The Production of Statelessness in Europe

IWMPost Article

Worldwide states have become increasingly interested in using citizenship deprivation in the fight against terrorism. One of the results of this state interest in citizenship deprivation powers is the judicialization of nationality claims at the national and supranational levels as individuals affected by citizenship deprivation orders have challenged them in court with varying degrees of success. On one hand, nationality law is deployed by state authorities as the tool through which citizenship status and rights (e.g. passport denial, entry bans) are taken away from citizens deemed dangerous or lacking loyalty. On the other hand, human rights law is mobilized by applicants and expected to step in and effectively protect them. While from a national security perspective, home-grown terrorists and foreign “terrorist” fighters are treated as security threats, depriving them of citizenship, nonetheless, encroaches upon their human right to nationality. The development of judicial standards that states must observe in the exercise of their nationality powers points towards supranational human rights law being used and developed into a source of protection for affected individuals. The result is that state sovereignty over nationality—who decides who belongs to the state—is challenged by supranational judicial authorities and their reception by national judicial authorities.

We want to take a closer look at the European Convention on Human Rights (ECHR) as a source of protection for the right to nationality and at the case law of the European Court of Human Rights (ECtHR) on citizenship deprivation. The ECtHR’s engagement with nationality issues from a human rights perspective is an important development in terms of how the relationship between the state and its citizens is understood and given legal protection in the development of legal standards on arbitrary deprivation of nationality.

Although not expressly included among the rights protected by the Convention, the ECtHR has developed a growing body of jurisprudence on the protection of the human right to nationality as part of Article 8 ECHR. The ECtHR’s inclusion of nationality in the catalogue of rights protected by the Convention is part of a trend towards the internationalization and judicialization of nationality and nationality related claims that in the not so distant past would have seemed improbable. In fact, in the 80’s the former European Human Rights Commission considered that nationality was not within the ECHR’s scope because none of its articles expressly referred to it. Although attempts were made to adopt an additional protocol to the ECHR dealing with nationality, these were unsuccessful: nationality matters were seen as very much connected with questions of state sovereignty and the willingness of ECHR state parties to bound themselves by such a protocol subjected to the Court’s jurisdiction were seen as very slim.1 This failure led to the adoption of the European Convention on Nationality (ECN) in 1997 as a separate Council of Europe instrument. The ECN is considered as a modern instrument in the field of nationality law and providing a higher standard of protection against loss of nationality than its UN counterpart, namely the 1961 Convention on the Reduction of Statelessness. However, the reach of the ECN is somewhat limited by the low number of ratifications (the UK is not a state party, for example) and the fact that its observance is not entrusted to a supranational judicial body. This explains why the ECHR with its judicial enforcement mechanism remains an attractive avenue to pursue in case of a violation of one’s right to nationality. The Strasbourg Court has now acknowledged that nationality forms part of a person’s social and legal identity (Genovesse v Malta) and an arbitrary denial or deprivation of nationality engage Article 8 ECHR.

The reaction and approach of the national constitutional dimension of citizenship deprivation is also central to this issue of states’ claim to dispose of unwanted citizens through deprivation procedures. At the national level there has also been a strong judicialization of deprivation, where the separation of powers central to many modern states has come under pressure. As state authorities claim the right to dispose of citizens through the un-making of citizenship, the judiciary is forced to consider the legality of this exercise of executive power. Taking as indicative of this new challenge to the construction of the modern democratic state we take the case of Shamima Begum a woman born a British citizen in the UK but who, as a child (15 years old) ran away to Syria to be the bride of an ISIS fighter. As the civil war in Syria began to come to an end and ISIS was increasingly deprived of territory, the UK Government decided to deprive Begum of her British citizenship on the basis that this was conducive to the public good. The ground was based on the fact that she had voluntarily associated herself with ISIS (which the UK Government considers a terrorist organization) by going to ISIS held territory and marrying a fighter there. Although there was no evidence that Begum had engaged in terrorist activities as such, nonetheless, her close connection with ISIS fighters was considered sufficient for her to be deprived of the possibility of returning to the UK. Unlike the Ghoumid case,2 there was little clarity on whether Begum also held a second nationality. The British government argued that as her parents had been born in Bangladesh, according to their reading of Bangladeshi nationality law, she was entitled to Bangladeshi citizenship. Begum had never sought a Bangladeshi passport or claimed Bangladeshi citizenship. Indeed, when inquiries were made of the Bangladeshi authorities they confirmed that their law did not extend citizenship or the entitlement to acquire citizenship to persons in Begum’s situation. Nonetheless, the UK Supreme Court held that she was indeed entitled to Bangladeshi citizenship and so the deprivation of British citizenship would not render her stateless. However, in fact Begum is now stateless. She lives in a refugee camp in Kurdish controlled Iraq in appalling conditions. In this case, the judiciary attempt to reconcile the constitutional right to citizenship and the international commitments to reduce statelessness by externalizing the issue. By accepting the government’s argument that Begum should be the citizen of Bangladesh, whether or not the Bangladeshi authorities accept this allocation of citizenship, the court sought to avoid a direct challenge to international law. But the mechanism used, allocating responsibility for the unwanted young woman to another country, a former colony on the basis that the UK court is better placed to determine the “real” meaning of Bangladeshi citizenship law than the Bangladeshi authorities, perpetuates a form of legal colonial thinking where the center of ‘truth’ lies not with the national authorities (or courts) of the sovereign state but with those of the former colonial power.

Mantu, S.A. Contingent citizenship.
The law and practice of citizenship deprivation in international, European and national perspectives
(Immigration and asylum law and policy in Europe, 37). Leiden 2015.

2 The case Ghoumid and others v France concerned the citizenship deprivation of five French citizens with dual nationality. In its decision the ECtHR failed to recognize any violation of the European Convention on Human Rights and Fundamental Freedoms.

Elspeth Guild is Professor of Law at the Queen Mary University in London as well as at the Radboud University Nijmegen in the Netherlands.

Sandra Mantu is Assistant Professor for Sociology of Law and Migration Law at the Radboud University.