Acquisition and loss of citizenship: openings for European courts? Gerard-René de Groot (Maastricht University) Co-financed by the European Fund for the.

Slides:



Advertisements
Similar presentations
Data Protection & Human Rights. Data Protection: a Human Right Part of Right to Personal Privacy Personal Privacy : necessary in a Democratic Society.
Advertisements

SOURCES OF EU RIGHTS LAW Article 6 TEU indicates three sources for EE Human rights law. 1) EU Charter of Fundamental Rights, Which was proclaimed in Nice.
Integration measures or conditions ? Dr. Jürgen Bast.
Human rights protection and the European Union
THE POSITION OF JOBSEEKERS Paul Minderhoud Centre for Migration Law Coordinator Network on Free Movement of Workers.
Article 8 and Home Repossession. Article 8 (1) Everyone has the right to respect for his private and family life, his home and his correspondence (2)There.
Right to Non-Refoulement – Protection Against Expulsion By Kris Spartanska.
Statelessness in Ireland – international obligations and national reality National Conference on Statelessness Dublin, 21 st October 2014 Presenter:Hilkka.
OAS Course on Statelessness: Statelessness & International Law
Maltese Citizenship. Legislation  Constitution of Malta - Chapter 3  Maltese Citizenship Act (Cap 188)
EU: Bilateral Agreements of Member States
EU: Bilateral Agreements of Member States. Formerly concluded international agreements of Member States with third countries Article 351 TFEU The rights.
COMPARATIVE MEDIA LAW SESSION 9.d Dirk VOORHOOF Ghent University (->contact)
European Union and the Nationality Laws of the Member States Prof. Dr. Gerard-René de Groot
Data Protection: International. Data Protection: a Human Right Part of Right to Personal Privacy Personal Privacy : necessary in a Democratic Society.
Data Protection & Human Rights. Data Protection: a Human Right Part of Right to Personal Privacy Personal Privacy : necessary in a Democratic Society.
EU joining the ECHR New opportunities under two legal systems EQUINET HIGH-LEVEL LEGAL SEMINAR Brussels, 1 – 2 July 2010 Dr. Mario OETHEIMER EU Agency.
European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014.
Citizenship of the EU Course: European Law
HUMAN RIGHTS BASED APPROACH See Me Brewing Lab Cathy Asante.
Competition law and Article 8 ECHR VMR, 13 March 2008 Jolien Schukking.
European Commission Taxation and Customs Union Brussels, 10 November Taxation of International Artistes and Community Law European Commission
INTERNATIONAL LAW PARMA UNIVERSITY International Business and Development International Market and Organization Laws Prof. Gabriele Catalini.
Legal Aid: A Right or a Privilege?. 2 + Sources of international law right to legal aid Scope of international law right to legal aid Canada’s duty to.
EC Study on the Implementation of Articles 9.3 and 9.4 of the Aarhus Convention in the EU Presentation at the 5th meeting of the Task Force on Access to.
Human Rights Act 1998 The European convention on human rights The European convention on human rights The Convention rights The Convention rights How does.
Course: European Criminal Law SS 2009 Hubert Hinterhofer.
Introduction to EU Civil Judicial Cooperation Dr. Francesco Pesce Assistant Professor in International Law Università degli Studi di Genova (IT)
Good practices from and for the EU accountability process Irena Petruškevičienė Vilnius, 17 October 2006.
1 LAW OF THE EU WEEK 7 GENERAL PRINCIPLES OF COMMUNITY LAW.
Discrimination on the grounds of nationality Ana Rita Gil FDUNL, 20th March 2013.
Irregular Immigrants and EU Citizens: A Regularising Relationship? The Case of Ireland Alan Desmond, PhD Candidate, Faculty of Law, University College.
EUROPEAN CITIZENSHIP. Mr. And Mrs. Chen decided to have a child in Northern Ireland, since, at certain conditions, a person who is born there may acquire.
The Eighth Asian Bioethics Conference Biotechnology, Culture, and Human Values in Asia and Beyond Confidentiality and Genetic data: Ethical and Legal Rights.
Seminar on Migration Legislation Ministry of Foreign Affairs of Guatemala 15 – 16 February 2007.
The application of certain restrictions on access to environmental information in accordance with AC Personal Data Ana Barreira Instituto.
Michael Fruhmann Dr. Michael Fruhmann EBRD Project Ukraine 29/30th March /31/ Procedural fairness and the EU Remedies Directive – an overview.
Discrimination on the grounds of Nationality Ana Rita Gil FDUNL, 13 November 2013.
Seminar on EC case-law Bedanna Bapuly Brno, 2007 October 15th.
International Human Rights Non-discrimination Article 14 – Prohibition of discrimination The enjoyment of the rights and freedoms set forth.
Reverse Discrimination Heidi Myllys University of Turku
Fundamental Rights.
The EU and Access to Environmental Information Unit D4 European Commission, Directorate General for the Environment 1.
EUROPEAN CONVENTION ON HUMAN RIGHTS Regional protection of human rights.
European Committe for Social Rights. The Council of Europe was established in 1949 by 10 Countries. It has now 47 member States. The European Convention.
European Law in the Case- law of the Constitutional Court of Latvia Kristine Kruma.
HUMAN RIGHTS LAW. Ahmed T. Ghandour.. HUMAN RIGHTS IN EUROPE I.
Commission Staff Working Document Free Movement of Workers in the Public Sector 18 January 2011 Ursula Scheuer European Commission DG Employment, Social.
Lost in Translations – An Examination of the Legal & Practical Problems Associated with the Implementation (or Non-Implementation) of Directive 2010/64/EU.
Legal Foundations of European Union Law II Tutorials Karima Amellal.
Compatibility of ICS in CETA with EU law Presentation by: Laurens Ankersmit GUE CETA conference 31/5/2016.
The anti-discrimination legislation in Albania Presentation of the corresponding EU Directives and of their approximation.
The EU Accession to the ECHR after Opinion 2/13: Reflections, Solutions and the Way Forward Dr Sonia Morano – Foadi and Dr Stelios Andreadakis European.
EU Legislative Powers: Principles and Procedures
Common European Asylum System
EU Foundations EU Protection of Human Rights
Data Protection: EU & International
Dr. José Ignacio Cubero Marcos University of the Basque Country
Introductory case 1. facts (1)
Human Dignity in European Constitutional Culture
Private and Public law lesson 4 The European integration process and the European legal order (overview)
Data Protection & Human Rights
National remedies and national actions
Fundamental rights.
The EU Regulatory Framework for Tax
Free movement of persons
European Committe for Social Rights
Fundamental rights.
Private and Public law lesson 4 The European integration process and the European legal order (overview)
The right to access to justice between EU Charter and ECHR
Presentation transcript:

Acquisition and loss of citizenship: openings for European courts? Gerard-René de Groot (Maastricht University) Co-financed by the European Fund for the Integration of Third- Country Nationals

National autonomy in citizenship matters Restrictions by international law, in particular by international treaties Also restrictions by European law, in particular by general principles of European law/ the guarantee of freedom of movement rights/ principle of solidarity between MS (e.g. grant of nationality to the whole population of a former colony?) Is it possible to challenge citizenship decisions in international or European courts?

International/ European courts European Court of Human Rights: Genovese v Malta ( ) European Court of Justice: Janko Rottmann ( )

ECtHR Genovese v Malta Discrimination of children born out of wedlock in respect of access to nationality father violates Art. 14 in conjunction with Art. 8 ECHR Citizenship is as part of the social identity as “private life” protected by Art. 8 ECHR Applies a fortiori for loss of nationality Link with Art. 6 ECHR: access to the court

Access to the court 1997 European Convention on Nationality (ratified by 20 European States, 12 MS EU): A) Citizenship decisions must be reasoned (Art. 11 ECN) B) Judicial review must be possible (Art. 12 ECN) BUT: States may make reservations on these issues  after Genovese these reservations problematic!

Access to the court 1961 Convention on the reduction of statelessness (ratified by 24 European States, 15 MS EU) Article 8(4): ‘a Contracting State shall not exercise a power of deprivation [….] except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body’

Access to the court ‘fair hearing by a court or other independent body’  applies if deprivation would cause statelessness  implies in my opinion (judicial) review ex ante, i.e. before the deprivation gets effect

ECJ Janko Rottmann Austrian naturalised in Germany in 1999 Loss of Austrian nationality because of voluntary acquisition of a foreign nationality Par. 27 (1) Staatsbürgerschaftsgesetz Art. 1 Treaty of Strassbourg 1963 Reduction cases of multiple nationality (was 1999 still in force between Austria and Germany)

Janko Rottmann Austrian naturalised in Germany in 1999 Discovery of fraud Deprivation of German nationality because of fraud committed during naturalisation procedure in 2000 Consequence  statelessness

Janko Rottmann Deprivation : Violation of EU law? Preliminary ruling procedure initiated by Bundesverwaltungsgericht

Is EU law involved? ECJ (para. 42): It is clear that the situation of a citizen of the Union who, […], is faced with a decision withdrawing his naturalisation, […] falls, by reason of its nature and its consequences, within the ambit of European Union law. para. 43: citizenship of the Union is intended to be the fundamental status of nationals of the Member States

Deprivation because of fraud could be allowed ECJ Para. 50: withdrawing naturalisation […] based on the deception practised by the person concerned in connection with the procedure for acquisition of the nationality in question, […] could be compatible with European Union law.

But observe principle of proportionality! Para. 55: In such a case, it is, however, for the national court to ascertain whether the withdrawal decision at issue in the main proceedings observes the principle of proportionality so far as concerns the consequences it entails for the situation of the person concerned in the light of European Union law, in addition, where appropriate, to examination of the proportionality of the decision in the light of national law.

It is necessary to take into account (Para. 56) The consequences that the decision entails for the person concerned and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union.

In particular (Para. 56) In this respect it is necessary to establish, in particular, whether that loss is justified in relation A. to the gravity of the offence committed by that person, B. to the lapse of time between the naturalisation decision and the withdrawal decision and C. to whether it is possible for that person to recover his original nationality

Recovery of original nationality? Deprivation may also be possible if original nationality is not recovered (Para. 57), BUT Para. 58: It is, nevertheless, for the national court to determine whether, before such a decision withdrawing naturalisation takes effect, having regard to all the relevant circumstances, observance of the principle of proportionality requires the person concerned to be afforded a reasonable period of time in order to try to recover the nationality of his Member State of origin.

Should Austria allow recovery? Para. 62: the principles stemming from this judgment with regard to the powers of the Member States in the sphere of nationality, and also their duty to exercise those powers having due regard to European Union law, apply both to the Member State of naturalisation and to the Member State of the original nationality

Consequences Rottmann ruling Proportionality principle has to be observed by MS in case of deprivation/ loss of nationality But also other general principles of EU law like Equality Protection of legitimate expectations Access to the court

Examples Deprivation of nationality should only be effective after person involved had possibility to challenge decision  effective remedy Identity fraud: in some states unequal treatment (no deprivation procedure but absolute nullity)  equality/ proportionality

Examples Obligation to make a choice between a iure soli acquired nationality and a iure sanguinis acquired nationality (Optionszwang)  proportionality? equal treatment? Decisions on acquisition and loss of nationality should be reasoned? Art. 11 ECN Possibility to challenge decisions? Art. 12 ECN  are reservations acceptable in light of EU principles?

Examples Is it allowed to apply some grounds for loss only on naturalised citizen?  differential treatment of European citizens by birth and those by naturalisation Protection of possession of nationality in good faith  Protection of legitimate expectations/

Examples Integration tests as condition for naturalisation: as such not problematic  but what with their content?  proportionality? Is it possible to challenge the result?  access to the court?

Conclusions The general principles of EU law have to be implemented in nationality laws of MS asap! In order to get more clarity on influence EU- principles in nationality matters preliminary- ruling procedures should be stimulated If national courts are reluctant  also access to ECtHR