.

Maarten Vink pointed that, in general, the data collection is quite difficult, for instance

in Eurostat one can find statistics about loss of nationality in the member states but the

numbers are quite difficult to interpret regarding the different grounds for loss. And

double checks are almost impossible and if one compares the data at national level

(when those data are available at domestic level) with the data in Eurostat, they do not

match in most of the cases. He stressed the importance the precision of data in order to

match both legal and numerical analysis.

René de Groot reacted on several comments of Roxana Barbulescu. Regarding the lack

of convergence, René de Groot pointed that there is certain convergence due to the

European Convention on Nationality but absolutely not enough convergence.

Convergence in this field should be promoted. The low number of ratifications of

Convention or the fact that the 2013 recommendation does not lead to many reactions

among the member states evidence that something should be done in order to promote

convergence. As regards to the Rottmann decision he stressed that the ruling should

have led to accelerate convergence but, until now, that has not happened. He

commented also the scope ratione personae of that ruling, stating that proportionality

should also be applied in cases involving original third country nationals, but the

domestic court cases evidence that this is not the case.

In relation to the loss of nationality by women in the past and the compensation

mechanism that could be applicable to reacquire that nationality, René de Groot

stressed the importance of including also the compensation mechanism of their

children.

In relation to the remark of Rainer Bauböck regarding a possible change in the Maltese

government and a consequently deprivation of nationality for those who acquired the

Maltese nationality via the investor programme, René de Groot pointed that this

situation will be completely unacceptable. One the nationality is acquired, is acquired.

The deprivation shall take place on the basis of the general grounds for loss; otherwise

it would be an arbitrary deprivation.

Regarding procedural rights commented by Amanda Weston, he stated that the

European Convention on Nationality already foreseen some rules in Articles 10 and 11

but regrettably it was possible to made reservations to those provisions and some of

the EU members states did it. He highlighted the Jo Shaw’s opinion that it could flow

from the Rottmann decision that it is necessary to provide procedural protection and

René de Groot agreed in this point; procedural protection, after Rottmann, shall be

offered by the state even if reservations were made to Articles 10 and 11 of the

European Convention on Nationality.

AS regard to the question of not allowing dual citizenship even within the EU (between

EU member states nationalities) and the validity of this practice regarding EU law, he

hesitated to conclude that currently this practice is against EU law, that would be

stretching the rules of the EU too far in this moment.

The issue of the complexity of reacquisition of nationality after the IIWW brought by

Hans Ulrich Jessurun d’Oliveira was also addressed by René de Groot. He pointed out

that in the example of the Netherlands in 1954 through an Act of the Parliament both

groups got the right to reacquire the Dutch nationality but those who lost the

citizenship fighting against Franco in Spain were really upset by the fact that the got

that right in the same Act of the Parliament together with those who fight with the Nazi

occupational forces that they barely exercised that right. So this kind of circumstances

should also be taken into account when governments try to address these situations,

especially regarding the current conflict in Syria. However, in the context of deprivation

due to the participation in the Syrian war, he raised the question whether fighting in

Syria is against the vital interest of any individual EU member state. He did not think so.

Judit Tóth took the floor in order to address the situation of mass naturalisation

without residence requirement and how it can match under the principle of loyal and

sincere cooperation and the exercise of mobility rights. She proposed a hypothetical

scenario of mass evacuation in Hungary and the possible destination of these persons

without residence in Hungary. It is really important question, she stated, but the

answer is pending.

Eva Ersbøll made some remarks on the reasons that lead to convergence in the Nordic

states till 2000. She explained that there was a will to harmonise nationality legislation,

the creation of Nordic union citizenship was even discussed, and the most obvious

reasons are given by the existence of agreements between the Nordic states and

strengthening of common cooperation. Political situations are also important, she

stressed. Until late 1990 there was no political opposition and consequently it was

easier to reach an agreement on application of common principles. However, after that

date divergences appeared due to political divergence and the acceptance of dual

nationality in some Nordic states.

Finally, Amanda Weston made some remarks on the content of EU procedural rights

and she stated the way to make possible the application of those procedural rights is to

trigger the application of the Rottmann ruling.

René de Groot made a final comment on the Rottmann ruling and its scope of

application. He found completely necessary to convince on the domestic level the

judges to pose this question via preliminary procedure to the CJEU. Till then, one has to

deal with the differences in the practice of the member states.

1.5. Panel III: Quasi-Loss of Citizenship

Rainer Bauböck, the chair person, introduced the topic of the last panel, the quasi-loss

of nationality and the speakers and discussants.

Patrick Wautelet took the floor. In his intervention he presented the preliminary results

of a joint research (René de Groot and Patrick Wautelet) dealing with the concept of

quasi-loss of nationality. The starting point of the research was a book published by

René de Groot in 2008, “Nationality and legal certainty”, that put forward a number of

examples and real cases in which someone has acquired or thought that he or she has

acquired the nationality and suddenly in the course of this person’s life something

happens and the acquisition of nationality was put in question. The perspective of René

de Groot in that book was questioning the importance of legal certainty in nationality

matters. Patrick Wautelet indicated that this was the origin of the ILEC sub-project on

quasi-loss; research that has being amplified based on ILEC-questionnaire sent to

experts in 28 EU member states (which allowed a comparative analysis to be done) and

the analysis of the impact of both International and EU law.

The research work began, said Patrick Wautelet, by testing the hypothesis of the

existence of quasi-loss situations in the member states (although they never heard

about it) and, most important, verifying whether or not specific actions were needed in

nationality law.

In order to describe the concept of quasi-loss, he presented the following fictional

example based on real cases: Lucas was born in Uganda in 2010, his mother is a citizen

of Uganda and his father comes from Italy. The parents married in Uganda in 2009.

When Lucas was born he automatically obtained ex lege the Ugandan nationality but

also the Italian citizenship. Lucas lives in France. A couple of year after his birth, Italian

authorities discover that when his parents married, his mother was still married to

somebody else although she thought that marriage was validly terminated when she

married with Lucas’ father, it was not according to the Italian law. From the Italian

perspective, her second marriage with Lucas’ father was null and void. That means that

legally that the second marriage never took place and, subsequently, there was never a

legal link between Lucas and his father. And since Lucas is not legally the son of his

father he never acquired the Italian nationality. Lucas is not stateless (he has the

Ugandan passport) but he is not an EU citizen, with all the consequences regarding the

rights attached to that status. This is a quasi-loss situation. Lucas enjoyed the rights

attached to the Italian nationality (and not because of a provisional grant of that

nationality) but, suddenly, he never acquired it, it is completely erased.

Patrick Wautelet also identified other instances of quasi-loss.

Identity fraud. One of the most common grounds for loss of nationality in the

member states is the fraud; fraud due to the display of non-real information in

naturalisation procedure like identity, age, place of birth,… This quasi-loss

situation was exemplified as follows. A person of Somalia came to the

Netherlands in the earlier 2000, obtained the status of refugee and, after a

couples of years, he got the Dutch citizenship. For whatever reasons he did not

use his own name and the Dutch authorities discover it, it is a case of identity

fraud. If this person acquired the Dutch nationality before 1 March, 2003 the

consequence is that the naturalisation never took place, he never acquired

despite he enjoyed the rights attached to that status.

Disappearance of family relationship (e.g. annulment of paternity). This is Lucas’

case.

Incorrect application or interpretation of nationality law. Patrick Wautelet

provided the example of a Danish national living in Australia that decided to

acquire the Australian citizenship. The acquisition of Australian nationality is a

ground for automatic loss of the Danish nationality, according to the nationality

legislation in Denmark. But the Danish embassy in Australia keeps renewing his

or her Danish passport for several years. Only when this person came back to

Denmark it was found out that he or she had lost that nationality although he or

she enjoyed for several years after the acquisition of the Australian citizenship

due to an incorrect application of Danish nationality law.

Patrick Wautelet asked what quasi-loss is. It is a case of loss nationality? It is a case of

non-acquisition? From the perspective of the individual, and here he made a link with

social identity as protected by Article 8 of the ECHR, it is case of loss: I had the Dutch

nationality and then I lost it. But from the perspective of the State concerned it could be

a case of loss or a case in which a real acquisition of nationality never happened. There

is no agreement on this point between the member states. The way member states

address the situations of identity fraud, disappearance of family relationship or

incorrect application or interpretation of nationality law is different. For instance, in

case of annulment of paternity, someone acquires the German, Finish or Dutch

nationality through his father or mother and later this link is found to be void (never

existed) under the legislation of Germany, Finland and the Netherlands this is a case of

loss. In France, Belgium and Denmark the same situation is a case of non-acquisition.

Even in the same member state one can find different approaches to the same situation.

Patrick Wautelet explained the way Dutch law deals with identity fraud cases (that he

defined as a schizophrenic attitude towards identity fraud). According to the Dutch case

law, if the naturalisation took place before 1 March, 2003, the case is treated as non-

acquisition or nullification and if the Dutch nationality was acquired after that date, it is

considered as a loss of nationality. So not only between member states, but in the same

State the identical facts can lead sometimes to loss and sometimes to non-acquisition.

This leads, within the research, to the first conclusion that the current legal framework

is certainly muddled, some cases treated as loss, other as non-acquisition. In the last

case, when the State considers that the facts should be treated as non-acquisition,

different protection mechanisms can be applicable in domestic legislation. In some

member states, due to the constitutional protection of nationality there is no room for

non-acquisition (Germany). The protection mechanisms vary from one State to another

and the protection threshold is indirect and incomplete.

Regarding international law, Patrick Wautelet indicated that there are more protection

rules but most of them are in old instruments like the 1961 Convention on

Statelessness, in which one can find in Article 5(1) a provision dealing with the change

in family status that can lead to the loss of nationality, but never to statelessness. This

provision explicitly mentions marriage, termination of marriage, legitimation,

recognition or adoption. One can raise the question of the possible application to

annulment of paternity or annulment of recognition. He stated that it should be

applicable to these cases too, otherwise it will very easy to evade the protection

mechanism. Other provisions certainly aim to quasi-loss situations like Article 7(1)(f)

of the European Convention on Nationality.

Under European law he indicated that one can also raise a question whether a quasi-

loss situation is a case of loss of citizenship or non-acquisition. There is one case in

which the Dutch Supreme Court had to deal with the question. A Somali citizen was

naturalized Dutch and his children benefited from this naturalization. It later appeared,

however, that the child was really his half-brother. On this ground, the Dutch

authorities considered that the half-brother had never benefited from the

naturalization. The Supreme Court was asked to apply the proportionality test in

Rottmann ruling but it refused to do so, holding that the half-brothers had never

enjoyed the Dutch nationality.

Announcing the preliminary conclusions of the research, Patrick Wautelet pointed out

that there several sides of quasi-loss. In the research it is used, firstly, in a descriptive

manner bringing some situations under a common heading in order to put the spotlight

in those situations which mostly are still hidden in nationality law; situations in which a

person who assumed or was assumed by the authorities to possess the nationality of a

country is faced with a decision of these authorities that he or she never acquired that

nationality. Bringing the spotlight to those situations, he remarked, is quite useful.

Secondly, one can ask whether it is necessary to go further, beyond the descriptive

function, to add a normative function to quasi-loss. The answer would be no, because in

their view quasi-loss is loss, which means that all protection mechanisms that currently

apply for loss should also apply to quasi-loss situations (like the Rottmann ruling

already discussed). That does not mean that a case should be considered closed or

solved due to the application of the protection mechanism for loss, because quasi-loss

is also in some respect different from loss (mainly because of circumstances in which

loss takes place)

Patrick Wautelet finished his intervention with the recommendation to go beyond the

existing framework for loss and to reflect on the opportunity to develop new protection

rules for quasi-loss that will based on the idea of protection of legitimate expectations.

Floor is given to Joris Groen. It is dangerous treating all these cases under the category

of quasi-loss because the factual situation differs very much from case to case and the

fields of law involved can also varied (family law, criminal law…). Second remark, this

kind of cases falls not only in the field of nationality law but can also be solved

according to migration law or domestic migration policies. Thus Joris Groen expressed

his doubts about this kind of situation being addressed purely from a nationality law

perspective.

As regard to the acquisition of nationality due to fraud, he started by proposing the next

example in order to illustrate the position of the Dutch Justice Ministry: imagine that

someone goes to the local municipality to ask for a permit to build a gas station and

provides some wrong information about essential elements such as the environment

impact assessment. Notwithstanding, that person gets the permit. It is clear that the

acquisition of the permit is void since the applicant lied about essential elements. It is

not a withdrawal but a nullification of the permit. That situation is different, he stated,

from the case that the applicant rightfully acquires the permit but does not treat the

waste from the gas station properly, in which case that will lead to a withdrawal of the

permit but not its nullification. That is the main difference between not having the right

anymore and not having the right in first place applicable in the field of acquisition of

nationality. And the protection or guarantees in a situation in which someone has the

right for some time should be higher than the situation in which someone has never

acquired the right due to fraud, and this difference treatment is common in several

fields of law. Nobody should profit from a fraudulent behaviour and trust on rights

acquired by fraud. So there are differences basic differences between the situation in

which someone is deprived of nationality that he or she had and the situation in which

someone got the nationality due to fraud.

In principle, stated Joris Groen, deprivation of nationality should not take place except

in very limited cases. In contrast, fraud in the acquisition of nationality should lead to

the loss of the nationality except in cases that this measure is not proportional. And, in

his view, the main achievement of the Rottmann case was not the content of

proportionality test but the procedural requirements for the proportionality test.

In his concluding remarks, Joris Groen explained that in the light of the suggestion of

treating equally the situations of deprivation of nationality and the loss due to fraud,

since 2003 in the Netherlands there should be a proper motivated decision to

withdrawal of nationality taking into account the principle of proportionality.

Adrian Berry took the floor in order to present a brief overview of the quasi-loss

situations in the context of the UK. He started by highlighting the importance of the

recommendation list that René de Groot and Patrick Wautelet proposed in their draft

paper, which seems to be a check list of things that the UK does not do. He was

particularly intrigued by the procedural safeguards like judicial review, treatment as

national during the judicial review, application of the proportionality test, the

protection of legitimate expectations or the rights related to children that the UK

ignores in the context of quasi-loss.

Quasi-loss situations in the UK appear essentially in the framework of impersonation

(as a subset of fraud) and questions related to paternity and birth registration. Adrian

Berry focused on the impersonation cases and stated that in case of fraud there is a

mechanism for deprivation and the person concerned has the right to appeal, thus one

can conclude that there is some procedural apparatus. But it is possible to be deprived

of the nationality while exercising that right to appeal. However, that does not seem

enough for the UK, besides the possibility of deprivation of nationality in the course of

the appealing on the grounds of fraud.

Further than, it has been developed a special carve out category of impersonation as a

subset of fraud in which the individual concerned is treated as never having acquired

the nationality of the UK. It is interesting, said Adrian Berry, looking at the foundations

of the case law on quasi-loss. In 1981 the British courts knew about a case of a person

that applied for naturalisation and was impersonating a dead person. The outcome was

that the person involved was considered never actually naturalised. And this is an

example where principles emerge as court driven processes rather than as legislative

processes. There is no beginning principle of why novelty or quasi loss of citizenship in

the sense of non-acquisition should be a step which is taken rather than giving a right

of appeal; it emerged in a particular setting in this case in 1981.

The courts after that have struggled to put some kind of coherence and structure

around this. Adrian Berry remarked the importance of the difference between cases,

because it is translated in differences regarding the safeguards. There is no suspension

of the loss of nationality in a deprivation case these days because one can be deprived

of it and then has to exercise the right of appeal as you can. There are some safeguards,

there are time limits within which processes can be taken, there are measures

effectively regarding some sort of hearing.

He pointed that the core fact in order to receive a grant of naturalization in a UK setting

is what is required on a certificate of naturalisation, which is, name, date of birth, place

and country of birth,... So in order to identify a quasi-loss situation, according to the

case law, there are several things that have to be taking into account. Firstly, the

impersonation on one or more of those factors (name, place of birth, nationality of

parents). Secondly there has to be actual deception. And, finally, it has to be material.

However, sometimes this list of requirements has to be narrowed down. So he pointed

that there is some protection in cases of quasi-loss but it is not enough. There was

recently a case in the UK, in which the high court in London revisited these criteria and

the judge in that case made for the first time a link between immigration status and the

question of nationality.

How all of this can match with the principles which René de Groot and Patrick Wautelet

outline in their paper? There is no recognition of the principle of avoiding statelessness.

In fact, Adrian Berry pointed that statelessness is seeing as a merely incidental fact.

There is no actual procedural protection to avoid statelessness at all. Nor is there a

clause to facilitate the reacquisition of nationality. Regarding the Tunisian conclusions,

there is no proportionality test clause to be applied and there is no protection in the

context of automatic acquisition of citizenship for spouses and children.

He also commented the question of paternity and birth registration, as a scenario in

which cases of quasi-loss can arise. Finally, Adrian Berry concluded that the safeguards

applicable in quasi-loss situations are limited in comparison to cases of loss.

Kristine Kruma took the floor. He started by explaining that in Latvia the quasi-loss

situations are not possible, since a Latvian national can only be deprived of the

nationality on the basis of a Court decision, being the date of the ruling the date in

which the person losses his or her nationality. However she addressed two issues that

could be relevant for the panel. The first one connected to the question of continuity of

Latvia, the reinstatement of its independence and the status of nationals and their

descendants after 1940. During the 50 years of occupation many of them acquired

other nationality and after independence a very short period was established where

they could register as Latvian citizens while preserving another nationality. After that

deadline, the applicants had to renounce to the other nationalities in order to acquire

the Latvian citizenship. This situation was assessed by the Constitutional Court as a

consequence of the proceedings started by a couple that could not register as dual

nationals (German and Latvian). The Court ruled that the provision in nationality law

was correct and it is a question left to the legislator whether dual nationality is

tolerated or not.

Another problem that she analysed dealt with immigration after Latvia joined the EU.

Many persons were registered as Irish or British citizens without informing the

authorities so it became really difficult to trace whether a person held dual nationality

or not and Latvian citizenship therefore became problematic. Due to this kind of issues,

the Latvian citizenship law was amended. The deadline to register as Latvian citizen for

those who had held Latvian citizenship was delayed and dual nationality was tolerated

so nationals from EU or NATO member states, Australia, New Zealand and Brazil could

register as dual nationals. The selection of these countries and not others has raised

numerous debates and discussion.

Kristine Kruma emphasised that there has been a strong implant of the courts case law

and argumentation given by the courts in the latest amendments she mentioned

dealing with dual nationality and the date of the deprivation of the nationality (in case

it does take place). She explained a couple of these cases. Firstly, Kristine Kruma

explained a case in which a Latvian citizen who moved to Sweden where he worked as

a scientist. The Latvian authorities discovered that he had acquired the Swedish

nationality which was not allowed in that moment, he had to renounce the Latvian

citizenship. However, despite of the prohibition of dual nationality, the Latvian Court

ruled contra legem and stated that this concrete person should be entitled to hold dual

nationality because he was a scientist working for the benefit of Latvia, a father of four

children, his family lived in Latvia and he voted in the Latvian elections. Other case

concerned a descendant of a Latvian citizen who moved to Russia and had acquired

Russian citizenship in the meantime. After a couple of years she moved to Latvia and

she wanted to register as a Latvian citizen. She could not do that because, according to

Latvian law, the acquisition of another nationality in the meantime prevented the

registration as a Latvian citizen. The argument of protection of legitimate expectation

was raised during the proceedings, also the principle of proportionality but he Court

finally based its decision on the main argument that the person concerned was a

woman that might not have understood the difficult provisions of nationality legislation

and she should be allowed to preserve the Latvian nationality. And the third case that

Kristine Kruma commented was still pending dealing with a person registered as

Latvian citizen by naturalisation and, afterwards, Latvian authorities received

information from Kazakh and Russian authorities according to which that person also

possesses Russian and Kazakh nationalities. This information was not provided during

the naturalisation procedure. The person concerned had summited to the Court

evidence that he is not the person holding also Russian and Kazakh nationalities but his

cousin with which he is often confused. All the cases show, according to Kristine Kruma,

the creativity of the courts in their arguments that are also taking into account by the

legislator.

To conclude, Kristine Kruma highlighted the role of the EU in this issue. She asserted

that the EU should promote the ratification of human rights instruments and

international conventions. Particularly intriguing is the ratification and reservations

status of some conventions such as UN Convention on the Reduction of Statelessness or

the European Convention on Nationality. The facilitation of ratification of these

instruments it is important since it could be helpful for the interpretation of the Charter

of Fundamental Rights, especially in relation to children, and the proceedings providing

in these instruments could be also helpful to goal, regarding quasi-loss of nationality

situations, to eliminate arbitrariness.

As regard EU citizenship, she named some structural problems like the Maltese case

and the massive naturalisation of third country nationals. In this context Kristine

Kruma mentioned as mechanism to address this problem, in addition to infringement

procedures or preliminary ruling procedures, the intervention of the EU in cases when

violation of human rights occurs.

Rainer Bauböck took the floor to open the turn of questions and answer. Floor was

given to several participants who raised the following questions and considerations.

Roxana Barbulescu asked a question in relation to the consequences regarding

property (houses, cars,…) and payment of taxes of the person who has been deprived of

nationality due to fraud.

Kay Hailbronner addressed a reflection to Patrick Wautelet about the difference

between non-acquisition and deprivation procedures on the basis of the assumption to

have a certain nationality. In his view, that is going too far, what does it mean? A

subjective assessment will be needed? In practice, some kind of declaration from the

competent authority will be required in order to trigger the loss procedures.

And secondly, he pointed that the withdrawal of nationality due to fraud is a general

principle of constitutional law and also European law. Thus, when talking about

genuine link would not that mean that it also an obligation to withdraw the nationality

since there is not acceptable link or connection whatsoever under any acceptable title

and neither there is a connection to give EU citizenship rights? He went further and

stated regarding the promoters of the introduction of the genuine link in EU law, which

would mean that member states will be obliged to introduce a loss of nationality

ground base on fraud.

Alenka Prvinsek addressed a question to Adrian Berry and Patrick Wautelet regarding

the consequences of the loss of nationality related to the civil registration and she

expressed her concern about the situation of civil registration in some States.

Hans Ulrich Jessurun d’Oliveira made three comments. The first related to the

suggestion of treating quasi-loss situations as loss, but treated by whom? He supposed

that it is the CJEU the body that has to treat like that. In some countries loss situations

are qualified as loss and in others is qualified as non-acquisition of nationality, thus

René de Groot and Patrick Wautelet developed a kind of comparative concept in which

all this type of situations comes for international comparative reasons by CJEU as loss,

he concluded. He stressed again the idea that Rottmann was wrongly decided since the

CJEU had no jurisdiction. However, if proportionality test as foreseen in Rottmann has

to be applied, there will be a problem of double level proportionality test, one at

national or domestic level and other at EU level. Hans Ulrich Jessurun d’Oliveira

proposed that in this kind of cases the proportionality principle already existing in the

member states in the field of administrative law should be integrated taking into

account the European proportionality test, so only one proportionality test will apply.

Secondly, he commented the issue of fraud regarding personal identity. He made

reference to a case in the Netherlands dealing with a member of the Dutch Parliament

of Somalian origin who acquired the Dutch nationality by naturalisation. At certain

moment it was discovered a mistake in the naturalisation decree regarding the name

(she used a wrong name) and therefore she lost the Dutch nationality ab initio. Dutch

nationality law gives people the freedom to change their names in the naturalisation

decree in accordance with certain rules. And that was the case; the member of the

Dutch Parliament was given by accordance of the Government another name and the

nationality was reinstated by the Dutch Supreme Court. In terms of false names, he

explained that first one has to look at Private International Law because the applicants

possess another nationality according to which certain rules regarding with the names

apply and the question that inevitable arises is whether that name is recognisable, e.g.,

in the Netherlands. However, how can one perpetrate fraud when acting with

agreement with the Dutch government?

Finally, he made a remark on the difficulty of how to combine or differentiate the

Rottmann and Kaur cases. In last case, the CJEU stated that the person involved was not

an EU citizenship because the UK determined that it was a case of non-acquisition of

British citizenship. Should that situation of non-acquisition be treated as loss?

Eva Ersbøll addressed the question to René de Groot and Patrick Wautelet whether

they have looked into the inside differences between the application of general law

principle to nationality law area and other areas (e.g. administrative law).

Floor was given to the speakers in order to answer and react to the questions proposed.

René de Groot, with the regard to the question from Eva Ersbøll, pointed out the

difficulties in the application of general law principles in the area of nationality law

within the EU member states. There is a strong urgency to have a similar approach in

the different member states. In other areas such as administrative law and referencing

the example of Joris Groen it is up to the domestic authorities to deal with those

questions. There is no urgent need to have a common European approach as there is in

the field of nationality law due to the link with EU citizenship.

Kristine Kruma commented on the issue of fraud in naturalisation procedures. She

stated the loss of nationality due to fraud cannot be unconditional; there are

circumstances that have to be assessed such the existence of a genuine link, the

relevance of the fraud or the time elapsed since the fraud was committed.

Adrian Berry addressed the question of birth registration documents. He remarked

firstly that one has to be careful in terms of what they mean; they mean different things

in different places. In the birth register or a central registry the registration may be

necessary just as a factual matter in order to establish nationality; it may be dispositive

of the question of whether or not someone is a national or it may be preconditioned; it

may have some express link to being a national of a country or it may not. For instance,

he stressed, the fact that birth registration in the UK is a universal requirement and is

irrelevant to the question of nationality other than the factual matter of trying to show

someone’s identity, it has no connection to whether or not somebody is registered. It

has no connection to whether or not somebody is British citizen because essentially it is

just about making a declaration that someone is this person’s parent. It has no

administrative significance and it can be rebutted. Different countries have different

means for registration means.

Alenka Prvinsek took the floor in order to clarify that her question dealt with people

who has been naturalised, that is, who has been born in other regions.

Adrian Berry asked to Alenka Prvinsek if she meant that the person concerned was

naturalised on the basis of a birth certificate issued in his or her country of origin.

Alenka Prvinsek pointed that her remark was more general. She mentioned that in

Africa approximately only the 50% of the children are being registered at birth, so it

can be said that only 50% of the inhabitants in Africa have a full civil status record.

Taking into account this situation, how can an individual be responsible of the poor

administration regarding registration when they try to submit certain certificates or

documents in a naturalisation procedure?

Adrian Berry argued that that the situation can vary between the EU member states. In

many countries the birth certificate from the country of origin is not a prerequisite for

grants of naturalisation. Securing an identity is a prerequisite but that can be done in a

number of ways.

Hans Ulrich Jessurun d’Oliveira pointed that the amendment of the British nationality

act and creation of the status of overseas citizens can be qualified as a racist type of

legislation and, in the Kaur, the CJEU should not have accepted it.

Adrian Berry agreed on this remark.

Patrick Wautelet took the floor and addressed the question dealing with the

consequences of loss regarding property. He stated that the property is protected

under Article 1 first protocol of the Convention for the Protection of Human Rights and

Fundamental Freedoms whether or not the person involved is alien. Even if the name of

the person concern is changed and the state decided to deprive the citizenship, as a

consequence, of the property it is really hard to maintain that position in the light of the

principle of proportionality. As regards to taxes he acknowledged that the authorities

will surely find a way to require the payment of taxes.

In relation to the comments of Kay Hailbronner, Patrick Wautelet explained that the

concept of quasi-loss implies a strong assumption by both the individual and the state

authorities regarding the possession of a certain nationality. A situation in which

someone suddenly fells that he or she is Spanish and that should be respected by the

state does not fit in the concept.

As regard the obligation of withdrawal of nationality when there is no genuine link, the

easy answer according to Patrick Wautelet will be that since commonly EU member

states do not apply the genuine connection and grant their nationality to great

grandchildren of an Italian ancestor, then there will be no reason to withdrawal of

nationality to those that do not meet the genuine requirement. Despite this easy

answer, he does not think is a good idea trying to find a correspondence between

granting or withdrawal of nationality and the genuine link.

Regarding the question of whether quasi-loss is needed, he pointed out that the

discussion was focussed mainly on fraud but quasi-loss does happen not only in cases

of identity fraud, such as Lucas’ example (disappearance of family relationship) where

no fraud was involved. These situations can be addressed from family law or

administrative law perspective but that does not mean excluding the nationality law

approach. Furthermore, even if focus is put on fraud the consequences of qualifying a

situation as quasi-loss or loss are completely different regarding access to court, being

able to rely on the UN 1961 Convention, application of Rottmann doctrine… Patrick

Wautelet concluded by stating that instead of trying to make a difference between

quasi-loss and loss they should be merged in one category: loss. And why make a

difference then? The difference is made regarding the application of the

recommendations, the protection guidelines identified in the research.

René de Groot made some additional remarks. The fact that different law fields can be

involved in the quasi-loss situation does not mean that everything should be put

together in one category; it is most a way of labelling those situations that can be

caused by different issues related to different law areas.

He also pointed that it was said during the conference that the starting point was in

principle deprivation when fraud committed during naturalisation is discovered except

in especial circumstances but it is the opposite; it may only exceptionally cause

statelessness. According to René de Groot the starting point should be not cause

statelessness.

Another interesting idea expressed was the Rottmann case and the application of the

proportionality test by the member states. Of course judges in the member states have

to apply the proportionality test but they have to do it, if necessary, in two different

ways: they may apply their own proportionality test and, in addition, the European

proportionality test. And the CJEU acknowledged that the application of the

proportionality is up for member states’ courts but when further clarification is needed

the competent instance is the CJEU.

He also remarked the importance of procedural safeguards, which do not exist in all the

EU member states. He mentioned the concrete case of the Netherlands. Despite some

reservations made on some provisions of the European Convention on Nationality, the

establishment of procedural safeguards in all the member states is essential.

Comments were made in regard of the different rules in the EU member states

regarding paternity and filiation issues and its consequences for being or not an EU

citizenship. Here, he said, the role of civil registrations is relevant, especially when it

comes to the acceptation of birth certificates released in third countries.

René de Groot also highlighted the fact, as explained by Kristine Kruma, that a Latvian

national can only be deprived of the nationality on the basis of a Court decision. This

good practice may be followed by another member states, he stated.

Regarding the question asked by Roxana Barbulescu, he remarked that there are issues

even more relevant that property, that is, the consequences for the civil status

(marriage, filiation).

He also made reference, linked to the question of civil registration, to the possibility of

changing one’s name in different legal systems and its possible connection to identity

fraud situations.

Finally, he agreed with Hans Ulrich Jessurun d’Oliveira with the idea of building a

comparative concept of quasi-loss under European and international law.

1.6. Concluding remarks

René de Groot presented the final conclusions of this mid-term conference and

highlighted some key words.

Sincere cooperation. This point is quite relevant and some further discussion is

needed.

Genuine link. It is a dangerous concept? Should it be provided with content? Or

should we keep it off? Further reflection is needed.

Arbitrary deprivation. What it is precisely? In his presentation René de Groot

presented a set of principles in order to avoid arbitrariness although no

observations were made. He asked for some feedback on the list.

Procedural issues are of paramount important, that is an idea constantly

repeated during the conference.

Proportionality test described by the Rottmann ruling. He remarked the

differences arising in the way of application of the proportionality test by

member states. Practice should be more harmonised since it is a European

concept. Maybe the establishment of a set of rules regarding the proportionality

test is necessary. Another important question that needs to be solved is in

which case precisely applies Rottmann ratione personae or to which EU citizens.

Further reflections are needed about this point and it would be really important

to know the position of the CJEU.

Quasi-loss. It is necessary to have more reflection on this topic and also a

coordinated European approach. He also highlighted the relevance of the

intergenerational consequences of quasi-loss situations.

Finally, René de Groot stressed the importance of the discussions being held during this

mid-term conference, within the framework of the ILEC project, in order to develop

guidelines and policy recommendations that will be useful for judges, practitioners and

member states authorities.

Proceedings written by Guayasén Marrero González