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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