EU Citizenship, Nationality and Migrant Status : An Ongoing Challenge [1 ed.] 9789004251595, 9789004251588

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EU Citizenship, Nationality and Migrant Status

Immigration and Asylum Law and Policy in Europe Edited by

Jan Niessen Elspeth Guild

VOLUME 32

The titles published in this series are listed at brill.com/ialp

EU Citizenship, Nationality and Migrant Status An Ongoing Challenge

By

Kristīne Krūma

LEIDEN • BOSTON 2014

Library of Congress Cataloging-in-Publication Data Kruma, Kristine.  EU citizenship, nationality and migrant status : an ongoing challenge / by Kristine Kruma.   pages cm. -- (Immigration and asylum law and policy in Europe)  Based on author’s dissertation (doctoral) - University of Lund, 2012 under title: An ongoing challenge.  Includes bibliographical references and index.  ISBN 978-90-04-25158-8 (hardback : alk. paper) -- ISBN 978-90-04-25159-5 (e-book) 1. Citizenship-European Union countries. 2. Citizenship--Latvia. 3. Citizenship. I. Title.  KJE5124.K78 2013  342.2408’3--dc23 2013028909

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Contents Acknowledgments�������������������������������������������������������������������������������������������������������������������ix Abbreviations����������������������������������������������������������������������������������������������������������������������������xi Part I: Introduction 1 The Problem��������������������������������������������������������������������������������������������������������������������������3 1.1 EU Citizenship��������������������������������������������������������������������������������������������������������������4 1.2 Immigration and Integration������������������������������������������������������������������������������������7 1.3 Latvia: A Case Study������������������������������������������������������������������������������������������������� 11 2 Methodology���������������������������������������������������������������������������������������������������������������������� 13 2.1 Scope and Delimitations of This Book���������������������������������������������������������������� 13 2.2 Theoretical Framework������������������������������������������������������������������������������������������� 16 2.3 Structure of This Book��������������������������������������������������������������������������������������������� 22 3 Terminology����������������������������������������������������������������������������������������������������������������������� 25 3.1 Nationality and Citizenship����������������������������������������������������������������������������������� 25 3.2 Domicile and Residence������������������������������������������������������������������������������������������ 26 3.3 Third Country Nationals������������������������������������������������������������������������������������������ 28 Part II: Nationality Regulation in International Law 4 Concept of Nationality in International Law������������������������������������������������������������ 31 5 Access to Nationality������������������������������������������������������������������������������������������������������� 37 5.1 Jus soli and jus sanguinis���������������������������������������������������������������������������������������� 37 5.2 Naturalisation������������������������������������������������������������������������������������������������������������ 39 5.2.1 Residence�������������������������������������������������������������������������������������������������������� 40 5.2.2 Consent������������������������������������������������������������������������������������������������������������ 42 5.2.3 Effective link��������������������������������������������������������������������������������������������������� 43 5.3 Nationality and State Succession������������������������������������������������������������������������� 48 6 Results of Conflicts of Nationality Laws��������������������������������������������������������������������� 53 6.1 Multiple Nationality������������������������������������������������������������������������������������������������� 54 6.1.1 Traditional View on Multiple Nationality���������������������������������������������� 54 6.1.2 European Convention on Nationality������������������������������������������������������ 56

vi  Contents

6.2 Statelessness������������������������������������������������������������������������������������������������������������ 57 6.2.1 The Convention Relating to the Status of Stateless Persons����������� 59 6.2.2 Convention on the Reduction of Statelessness���������������������������������� 61 6.2.3 European Convention on Nationality��������������������������������������������������� 63    7 Human Right to Nationality����������������������������������������������������������������������������������������� 65 7.1 Article 15 of the Universal Declaration����������������������������������������������������������� 65 7.2 Right of a Child to Nationality���������������������������������������������������������������������������� 67 7.3 Equality of Women������������������������������������������������������������������������������������������������ 69 7.4 Prohibition of Arbitrary Deprivation��������������������������������������������������������������� 69 7.5 Non-Discrimination���������������������������������������������������������������������������������������������� 72    8 Functions of Nationality���������������������������������������������������������������������������������������������� 77 8.1 Diplomatic Protection������������������������������������������������������������������������������������������� 77 8.1.1 Contents of Diplomatic Protection������������������������������������������������������� 77 8.1.2 ILC Articles on Diplomatic Protection������������������������������������������������� 86 8.2 The Duty of Admission����������������������������������������������������������������������������������������� 92 8.2.1 General Framework����������������������������������������������������������������������������������� 92 8.2.2 Human Right to Free Movement������������������������������������������������������������ 94    9 Summary�������������������������������������������������������������������������������������������������������������������������113 Part III: Regulation of European Union Citizenship 10 Concept of EU Citizenship����������������������������������������������������������������������������������������119 11 Access to EU Citizenship��������������������������������������������������������������������������������������������129 11.1 Competence of Member States���������������������������������������������������������������������129 11.2 EU Law Approach to Nationality�������������������������������������������������������������������133 11.2.1 Scope of Competence�������������������������������������������������������������������������133 11.2.2 Discretion of Member States������������������������������������������������������������139 11.2.3 Cases of Multiple Nationality�����������������������������������������������������������144 11.2.4 Cases of Statelessness�������������������������������������������������������������������������155 11.3 Summary��������������������������������������������������������������������������������������������������������������161 12 Functions of EU Citizenship�������������������������������������������������������������������������������������� 167 12.1 Protection of EU Citizens outside the EU���������������������������������������������������167 12.2 Rights of Citizens to Move and to Reside����������������������������������������������������173 12.2.1 Free Movement within the EU��������������������������������������������������������174 12.2.2 Equal Treatment����������������������������������������������������������������������������������189 12.2.3 Family Reunification��������������������������������������������������������������������������210 12.3 Summary��������������������������������������������������������������������������������������������������������������238

Contents  vii

Part IV: Statuses of Immigrants in EU Law 13 Concept of Legal EU Immigrant�������������������������������������������������������������������������������247 14 Access to EU Immigrant Status��������������������������������������������������������������������������������253 14.1 Long Term Resident Status������������������������������������������������������������������������������253 14.2 Status of Selected Groups��������������������������������������������������������������������������������258 14.3 Family Members�������������������������������������������������������������������������������������������������264 15 Functions of EU Immigrant Status��������������������������������������������������������������������������277 15.1 Equal Treatment: Near Equality���������������������������������������������������������������������277 15.1.1 Access to Employment�����������������������������������������������������������������������278 15.1.2 Access to Other Rights������������������������������������������������������������������������281 15.2 Free Movement within the EU�����������������������������������������������������������������������286 15.3 Expulsion and Withdrawal of Status������������������������������������������������������������292 16 Integration Requirements������������������������������������������������������������������������������������������299 17 Summary�������������������������������������������������������������������������������������������������������������������������315 Part V: Case Study on Nationality Regulation in Latvia 18 Concept of Latvian Citizenship��������������������������������������������������������������������������������325 18.1 State Continuity Principle�������������������������������������������������������������������������������325 18.2 Immigrants from ex-USSR�������������������������������������������������������������������������������329 18.3 Role of International Organizations�������������������������������������������������������������333 19 Access to and Loss of Latvian Citizenship�������������������������������������������������������������339 19.1 Recognition of Latvian Citizenship��������������������������������������������������������������339 19.2 Naturalization�����������������������������������������������������������������������������������������������������342 19.3 Rights of the Child���������������������������������������������������������������������������������������������351 19.4 Loss of Citizenship���������������������������������������������������������������������������������������������355 20 Concept of Non-Citizen����������������������������������������������������������������������������������������������361  21 Access to and Loss of Status of Non-Citizen��������������������������������������������������������367 21.1 Access to Status of Non-Citizen���������������������������������������������������������������������367 21.2 Access of Children to Non-Citizen Status���������������������������������������������������370 21.3 Revocation of Status�����������������������������������������������������������������������������������������373 22 Function of Non-Citizens�������������������������������������������������������������������������������������������377 22.1 Diplomatic Protection��������������������������������������������������������������������������������������377

viii  Contents

22.2 Right to Reside����������������������������������������������������������������������������������������������������379 22.2.1 Right to Leave and to Enter��������������������������������������������������������������379 22.2.2 Right to Private Life����������������������������������������������������������������������������382 22.3 Equality of Treatment��������������������������������������������������������������������������������������389 22.3.1 General Principles�������������������������������������������������������������������������������389 22.3.2 ECHR Regime���������������������������������������������������������������������������������������392 22.3.3 EU Regime���������������������������������������������������������������������������������������������396 23 Integration of Non-Citizens���������������������������������������������������������������������������������������399 24 Summary�������������������������������������������������������������������������������������������������������������������������407 Part VI: Conclusions 25 International Concept of Nationality and Concept of EU Citizenship���������415 25.1 Concept of Nationality�������������������������������������������������������������������������������������415 25.2 Concept of EU Citizenship������������������������������������������������������������������������������417 26 Functions of Nationality in International and EU Law�������������������������������������425 26.1 International Law����������������������������������������������������������������������������������������������425 26.1.1 Diplomatic Protection�����������������������������������������������������������������������425 26.1.2 Free Movement������������������������������������������������������������������������������������426 26.2 EU Law������������������������������������������������������������������������������������������������������������������428 26.2.1 Diplomatic Protection�����������������������������������������������������������������������428 26.2.2 Free Movement and Non-Discrimination������������������������������������429 26.2.3 Right to Family Reunification����������������������������������������������������������433 27 Status and Rights of Immigrants������������������������������������������������������������������������������437 28 Latvian Citizenship and Non-Citizen Status��������������������������������������������������������443 29 EU Citizenship, Nationality and Immigration: Outlook������������������������������������449 Bibliography��������������������������������������������������������������������������������������������������������������������������457 Index����������������������������������������������������������������������������������������������������������������������������������������483

Acknowledgments I defended this study as my doctoral thesis on 7 June 2012 at the University of Lund. The research was conducted at the Raoul Wallenberg institute for Human Rights under supervision of Professor Gudmundur Alfredsson and Professor Ineta Ziemele. My research was supported by the Riga Graduate School of Law and the Söderberg Foundation. This study was originally based on research on human rights in the EU which I started during studies for a master’s degree at Lund University. However, developments related to EU citizenship and subsequent introduction of immigrant statuses re-focused my academic interest and gradually shifted towards the future of and interrelationship between different concepts. My endeavour to keep abreast of developments taking place in the EU as well as in Latvia would not have been possible without the patience, wisdom and professional guidance of my supervisors, Professor Gudmundur Alfredsson and Professor Ineta Ziemele. I am sincerely grateful for all the time and care they offered throughout the process of writing and thinking about the study. Their academic excellence has been an example to follow during the research process. I am thankful to Professor Kees Groenendijk for his detailed comments on my thesis and advice during preparation of the study for this publication. His enthusiasm and academic knowledge persuaded me to continue research further. Apart from my academic supervisors I would particularly also like to thank Christopher Goddard who carefully edited the manuscript. There were many people and institutions which have contributed to my research. I am thankful to the Söderberg Foundation and Ingemar Stähl and Birgitta Jansson in particular, Professor Rüdiger Wolfrum and the Max Planck Institute for Comparative Public Law and International Law (Heidelberg), Professor Kees Groenendijk and Radbound University (Nijmegen). I have benefited by being involved in different research projects on citizenship and immigration: IMISCOE research where I conducted my first comprehensive and systematic study on Latvia, the EUDO citizenship project which enabled me to receive useful comments from Rainer Bauböck, INTEC where I had the possibility to discuss integration and naturalization issues with Tineke Strik, Ricky van Oers and Eva Ersbøll. I owe much to many who have supported and contributed to this research: colleagues at the Riga Graduate School of Law, the Raoul Wallenberg Institute and  the Faculty of Law of Lund University, members of the Odysseus network as well as researchers with whom I discussed parts of the thesis during different

x  Acknowledgments

conferences, seminars and projects. I would also like to warmly thank Ivars Indāns, Martins Paparinskis and Sandijs Statkus who helped me with information and commented on various parts of the text. Their support and the positive environment they created were essential for carrying out and enriching the research. A special word of thanks is due to my family who have always encouraged and supported me during the process of writing. I dedicate this book to my daughter Zane who is the most important person and whom I owe most for the time spent during writing this book. Kristīne Krūma

Abbreviations ACHR American Convention on Human Rights ACHPR African Charter on Human and Peoples’ Rights CAT Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CEDAW Convention on the Elimination of All Forms of Discrimination against Women CERD International Convention on the Elimination of All Forms of Racial Discrimination CIS Commonwealth of Independent States CJEU Court of Justice of the European Union CRC Convention on the Rights of the Child CSCE Conference for Security and Cooperation in Europe EC European Commission ECHR European Convention on Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights ECN European Convention on Nationality ECOSOC Economic and Social Council EEA European Economic Area EEC European Economic Community EMU European Monetary Union EU European Union Family Reunification Directive Council Directive 2003/86 on the right to family reunification FEAS Foreign External Action Service GYIL German Yearbook of International Law HQE Directive Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment HRC Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice

xii  Abbreviations

ILC International Law Commission ILO International Labor Organization JHA Justice and Home Affairs LTR Directive Council Directive 2003/109 of 25 November 2003 concerning the status of third-country nationals who are long-term residents NATO North Atlantic Treaty Organization OCMA Office of Citizenship and Migration Affairs OHCHR Office of High Commissioner of Human Rights OSCE Organization for Security and Cooperation in Europe PCIJ Permanent Court of International Justice Researchers Directive Directive 2005/71 on a specific procedure for admitting third-country nationals for the purposes of scientific research SIA Schengen Implementation Agreement SIS Schengen Information System Stateless Status Convention Convention Relating to the Status of Stateless Persons Students Directive Council Directive 2004/114 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service TEC Treaty establishing European Community TEU Treaty on European Union TFEU Treaty on Functioning of the European Union UDHR Universal Declaration of Human Rights UN United Nations WHO World Health Organization

Abbreviations for Publications AJIL Baltic YIL BYIL Cardozo L. Rew CMLR. Colum. J. Transnat’L. EJCL EJIL

American Journal of International Law Baltic Yearbook of International Law British Yearbook of International Law Cardozo Law Review Common Market Law Review Columbia Journal of Transnational Law Electronic Journal of Comparative Law European Journal of International Law

Abbreviations  xiii

EJML European Journal of Migration and Law ELJ European Law Journal ELR European Law Review EIOP European Integration Online Papers GYIL German Yearbook of International law HRLJ Human Rights Law Journal ICLQ The International and Comparative Law Quarterly IJRFL International Journal of Refugee Law ILCYrb. Yearbook of International Law Commission Legal Issues of Economic Integration LJIL Leiden Journal of International Law MJ Maastricht Journal of European and Comparative Law Mich. JIL Michigan Journal of International Law MLR Modern Law Review N.Y.L.Sch.J.Int’L and Comp.L New York Law School Journal of International and Comparative Law OJ Official Journal TLCP Transnational Law and Contemporart Problems

Part One Introduction

Chapter One The Problem Nationality originated along with development of the modern nation-State. However, growing global migration, travel and increasing communications have led to creation of multiple individual loyalties in addition to national identity. This is further facilitated by mobility of capital, foreign investment, and estab­ lishment of transnational corporations.1 In addition, many trans-national nongovernmental associations are appearing which see themselves as dedicated to ‘higher’ community values such as the environment, human rights, and disarmament.2 As a consequence of these processes, State powers are lessened and national identities blurred. Individuals can no longer be identified by their loyalty to a single State. Globalization has not led to a world in which borders are irrelevant. But it has led to a world in which decisions on how borders are relevant are increasingly made outside of national confines.3 As argued by Thomas Franck, a world is emerging in which each individual will freely choose a personal identity constructed out of a broad array of building blocks: a world in which self-determination evolves from the right of peoples to one of persons.4 Therefore, States and the international community in general are confronting a puzzle of a multitude of interests and identities which are derived from individual choices of belonging. This requires a conceptual shift in our understanding about belongingness which goes beyond the territory of a single State. 1 As noted by Fareed Zakaria the traditional application of national power, both economic and military, has become less attractive. There is a diffusion of power from the State to other actors. Across the world, economics is trumping politics. The financial force that has powered the new era is the free movement of capital. Zakaria Fareed, The Post-American World, 2nd ed. (W. W. Norton Company: New York, London 2011) 5, 19, 24. 2 Schachter Oscar, ‘The Decline of the Nation-State and its Implications for International Law’ (1998) 36 (7) Colum. J. Transnat’L., 7–23, at 10, 12–13, 17. 3 Kumm Mattias, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’ (2004) 15/5 EJIL 907–931, 913. 4 Franck Thomas M., ‘Clan and Superclan: Loyalty, Identity and Community in Law and Practice’ (1996) 90/3 AJIL 359–382, 360. Thomas Franck has also argued that individuals increasingly claim a right to self-determine the contours of their own identity. This transformation is propelled by  forces that transcend territorial, cultural, linguistic, religious and ethnographic boundaries. Franck Thomas M., The Empowered Self. Law and Society in the Age of Individualism (Oxford: Oxford University Press 1999) 279.

4  Chapter One

In this context EU citizenship becomes a challenging concept to study. Dismantling national borders and granting directly effective rights to EU citizens broadens our understanding about belonging only to the limited territory of a single State. Therefore, the primary focus of the book is the status of EU citizenship and rights which EU citizens can enjoy qua EU citizens. The book is premised on an argument that the EU should continue to strengthen its structures including EU citizenship to allow its Member States in their togetherness to remain competitive in a globalized world. This means change of identity by accepting otherness and building of cosmopolitan unity in Europe.5 The stronger the status of EU citizenship, the better will be the protection available to individuals exploring their rights, thus contributing to the EU. The status of migrants arriving and residing in the EU as well as nationality represents an opportunity to ensure a transition from nation-based statuses to trans-national ones. The book will discuss EU citizenship as part of the construction of a status that differs from national citizenship. This should not lead to removal of national citizenship and identity but to building another layer of trans-national identity. EU citizenship has already been subject to considerable research from different aspects and in different contexts. This will serve as a useful source of references in this book. This book is based on the assumption that EU citizenship cannot be studied thoroughly if isolated from other regimes both international and national. The book will be enriched by analysis of interrelationships with regulation of legal immigration, integration and the national context of Latvia. For this reason, the book will focus on commonalities, tracing interrelationships and changes wrought by developments in statuses and rights attached to them under different regimes. 1.1. EU Citizenship EU citizenship was not introduced as a fully defined legal concept but rather as an idea to be developed over the years. It has evolved since its introduction in 1992 by the Maastricht Treaty. It has also provoked intense scholarly debate. Some researchers were sceptical as to the potential of the status. They called EU citizenship a constitutional paradox. For instance, Joseph Weiler called it “little more than a cynical exercise in public relations on the part of the High Contracting 5 See interview with Ulrich Beck, member of Spinelli group, ‘Kants vai katastrofa’ [Kant or catastrophy], weekly magazine Ir, 19–25 April 2012.

The Problem  5

parties”.6 Others have argued that the main reasons behind the establishment of EU citizenship have been political or ideological, namely, to reduce the democratic deficit and to create a European identity.7 The most optimistic critics argued that European citizenship has been designed only to facilitate market integration.8 At the beginning of the 1990s the Advocate General in Micheletti stated that “at the present stage of development of Community law an independent definition of Community citizenship does not exist”.9 Indeed, acquisition of EU citizenship is still primarily dependent on the decision of Member States and is granted without prior agreement or consent of the individuals concerned.10 Member States act as gate-keepers to EU citizenship, i.e., they are primary decision-makers as to who is entitled to it and who is excluded from the benefits of trans-national citizenship. However, there were and are researchers who believe that EU citizenship should obtain substantive trans-national status. Stephen Hall, for instance, observed that the Maastricht Treaty removed nationality from the reserved domain of the Member States. The EU Treaties bring such rules within the framework of EU law and expose them to supervision for conformity with the EU’s general principles of law, and especially of fundamental freedoms.11 From a present day perspective Hall was right despite the fact that EU competence remains limited. The CJEU (previously the Court of Justice) as well as other EU institutions have incrementally strengthened the status of EU citizenship on the basis of Article 20 TFEU. The European Commission has come up with a number of proposals, while 6 Weiler Joseph H.H., ‘European Citizenship and Human Rights’ in Winter Jan A., Curtin Deider M., Kellermann Alfred E., De Witte Bruno (eds), Reforming the Treaty on European Union. The Legal Debate (The Hague Boston: Kluwer Law International 1996) 57–86, 65. 7 For general discussion on reasons why EU citizenship was introduced as well as critical analysis of the rights accorded by the TEU see O’ Leary Siofra, The Options for the Reform of European Union Citizenship (London: Institute for Public Policy Research 1996). 8 Everson Michelle C., ‘The Legacy of the Market Citizen’ in Shaw Jo and More Gillian (eds), The New Dynamics of European Union (Oxford: Clarendon Press 1995) 73–90. 9 Case C-369/90 Mario Vicente Micheletti and others v. Delegacion del Gobierno en Cantabria [1992] ECR I-4239, opinion delivered 30 January 1992. It should be noted that the European Commission does not appreciate such comparisons between national and Union citizenship, see Third Commission Report on Citizenship of the Union COM (2001) 506 final, 9. 10 Pomoell Jutta, European Union Citizenship in Focus: The legal position of the Individual in EC Law (The Erik Castrén Institute of International Law and Human Rights Research Reports: Helsinki 2000) 20. 11 Hall Stephen, Nationality, Migration Rules and Citizenship of the Union (Leiden Boston: Martinus Nijhoff Publishers 1995) 9.

6  Chapter One

the European Council and the European Parliament have adopted specific secondary legislation which has also evolved over the years departing from purely market based status of citizens. By arguing that EU citizenship over the years has obtained fundamental status of EU law, the Court has opened a further debate on the autonomy of EU citizenship and the limited discretion of the EU Member States in relation to both status and functions of EU citizenship. In order to reveal the contents of the EU citizenship concept and its different status from national citizenship, this book will analyse the different tests introduced by the CJEU. These include, for instance, a test of ‘substantive core rights’ of EU citizens, an obligation for Member States to pay ‘due regard to EU law’ as well as a test of the situation which ‘by reason of its nature and consequences’ is not purely internal from the EU law point of view. The scope of these tests should be determined and elaborated for the purposes of strengthening the EU citizenship concept. This analysis could lead to a conclusion whether interaction between the EU, national and international actors could produce new European standards on nationality law.12 This does not necessarily mean harmonization of nationality laws in Europe or creating ‘independent’ transnational citizenship. Complement­ ing national citizenship primarily means that Union citizenship is producing ‘additional’ rights without affecting the sphere of rights and duties traditionally belonging to national citizenship.13 Additional rights granted primarily concern functional aspects of EU citizenship developed on the basis of Articles 18 and 21 TFEU. Both Articles can be invoked by EU citizens directly and thus are opening avenues for further strengthening and expanding the EU citizenship concept. In addition, the Lisbon Treaty has mandated further developments in strengthening EU citizenship internationally by granting harmonized consular assistance to EU citizens residing in countries outside the EU on the basis of Article 23 TFEU. As the book will illustrate, this is an important functional aspect of EU citizenship which has for long been neglected. The potential of advancing EU policy on consular protection is not only to strengthen the status of EU citizenship but also to obtain recognition for it internationally. The rights in Articles 18–25 TFEU form only the core of rights: other rights may appear elsewhere in the Treaty and secondary legislative acts. The possibility of 12  Huddleston Thomas, ‘Promoting citizenship: The choices for immigrants, advocates, and European cooperation’ in Zapata-Barrero Richard (ed.), Citizenship policies in the age of diversity. Europe at the crossroads (Barcelona: Universitat Pompeu Fabra 2009) 157–172, 166. 13 Citizenship of the Union is to be interpreted as an accessory status describing a conglomerate of additional rights as determined by the Treaty. Hailbronner Kay, ‘Union Citizenship and Social Rights’ in Carlier Jean Yves, Guild Elspeth (eds), The Future of Free Movement of Persons in the EU (Bruxelles: Bruylant 2006) 65–78, 67.

The Problem  7

increasing regulation becomes even more probable if one takes into account changes brought about by the Lisbon Treaty in decision making regarding citizenship Articles, especially Articles 21 TFEU and 23 TFEU. The book looks upon EU citizenship as sui generis, which enters into interrelationship with different legal regimes. The EU citizenship concept is peculiar in the sense that it was not invented by peoples but created in a top-down relationship without clear definition as to its substance. At the same time the open texture of law means that there are, indeed, areas of conduct where much must be left to be developed by courts or officials striking a balance in the light of circumstances, between competing interests which vary in weight from case to case. This might legally shape a post-national society of multiple identities and assist States in dealing with contemporary problems of integrating different communities. Taking as a basis the regulation of nationality in international law the main questions for this research are: • How does EU citizenship regulation differ from regulation of nationality at both international and national level? • To what extent does the EU limit Member State discretion by qualifying EU citizenship as a ‘fundamental’ status in the EU legal order? • Which sectors of EU citizenship regulation should inevitably lead to reconsideration of nationality regulation at the domestic level (purely internal situations; core rights doctrine)? • Which segments of nationality law should or could be subject to re-consideration in the future at other levels due to developments in EU law? 1.2. Immigration and Integration The EU hosts relatively large immigrant communities which have arrived under different circumstances and resided in the EU for generations.14 This has led to  conclusions in legal doctrine that nationality policy is hardly isolated from 14 According to the latest available Eurostat data (October 2011) the total number of non-nationals (people who are not citizens of their country of residence) living on the territory of an EU Member State on 1 January 2010 was 32.5 million persons, representing 6.5 % of the EU-27 population. More than one third (a total of 12.3 million persons) of all non-nationals living in the EU-27 on 1 January 2010 were citizens of another EU Member State. Looking at the distribution by continent of origin of third country nationals living in the EU, the largest proportion (36.5 %) were citizens of a European country outside the EU-27, a total of 7.2 million people. See accessed 21 January 2013.

8  Chapter One

integration and migration policy.15 This book encourages viewing immigrants as potential citizens who when entering the EU see it as a common area for travel, work, residence, family reunification and the like. Although the immigration policies of EU Member States are not that divergent they are unwilling to give away their competence and it is difficult to find compromises at the EU level.16 At the same time debate is ongoing on different scenarios leading to the need to facilitate integration and naturalization of third-country nationals.17 The importance of adopting regulation of movement of non-EU nationals is confirmed by a number of studies. Enhanced mobility and matching of skills have been noted in political programmes such as Europe 2020.18 Researchers Sergio Carrera and Marco Formisano conclude that despite considerable steps undertaken at the EU level to facilitate free movement of workers and tightening of immigration policies towards third countries since the mid 1970s, there is a surprisingly low level of intra-EU mobility for employment purposes by EU citizens, while there is a growing human mobility into and within the EU labour market by non-EU nationals.19 Therefore, providing equal rights and possible access to EU citizenship becomes crucial.20 So far European citizenship laws have not been crafted with an eye to transforming immigrants into citizens.21 The EU and its Member States are facing ‘a trilemma’: to leave the issue of immigrant status and rights as much as possible to 15 Tóth Judit, ‘Acquiring Nationality: Is it a Goal, a Tool, or an Assessment of Integration?’ in Nielsen Jan, Huddleston Thomas (eds), Legal Frameworks for the Integration of Third-Country Nationals, (Leiden, Boston: Martinus Nijhoff Publishers 2009) 159–194. 16 Policies of the Member States have been grouped under three clusters: occupation lists; employer needs analysis, and quota setting. Over time the policies have become more harmonized despite the lack of competences of the EU. See, European Migration Network, Satisfying Labour Demand through Migration (European Migration Network, June 2011) 44. 17 The German Chancellor has proposed giving access to public posts to immigrants, while the Swedish integration minister emphasized the role of job, language skills and nationality to facilitate integration of immigrants. Merkele aicina palielināt imigrantu skaitu valsts dienestā [Merkel proposes to increase the number of immigrant employees in the civil service] National News Agency LETA 16 January 2012, and Zviedrija pētīs valsts pilsonības būtību [Sweden will research the essence of nationality of the State], 16 January 2011. 18 See more details at accessed 20 January 2012. 19 Carrera Sergio, Formisano Marco, ‘An EU Approach to Labour Migration. What is the Added Value and the Way Ahead?’ (CEPS Working Document, No.232/October 2005), available at accessed 21 January 2013, 6. 20 See Bauböck Rainer, ‘Changing the boundaries of citizenship: the inclusion of immigrants in democratic polities’ in Martiniello Marco, Rath Jan (eds), Selected Studies in International Migration and Immigration Incorporation (Amsterdam University Press: IMISCOE Research 2010) 275–314. 21 Joppke Christian, Citizenship and Immigration (Cambridge: Polity 2010) 40. See also report by Honohan Iseult, ‘Ius Soli Citizenship’ (EUDO Citizenship Policy Brief, No.1, 2010), available at accessed 21 January 2013.

The Problem  9

the discretion of Member States; to strengthen the status of immigrants by offering them more EU rights; to grant EU citizenship to long-term immigrants living in the EU on a permanent basis. For the time being the second option has been preferred and confirmed by Tampere European Council conclusions still applicable: The legal status of third country nationals should be approximated to that of Member States’ nationals. A person who has resided legally in a Member State for a certain period of time and who holds a long-term residence permit, should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by Union citizens.22

The Lisbon Treaty provides a basis to develop the EU approach to status and rights of immigrants in Article 79 TFEU and Article 45 of the Charter. In addition, a number of directives have been adopted which had to be transposed into national legislation. However, no general equality provisions feature in those documents. Instead there are frequent references to requirements of integration to be introduced for third country nationals applying for specific status. While in the early years of developing its approach to integration of immigrants the EU was focused on a non-discrimination approach, recently the EU has been confronted with integration measures and conditions introduced by the Member States on the basis of different directives. Since the term ‘integration’ is enshrined in the text of directives on different immigrant statuses, it has acquired not only national but also trans-national content. Thus, integration turns from a purely sociological and policy concept to a legal one. It has been observed that Member States differ in their approaches, p ­ rogrammes and political priorities towards integration of migrants led by stereotypes, phi­ losophies as well as historical inheritance.23 They place stronger emphasis on ­integration courses, knowledge of language, history and institutions as well as pre-departure measures.24 As Dora Koustakopoulou admits, Tampere’s liberalmulticulturalist paradigm of equality has been replaced by the pre­vious paradigm of illegal migration control and law enforcement.25 Before the ­introduction of 22 See Tampere European Council, Conclusions of Presidency (15–16 October 1999), available at accessed 21 January 2013, para 21. 23 For more detailed discussion see Carrera Sergio, ‘Integration’ as a Process of Inclusion for Migrants? The Case of Long-Term Residents in the EU’ in Schneider Hildegard (ed.) Migration, Integration and Citizenship. A Challenge for Europe’s Future, Volume II, (Maastricht: Forum 2005) 109–139, 115. The most convincing confirmation of this is the European Pact on Immigration and Asylum submitted by the French Presidency on 15 October 2008. 24 For more details see Communication from the Commission ‘A Common Agenda for Integration’ Framework for the Integration of Third-Country national in the European Union’ COM (2005) 389 final, 1 September 2005. 25 Kostakopoulou Dora, ‘Introduction’ in van Oers Ricky, Ersbøl Eva, Koustakopoulou Dora (eds) A Re-definition of Belonging? Language and Integration Tests in Europe (Leiden, Boston: Martinus Nijhoff Publishers 2010) 1–24, 17.

10  Chapter One

l­anguage and integration requirements, it was presumed, and thus not explicitly tested, that integration would happen during the period of legal residence.26 Currently the Member States have become the masters of integration. As a result not only might procedures become more complex, but also immigrant statuses will not be considered as meaningful alternatives to the current situation of immigrants in the EU. The question for study is whether this approach fits well with EU endeavours to build a trans-national community to achieve the objectives mentioned, inter alia, Europe’s growth strategy 2020. The EU sees its supra-national role in assisting Member States to develop successful integration policies by facilitating exchange of information and ensuring support.27 Moreover: The European Union must ensure fair treatment of third country nationals who reside legally on the territory of its Member States. A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens. This should remain an objective of a common immigration policy and should be implemented as soon as possible, and no later than 2014.28

Thus, the EU offer is that if immigrants could abide by core liberal values shared by all EU Member States this in return ensures for them a set of rights, including social, civic and political rights comparable to those of EU citizens. This book will discuss to what extent the status of third country nationals is strengthened under EU law and to what extent their treatment is comparable to that of EU citizens in the country of residence and in a second Member State. The approach will be based on comparative methodology between different groups of third country nationals. The questions asked under this heading are: • To what extent are the status and rights of third-country nationals equal to the status of EU citizens, i.e., is the principle of ‘near equality’ between them ensured? • Which segments (sub-issues) of immigration law should be re-defined or reconsidered in the future? What implications would these developments have for EU citizenship? 26 As argued by Joppke, there is an overcompensating sense that ‘integration’ will not just happen as a result of time and informal socialization, but will have to be furthered, monitored, and – in the case of a negative outcome – sanctioned by explicit State policies. Joppke Christian, Citizenship and Immigration (Cambridge: Polity 2010) 54. 27 Council of the European Union, ‘The Stockholm Programme – An open and secure Europe ­serving and protecting citizens’, No. 17024/09, 2 December 2009, available at accessed 21 January 2013, para 6.1.5., 64. 28 Ibid., para 6.1.4, 64.

The Problem  11

• Are integration conditions and measures as legal concepts capable of being measured or assessed on a legal basis, and are they capable of bringing additional value for third-country nationals in terms of integration? 1.3. Latvia: A Case Study The book would be incomplete if the national context were ignored. The case of Latvia was chosen for detailed study. This allows reflection on how EU citizenship affects national regulation as well as analysis of how EU regulation on immigration fits into different national legal regimes. A number of reasons explain why Latvia represents a particularly interesting case to study the potential of EU citizenship and possible implications of third-country national statuses on its future development. The normative framework of international law will serve as a basis for further analysis. First, Latvia regained its independence after half a century of occupation. When restoring independence, Latvia based itself on the principle of State continuity. This approach was also applied to citizenship, i.e., only those who were citizens before occupation and their descendants could register as Latvian citizens. Therefore, Latvian citizenship is deeply embedded in Latvian history and identity. At the same time joining the EU required certain adjustments to be made. These were not necessarily legal requirements based on international law but rather politically motivated conditions set by the EU by mixing the citizenship and minority rights compartments. It can be argued that during this process the EU’s political role in shaping nationality policies has increased. Second, during the Soviet occupation a massive influx of immigrants from other republics of the USSR occurred. After restoration of independence their status was not determined. Due to political and social factors the situation was not resolved on the basis of international law between the parties involved. With the assistance of international organizations a compromise solution was sought. As a result Latvia offered these people the chance to register as non-citizen status holders. Non-citizens are persons who were former USSR citizens but who after Latvia restored independence did not acquire any other citizenship. Therefore, Latvia hosts a group of persons who are long term residents but different in their profile and status compared to long term residents in other EU Member States. This illustrates the differences of long term residents in their status and rights while the EU is seeking a common approach to the group as a whole. Third, Latvia over the years has not only liberalized its citizenship policy and naturalization requirements but also strengthened the status of non-citizen. Latvia has also been working on integration of non-citizens and facilitating their naturalization. However, results are disappointing: the number of non-citizens

12  Chapter One

remains considerable and integration policy is not giving the results expected. Latvians being in the majority are still feeling like a minority and vulnerable about language, history and identity while Soviet-era settlers being a minority have a self-sufficient feeling of being a majority. In this context, the Latvian experience can serve as a case-study to elaborate the EU’s approach to immigrant statuses and rights as well as their integration. The analysis will focus on the question to what extent can the offer of additional rights, granting special status or subjecting immigrants to specific tests facilitate their integration as well as what other approaches should be considered. It should be noted that the history and traditions of Member States differ significantly. This also applies to immigration and integration policies. The aim of this book is not to highlight Latvia as an exceptional case, but rather to pinpoint national differences which should not be neglected when developing EU policies affecting nationality and immigration issues. The main questions asked in the context of Latvia are: • What are the main modes of access to Latvian citizenship? Do they correspond to the requirements of international law? • What are the contents of the concept of ‘non-citizen’? To what extent is their treatment similar or different compared to citizens? • Is there a connection between integration and naturalization? Is there a connection between integration and additional rights granted to non-citizens?

Chapter Two Methodology 2.1. Scope and Delimitations of This Book No hierarchy exists between EU and national citizenship. However, international law places limitations on both regimes. After WW II citizenship gradually became infused with human rights logic. Human rights have also been instrumental in shaping the relationship between citizens and residents. Increasing rights granted on the basis of permanent residence which reflected those traditionally enjoyed by citizens proper have blurred the distinction between citizens and residents. Thus, Joppke has argued that in a world of multiple citizenships and strengthened aliens’ rights, citizenship must mean less than in the past.1 Multicultural and highly individualized societies are growing more complex and human rights regulation itself faces a multitude of problems when trying to resolve cases by balancing individual rights and the legitimate interests of society. For the purposes of research it should be borne in mind that different perspectives exist as to how to look at nationality and citizenship: as status, as rights, or as identity. In relation to the status dimension, questions of access and loss of citizenship will be analyzed, including changes in regulation of issues of statelessness and multiple nationality under the three regimes. This book will discuss international law regulation and its effects on nationality and residence. In this context not only should inter State obligation be examined but most importantly human rights treaties and rulings of the different international courts and other monitoring bodies analysed. In the EU context the European Convention on Nationality (ECN) is of special importance. The task would be to establish whether nationality regulation in international law leads to the conclusion that a concept of nationality exists in international law and to what extent positive obligations exist for States to grant nationality. Since the EU is a sui generis formation, the approach of the CJEU does not always abide by the same understanding of rights of individuals as developed 1 Joppke Christian, Citizenship and Immigration (Cambridge: Polity 2010), 154.

14  Chapter Two

in international law. This is not to argue that the EU would act in violation of international law but in certain cases it builds upon its own approach which might transcend those derived from international law. As mentioned above, the CJEU has been creative in introducing new tests and principles which Member States should respect. It has to be established to what extent regulation of EU law differs and represents added value for individuals compared to international law. The rights dimension has different facets related to functional aspects of nationality. In the context of international law the main set of rights relates to entry, leaving, and residence as well as limited rights to diplomatic protection. Concerning functional aspects of nationality the approach to human rights, including those applicable at the EU level, is guided by the maxim that what is needed is interpretation not extension of rights and conditions of their application. The necessary step to put these proposals into practice is not revolutionary in normative terms. Universal rights must be able to be exerted through any identity and the State is forced to guarantee this fulfilment of plurality.2 Entitlement to rights is the key to accommodating different loyalties and interests. The European Convention of Human Rights and Fundamental freedoms will be studied to investigate whether interpretation of the relevant Articles of the Convention has changed the understanding of who and when can acquire rights to enter and reside in a State irrespective of nationality. Although human rights have become an important tool for individuals to protect their rights, instances occur when rights attached only to States do not lose their relevance. In this context the work of the International Law Commission on diplomatic protection will be studied to establish whether this institution has been affected by a growing number of individual entitlements granted by human rights instruments. On the EU level, additionally, conditions for free movement within the EU on the basis of Articles 18 and 21 TFEU will be explored. Treaty Articles providing for the right to move and to reside freely in the EU as well as granting protection against discrimination are further clarified by the provisions of secondary legi­ slation. The main document codifying rights of EU citizens and their family members is Directive 2004/38.3 Therefore, free movement rights, constituting a functional aspect of EU citizenship, will be examined on the basis of both CJEU case-law and the provisions of the Directive. This will reveal the degree of 2 Ruiz Vieytez Eduardo J., ‘Citizenship, democracy, and the State of identity: Reinterpreting the relationship in new contexts of diversity’ in Zapata-Barrero Richard (ed.), Citizenship policies in the age of diversity. Europe at the crossroads (Barcelona: Universitat Pompeu Fabra 2009) 87–102, 97. 3 Directive 2004/38/EC codified and repealed Directives 64/221/EC, 68/360/EC, 72/194/EC, 73/148/ EC, 75/34/EC, 75/35/EC, 90/364/EC, 93/96/EC.

Methodology  15

independence of the status and how far the EU has developed EU citizenship as a concept of trans-national identity. The identity dimension is the weakest in international law and the strongest on the national level. In the EU context it represents a challenge. By granting substantive rights to EU citizens the EU is capable of building a common EU social memory. This would gradually build up transnational identity which transcends national cultural affiliations and addresses issues of most interest to people in particular contexts (social, political, economic) while leaving many others to their private autonomy. In this context the status and rights of immigrants will play a significant role because the status and rights of immigrants forms a part of the story about the future organization of European society. At the same time processes in the EU are subject to national influences. This means that not only can developments in EU law cause changes in citizenship regulation at national level but also vice versa. In order to illustrate the interrelationships between different branches of the law and to test the impact of international regulation, the national case of Latvia will be analyzed. Latvia – a relatively newly restored State with a significant number of non-citizens – is a specific case in the field of EU citizenship and immigration as well as integration studies. From the substantive point of view the main focus will be on rights which have traditionally been attached only to citizens in international law. Therefore, for instance, rights of minorities will be excluded because as a rule they do not differentiate on the basis of citizenship but rather on the length of residence of a community, while political rights are excluded because they are more relevant on the national than the international level. Rights of migrant workers are left outside the scope of the book. The main reason is that they do not represent much added value in the EU context. Documents adopted in the context of ILO or other instances have very few ratifications and weak monitoring mechanisms. International instruments adopted have attracted little or no interest from European States. Thus, for instance, ILO conventions No. 97 and No. 143 are ratified by few European States,4 while the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families has not been ratified by a single EU Member State.5 In this context the most successful is the European Convention on the Legal Status of Migrant Workers, 4 As of 21 January 2013, 10 EU countries have ratified Convention No. 97 accessed 21 January 2013, while only 5 are parties to Convention No. 143 accessed 21 January 2013. 5 Status as of 21 January 2013, see accessed 21 January 2013.

16  Chapter Two

which so far has been ratified by six EU Member States and signed by four other Member States.6 The scope of the book includes nationals of EU Member States, permanent residents as well as selected groups of third country nationals, in relation to whom the EU has adopted specific instruments, and family members. This will be done on the basis of primary and secondary law sources, as well as interpretations provided by the CJEU. In addition EU policy instruments will be studied and reference made to comments by different scholars. Undoubtedly, there are many other groups the treatment of which might raise legitimate questions in the context of citizenship, for instance, asylum seekers, refugees, persons under temporary protection, illegal immigrants and short term immigrants. However, to address these groups would require adoption of a more complex methodological approach. Issues relating to Schengen have also been excluded from discussion. These, of course, are relevant for addressing the ‘right to enter’ and the limits placed upon Member States by EU Law. At the same time this helps little if this book primarily focuses on ‘near equality’ questions and integration requirements for third country nationals. In relation to permanent residents, the book will focus on general instruments adopted in the EU. It can be argued that significant progress in binding immigrants into Europe has been made by concluding a number of Association agreements with third countries. The main ones which have had an impact on current EU immigration legislation are agreements with Turkey, Tunisia, Algeria, and Morocco.7 These continue to be applicable and affect a considerable number of settled immigrants. Moreover, a certain set of standards has been adopted in the context of Europe agreements. However, these agreements are context-specific and do not facilitate achievement of the objective of the book – to trace general developments in order to establish future scenarios in the regulation of rights and obligations of groups of people at the EU level. 2.2. Theoretical Framework New concepts and definitions are being sought at the theoretical level which proves that we are confronting fundamental changes in our understanding of different legal concepts. This also applies to EU citizenship which has been proclaimed fundamental, yet not alternative to national citizenship. 6 Status as of 21 January 2013, see accessed 21 January 2013. 7 For detailed discussion and an excellent typology of the ‘legal other’ see Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109 (Brill: Leiden, Boston 2011) 24–32.

Methodology  17

While protection of sovereignty, individual freedom, and rule of law remain relevant factors, they are now part of complex processes and interests. It has been acknowledged that they have been redefined and submerged by the process of globalization.8 Expansion of international law and increasing mobility in the EU make analysis complicated because different branches of law should be cross-examined. Recent publications in legal philosophy and theory show a growing tendency to depart from purely legalistic and positivistic to crossdisciplinary approaches, by adding political, sociological and economic aspects for re-definition of legal concepts. Taking into account the treaty-based character of the EU, it may be qualified as a ‘community based on the rule of law’. It has been argued that perhaps the Union is even more dependent on the rule of law than an established nation-State.9 Moreover, the dimension of fundamental rights protection has acquired a stronger legal basis with the Charter of Fundamental Rights. Thus, EU citizenship and immigrant statuses represent concepts based on the rule of law and near equality concepts. The present theoretical framework departs from repeating several truisms. Although both States and international organizations are creations of international law, the EU is not a State. EU competence is limited as it owes its creation and continuing validity to both national and international systems of law.10 The EU treaties form a special regime in international law.11 A change would require clear expression by the Member States to the contrary. However, for the time being there is no doubt that the primary loyalty of almost the entire population of every Member States is to their own country, not the European Union.12 There is also no doubt that the EU Member States have retained their statehood. EU competences are limited to those which are transferred by the Member States by the EU Treaties. EU competence is rooted in the fundamental principle 8 Modern developments do not point in one direction and are indeed contradictory. Nijman Janne, Nollkaemper André, ‘Introduction’ in Nijman Janne, Nollkaemper André (eds), New Perspectives on the Divide Between National and International Law (Oxford: Oxford University Press 2007) 1–14, 10–12. 9  von Bogdandy Armin, Doctrine of Principles, European Integration: The New German Scholarship (Jean Monnet Working Paper 9/03, Max Planck Institute for Comparative Public law and International Law, Heidelberg, 24–27 February 2003), available at accessed 21 January 2013, 19. 10 Hartley Trevor C., Constitutional Problems of the European Union (Oxford: Hart Publishing 1999) 149. 11 For definitions and groupings of special regimes see Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, International Law Commission, 58th session (13 April 2006) UN Doc A/CN.4/L.682, 65–101. 12 Hartley Trevor C., ‘International Law and the Law of the European Union – A Reassessment’ (2001) 72 BYIL 1–35, 8.

18  Chapter Two

of subsidiarity and vested powers.13 Thus, the EU as a supranational actor steps in with its regulation, when it is needed and to the extent required. At the same time the EU has been bestowed with specific characteristics which differentiate it from other legal regimes. The subsidiarity approach with adequate mandate in the Treaties allows transfer of concepts and rights from national to supranational level. Transfer of powers has arguably increased the EU’s potential to develop its own doctrines and concepts. For instance, the EU has been vested with powers allowing it to develop its own ‘general principles of law’ which represent a substratum of national, international and EU perspectives. As a result EU concepts acquire a new transnational dimension which is also relevant in the case of the EU citizenship. Moreover, immigration and globalization pose a challenge to traditional social organization of European societies. EU Member States have traditionally been based on national identities of people. Acquisition of citizenship is rather understood as a reward to be handed to immigrants that have success­ fully  ‘completed’ the integration process rather than as a tool for integration.14 States and communities protect their national values and identities against undefined and unwanted foreign influences by engaging in reassertion of sovereignty.15 In turn, globalization signifies going beyond borders, removal of boundaries and thus a danger for a nation-State which almost neurotically watches its borders.16 The task for crafters of EU citizenship is complex. On the EU level EU citizenship provisions have changed the boundaries of national citizenship. They have achieved this by invalidating ethnicity as a boundary marker and diluting the traditional link between enjoyment of citizenship rights and possession or

13 The application of subsidiarity requires a two-step test. First, reasons relating to the existence of a collective action problem have to be identified. Second, the weight of these reasons has to be assessed in light of countervailing concerns in the specific circumstances. This requires application of a ‘proportionality test’ or ‘cost-benefit analysis’ focused on the advantages and disadvantages of ratcheting up the level of decision making. Kumm Mattias, ‘The Legi­ timacy   of International Law: A Constitutionalist Framework of Analysis’ (2004) 15/5 EJIL 907–931, 921. 14 Jurado Elena, ‘Conceptualising citizenship: Tool or reward for integration?’ in Zapata-Barrero Richard (ed.), Citizenship policies in the age of diversity. Europe at the crossroads (Barcelona: Universitat Pompeu Fabra 2009) 71–86, 72. 15 Nijman Janne, Nollkaemper André, ‘Introduction’ in Nijman Janne, Nollkaemper André (eds), New Perspectives on the Divide Between National and International Law (Oxford: Oxford University Press 2007) 1–14, 12. 16 Habermas Jürgen, ‘The European Nation State. Its Achievements and Its Limitations. On the Past and Future of Sovereignty and Citizenship’ (1996) 2 Ratio Juris, 125–137, 135.

Methodology  19

acquisition of State nationality.17 As noted by Dora Koustakopoulou, EU citizenship departs from ethnic and cultural commonalities and reconfigures in a political process of participatory enactment. Although nationality has been taken to be a proxy for political community, the free movement provisions of the Treaty have severed the link between nationality and enjoyment of equality of treatment and rights. The boundaries of national citizenship have been ‘ruptured from outside’ through conferral of supranational rights enforceable before national courts.18 EU citizenship is built entirely around the fact of immigration, or what in Europe is referred to as ‘free movement’, i.e., citizenship is constructed around needs and rights.19 Therefore, the EU is well placed to assist Member States in dealing with different phenomena caused by globalization and immigration by adding another layer of regulation which creates a new form of solidarity. In order to break away from domestic concepts the best way forward for the Union is to develop its own sovereign values that attach to the exercise of transferred sovereign powers.20 At the same time the EU should be retained in its special nature as a supranational arrangement, and we have to build on this special nature; not to copy national patterns.21 This can be done by identifying transnational values on the basis of which this building process can proceed. Practising EU citizenship and enacting it will allow identification of those values. Developments in international law can serve as guidance when looking at the EU. Scholars have identified three main developments. The first concerns emergence of a set of international values, in particular the rule of law and human rights.22 This closely coincides with values placed at the centre of the EU regime. The second development is dispersion of sources of authority away from the State in both vertical and horizontal directions. This again is reflected in the EU law paradigm because Member States have shared their sovereign functions (vertically) with the EU. The third development noticed is in the direction of deformalization. This in turn opens the way to invoke new approaches to belonging and statuses detached from nationality. To rephrase Nijman and Nollkaemper: 17  Kostakopoulou Dora, ‘European Union Citizenship: Writing the Future’ (2007) 13/5 ELJ, 623–646, 642. 18 Ibid., 643. 19 Joppke Christian, Citizenship and Immigration (Cambridge: Polity 2010) 161. 20 Sarooshi Dan, International Organizations and their Exercise of Sovereign Powers (Oxford: Oxford University Press 2005) 74. 21 Grimm Dieter, ‘Does Europe Need a Constitution?’ (1995) 1/3 ELJ, 282–302, 298. 22 Nijman Janne, Nollkaemper André, ‘Introduction’ in Nijman Janne, Nollkaemper André (eds), New Perspectives on the Divide Between National and International Law (Oxford: Oxford University Press 2007) 1–14, 11.

20  Chapter Two

as rights represent moral values and the EU aims to base itself on a shared value system on the basis of which it generates legal norms, it can be conceived as a multi-level polity underpinned by common ground, i.e., a core value system.23 The new creation might require re-consideration of concepts. Recently there have been a number of attempts in doctrine to go beyond definitions of citizenship which were primarily attached to race and nation and to link citizenship, migration and integration. It has been proposed either to redefine or consoli­ date  the category of citizenship. The transformation of citizenship has led for instance to the following suggestions: post-national (Soysal, Sassen), multicultural (Kymlicka), de-ethnic (Joppke), neo-national (Feldblum) or even the end of citizenship (Spiro).24 All these studies aim at explaining or searching for new models of belonging. For instance, according to Dieter Grimm, all that is necessary is for society to have formed an awareness of belonging together that can support majority decisions and solidarity efforts.25 Joppke is convinced that a thickened liberalism, or ‘liberalism as identity’, should serve as the basis.26 Similarly Jürgen Habermas argues that if the democratic process is to finally guarantee the social inte­ gration  of a differentiated population, the public sphere must be embedded in the context of freedom-valuing political culture and be supported by a liberal associational structure of a civil society.27 To rephrase Habermas, peoples of independent States who restrict their sovereignty for the sake of the EU need not sacrifice their distinct cultural identities.28 The EU in this context rather 23 Nijman Janne, Nollkaemper André, ‘Beyond the Divide’, in Nijman Janne, Nollkaemper André (eds), New Perspectives on the Divide Between National and International Law (Oxford: Oxford University Press 2007) 341–360, 346. 24 Zapata-Barrero Ricard, ‘Re-definition or Consolidation? The Citizenship Rhetoric in Europe’ in Zapata-Barrero Richard (ed.), Citizenship policies in the age of diversity. Europe at the Crossroads (Barcelona Universitat Pompeu Fabra 2009) 5–23, 7. Soysal Yasemin, Limits of Citizenship (Chicago: University of Chicago Press 1994) and Kymlicka Will, Multicultural Citizenship (Oxford: Clarendon Press 1995), quoted by Joppke Christian, Citizenship and Immigration (Cambridge: Polity 2010) 21. Spiro Peter, Beyond Citizenship (Princeton NJ: Princeton University Press 2008) 4, quoted by Joppke Christian, ‘The inevitable lightening of citizenship’ in Zapata-Barrero Richard (ed.), Citizenship policies in the age of diversity. Europe at the crossroads (Barcelona: Universitat Pompeu Fabra 2009) 37–53, 39. 25 Supra note 21, 297. 26 Mouritsen Per, ‘The Culture of Citizenship, A Reflection on Civic Integration in Europe’ in Zapata-Barrero Richard (ed.), Citizenship policies in the age of diversity. Europe at the crossroads (Barcelona: Universitat Pompeu Fabra 2009) 23–36, 30. 27 Habermas Jürgen, ‘Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution?’ (1995) 1/3 ELJ, 303–307, 306. 28 Saussine-Perreau Amanda, ‘Immanuel Kant on International Law’ in Besson Samantha, Tasioulas John (eds), The philosophy of International Law (New York: Oxford University Press 2010) 53–78, 73.

Methodology  21

represents another layer or dimension of identity based on similar but still different concepts. As argued by Habermas, the complexity of current European societies faces a value conflict that cannot be resolved whether by discourse or by compromise.29 Habermas suggests that a neutral regulation should be sought, i.e., at the more abstract level of the equal right of different ethically integrated communities to coexist in both EU citizenship and third-country national perspectives. According to Habermas each participant should take a moral point of view and examine which regulation is ‘equally good for all’ in view of the prior claim to an equal right to coexist.30 Therefore, he proposes that nationalism should be replaced by what he calls constitutional patriotism.31 This places emphasis on social integration, which generates solidarity between strangers. This in turn leads to a common political culture, which differs from the various national cultures. On the EU level this means that juridical, moral and political values take over from cultural, geographical and historical ones. This is a trend towards what might be termed a “transnational” self understanding. Put differently, social unity in a liberal society cannot derive from the ‘good’ of nation and nationalism, but only from a consensus on the ‘rights’ that accrue to each individual. Thus, national identity is outscored by a ‘shared political culture’, which is more procedural than substantive.32 A juridification of the state of nature among States can be realized only through democratic discourse enabled by democratic institutions which will result in democratic transformation of morality into a positive system of law with legal procedures of application and implementation.33 EU citizenship is of utmost importance in this discourse as are fundamental rights and their application in the EU legal order. The EU’s own approach and invention of special principles applicable in the EU are instrumental in achieving these aims. 29 For instance, discussions in France on the right to wear a headscarf, public reaction to cartoons on Muslims in Denmark and Sweden, as well as the recent decision to expel Roma from France. 30 Habermas Jürgen, ‘Reply to Symposium Participants. Benjamin N.Cardozo School of Law’ (1996) 14/4–5 Cardozo L. Rew, 1477–1558, 1489–1490. 31 Habermas Jürgen, ‘The European Nation State. Its Achievements and Its Limitations. On the Past and Future of Sovereignty and Citizenship’ (1996) 2 Ratio Juris, 125–137, 133–134. For detailed analysis of different approaches to constitutional patriotism see Joppke Christian, Citizenship and Immigration (Cambridge: Polity 2010) 113–123. See more on Habermas by Joerges Christian, ‘Working through ‘bitter experiences’ towards a purified European Identity? A critique of the disregard for history in European constitutional theory and practice’ in Eriksen Erik Oddvar, Joerges Christian, Rödl Florian (eds) Law and Democracy in the Post-National Union (Oslo: Arena 2006, Report No. 1) 335–366, 360. 32 Supra note 19, 143. 33 Supra note 28, 73.

22  Chapter Two

Proceduralism at the EU level is based on so called deliberative supranationalism which is anchored in EU law and doctrines such as: the Member States may not enforce their interests or their laws entirely at their own discretion; they are bound to respect European freedoms; they may not discriminate; they may only pursue legitimate regulatory policies approved by the EU; they must co-ordinate in relation to the regulatory concerns that they may follow; and they must design their national regulatory provisions in the most Community friendly way.34 Therefore, EU citizenship can be defined as a form of transnational citizenship uniting people by a bundle of rights guarded by the common value ‘equally good for all’. By adding EU regulation on immigration and free movement of third country nationals, there is a good basis for building holistic ‘proceduralism’ based on the rule of law and fundamental rights with which people could identify. 2.3. Structure of This Book Part II of the book is devoted to regulation of nationality in international law. This serves as a background for further analysis of both EU citizenship regulation and EU immigration law. International law sets minimum standards which are binding on both the EU and national legal orders. Although certain aspects of nationality regulation in international law might not suit EU law, there are no special systems or regimes that would be fully isolated from general international law. According to the ILC the degree to which a regime of responsibility, a set of rules on a problem or a branch of international law needs to be supplemented by general law varies. There is no support for the view that anywhere would general law be fully excluded.35 Therefore, detailed examination of international law regulation will benefit understanding of particularities of the EU citizenship concept in further sections. For long the dominant view has been that international norms dealing with nationality do not regulate nationality; they regulate relations among States, and their rights and obligations, relating to nationality, leaving to States the task of regulating the matter.36 Although State prerogatives remain important, a number

34 Joerges Christian, ‘Working through ‘bitter experiences’ towards a purified European Identity? A critique of the disregard for history in European constitutional theory and practice’ in Eriksen Erik Oddvar, Joerges Christian, Rödl Florian (eds) Law and Democracy in the Post-National Union (Oslo: Arena 2006, Report No. 1) 335–366, 349. 35 Supra note 11, 82. 36 Arangio-Ruiz Gaetano, ‘International law and Individual law’ in Nijman Janne, Nollkaemper André (eds), New Perspectives on the Divide Between National and International Law (Oxford: Oxford University Press 2007) 15–51, 31.

Methodology  23

of rules have developed internationally which affect State discretion. Some are part of human rights law while others are developed as a reaction to international developments. This book will address those changes, by paying particular attention to positive obligations placed on States in the realm of nationality. This chapter focuses on a number of tenets of nationality: access to nationality (ius soli, ius sanguinis and naturalization), conflicts of nationality laws (toleration of multiple nationality), as well as cases in which we can refer to the right to nationality for specific groups. Functions of nationality (rights to enter, reside and not to be expelled) are discussed primarily on the basis of human rights norms under different regimes. In addition the focus will be on developments which involve rights granted to third country nationals residing in host countries on a long-term basis. The contents of diplomatic protection will also be addressed as part of the functional aspect of nationality in international law. Part III is devoted to regulation of EU citizenship. The approach in analyzing the rights attached to EU citizenship tries to the maximum possible extent to follow the same approach adopted in the second part. This should help to identify the standard of treatment of EU citizens inside or outside their country of origin in comparison with international law. The primary focus will be on EU citizens residing outside their country of origin. But to illustrate developments in EU law in certain cases discussions will be extended to situations covering a single Member State. The more rights granted to EU citizens differ from the international and national standard, the more space there would be for the argument that EU citizenship is becoming an autonomous status which limits EU Member State discretion in its own specific manner. Therefore, specific attention will also be devoted to new tests invoked by the CJEU and further expansion of regulation based on interpretation by relevant institutions. This might also inevitably lead to harmonization of certain branches of nationality law. Part IV will analyze current regulation in immigration law which might have repercussions on regulation of EU citizenship. By shaping naturalization pro­ cedures, Member States can shift the numbers of immigrants and citizens residing in their territories. The EU has undertaken complex but needed policy on immigration. The profile and number of immigrants differ significantly, which is affected by different national histories in the EU Member States. The main focus of the book is on possibilities to strengthen immigrant statuses to ensure that that the EU dimension is strengthened. If this were not done, immigrant statuses would remain fragmented and not create much interest among immigrant communities for intra-EU movement. This book will analyze current regulation on the status and rights of third country nationals under different directives. It will also look at limitations drawn by the CJEU according to several rulings made in relation to implementation of those secondary legislative acts. Analysis will include suggestions for prospective

24  Chapter Two

regulation by taking into account standards that go beyond human rights standards and the target of strengthening common EU space. The concept of integration which has become part of EU immigration law plays a particularly important aspect with respect to changes in the meaning attached to it in the process of implementing directives in the immigration sector by Member States. Part V discusses Latvian citizenship policy in the context of adaptation of national law on citizenship according to international law requirements. Latvian citizenship is particularly illustrative when studying EU regulation. Its citizenship policy, similarly to other EU Member States, is deeply embedded in national identity. This, however, has become affected by half a century of foreign occupation and subsequent successful integration into European organizations, Regulation of non-citizen status and its treatment by national courts will be given detailed examination. Results of changing citizenship and immigration regulation on naturalization and integration at national level are evaluated. This book also looks at the EU approach towards the group of non-citizens and discusses whether the EU can offer appropriate solutions for integrating that group. Therefore, the casestudy aims at illustrating the limits of transnational identity and possible compromises to be reached before EU regulation can proceed further. It will be argued that national identities and belongingness remain important components even if the EU citizenship concept is upgraded. Therefore, in developing EU citizenship further not only international developments but also national aspects should be duly respected. The final part summarizes the main conclusions drawn and suggests prospects for the likely future fate of EU citizenship and immigrant statuses. Suggestions for further regulation will be made.

Chapter Three Terminology Before discussing specific aspects of nationality, questions of terminology should be clarified. Two terms – ‘nationality’ and ‘citizenship’ – are frequently used in different contexts and given different meanings. For the purposes of this book it is important to provide a short account of their differences. This will be done without prejudice to possible alternative definitions and views existing elsewhere. Other terms which will be briefly described are ‘domicile’ and ‘residence’ as well as ‘third country nationals’. 3.1. Nationality and Citizenship Article 1 of Harvard Law School’s Law of Nationality defines nationality as the “status of a natural person who is attached to a State by the tie of allegiance”. In the commentary to these Articles the authors explain that “[w]hile the term ‘national’ as a synonym for ‘subject’ or ‘citizen’ in the broad sense is of comparatively recent origin, it has come into very general use. It indicates attachment to a State without emphasizing unduly the power of the State on the one hand or the civic rights of the individual on the other”.1 The Special Rapporteur of the International Law Commission, Manley O.Hudson, in his Report on Nationality Including Statelessness has noted that “[t]he terms ‘nationality’ and ‘national’ have to be distinguished from similar, but not necessarily synonymous terms such as ‘citizenship’ and ‘citizen’, ‘subject’, ‘ressortissant’ etc. A person may be a national of a State without having its citizenship”.2 The distinction is further explained by Kunz who states: “Nationality is a concept of international law, citizenship a concept of municipal law. International law is only concerned with nationality, the “belonging of a person to a State””.3 Allan Rosas explains the distinction that can be drawn between the two terms: “This is the population which ‘belongs’ to the State and whose interests the State should defend in 1 International Law Association, ‘Harvard draft of Nationality’ (1929) 23 AJIL (Special Number), April, 22–23. 2 Hudson Manley O., ‘Nationality Including Statelessness’ (21 February 1952) UN Doc. A/CN.4/50. 3 Kunz Josef L., ‘The Nottebohm Judgement (second phase)’ (1960) 54 AJIL 536–572, 546.

26  Chapter Three

relation to other States (nationality). It is also by and large the same population which especially after the American and French Revolutions has been granted civil, and later also political, rights protected by the state (citizenship)”.4 Manfred Nowak is of a similar opinion. He considers that the term ‘citizen’ (citoyen, ciudadano) stems from the concept of the modern nation-State. Namely, only those individuals who are attached to ‘their’ State by the special bond of citizenship may exercise political rights.5 In his view citizenship and nationality should be distinguished from both terminological and legal standpoints. Therefore, it seems more appropriate to use the term ‘nationality’ when discussing regulation of the issue in international law. The term ‘nationality’ for the purposes of this book is used as defined in Article 2 of the European Convention on Nationality which states: ‘Nationality’ means the legal bond between a person and a State and does not indicate the person’s ethnic origin.

At the same time the term ‘citizenship’ will be used when the case-study on Latvia is presented. At this stage it is sufficient to note that Latvia does not distinguish between citizens and nationals, i.e., there is no regulation which would provide that a group of persons are Latvian nationals while deprived of certain rights as citizens.6 Non-citizens in this context form a different group. From the standpoint of definition of terms, EU citizenship represents a difficulty. It might very well include both nationals and citizens as will be outlined in the part on EU citizenship. At the same time it is not citizenship proper. However, for the purposes of this book it does not seem feasible to re-define the concept or attach a different term. Therefore, in relation to the EU the term used in Treaties will be applied. 3.2. Domicile and Residence As to definitions of the concepts of ‘domicile’ and ‘residence’ guidance is authoritatively provided by resolution (72)I of the Council of Europe.7 This document

4 Rosas Allan, ‘Nationality and Citizenship in a Changing European and World Order’ in Suksi Marku (ed.), Law under Exogenous Influences (Turku: Turku Law school 1994) 30–60, 31. 5 Nowak Manfred, CCPR Commentary (Kehl: Engel 1993) 445. 6 On use of the terms ‘nationality’ and ‘citizenship’ in the Latvian context see accessed 22 January 2013. The link includes references to use of terms in other European countries. 7 Adopted by the Committee of Ministers on 18 January 1972 at the 206th meeting of Ministers’ Deputies.

Terminology  27

has been chosen because it provides the most detailed account of the two terms adopted by an international organisation and is of most relevance for Europe. According to the Annex to the resolution, the concept of domicile imports a legal relationship between a person and a country governed by a particular system of law or a place within such a country. This country is the centre of their personal, social and economic interests and they intend it to be so. This intention may be inferred, inter alia, from their period of residence, past and prospective, as well as from the existence of other ties of a personal or business nature between that person and that country or place. A person’s domicile is regarded as continuing until another domicile is acquired. Residence of a person is determined solely by factual criteria and does not depend upon a legal entitlement to reside.8 Residence need not necessarily be continuous. Habitual residence depends on the duration and continuity of residence as well as of other factors of a personal or professional nature which point to durable ties between a person and their residence. According to legal vocabulary, domicile is described as follows: [Domicile is] the place where a person has his/her principal establishment, often referred to as voluntary domicile (since it is chosen, as opposed to legal domicile) which serves either to link a transaction to the territorial competence of an authority, or to permit contact with a person at the place where he/she is to be found.9

While residence is: The place where a natural person effectively lives to a relatively fixed extent, but which may not be his/her domicile, and where the law principally attaches, subsidiarily or concurrently with the domicile, various legal effects.10

The term ‘centre of interests’ seems to indicate cross-checking of several criteria, while residence is ‘determined solely by factual criteria; it does not depend upon the legal entitlement to reside’.11 Differences between the terms might be of importance when analyzing the rights of persons who have chosen to migrate either within the EU or to the EU. 8 However, understanding of residence might differ in the context of particular convention or treaty. See, for instance, Kamto Maurice, ‘Sixth report on the expulsion of aliens’ (July 2010) UN Doc. A/CN.4/625/Add.1, 5–6 and section 8.2.2.1. of part II of this book. 9 G. Cornu, Vocabulaire juridique (Paris : Association Henri Capitant, P.U.F. 1987) 839 quoted by Garot Marie-Jose, ‘A New Basis for European Citizenship: Residence?’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 229–250, 236. 10 Ibid. 11 Garot Marie-Jose, ‘A New Basis for European Citizenship: Residence?’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 229–250, 237.

28  Chapter Three

However, in this book references will predominantly be made to residence, while domicile will be mentioned only in specific cases when rights are acquired if a person has established domicile in a State. 3.3. Third Country Nationals The term ‘third country nationals’ has been criticized for being an unfortunate choice. It is said to be part of Frenglish, i.e., it has entered the English language incorrectly as a mistranslation from the French. Strictly speaking ‘third country nationals’ has no meaning in English. It should have been translated as ‘nationals of non-member countries’. For instance, Gareth Davies correctly observes that the phrase ‘third country national’ originates from the time when EU law residence rights were only for those who migrated from one Member State to another. There were thus always two Member States involved. However, more recently we have cases where intra-EU migration to engage Union citizenship or residence rights is no longer needed. For instance, a non-European parent is not from a third State, but from a second one that is not part of the EU.12 Nevertheless, the term ‘third country national’ is widely used in EU legal texts which refer to immigrants who arrive in the EU from countries outside the EU and the EEA. In addition the term is used when referring to individuals with undetermined citizenship. For instance, non-citizens in Latvia would also be qualified as third country nationals in EU law. Since this book covers different aspects of migration and its scope is larger than discussion of rights of non-EU nationals in internal situations, the book will primarily use the term ‘third country national’ which is also still accepted in legal literature.

12 Davies Gareth, ‘The Family Rights of European Children: Expulsion of Non-European Parents’ (EUI Working Papers, RCAS 2012/04, 2012) available at accessed 26 February 2013, 3.

Part Two Nationality Regulation in International Law

30  Part Two 

This part aims to give an overview of the current state of affairs in relation to regulation and limits set by international law on access to and function of nationality. Insight into the main aspects of regulation of nationality in international law is necessary for several reasons. First, the EU cannot exempt itself from international law regulation. This has been acknowledged by the International Law Commission when discussing the relationship between general international law and special regimes. Second, the EU and the CJEU have emphasised that both general international law as well as fundamental rights form part of the general principles of EU law. Thus, rights of individuals protected according to human rights law form part of EU law. The minimum scope of this protection is particularly relevant according to the European Convention of Human Rights. Third, for the purposes of further analysis of EU regulation it is necessary to define issues relevant for nationality regulation in international law. This would allow one to test whether all of these issues remain relevant for the EU as a sui generis formation beyond the State. In certain cases the profile of the EU might require redefining or building upon the approach adopted according to international law.1 Since the ILC undertook a study on nationality in cases of State succession, a significant departure has taken place from the traditional view that international law places few if any restraints on State discretion over nationality issues.2 As noted by Special Rapporteur Mikulka: “while freedom of action of the State with regard to nationality was not absolute, international law introduced only two types of limitations, first the delimitation of competence between States, and second, the obligations associated with the protection of human rights.”3 The influence of human rights should be neither overestimated nor underestimated. For this reason, human rights norms are integrated in this chapter along with the general international law approach to different concepts related to nationality. This will allow one to illustrate which of the rights traditionally accorded to nationals have now become part of human rights law, i.e., when non-nationals have been granted equal rights to nationals.

1 See especially further discussion on acquisition and loss of nationality; statelessness, multiple nationality and free movement rights. In addition, rights of several groups of persons are of importance, i.e., rights of children, women and non-discrimination in the context of the human right to nationality. 2 Blackman Jeffrey L., ‘The State Succession and Statelessness: the emerging right to an effective nationality under international law’ (1998) 19/4 Mich JIL, 1141–1194, 1144. 3 Report of the International Law Commission on the work of its 47th session, UN Doc. A/50/10, Official Records of the General Assembly, 50th session, Supplement No. 10, 1995, 72.

Chapter Four Concept of Nationality in International Law Emergence of the concept of nationality took place late in the history of the modern system of States. It can be argued that the main reasons for introducing the concept could be associated with the changing perception of the individual as part of society (post-revolutionary France) or changes of territory as a result of wars (England’s loss of Normandy). For the first time the terms ‘national’ and ‘nationality’ were given preference to the older expressions ‘subject’ and ‘allegiance’ in Prussian Law at the end of the 19th century.1 The concept of nationality is closely linked with the concept of the State and its sovereignty. Sovereignty grants the State supreme authority internally and when representing its subjects externally regardless of the size of the State on the basis of sovereign equality with other States.2 Therefore, it was considered that nationality issues belonged to the domestic jurisdiction of each State. However, as confirmed by the Permanent Court in the Advisory Opinion concerning the Tunis and Morocco Nationality Decrees:3 The question whether a certain matter is or is not solely within the domestic jurisdiction of a State is an essentially relative question; it depends upon the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of this Court, in principle within this reserved domain.

This judgment, in fact, opened the way for regulation of nationality issues in international law. Although States have wide discretionary competence, this is not unlimited.4 Kunz held the view that “[t]here are no matters at all 1 For a more detailed overview of historical aspects for introducing the concept of nationality see Parry Clive, ‘Plural Nationality and Citizenship with Special Reference to the Commonwealth’ (1953) 30 BYIL, 244–292. 2 Donner Ruth, The Regulation of Nationality in International Law, 2nd ed. (Transnational Publishers Inc.: Irvington-on-Hudson, NY 1994) 5. 3 Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion) [1923] PCIJ Ser. B, no. 4, 24. 4 Fitzmaurice Gerald G., ‘The General Principles of International Law. Considered from the standpoint of the rule of law’, (1957) II Tome 92 de la Collection, Haague Academie voor International Recht: Recueil des Cours, 2–227, 192. See also statement Summary records of the fifteenth session (6 May-12 July 1963) ILC Yearbook 1963 (UN: NY 1963) UN Doc. A/CN.4/SER.A/1963.

32  Chapter Four

which …“can” only be regulated by municipal law”.5 Special ILC Rapporteur Kamto has concluded that “[n]ationality is essentially governed by internal law, albeit within the limits set by international law”.6 Therefore, the conclusion to be drawn is that there are no limitations per se for international law to regulate issues of nationality if the need exists. A tendency to place humankind at the centre of international ethics has made protection of human rights a major concern of contemporary international law.7 This undoubtedly has also influenced regulation of nationality and autonomy of States in international law. The question then arises to what extent the rules and principles existent in international law would allow the conclusion that a ‘concept’ of nationality exists in international law. The views of writers differ greatly. Weis considers that “nationality, though determined by municipal law, is itself a concept of international law. The co-existence of States and the existence of international relations constitute – at least in modern times – a prerequisite of the concept of nationality”.8 For him “nationality as a term of international law cannot be defined in terms of municipal law”9 and it even “cannot be a matter falling within the competence of municipal law to the exclusion of international law”.10 The arguments put forward by Weis are grounded in the different functions which nationality fulfils on the national and international level. He admits that since existing sources “do not directly result in acquisition of nationality or cause loss of nationality … it is therefore more accurate to speak of a “so-called” international law of nationality”.11 He even admits that the meaning of nationality may be both wider and narrower than that put forward by municipal law. This means that persons may be regarded as nationals in the usage of international law but would not be considered nationals under the municipal law of the State and vice versa.12 Verzijl cautiously argues that nationality is essentially a concept of municipal law which has certain implications for municipal private as well as private and public international law.13 This means that there are as many definitions of nationality as they are used in municipal public law. Van Panhuys says that “for purposes of international law, nationality as a formal category is something in the nature of

5 Kunz Josef L., ‘The Nottebohm Judgement (second phase)’ (1960) 54 AJIL 536–572, 546. 6 Kamto Maurice, ‘Fourth Report on the Expulsion of Aliens’ (March 2008) UN Doc. A/CN.4/594, 2. 7 Kamto Maurice, ‘Fifth Report on the Expulsion of Aliens’ (March 2009) UN Doc. A/CN.4/611, 7. 8 Weis Paul, Nationality and Statelessness in International Law, 2nd ed. (Sijthoff Noordhofffrom the latest Table of Contents: Alphen aan den Rijn [u.a.] 1979) XIII. 9 Ibid., 32. 10 Ibid., 66. 11 Ibid., 89. 12 Ibid., 59. 13 Verzijl Jan H.W., International Law in Historical Perspective, Part V (Sijthoff: Leyden 1972) 1.

Concept of Nationality in International Law  33

an a priori concept, not to be easily measured by clear-cut factual criteria.”14 After all it may depend on definition of the concept in international law. This book will rather side with the argument that a concept of nationality is not yet fully-formed in international law but an increasing number of limits are set to State discretion by international law. However, international law is not static and developments in a number of fields lead to the argument that nationality might become a concept for the purposes of international law. At the same time it differs from the concept of citizenship in municipal law. As stated by Ziemele, international law “develops principles or rules which may regulate nationality in international law independently of its regulation in municipal law, even if only in special cases”.15 It can be argued that not only customary international law but also the latest codifications support the view expressed by Ziemele. The process of codification started at the end of the 19th and the beginning of the 20th centuries when prominent institutions identified the problems and made proposals to deal with ‘the evils’ created by conflicts of laws.16 This was followed by adoption of the first conventions in the field of nationality starting with the Hague Convention on Conflict of Nationality Laws (1930). The Convention embodied certain principles under which nationality has to be conferred. In addition to the codifications, principles related to regulation of nationality can be found in customary international law and the case law of different international courts and tribunals.17 However, these provisions are aimed at co-ordination of different issues related to nationality among States rather than prescribing international obligations on States to regulate nationality issues in a certain manner. The number and scope of human rights conventions referring to different aspects of nationality has grown considerably since the end of World War II.18 14 van Panhuys Haro Frederik, The Rôle of Nationality in International Law: an Outline (Sijthoff: Leyden 1959) 26. 15 Ziemele Ineta, State continuity and nationality in the Baltic States: international and constitutional law issues (DPhil thesis, Wolfson College, University of Cambridge 1998) 65. 16 The Institute of International Law, The International Law Association, American Society of International law in Harvard Law of Nationality. Their proposals were also at least partly reflected in the Hague Convention of 1930. 17 A comprehensive account of existing sources, judgments and decisions of tribunals, and State practice can be found in the book by Donner Ruth, supra note 17. The 1930 Convention enjoyed limited support in Europe with seven signatories for the current EU Member States (Belgium, Cyprus, Malta, the Netherlands, Poland, Sweden and the UK) out of a total of 19 signatories, while the Protocol on certain cases of statelessness of the same year was even less successful: only France, Germany, Italy and the UK signed up out of a total of 6 parties. 18 The explanatory report of the European Convention on Nationality enumerates the most important agreements to include the 1948 Universal Declaration of Human Rights, the 1951 Convention

34  Chapter Four

These conventions lead to the conclusion that human rights have a twofold impact on different aspects of nationality in international law. In contrast to traditional nationality treaties such as the 1930 Hague Convention, they impose positive obligations on States in relation to nationality issues. The ILC in its work on new codifications in the field of nationality has changed the methodology and is treating issues not from the perspective of the State but from that of the individual. The ILC has stated that the reason for this change is that “as a result of this evolution in the field of human rights, the traditional approach based on the preponderance of the interests of States over the interests of individuals has subsided”.19 The latest comprehensive codification of the rules pertinent to nationality is the Council of Europe Convention on Nationality (ECN).20 This resembles the wording of human rights conventions. Indeed, the initial idea was to draft a Protocol to the European Convention on Human Rights on the Right to Nationality. However, this proposal did not materialize.21 It could have strengthened regulation of nationality issues at international level and placed States under strict monitoring machinery. At the same time this is a methodologically correct approach taking into account current developments in international law. As noted by Dina Kiwan, whilst human rights have a place as a component of citizenship, attempts to present human rights as a theoretical basis for citizenship are conceptually incoherent. That is, whilst human rights have a place as a component of citizenship, attempts to present human rights as a theoretical on the Status of Refugees, the 1954 Convention on the Status of Stateless Persons, the 1957 Convention on the Nationality of Married Women, the 1961 Convention on the reduction of statelessness, the Optional Protocols concerning Acquisition of Nationality to the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations, the 1964 Convention of the International Commission on Civil Status on the exchange of information concerning acquisition of nationality, the 1966 International Convention on the Elimination of Racial Discrimination, the 1966 International Covenant on Civil and Political Rights, the 1967 European Convention on the Adoption of Children, the 1969 American Convention on Human Rights, the 1973 Convention of the International Commission of Civil Status to reduce the number of cases of statelessness, the 1979 Convention on the Elimination of All Forms of Discrimination against Women and the 1989 Convention on the rights of the child. Explanatory report. European Convention on Nationality, ETS no. 166, available at accessed 11 February 2011. 19 Para 5 of the Draft Articles on Nationality in Relation to the Succession of States with commentaries, 1999, Yearbook of the International Law Commission, 1999, vol. II, Part Two, A/CN.4/ SER.A/1999/Add.1, 24. Available at accessed 23 January 2013. 20 European Convention on Nationality, CETS No. 166, Adopted 6 November 1997. Entered into force 1 March 2000. As of 23 January 2013 there are 20 ratifications and 9 signatures. 21 Chan Johannes M.M., ‘The Right to a Nationality as a Human Right. The Current Trend towards Recognition’ (1992) 12 1/2 HRLJ, 1–14, 7.

Concept of Nationality in International Law  35

basis for citizenship, if not conceptually incoherent, may potentially obstruct the empowerment and active participation of individual citizens owing to neglect of the interrelationship of identity and participation in the context of a political community. This is because human rights discourses are located within a universalist discourse, in contrast to citizenship, which is located within a more particularist discourse.22 Therefore, when addressing or attempting to define the concept of nationality in international law, it should be borne in mind that it is not possible to encompass all aspects of nationality but only those which can be derived from international law upon which there has been agreement as being part of universalist or cosmopolitan discourses. The ECN repeats the position taken by the drafters of the 1930 Hague Convention confirming the primacy of domestic law in attribution of nationality, but subjecting international recognition to certain qualifications.23 However, the Convention has confirmed a few important developments which have taken place in international law on nationality. Firstly, the ECN is the first instrument codifying many norms on nationality which limit discretion of States Parties. It relates not only to conflicts of nationality laws but to access to and loss of nationality in general. Secondly, the Convention has acknowledged applicability of certain human rights in matters of nationality. Article 4 ECN states: The rules on nationality of each State Party shall be based on the following principles: a) everyone has the right to a nationality; b) statelessness shall be avoided; c) no one shall be arbitrarily deprived of his or her nationality; d) neither marriage nor the dissolution of a marriage between a national of a State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other spouse.

Article 5 further introduces the principle of non-discrimination applicable in cases of both access to nationality and enjoyment of rights granted to nationals. Therefore, a complete picture of the concept of nationality in international law cannot be drawn without reference to human rights. It can be concluded that the debate on nationality as a concept of international law should be different nowadays if compared to the debate taking place decades 22 Kiwan Dina, ‘Human Rights and Citizenship: an Unjustifiable Conflation’ (2005) 39/1 Journal of Philosophy of Education, 37–50, 38 and 48. Kiwan further argues that human rights are the notion of common humanity, based on ethical conceptualisations of the individual. In contrast, citizenship rights are underpinned by their relation to a political community, based on political conceptualisations of the individual. But see supra note 7. 23 Hall Stephen, ‘The European Convention on Nationality and the right to have rights’ (1999) 24 /6 ELR, 586–602, 595.

36  Chapter Four

ago. Rules applicable in the field of regulation of nationality have significantly developed. These may not necessarily copy national rules, even if national rules are uniform. International law contains a certain set of rules and principles which apply independently from municipal law. Therefore, a concept of nationality exists in international law, albeit a limited one. It includes but does not derive from human rights. The chapters below will discuss rules and principles applicable to nationality in international law.

Chapter Five Access to Nationality Although access to nationality, especially for certain groups, is important from the point of view of international law it is still predominantly regulated by national laws. This section does not aim at reviewing all possible modes of acquisition of nationality according to municipal law.1 Instead, it will focus on the main principles of acquisition of nationality so far adopted by States as they are reflected in international law. 5.1. Jus soli and jus sanguinis According to Hudson the links of attribution of nationality at birth are, according to municipal law, either descent (jus sanguinis) or birth on the territory (jus soli) or a combination of these links. However, he concludes that “[i]t may be a moot question whether this rule merely constitutes usage or whether it imposes a duty on States under customary international law.”2 Jus soli and jus sanguinis are referred to in a number of international conventions dealing with nationality. Article 3 of the Harvard Draft declares that a State may not confer its nationality upon a person except upon the basis of jus soli or jus sanguinis. However, it does not impose a duty upon a State to grant nationality on the basis of either of these principles.3 Article 9 of the Draft only imposes the duty on a State to confer its nationality at birth upon a person born within its territory if that person does not acquire another nationality at birth. Article 15 of the Hague Convention on Nationality of 1930 provides: 1 Jennings Robert, Watts Arthur (eds), Oppenheim’s International law, 9th ed. (Harlow: Longman: Harlow 1992) 869 suggests that there are five modes for acquisition of nationality: birth, naturalization, reintegration, annexation and cession. 2 Report by Hudson Manley O., ‘Nationality Including Statelessness’ (21 February 1952) UN Doc. A/ CN.4/50. See also Weis Paul, Nationality and Statelessness in International Law, 2nd ed. (Sijthoff Noordhofffrom the latest Table of Contents: Alphen aan den Rijn [u.a.] 1979) 96. Brownlie argues that even if opinio juris et necessitates is lacking jus soli and jus sanguinis insistence on clear evidence of this may well produce results. See Brownlie Ian, Principles of Public International Law, 6th ed. (Oxford University Press: Oxford 2003) 384. 3 Zilbershats Yaffa, The Human Right to Citizenship (Transnational Publishers: Ardsley NY 2002) 19.

38  Chapter Five [W]here the nationality of a State is not acquired automatically by reason of birth on its territory, a child born on the territory of that State of parents having no nationality, or unknown nationality, may obtain the nationality of the said State.

Thus, the Hague Convention following the approach of the Harvard Draft provides only for the right of a State to grant nationality jus soli for otherwise stateless children. Also regrettably, the Convention did not address problems of denationalization or deprivation of nationality upon transfer of territory, which were prevailing causes of statelessness at that time.4 Developments in nationality regulation, inter alia, acknowledgment of the rights of the child and eradication of statelessness, become evident when looking at the ECN. Article 6 ECN is devoted to application of the principles of jus sanguinis and jus soli. The Convention has been applauded for being the first international treaty indicating what grounds for acquisition of nationality are acceptable other than in cases of statelessness alone.5 Article 6 provides that nationality is acquired by children one of whose parents possesses the nationality of a State Party at the time of the birth of those children. Thus, the jus sanguinis principle has been proclaimed as the basic rule for acquisition of nationality. The nationality of a father and mother has equal importance in determining nationality. This provision of the Convention is in conformity with different international instruments on equal treatment of women in relation to nationality. In addition it also indirectly supports instances of multiple nationality arising but at the same time corresponds to a similar provision in Article 9(2) of CEDAW. In cases when a child does not acquire nationality jus sanguinis then the jus soli principle is applicable according to Article 6 (2). This provision follows the principle proclaimed in Article 4 (b), i.e., that statelessness is to be avoided. In general, the jus soli principle currently raises a number of problems in practice. Autem has noted that application of the principle of jus soli inevitably leads to a complex relationship between State prerogatives and individual rights, and falls within a sensitive area of national life.6 Therefore, an unconditional jus soli principle has very limited application. In turn States opt for a conditional jus soli principle, for instance, the parents have been domiciled in a State for a prescribed period or they are stateless, the parents are unknown or the child is 4 Chan Johannes M.M., ‘The Right to a Nationality as a Human Right. The Current Trend towards Recognition’ (1992) 12 1/2 HRLJ, 1–14, 2. 5 de Groot Gerard-René, ‘The European Convention on Nationality: a step towards a ius commune in the field of nationality law’ (2000) 7/1 MJ, 117–157, 129; supra note 3, 32. 6 Autem Michael, ‘The European Convention on Nationality. Is a European Code of Nationality Possible?’ (1st Conference on Nationality, Council of Europe, CONF/NAT (99) PRO 1, 2000), available at  accessed 23 January 2013.

Access to Nationality  39

considered to be a foundling.7 This is especially so in the case of European countries where the percentage of foreigners is relatively high. According to comparative studies, there are four main forms of jus soli in Europe. These are of different strengths ranging from pure declaration to facilitated naturalization. The pure or unconditional form of jus soli is not found in Europe since its abolition in Ireland in 2004.8 At the same time an ongoing process of convergence has been observed, i.e., traditional jus sanguinis countries have introduced extended jus soli provisions while classic jus soli countries have limited these provisions.9 This leads to the conclusion that although the principles of jus soli and jus sanguinis remain the main principles for determining nationality, application of those principles is at the discretion of States. Moreover, many different modifications of those principles exist in State practice. Further general developments of international law and closer cooperation between States can modify their application.10 For instance, as a result of the principle of non-discrimination the nationality of a father and mother are of equal importance for determining the nationality of a child. This, however, was not completed before the mid1980s.11 Birthright citizenship is important not only in relation to the rule of nondiscrimination but also in relation to reduction of statelessness, which will be discussed below. 5.2. Naturalisation Naturalisation as a mode of acquisition of nationality requires the consent of the individual and prolonged residence. As stated by Hudson “[n]aturalization must be based on an explicit voluntary act of the individual or of a person acting on his 7 Sandifer Durward V., ‘A Comparative study of Laws relating to Nationality at birth and to Loss of Nationality’ (1935) 29 AJIL, 48–278, 252–253. 8 See Honohan Iseult, ‘Ius Soli Citizenship’ (EUDO Citizenship Policy Brief, No.1, 2010), available at accessed 21 January 2013, 2. She distinguishes four main forms of ius soli in Europe. Moreover, no general provision of ius soli exists in nine of the EU Member States at the time of writing. 9 Vink Marten P., de Groot René G., ‘Birthright Citizenship: Trends and Regulations in Europe’ (EUDO Citizenship Observatory, Robert Schuman Centre for Advanced Studies, November 2010), available at accessed 23 January 2013, 4. 10 For instance, Nationality Laws in Denmark, Norway and Sweden provided for this by allowing birth and residence to the age of twelve in one country to be the equivalent of birth and residence in any of the other countries. The relevant agreements were concluded on 21 December 1950; in force 1 January 1951. Quoted by Brownlie Ian, ‘The Relations of Nationality in Public International Law’ (1963) 39 BYIL, 284–364, 306. 11 Supra note 8, 6.

40  Chapter Five

behalf. Habitual residence in the territory of the naturalizing State is usually a requirement”.12 In addition a State can set other conditions or exceptions for acquisition of nationality through naturalisation. The State can also provide for exceptional naturalisation in cases when an individual applies for citizenship without satisfying the conditions but the State considers them appropriate due to their achievements. This mode of acquisition of nationality has become common practice by States in relation to artists, academics and most notably sportsmen. This chapter will discuss the three most common preconditions for naturalisation: habitual residence, consent of the individual and the existence of an effective link to the State. 5.2.1. Residence Residence for a certain period is a fairly common requirement to be met in the case of naturalisation. Although some writers have concluded that prolonged residence is a condition of naturalisation, it does not, by itself, create an international rule. In general, prolonged residence as a precondition for naturalisation conforms with international law and commonly depends on quite sensible links.13 The matter of prolonged residence has arisen in connection with the laws of a number of countries to which immigration from abroad has taken place on a considerable scale. These countries have automatically conferred nationality on all foreigners resident in the country for a certain period unless the latter have expressly declared their wish not to acquire it.14 Article 6 (3) ECN states that: “Each State Party shall provide in its internal law for the possibility of naturalisation of persons lawfully and habitually resident on its territory”. Article 6 ECN also provides that States must not set a period of residence exceeding ten years before an individual can apply for citizenship. This corresponds to a common standard, most countries of Europe requiring between five and ten years of residence.15 A State Party may, in addition, set other 12 Hudson Manley O., ‘Nationality Including Statelessness’ (21 February 1952) UN Doc. A/CN.4/50. 13 Brownlie Ian, ‘The Relations of Nationality in Public International Law’ (1963) 39 BYIL, 284–364, 310. 14 See article by Fitzmaurice Gerald G., ‘The General Principles of International Law. Considered from the standpoint of the rule of law’ (1957) II Tome 92 de la Collection, Haague Academie voor International Recht: Recueil des Cours, 2–227, 199. 15 The only exceptions are Belgium – 3 years and Ireland – 4 years, while Switzerland requires 12 years of residence. See Wallace Goodman Sara, ‘Naturalisation Policies in Europe: Exploring Patterns of Inclusion and Exclusion’ (EUDO Citizenship Observatory, November 2010) available at  accessed 24 January 2013.

Access to Nationality  41

justifiable conditions for naturalisation, in particular as regards integration.16 Therefore, international law provisions do not exclude specific requirements on top of the residence condition. The most common examples include not only naturalization exams but also absence of a criminal record, sufficient income, renunciation of another nationality and the like. Moreover, the residence condition is not obligatory. For instance, naturalization can be granted by way of extension in relation to children or by way of spousal transfer. Therefore, a uniform standard is hardly applicable to States in granting the naturalisation right to aliens. However, the term ‘justifiable’ used in the Explanatory report implies that whatever requirements are set should not be arbitrary or targeted against a specific group of applicants. Article 6 ECN contains a list of persons for whom States must facilitate acquisition of nationality. For instance, those who are resident on a long-term basis in the territory of any State Party. This refers to spouses of nationals, children, persons who are born on its territory and reside there as well as stateless persons and refugees. This would also apply to second and third generation migrants. Article 6 (4) ECN sets a general framework without specifying what exactly is meant by the obligation to facilitate.17 This could entail lower fees, less stringent application of general requirements or a shorter residence period. The main importance of the ECN provisions on naturalisation lies in the fact that they attach greater significance to habitual residence. As correctly noted by Autem, in the context of the ECN lawful and habitual residence becomes almost a ground for becoming entitled to the right to acquire nationality.18 However, State practice has developed in different directions. Prolonged residence might not be required and citizenship granted on other grounds than residence. For instance, in cases of kinship holders, citizenship is granted on ethnic grounds and no residence requirement is applicable. Likewise, there are exceptions when naturalisation can take place without the applicant being in the territorial jurisdiction of the State.19 It can be concluded that even if international law requires substantial links with the naturalising State those links can be derived not only from residence in the territory of the State. For instance, States are not precluded from granting nationality due to historical links with the territory in earlier generations. Kinship based external citizenship has become a well known 16 Explanatory report. European Convention on Nationality (ETS no. 166), available at accessed 24 January 2013. 17 Schärer Roland, ‘The European Convention on Nationality’ (1997) 40 GYIL, 438–459, 446. See on difficulties of interpretation part V of this volume, sections 19.2. and 19.3. 18 Supra note 6. 19 Weis Paul, Nationality and Statelessness in International Law, 2nd ed. (Sijthoff Noordhofffrom the latest Table of Contents: Alphen aan den Rijn [u.a.] 1979) 100–101. Brownlie is of the opposite opinion. See Brownlie Ian, Principles of Public International Law, 6th ed. (Oxford University Press: Oxford 2003) 384.

42  Chapter Five

phenomenon.20 However, this should not be done on a massive scale and should be achieved by reaching an agreement with States affected by an initiative to grant external citizenship. Otherwise the practice of granting external citizenship could raise security concerns, which has been acknowledged by the OSCE. The 2008 Bolzano Recommendations of the OSCE Commissioner on National Minorities state that granting citizenship to specific groups in other countries on the mere basis of ethnic, national, linguistic, cultural or religious ties may conflict with the prohibition of discrimination as enshrined in CERD and ECN.21 The Recommendations also state that: States may take preferred linguistic competencies and cultural, historical or familial ties into account in their decision to grant citizenship to individuals abroad. States should, however, ensure that such a conferral of citizenship respects the principles of friendly, including good neighbourly, relations and territorial sovereignty, and should refrain from conferring citizenship en masse, even if dual citizenship is allowed by the State of residence.

Therefore, while residence is the most common requirement for naturalization, there might be exceptional cases when nationality is acquired by persons living in other States. The right to confer citizenship beyond State borders is limited. It may not only entail violation of international legal norms but also lead to political consequences in relations between the States involved. 5.2.2. Consent International law makes consent, and active consent, of the individual an indispensable condition of any naturalisation for which international recognition

20 Pogonyi Szabolocs, Kovács Mária M., Körtvélyesi Zsolt, ‘The Politics of External Kin-State Citizenship in East Central Europe’ (EUDO Citizenship Observatory, October 2010), available at accessed 24 January 2013. For problematic examples see policies of Hungary and Russia. On Hungary see Kovács Mária M, Tóth Judit, ‘Kin-state responsibility and ethnic citizenship: The Hungarian case’ in Bauböck Rainer, Perchining Bernhard, Sievers Wiebke (eds), Citizenship Policies in the New Europe. Expanded and Updated Edition (Amsterdam University Press 2009) 151–176. On Russia see ‘Putin Endorses Eased Citizenship Requirements’, The Moscow Times, available at  accessed 24 January 2013. 21 See OSCE High Commissioner for National Minorities ‘Bolzano Recommendations on National Minorities in Inter-State Relations and Explanatory Note’ (2008), available at accessed 2 February 2011, para 11, 7. For the relevance of the Recommendations in the EU regarding kinship holders, see Section 11.2.1. on the scope of EU competence in nationality matters in part III of this volume.

Access to Nationality  43

can be claimed as a matter of right.22 Donner argues that international law does not permit compulsory change of nationality, i.e., persons of full age cannot be naturalized without their consent. The wish of the person concerned is decisive, even if this results in their being stateless.23 This conforms with the principle that nationality cannot be imposed. However, Weis considers that there are exceptions to this general rule.24 In his view nationality may be conferred by operation of law, without the consent of the individuals concerned and even against their will in those cases where no State is entitled to exercise diplomatic protection, i.e., in the case of stateless persons. Although limited to cases of stateless persons, this argument still seems not to be in line with current international law. While it is correct to argue that nationality can be imposed by law on stateless persons, it is going too far to say that this can be done against their will.25 International law does not contain rules imposing nationality without consent on adult nationals. However, international law has developed criteria for cases when States should grant nationality, for instance in cases where otherwise statelessness will arise as a result of changes of sovereignty over territory.26 But even in those cases a person should be given a reasonable time and possibilities offered to refuse nationality. This means that imposition of nationality should be prescribed by law which is accessible to the person and foreseeable as to its effects.27 5.2.3. Effective Link The principles of effective link and dominant nationality deserve particular attention because their application in the EU differs from their role and application in international law.28 The discussion in this section might shed light on why those principles as developed in international law might not necessarily be suitable for the EU as an area including a group of States. 22 Supra note 14, 201; supra note 19, 110. 23 Donner Ruth, The Regulation of Nationality in International Law, 2nd ed. (Transnational Publishers Inc.: Irvington-on-Hudson, NY 1994) 160–162. But see also supra note 14. 24 Supra note 19, 111–113. 25 Children remain a specific category. As a rule they should acquire nationality at birth by operation of law. However, situations when parents refuse to comply with formalities might cause problems in these cases. See section 7.2. of this part and section 19.3. of part V of this volume on acquisition of nationality by children in Latvia. 26 See section 5.3. of this part. 27 See, for instance, Kurič and others v. Slovenia, (App no, 26828/06) ECHR [GC] 26 June 2012, para 341. 28 Regarding application of effective link see in particular section 12.2.2.2. of part III on the criterion of link to territory in equality cases. In relation to dominant nationality see in particular section 11.2.3. of part III on cases of multiple nationality.

44  Chapter Five

Important differences exist between effective and genuine link as well as dominant nationality.29 The principle of effective link is applied in order to determine the validity of nationality in international law, i.e., whether nationality was acquired in accordance with the rules and principles existing in international law. In turn the term ‘dominant nationality’ is used to describe which nationality has dominated at any time in question in cases of dual nationality.30 In relation to genuine link Brownlie has said that “it is possible to postulate a general principle of genuine link relating to the cause for conferment of nationality (and the converse for deprivation), a principle distinguishable from that of effective link.” In his view effective and genuine link are two elements as aspects of the same thing. Genuine link would intend only to emphasize the quality and significance of factual ties with a particular State.31 From the present day perspective of the difference between effective and genuine link this is a rather technical distinction at least in the European context. The principle of effective link has been pronounced a guiding principle in establishing nationality. Some writers have said that it constitutes a general principle of international law.32 It has been used in cases of naturalization, situations of territorial change, diplomatic protection and loss of nationality ex lege.33 The most quoted definition is the one appearing in the ICJ judgement in Nottebohm: [N]ationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality that with that of any other State. … [I]t constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.34

29 See Aghahosseini Mohsen, ‘The Claims of Dual Nationals before the Iran – United States Claims Tribunals’ (1997) 10(1) LJIL, 21–47, 27–33 and Brownlie Ian, Principles of Public International Law, 6th ed. (Oxford University Press: Oxford 2003) 405. 30 For writers who are positive and critical on the principle of dominant nationality see Dugard John, ‘First report on Diplomatic protection’ (7 March 2000) UN Doc. A/CN.4/506, 48–49, paras 145–146. 31 Brownlie Ian, Principles of Public International Law, 6th ed. (Oxford University Press: Oxford 2003) 388 and 405. But other writers use the two terms as synonyms. See supra note 30. There is, however, no consistency as to the terminology used. Other terms such as ‘real link’, ‘allegiance’ and the like do appear in writings and decisions of tribunals. 32 Supra note 13, 284–364. 33 Ziemele Ineta, State Continuity and Nationality in the Baltic States: International and Constitutional Law Issues (DPhil thesis, Wolfson College, University of Cambridge 1998) 81. 34 Nottebohm (Liechtenstein v. Guatemala) (Second Phase, Judgment) [1955] ICJ Rep 23.

Access to Nationality  45

Sorensen when commenting on the judgment in Nottebohm concluded that only if the grant of nationality is based upon a genuine connection between the State and the individual and is thus the legal expression of a real and effective nationality can it be invoked against foreign States as a valid legal act.35 Therefore, it is not only the grant of nationality but also the consequences of that act which become of concern. In order to establish genuine connection not only residence matters. According to the ICJ in Nottebohm: Different factors are taken into consideration, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.36

The principle of effective link has not been adopted by writers without controversy.37 Most of the critique was directed towards the methodology adopted by the ICJ in Nottebohm, i.e., use of argumentation pertinent to dual or dominant nationality cases in the case of a person with single nationality.38 Brownlie holds the view that “as a general principle, the effective link provides the only logical approach to many problems of nationality law and avoids the inconveniences and structural flaws in the system of law which flow from the principle of freedom in nationality matters”.39 Thus, according to Brownlie the doctrine of effective link may be classified either as a rule of customary law or as a general principle of (international) law.40 This, however, is strongly contested by many authors. The principle of ‘genuine link’ has been criticised for its subjectivity. Judge Read in his dissenting opinion 35 Quoted by McDougal Myres S., Burke William T., Vlasic Ivan A., ‘The Maintenance of Public Order at Sea and the Nationality of Ships’ (1960) 54 AJIL, 25–116, 37. See also supportive argumentation of ICJ judgment in Nottebohm by Blackman Jeffrey L., ‘The State Succession and Statelessness: the emerging right to an effective nationality under international law’ (1998) 19/4 Mich JIL, 1141–1194, 1151–1160. 36 Supra note 34. See also opinion of Judge Read who stated that “the State’ is a concept broad enough to include not merely the territory and its inhabitants but also those of its citizens who are resident abroad but linked to it by allegiance… In the case of many countries …., the nonresident citizens form an important part of the body politic, and are numbered in their hundreds of thousands or millions”. 37 See supra note 31, 398–400. 38 Kunz Josef L., ‘The Nottebohm Judgement (second phase)’ (1960) 54 AJIL, 536–572, 552–553. See also Dissenting Judge Klaestad to Nottebohm Judgement. Supra note 34, ICJ Rep 29. 39 Supra note 13, 286. For critical comments as to over-extrapolation of Nottebohm and Prof. P. Jessup’s proposals for international utilization of genuine link in determining nationality of corporations and ships see McDougal Myres S., Burke William T., Vlasic Ivan A., ‘The Maintenance of Public Order at Sea and the Nationality of Ships’ (1960) 54 AJIL, 25–116, 29 and 37. 40 Supra note 13, 314.

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in Nottebohm stated that nationality, and the relation between a citizen and the State to which he owes allegiance, are of such a character that they demand certainty. Therefore, there must be objective tests, readily established, for the existence and recognition of the status.41 For him the test of effective nationality lacked those qualities. Parry, when giving his critical remarks on the Nottebohm judgment, regrets that the Court did not lay down more exactly the criteria as to what constitutes a ‘link’ sufficient to constitute ‘real and effective nationality’.42 Indeed, nowadays the test of effective link might have even more limited application. Migration flows and prolonged residence in countries other than that of citizenship are common. There are second and even third generation migrants with only remote links to their country of nationality. Therefore, if they are considered citizens, the test of effective link would have no practical effect. If the test of effective link were applied, they might similarly to Nottebohm be considered stateless in international law. This would not be acceptable even for the country of residence which might be under obligation to reduce statelessness. However, this does not mean that an effective link might not be required in certain cases, for instance in cases of naturalization. Article 2 ECN defining nationality does not refer to the existence of a genuine or effective link between the State and the individual. Nevertheless, it can be argued that the Convention supports the view that the principle of effective link is guiding in relation to nationality. For instance, it has been argued that Article 6 ECN on residence requires the State to grant naturalisation to persons having a ‘real and effective link’ which would exist after prolonged residence.43 An orthodox invocation of effective link can be found in Article 7(e) ECN. This provides that a State can deprive an individual of nationality in cases of lack of a genuine link between the State party and a national habitually residing abroad. The Explanatory report of the Convention clarifies that such loss is only possible for persons possessing another nationality, i.e., dual nationals who have habitually resided abroad for generations. The decision of the State Party must be supported by evidence of lack of a genuine link. Moreover, the ECN commentary emphasizes the will of the individual as an important factor for the permanence of the legal bond with the State which characterizes nationality.44 It can be argued that such provision would be relevant if dual nationality is still considered 41 Supra note 34, ICJ Rep 44. 42 Parry Clive, ‘Some Considerations upon the Protection of Individuals in International law’ (1956) II Tome de la Collection, Recueil des Cours, 653–725, 711. For other authors who have been critical of effective link see Dugard, supra note 30, para 112. 43 Schärer Roland, ‘The European Convention on Nationality’ (1997) 40 GYIL, 438–459, 446. 44 Explanatory report. European Convention on Nationality (ETS no. 166), available at accessed 24 January 2013, para 18.

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undesirable or the test of individual will is more elaborated. However, if looked upon in the context of the ECN which is neutral on dual nationality as well as international mobility, this provision fits badly in the Convention. Moreover, the will of the individual, especially if host countries are changing, may change and this would deprive a person of benefit from dual nationality.45 Also relevant is another example of invocation of the test of effective link, i.e., Article 18 ECN setting out principles to be followed in cases of State succession. This provides that States must take into account a genuine and effective link of the person concerned with the State. The Explanatory report in paragraph 113 emphasises that “the legal bond of nationality therefore has to accord with the individual’s genuine connection with the State.” This is in line with the approach of the ILC. The Articles on Nationality of Natural Persons in Relation to the Succession of States46 in Article 11 provide: Each State concerned shall grant a right to opt for its nationality to persons concerned who have appropriate connection with that State if those persons would otherwise become stateless as a result of the succession of States.

The same requirement for appropriate connection is mentioned in Article 22 (dissolution of a State), Articles 24 and 25 (separation of part or parts of the territory) of the Articles on Nationality in case of State Succession. During early discussions on the Articles, views in the ILC differed in relation to the importance of the effective link principle nowadays. It has been said that the principle of effective nationality lost its pertinence and scope outside the framework of diplomatic protection.47 No definition of the term ‘appropriate connection’ is given. However, the very formulation leads to the conclusion that at least in cases of State succession the test applied would be less stringent as in all other cases when the effective link principle would be applied. As noted by Ziemele, the notion of appropriate connection is meant to be broader than the effective link principle, at least in comparison with the ICJ definition.48 It can be concluded that the principle of effective link should be applied with caution in different situations. This is especially so when taking into account developments in international law after Nottebohm. The principle of effective link

45 See, for instance the position of the CJEU in the Avello case in section 11.2.3. of part III of this volume. 46 The articles were adopted as an annex to Resolution 55/153 of the General Assembly on 12 December 2000. 47 Report of the International Law Commission on the work of its 47th session, UN Doc. A/50/10, Official Records of the General Assembly, 50th session, Supplement No. 10, 1995, para 187. 48 Supra note 33, 89.

48  Chapter Five

should be distinguished from the principle of dominant nationality. Effective link remains instrumental in cases of naturalisation and cases of State succession. However, due to lack of specific criteria it will be difficult to invoke effectively in cases of deprivation of nationality, especially, leading to statelessness. 5.3. Nationality and State Succession State succession may occur as a result of various types of event such as transfer of territory from one State to another, unification of States, dissolution of a State, and separation of part or parts of the territory.49 State succession was historically one of the major causes of statelessness. Therefore, when the ILC undertook its study on issues of nationality in cases of State succession, it was guided by the interests of both States and individuals. The Commission’s approach was that the solution to this problem should take priority over consideration of other problems of conflicts of laws.50 Before adoption of the final draft, the Commission entered into heated debate as to what extent access to nationality is an international or an internal question.51 The consensus was that a balance should be found between the interests and rights of individuals, as well as the interests and rights of States.52 Thus, Article 1 of the Articles of Nationality of Natural Persons in Relation to the Succession of States provides: Every individual who, on the date of the succession of States, had the nationality of the predecessor State, irrespective of the mode of acquisition of that nationality, has the right to the nationality of at least one of the States concerned, in accordance with the present draft articles

In its Commentary to Article 1 the ILC emphasizes that it is a key provision and the very foundation of the Articles. Therefore, in cases of State succession 49 Explanatory report. Convention on the avoidance of statelessness in relation to State succession (CETS no. 200), available at accessed 11 February 2011, para 7. See also Kamto Maurice, ‘Second Report on the Expulsion of Aliens’ (20 July 2006) UN Doc. A/CN.4/573, 32–34. 50 ILC, Yearbook of the ILC (1997) I, 2475th meeting, 11, para 41. 51 See especially in this context record of 2476th meeting, Yearbook of ILC (1997) I, 15–22. For instance, Bennouna was of the opinion that it might be dangerous if certain States would consider a person to be a national of a given State even if that State did not grant him nationality. Crawford quite the opposite said that it could not be categorically asserted that international law had never attributed nationality to a person, contrary to the law of a State. He referred to the example of South Africans. 2476th meeting, Yearbook of ILC (1997) I, 18, paras 30 and 35. 52 Views expressed by Simma, 2477th meeting, Yearbook of ILC (1997) I, 23, para 3, and Goco, 24, para 20.

Access to Nationality  49

individuals have the right to a specific nationality. This rule goes beyond abstract entitlement to a nationality contained in Article 15 UDHR. The Commission has rightly stated that in the case of succession of States it is possible to identify a State vis-à-vis which a person would be entitled to present a claim for nationality.53 The main factor in identifying the State having an obligation to grant nationality would be related to links of the individual to the territory of the State. According to Article 11, an individual who had equally strong links with two States could retain two or more nationalities or use the right of option. Similarly, Article 18 (2) ECN provides that a genuine and effective link and habitual residence of the person concerned should be taken into account in deciding whether to grant or retain nationality in cases of State succession. In addition, a State must take into account the wishes of the person concerned and their territorial origin. Although these provisions do not apply directly to persons, they are designed to ensure as far as possible that persons are not put in an unfavourable position merely because of territorial changes.54 The Explanatory report notes that the main concern is avoidance of statelessness.55 This negative phenomenon was a reason for the Council of Europe to adopt the Convention on the Avoidance of Statelessness in Relation to State succession in 2006.56 Article 2 of the Convention places an obligation in relation to both the predecessor State or the successor State to grant nationality to a person who would otherwise become stateless. This should be done in accordance with the Articles of the Convention. Specific prescriptions for responsibility of both States are contained in Articles 5 and 6. Similarly to the ECN the main factors which should be taken into account are related to habitual residence of a person and an appropriate connection with the successor State. According to Article 5(2) an appropriate connection includes a legal bond with a territory which has become territory of the successor State, birth on that territory and finally habitual residence. A State can either grant its nationality on the basis of a voluntary act of the person concerned or ex lege.57 Article 6 places an obligation on the predecessor State not to withdraw its nationality from nationals who have not acquired the nationality of a successor State. The Convention also offers special protection for children which according to Article 10 should be granted nationality at birth. 53 Draft Articles on Nationality of Natural Persons in relation to the Succession of States with commentaries (1999, UN 2005, available at accessed 15 May 2013, commentary to Article 1, para 2. 54 Supra note 44, para 105. 55 Ibid., para 107. 56 The Convention, however, has a low ratification record. Out of 6 ratifications only three are EU Member States – Austria, the Netherlands and Hungary. The Convention has been signed by two States including Germany. Data available as of 26 January 2012. 57 Supra note 49, para 19.

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In addition, in the light of a ruling of the ECtHR, it is important that the States concerned should provide persons with sufficient information about rules and procedures with regard to acquisition of their nationality. In Kurič and others v. Slovenia, the ECtHR dealt with a situation under Article 8 and Article 8 in conjunction with Articles 13 and 14 of the Convention.58 The applicants argued that they had been arbitrarily deprived of the possibility of acquiring Slovenian citizenship and/or of preserving their status as permanent residents after Slovenia declared its independence in 1991, because they were not in a position to submit a formal request for citizenship within the short period set out in the domestic legislation. As a result, their names had been ‘erased’ from the register of permanent residents. Therefore, the applicants had not been in a position to seek Slovenian citizenship or to apply for permanent residence in Slovenia.59 The Chamber of the Court considered that: [D]ecisions taken by the States in the immigration sphere can in some cases amount to interference with the right to respect for private and family life secured by Article 8 (1) of the Convention, in particular where the persons concerned possess strong personal or family ties in the host country which are liable to be seriously affected by application of the measure in question.

This statement was no longer contested by the Government in the proceedings of the Grand Chamber.60 The Chamber has acknowledged that there is no right to retain a particular nationality. However, arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention. The Grand Chamber took a slightly different view because in the Slovenian case a short period of time and an attempt to create a ‘corpus of Slovenian citizens’ and protect the interests of the country’s national security could be a legitimate aim within the meaning of Article 8 (2) of the Convention.61 Similarly to the Chamber the Grand Chamber noted that the applicants could not foresee that by failing to apply for Slovenian nationality they would be treated as aliens. Moreover, they could not reasonably have expected that their status as aliens would entail the unlawfulness of their residence on Slovenian territory and would lead to such an extreme measure as “erasure”. 58 Case of Kurič and others v. Slovenia (App no 26828/06) ECHR 13 July 2010 and [GC] 26 June 2012. The Court noted that the content and scope of the case referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility. Therefore, the Grand Chamber may examine the case in its entirety in so far as it has been declared admissible by the Chamber (paras 234–235). 59 Kurič and others v. Slovenia, 13 July 2010, paras 316–317. 60 Ibid., para 339. 61 Supra note 58, Judgment of 13 July 2010, paras 351 and 353; and judgment of 26 June 2012, para 343 and 353.

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The Grand Chamber concluded that: the applicants, who, prior to Slovenia’s declaration of independence, had been lawfully residing in Slovenia for several years, had, as former SRFY citizens, enjoyed a wide range of social and political rights. The “erasure” created adverse consequences. The legal vacuum in the independence legislation deprived the applicants of their legal status. Most importantly the Court noted: [The] “erasure” was a consequence of their failure to seek to obtain Slovenian citizenship. However, the Court point out that an alien lawfully residing in a country may wish to continue living in that country without necessarily acquiring its citizenship. As shown by the difficulties faced by the applicants, for many years, in obtaining a valid residence permit, the Slovenian legislature failed to enact provisions aimed at permitting former SFRY citizens holding the citizenship of one of the other republics to regularise their residence status if they had chosen not to become Slovenian citizens or had failed to do so. Such provisions would not have undermined the legitimate aims of controlling the residence of aliens or creating a corpus of Slovenian citizens, or both.62

It can be concluded that the Court confirmed that there is not only an obligation not to deprive a person of nationality in an arbitrary manner but, in cases of State succession, not to deny access to citizenship in an arbitrary manner. In addition, should persons wish not to acquire the citizenship of a successor State, the State is under an obligation to regularize the stay of those persons by granting them proper residence rights.

62 Kurič and others v. Slovenia, 13 July 2010, paras 356–357.

Chapter Six Results of Conflicts of Nationality Laws Conflicts of nationality laws may result in a person having no nationality (statelessness) or more than one nationality (dual or multiple nationality).1 Both of these phenomena have long been considered by States as ‘evils’ to be avoided to the maximum possible extent for the sake of State security reasons, demographic factors and the like. At the same time States being concerned with their own interests and policies have facilitated growing numbers of stateless persons and multiple nationals. The hypothesis that nationality belongs to States’ national realm inevitably leads to conflicts of nationality laws. According to Weis it follows that negative conflicts of nationality, i.e., statelessness, and positive conflicts, i.e., multiple nationality, cannot be entirely prevented by customary international law.2 Several international instruments, both bilateral and multilateral, have been adopted to deal with problems arising out of multiple nationality and statelessness. The first Conventions adopted date back to 1906 when the Inter-American Convention was signed providing rules for the avoidance of dual nationality of naturalized persons. These were followed by Peace Treaties concluded after the First World War and the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws. On a number of occasions the PCIJ had to deal with nationality issues arising out of results of the First World War Peace Treaties which used habitual residence as the criterion for the purposes of determining acquisition of nationality. This was at the time when international law addressed issues of link and non-discrimination.3 The Hague Conference was for long the only effort to eliminate statelessness by multilateral agreements.4 The first conventions dealing with statelessness were adopted only at the beginning of the 1960s. This part will concentrate on the current situation in relation to regulation of conflicts of nationality laws in international law. 1 Hudson Manley O., ‘Nationality Including Statelessness’ (21 February 1952) UN Doc. A/CN.4/50. Weis Paul, Nationality and Statelessness in International Law, 2nd ed. (Sijthoff Noordhofffrom the latest Table of Contents: Alphen aan den Rijn [u.a.] 1979) 90 and 161. 2 Weis Paul, Nationality and Statelessness in International Law, 2nd ed. (Sijthoff Noordhofffrom the latest Table of Contents: Alphen aan den Rijn [u.a.] 1979) 197. 3 See Exchange of Greek and Turkish Populations (Advisory Opinion) [1925] PCIJ Ser. B No.10; Acquisition of Polish Nationality (Advisory Opinion) [1923] PCIJ Ser. B No.7. 4 Hudson Manley O., ‘Nationality Including Statelessness’ (21 February 1952) UN Doc. A/CN.4/50.

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6.1. Multiple Nationality 6.1.1. Traditional View on Multiple Nationality Multiple nationality may occur at birth or subsequent to birth. As stated by Hudson the most frequent case of dual nationality at birth is caused by the application of jus soli and jus sanguinis to the same individual.5 Multiple nationality can originate from very similar as well as from fundamentally different nationality laws.6 Situations of multiple nationality subsequent to birth arise if a new nationality is conferred on a person by naturalization or in consequence of transfer of territory without that person losing their original nationality.7 Yet another possibility is that another nationality is acquired by marriage or by naturalization and the original State of nationality allows the individual concerned to preserve its nationality.8 Instances of multiple nationality can create difficulties for States and individuals especially in the context of mutual obligations, for instance, in cases of diplomatic protection and military service. These difficulties nowadays seem to be less problematic than liberalization of the institution of dual nationality. For long, not only States but also writers claimed that plural nationality is undesirable from the point of view of legal policy.9 Practice has proved that cases of multiple nationality are unavoidable unless States adopt uniform rules for nationality at birth. However, this does not seem to be feasible. According to Weis customary international law can also prevent multiple nationality only in so far as it imposes limitations on conferral and retention of nationality.10 Therefore, the only means of avoiding multiple nationality was by international treaty or by acceptance of the system of “Kollisionsnormen” to solve conflicts of nationality.11 5 Supra note 4. 6 Verzijl Jan H.W., International Law in Historical Perspective, Part V (Sijthoff: Leyden 1972) 57. 7 Supra note 4, supra note 6, 49. 8 Since 1950 mixed marriages have become far more common, due to increased mobility. This development, combined with equal treatment of women and men, is now a major source of the many dual nationals in Europe. Indicative are data available in Lanzieri, Giampaolo, ‘Merging populations. A look at marriages with foreign-born persons in European Countries’ (Eurostat. Statistics in focus 2012) available at accessed 29 January 2013. 9 For instance Weis and Verzijl, supra note 2, 199; supra note 6, 48. Zilbershats claims that multiple nationality is undesirable from the point of view of the obligation of loyalty towards the State. See Zilbershats Yaffa, The Human Right to Citizenship (Transnational Publishers: Ardsley NY 2002) 160–164. 10 Supra note 2, 198–199.  11 Supra note 6, 57.

Results of Conflicts of Nationality Laws  55

Although the drafters of the Harvard Draft thought that multiple nationality is an advantage for individuals, in Article 12 they provided that a person holding two nationalities must upon attaining the age of 23 years retain the nationality only of that State where they then have their habitual residence.12 The 1930 Hague Convention in its Preamble also states that the overall aim is that “every person should have a nationality and should have one nationality only.” However, in its Articles 3 and 5 the Convention does not provide a mechanism for avoiding multiple nationality but only states basic rules on how multiple nationals should be treated. The Council of Europe Convention on Reduction of Cases of Multiple Nationality and Military Obligation in Cases of Multiple Nationality (ETS no.43, 1963) stated that: Considering that cases of multiple nationality are liable to cause difficulties and that joint action to reduce as far as possible the number of cases of multiple nationality, as between member States, corresponds to the aims of the Council of Europe.

Subsequently three protocols to the Convention were adopted. The protocol amending the Convention, which was adopted in 1977 (CETS No. 95), aimed at simplifying procedures for renouncing another nationality. It also provided more detailed regulation on military obligations and civil service in cases of multiple nationals. An additional protocol adopted the same year (CETS No. 96) in turn provided for effective exchange of information among States Parties to the Convention in cases when persons acquire their nationality and cases of multiple nationality arise. It was only in 1993 with adoption of the Second protocol amending the Convention (CETS No. 149) that the Council of Europe signalled liberalization of its policies on multiple nationality. The protocol provided that taking into account the large numbers of migrants and mixed marriages the individuals concerned should be allowed to retain their original nationality. According to the preamble to the protocol this would facilitate integration of migrants, especially second-generation migrants. It would also facilitate acquisition by one spouse of the nationality of the other spouse and acquisition by their children of the nationality of both parents. None of these instruments has attracted substantive interest from the Member States of the Council of Europe. Although the need to address multiple nationality could have been seen as a doctrinal or practical problem, the States seemed to be unwilling to commit their national policies to international obligations.13 12 International Law Association, ‘Harvard draft of Nationality’ (1929) 23 AJIL, Special Number, 40. 13 Notwithstanding the overall scepticism on the phenomenon of dual nationality the convention of 1963 had been ratified by only by 13 Council of Europe Member States, but Germany and Sweden denounced the Convention altogether (2002), Belgium, France (including Protocol

56  Chapter Six

6.1.2. European Convention on Nationality General developments in international relations and migratory movements have facilitated gradual change in addressing issues of multiple nationality in the latest codifications. The most notable development brought about by the ECN is confirmation of deviation from previously set aims within the framework of the Council of Europe, i.e., combating the evil of multiple nationality. The EU in this context becomes a powerful tool to highlight that the fight against dual nationality is meaningless.14 Taking into account a number of developments that have taken place in Europe since 1963, the Council of Europe decided to reconsider strict application of the principle of avoiding multiple nationality. Its Explanatory report refers to substantial immigrant populations and the need for integration of permanent residents, the growing number of marriages between spouses of different nationalities, related inter alia to freedom of movement between EU Member States as developments which required review of previous practice.15 The ECN leaves it to the discretion of each State to determine to what extent multiple nationality is allowed. In addition EU Member States should pay due regard to equal treatment between men and women in mixed marriages and EU citizenship. Thus, Article 14 ECN expressly affirms that States must allow for children to retain different nationalities acquired at birth.16 States are also required to allow multiple nationality if another nationality is automatically acquired by marriage. This provision is based on the Convention on the Nationality of Married Women which in Article 1 provides that marriage does not affect the nationality of women. In this case women cannot lose their original nationality because of marriage. According to Article 15 ECN it is left to the discretion of each State to regulate multiple nationality in cases of its own nationals acquiring another nationality or giving access to its nationality. This has been considered as a major change of 1993), Italy, Luxembourg denounced Chapter I of the Convention. Portugal remained the only signatory of the 1963 Convention. See Table of ratifications of the Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality, CETS No.: 043, available at accessed 30 January 2013, and table of ratifications of Second Protocol amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality,CETS No.: 149, available at accessed 30 January 2013. 14 See references to the Rottman and Avello cases in part III of this volume. 15 Explanatory report. European Convention on Nationality (ETS no. 166), available at accessed 24 January 2013, para 8. 16 See also section 5.1. of this part and Article 9 (2) of the CEDAW which provides for equality of women with men in relation to the nationality of their children.

Results of Conflicts of Nationality Laws  57

attitude compared to the 1963 Convention.17 Therefore, cases of women and children acquiring an extra nationality because of marriage or birth should not lead to automatic loss of another nationality. Tolerance in relation to multiple nationality arising because of the family relationship has increased in international law at least on a European scale. Article 16 ECN provides for conservation of previous nationality, i.e., a State should not make renunciation or loss of another nationality a condition for the acquisition or retention of its own nationality where such renunciation or loss is not possible or cannot be reasonably required. The Explanatory report mentions refugees as potential beneficiaries of this rule.18 They cannot be expected to return to their State or approach officials to renounce their nationality. Therefore, without a provision such as contained in Article 16 ECN the right to change nationality would become meaningless for them. The Convention does not include articles relating to conflict of laws arising from multiple nationality. Article 17 ECN explicitly excludes application of the respective provisions in relation to rules of private international law. The Expla­ natory Report notes that “a growing number of States are making use of the notion of ‘habitual residence’ rather than the notion of nationality as a connecting factor in private international law. This eliminates a number of problems which may arise concerning persons with multiple nationality.”19 Thus, the ECN acknowledges that more flexible approaches could be adopted for the purposes of applying nationality laws. In those cases habitual residence (domicile) rules rather than nationality rules could take precedence. 6.2. Statelessness Similarly to multiple nationality, statelessness became an issue of international concern because States could not overcome it solely by reference to their nationality laws. Weis was of the opinion that from the point of view of international law, a stateless person is an anomaly which could be compared to a vessel on the

17 Schärer Roland, ‘The European Convention on Nationality’ (1997) 40 GYIL, 438–459, 453. However, the Second Protocol amending the 1963 Convention already signalled a willingness to tolerate multiple nationality to a certain extent in the cases of children, women and long term residents. 18 Supra note 15, paras 96 and 99. 19 Supra note 15, para 13. But still many countries in Europe give preference to the lex patriae principle instead of lex domicilii. Lex patriae is preferred by Finland, Sweden, France, Germany, Italy and Spain. However, in Finland and Sweden lex domicilii is gradually gaining more importance.

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open sea, not sailing under any flag.20 Stateless persons are a rather amorphous group. A person can become stateless at birth or subsequent to birth (for instance, conflicts of nationality laws and denationalisation), or as a result of territorial changes (State succession). Some consider that it may also be construed to include a person who has a nationality but does not enjoy protection of their government.21 As early as 1896 the Institute of International Law proclaimed that “no one may lose his nationality or renounce it without acquiring another one; and denationalisation may never be imposed as a penalty.”22 The International Law Association in 1924 stated that “a national should not be deprived, by administrative or judicial order, of his nationality whether original or acquired.”23 The 1930 Hague Convention also dealt with issues of statelessness. It included a provision preventing loss of nationality without acquiring another nationality as well as provisions aimed at reducing statelessness occurring at birth. Additionally, a Protocol relating to a Certain Case of Statelessness was attached to the Convention. The number of ratifications of these instruments was not considerable and they include few countries whose law is based on jus sanguinis.24 However, it was only in 1950 when the Economic and Social Council adopted Resolution 319 B III (XI) of August 11 1950, urging the ILC to prepare the necessary draft international Convention or Conventions for the elimination of statelessness at the earliest possible date.25 ILC Special Rapporteur Hudson highlighted the problem in his report on nationality by references to statistics of statelessness. He concluded that territorial changes resulting from the First World War created a great number of stateless persons, i.e., 80 000 for Czechoslovakia alone, the Revolution in Russia – 355 000, Nazi Germany – 400 000–450 000 as well as large groups of refugees fleeing Eastern Europe after the Second World War, Arab refugees from Palestine and the Far East.26 In addition to these de jure stateless persons the figures for de 20 Weis Paul, ‘The United Nations Convention on the Reduction of Statelessness’ (1962) 11/ ICLQ, 1073–1096, 1073. 21 However, this should be treated with caution because it makes implementation difficult in practice. See Second report on the expulsion of aliens, Mr Kamto Maurice, ‘Second Report on the Expulsion of Aliens’ (20 July 2006) UN Doc. A/CN.4/573 31. 22 Donner Ruth, The Regulation of Nationality in International Law, 2nd ed. (Transnational Publishers Inc.: Irvington-on-Hudson, NY 1994) 177–178. 23 Supra note 12, 121. 24 Hudson Manley O., ‘Nationality Including Statelessness’ (21 February 1952) UN Doc. A/CN.4/50. 25 Supra note 22, 193. See also section 11.2.4 of part III in this volume. 26 Supra note 24. These statistics can be compared with those presented to the ILC during its 5th meeting on 19 April 1949. It was established that whereas there had only been 200,000 stateless persons in 1930, there were by 1949 already 3,000,000. Summary Records and Documents of the

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facto statelessness were also increasing.27 The solution to these problems could be found only by adopting a comprehensive approach internationally. Several proposals were tabled in the form of ideas at the ILC in 1949. Members of the ILC acknowledged that since the question of nationality came within the domestic jurisdiction of States it is not easy to find a solution. Divergences of political views had prevented drawing up a general convention on nationality.28 This section will focus on two major conventions dealing with issues of statelessness, namely, the Convention Relating to the Status of Stateless Persons29 and the Convention on the Reduction of Statelessness.30 In addition the ECN contains several provisions aimed at reduction of statelessness which are relevant in the European context as a codification of rules. 6.2.1. The Convention Relating to the Status of Stateless Persons As early as 1947, the UN Commission on Human Rights expressed the wish that “early consideration be given by the United Nations to the legal status of persons who do not enjoy the protection of any government, in particular pending the acquisition of nationality, as regards their legal and social protection and their documentation”.31 This was followed by a request from the Economic and Social First Session including the Report of the Commission to the General Assembly, ILC Yearbook (UN: NY 1949), available at accessed 30 January 2013, 45. 27 A de jure stateless person is a person who is not considered to be a national under operation of law by any State. A de facto stateless person is a person who cannot establish their nationality and who is without an effective nationality. For a de facto stateless person, nationality exists in name but it is not effective. For more comprehensive discussion on these terms Batchelor Carol A., ‘Statelessness and the Problem of Resolving Nationality Status’ (1998) 10 1/2 IJRFL, 156–183. 28 Summary Records and Documents of the First Session including the Report of the Commission to the General Assembly, ILC Yearbook (UN: NY 1949) accessed 30 January 2013, 45. 29 Adopted on 28 September 1954 by a Conference of Plenipotentiaries convened by Economic and Social Council resolution 526 A (XVII) of 26 April 1954; entered into force on 6 June 1960. 30 Adopted on 30 August 1961 by a Conference of Plenipotentiaries which met in 1959 and reconvened in 1961 in pursuance of General Assembly resolution 896 (IX) of 4 December 1954; entered into force on 13 December 1975. These being the main instruments, one should also mention relevant conventions for particular groups of people and their nationality, for instance the Convention on the Nationality of Married Women (309 U.N.T.S., 1957). The Convention has been ratified by 70 parties. Among EU MS there are 16 ratifications (Austria, Bulgaria, Cyprus, the Czech Republic, Denmark, Finland, Germany, Hungary, Ireland, Latvia, Malta Poland, Romania Slovakia, Slovenia, Sweden). Portugal and Belgium have signed but not ratified. The Netherlands, Luxembourg and the UK have denounced the convention. 31 As quoted by Weis Paul, ‘The Convention Relating to the Status of Stateless Persons’ (1961) 10 /2 ICLQ, 255–264, 255.

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Council to the Secretary General to initiate a study on the subject. As a result of the Secretary General’s report the ECOSOC established an Ad Hoc Committee which elaborated a draft convention. In parallel the ILC was dealing with the issue of statelessness. The ILC considered it desirable that stateless persons should be given the special status of “protected persons” in their countries of residence prior to acquisition of a nationality. These stateless persons would have all the rights accorded to nationals, with the exception of political rights, and would be entitled to the diplomatic protection of the government of the country of their residence.32 The protecting State could impose on them the same obligations as it imposes on its nationals, including those of military service. However, the approach suggested by the ILC was not supported and representatives of States at the Conference of Plenipotentiaries opted for an approach which would rather place stateless persons under similar treatment to refugees than their own nationals. In 1954 the Convention was adopted. Article 1 of the Convention Relating to the Status of Stateless Persons (Stateless Status Convention) defines the term “stateless person” as “a person who is not considered as a national by any State under the operation of its law.” The question of so-called de facto stateless persons provoked much discussion at the preparatory conference which drafted and adopted the Stateless Status Convention.33 However, de facto stateless persons were not included in the scope of the Convention but a general recommendation to this effect was attached to the Final Act. The recommendation invited each State to consider the possibility of according treatment of stateless persons also to those who had renounced the protection of their State of nationality. Weis considered this recommendation as incomplete since “it refers only to persons who have renounced the protection of the State of their nationality, and does not mention persons who have been refused protection by the State of their nationality.”34 In accordance with Article 7 of the Stateless Status Convention, State Parties must accord to stateless persons the same treatment as is accorded to aliens generally except where the Convention contains more favourable provisions. Article 12 regulating the status of stateless persons affirms that their status is to be governed by the law of the country of their domicile or, if they have no domicile, by the law of their country of residence. However, throughout the Convention different regimes pertaining to exercise of different rights can be found. These can be subsumed under three standards of treatment – national,

32 Ibid., 257. 33 Ibid., 260. 34 Ibid., at 262.

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nationals of the country of habitual residence (domicile), not less favourably than aliens. Regrettably, though, as noted by Weis, the Stateless Status Convention provides less favourable treatment in terms of a number of rights and benefits than those of the UN Refugee Convention of 1951.35 For instance, the Convention has no provisions similar to Article 31 (prohibition on imposing penalties on account of illegal entry) and 33 of the Refugee Convention (expulsion or return to the territory where his life or freedom would be threatened). Weis confirms that “writers have frequently expressed the view that all unprotected persons, whether stateless de jure or de facto, should be protected by an international agency.”36 However, the Stateless Status Convention does not provide for a similar UN monitoring mechanism as in the case of refugees, namely, the UN High Commissioner for Refugees. Weis in his remarks on the Convention correctly concluded that the main significance of the Convention lies in its very existence.37 Although looking at the initial proposals one could expect a more far-reaching text to be adopted, the Convention has to be considered as an important codification of existing principles. These principles can be elaborated further in the framework of different human rights mechanisms. 6.2.2. Convention on the Reduction of Statelessness The 1961 Convention on the Reduction of Statelessness places an obligation on the contracting States to grant their nationality to stateless persons in certain cases, and it is not just content with trying to avoid creation of statelessness arising from a conflict of nationality laws.38 As noted by Weis the fact that a considerable number of States were able to reach agreement in a field as sensitive in many respects as nationality is a welcome development.39 The UN Conference on the Elimination or Reduction of Future Statelessness which elaborated the Convention adopted a resolution recommending “that persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality”.40 This means that individuals who formally have nationality but do not enjoy the protection of any State should be considered stateless. 35 Ibid., at 259. 36 Ibid., at 260. 37 Ibid., at 263. 38 Donner Ruth, The Regulation of Nationality in International Law, 2nd ed. (Transnational Publishers Inc.: Irvington-on-Hudson, NY 1994) 194. 39 Weis Paul, ‘The United Nations Convention on the Reduction of Statelessness’(1962) 11/ ICLQ, 1073–1096, 1089–1090. 40 Ibid., 1096.

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Article 1 of the Convention on the Reduction of Statelessness obliges States to grant nationality to a person born on their territory if that person would otherwise be stateless. Nationality must be granted at birth or upon an application being lodged with the appropriate authority.41 Article 4 provides that nationality must also be granted to a person not born in the territory of a Contracting State who would otherwise be stateless, if the nationality of one of his parents at the time of the person’s birth was the nationality of that State. Articles 5 and 6 allow loss of nationality only conditional upon possession or acquisition of another nationality. Article 7 allows renunciation of nationality on the same condition. However, the Convention also includes several exceptions when a person can become stateless. Article 7(4) allows loss of nationality in cases of naturalized persons who are absent from the territory of a State and do not declare their intention to retain nationality. Article 7(5) prescribes that nationals born outside the territory of a State retain nationality after expiry of one year from attaining majority. Although States are not allowed to deprive a person of nationality if that would render them stateless, Article 8 enlists cases when States are allowed to exercise deprivation. Deprivation is allowed in cases of fraud, acts of a person inconsistent with the duty of loyalty to the State, when a person has – in disregard of an express prohibition of the State of nationality – rendered services to and received emoluments from another State, as well as when a person’s conduct is seriously prejudicial to the vital interests of the State. A State is also allowed to deprive a person of nationality if the person has by oath or declaration acknowledged allegiance to another State, or given definite evidence of their determination to repudiate their allegiance to a State of nationality (Article 8.3.(b)). In all cases of deprivation a person should be provided with the right to a fair hearing. According to Article 9 no collective deprivation of nationality is allowed, especially on racial, ethnic, religious or political grounds. The Convention imposes an obligation to settle nationality issues in cases of transfer of territory, to ensure that no person remains stateless.42 Both UN conventions have a relatively low ratification record. The Convention on Status of Stateless persons has been ratified by 76 parties of which 22 are EU Member States.43 With respect to the 1961 Convention, out of 49 parties 15 are EU

41 See in this context the regulation of Latvia on children of non-citizens. Although they are not born stateless, they are offered the right to acquire nationality at birth. 42 See by comparison section 5.3. above of this part and discussion on the Kurič case. 43  Austria, Belgium, Bulgaria, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Romania, Slovakia, Slovenia, Spain Sweden and the UK.

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Member States.44 This, however, does not exempt States from obligations regarding statelessness which exist in customary international law or as general principles of international law. 6.2.3. European Convention on Nationality The ECN is based on principles which aim at elimination of statelessness, i.e., Article 4. The Explanatory report of the ECN states in paragraph 33 that an obligation to avoid statelessness has become part of customary international law. However, while considerable progress has been achieved in attitudes towards multiple nationality, in relation to reduction of statelessness the Convention remains conservative and does not provide any considerable innovations. For instance, it does not address the issue of de facto statelessness. According to paragraph 33 of the Explanatory report, only de jure stateless persons and refugees are included to the extent that they are also considered de jure stateless persons. While Articles relevant for reduction of statelessness and access to nationality have been addressed before, the current section will focus on prohibition of deprivation of nationality which might cause statelessness. Article 7 enumerates conditions for loss of nationality ex lege or at the initiative of a State Party. It contains a general prohibition for States to provide for loss of nationality in their internal law except for exhaustively enumerated reasons, such as acquisition of another nationality, fraud, lack of a genuine link between the State Party and a national habitually residing abroad. There should be both substantive grounds and procedural safeguards. As regards substantive grounds, deprivation must in general be foreseeable, proportional and prescribed by law.45 The most important is Article 7 (3) which provides: A State may not provide in its internal law for the loss of its nationality under paragraphs 1 and 2 of this article if the person concerned would thereby become stateless, with the exception of the cases mentioned in paragraph 1, subparagraph b, of this article.

Therefore, the Convention excludes statelessness on ex lege grounds except if nationality has been acquired by fraudulent conduct. This can be considered as a more progressive formulation to the one available in the 1961 Reduction of Statelessness Convention.46 Article 8 ECN allows individuals to renounce their nationality provided that they do not thereby become stateless. 44 Austria, Bulgaria, Czech Republic, Denmark, Finland, Germany, Hungary, Ireland, Latvia, the Netherlands, Portugal, Romania, Slovakia, Sweden, the UK. France has signed the convention. 45 Supra note 15, para 21. 46 For a similar view see Schärer Roland, ‘The European Convention on Nationality’ (1997) 40 GYIL, 438–459, 451.

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At present the obligation to avoid statelessness has become part of customary international law. Apart from the Convention on Reduction of Statelessness and the European Convention on Nationality, a number of principles and norms are established under human rights law which limit the discretion of States to withhold or deny nationality on arbitrary and discriminatory grounds.47 Special norms have been elaborated in the context of State succession and reduction of statelessness. While efforts of the international community to reduce statelessness would be welcome it is almost impossible to prevent cases of statelessness from appearing in the future. This especially applies in cases of de facto statelessness. Recent developments confirm the fears voiced by Hudson in his Report on Nationality where he said that purely formal solutions might reduce the number of stateless persons but not the number of unprotected persons.48

47 See sections 5.3. and 7.5. of this part. 48 Supra note 24, van Panhuys Haro Frederik, The Rôle of Nationality in International Law: An Outline (Sijthoff: Leyden 1959) 222.

Chapter Seven Human Right to Nationality A tendency to place humankind at the centre of international ethics has made protection of fundamental rights a major concern of contemporary international law and no longer left to the discretion of States.1 Human rights have a different status depending on values, their rank in the context of natural law as well as the definition of their rank in various national legal orders via constitutions or disposition of constitutions in relation to natural rights above constitutions.2 This entails that not all human rights are protected to the same extent and in case of different circumstances. The human rights aspect thus becomes important in certain cases of entitlement to nationality which will be outlined in further sections. 7.1. Article 15 of the Universal Declaration It has been argued that human rights do not form a conceptual basis for nationality. However, their component in limiting State discretion is increasing. This leads to the question whether and in which cases one can rely on human rights and claim the right to a specific nationality. To answer these questions this section is devoted to Article 15 of the Universal Declaration of Human Rights (Article 15 UDHR). Developments in the realm of human rights have led to a more general question, namely, whether a general right to nationality exists under international law and to whom it belongs. The basis for such discussion is Article 15 UDHR which states: 1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

The drafting history of this Article suggests that it is a result of broad compromise. At the time of drafting Professor Lauterpacht suggested that “[e]very person

1 Kamto Maurice, ‘Fifth Report on the Expulsion of Aliens’ (ILC March 2009) UN Doc. A/CN.4/ 611, 7. 2 Ibid., 13.

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shall be entitled to the nationality of the State where he is born.”3 He aimed at finding a formulation which would provide the effective right to a nationality. It is regrettable that, during drafting, the significant clause on protection of persons irrespective of whether they are de facto or de jure stateless disappeared from the text.4 The present formulation does not enable far reaching interpretations. Nevertheless, in comparison to existing treaty law at that time (the 1930 Hague Convention) this Article seems to be ground-breaking in international law on nationality. As argued by Ziemele and Schram: [B]y including Article 15 in the UDHR, its framers emphasized the human rights aspect of nationality. It suggests a totally different approach to nationality. By providing that every individual has the right to a nationality, it introduces the individual as an actor in relation to matters traditionally decided exclusively by States.5

Article 15 UDHR is not intended to confirm entitlement to any particular nationality.6 This has led some writers to adopt a rather sceptical approach to the provisions of Article 15. For instance, Weis argued that: [I]n view of the exclusive competence of States to regulate nationality, and in the absence of effective joint action of States for the elimination of statelessness, this pronouncement must be regarded as being of a promissory and rather platonic nature.7

A similar view is held by Verzijl who argued that this is a right without substance as long as it is not transposed into concrete treaty provisions. Without transposition the principle has no real value.8 Strictly speaking Verzijl is right. However, at the time of writing he could not have envisaged general developments in the field of human rights. Many of these started in the form of a declaration and 3 Lauterpacht Hersch, International Law and Human Rights (London: Stevens 1950) 346–347. However, he admitted that nationality might not be a “natural” or “inalienable” right, see Chan Johannes M.M., ‘The Right to a Nationality as a Human Right. The Current Trend towards Recognition’ (1992) 12 1/2 HRLJ, 1–14, 3. 4 Van Panhuys Haro Frederik, The Rôle of Nationality in International Law: An Outline (Sijthoff: Leyden 1959) 221–222. This was a proposal by the Australian delegation in the Third Committee of the General Assembly. Australia suggested inserting the following clause “everyone has the right to nationality or to an equivalent status under the protection of the United Nations”. General information on the drafting process is available at accessed 27 January 2012. 5 Ziemele Ineta, Schram Gunnar G., ‘Article 15’, in Alfredsson G., Eide A. (eds), The Universal Declaration of Human Rights. A Common Standard of Achievement (Leiden: Martinus Nijhoff Publishers 1999) 297–325, 297. See also Chan Johannes M.M., ‘The Right to a Nationality as a Human Right. The Current Trend towards Recognition’ (1992) 12 1/2 HRLJ, 1–14, 3. 6 Brownlie Ian, Principles of Public International Law, 6th ed. (Oxford University Press: Oxford 2003) 245. 7 Weis Paul, ‘The United Nations Convention on the Reduction of Statelessness’(1962) 11/ ICLQ, 1073–1096, 1075. 8 Verzijl Jan H.W., International Law in Historical Perspective, Part V (Sijthoff: Leyden 1972) 54.

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afterwards were included in binding conventions. At the time of adoption Article 15 UDHR had no more than declarative value. Today it serves not only as a source of inspiration for new conventions but has also influenced the appearance of certain treaty norms and principles. For instance, as stated by experts of the Council of Europe when considering nationality legislation in Estonia: […] If substantial parts of the population of a country are denied the right to become citizens, and thereby are also denied for instance the right to vote in parliamentary elections, this could affect the character of the democratic system in that country.9

Article 15 UDHR has served as guidance for further codification of human rights law. As indicated by Ziemele although “there is a lack of general opinio juris as to Article 15 UDHR” as a general customary norm, it is, however, clearly indicated by limiting the right to children in the ICCPR and the CRC.10 Therefore, the State’s assessment is already limited by certain principles and rules established by international law. Thus, while Article 15 does not require a State to grant citizenship to every applicant, it does require that every individual have an equal opportunity to attain citizenship.11 This entails accessibility to citizenship on an equal basis or even in a privileged manner for certain groups of persons. Accessibility to nationality is an important principle not only in cases when a substantial part of the population is denied the right to become nationals but also in cases when a decision is required on expulsion of a foreign citizen.12 Further rules developed on the basis of human rights will be described in the following sections. 7.2. Right of a Child to Nationality A right which has developed on the basis of Article 15 UDHR is the right of a child to acquire nationality. Principle 3 of the United Nations’ Declaration of the Rights of the Child provides that “the child shall be entitled from his birth to a name and a nationality.” According to Article 24(3) ICCPR every child has the right to acquire a nationality. Nowak notes that the wording of Article 24(3) ICCPR is so laconic that it raises serious problems of interpretation.13 Difficulties arise in the context of differences in laws of nationality between States. As noted by Ziemele there is a 9 Report for the Parliamentary Assembly by Pekkanen Raimo and Danelius Hans, ‘Human Rights in the Republic of Estonia’ (Ad Hoc Committee on Relations with Eastern Europe) (1992) 13 HRLJ, 236–244. 10 Ziemele Ineta, State Continuity and Nationality in the Baltic States: International and Constitutional Law Issues (DPhil thesis, Wolfson College, University of Cambridge 1998) 104. 11 Brasington Charles E., ‘After Alyosha: Baltic Citizenship Requirements Twenty Years After the Fall of Soviet Communism’ (2011) 20 TLCP, 197–238, 221. 12 See section 8.2.2.2. of this part. 13 Nowak Manfred, CCPR Commentary (Kehl:Engel 1993) 433.

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difference between the right to a nationality and the right to acquire a nationality.14 The Human Rights Committee (HRC) confirms that this provision does not oblige States to give their nationality to every child born on their territory. However, States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when born.15 Article 7 of the Convention on the rights of the Child (CRC) states that: The Child shall …have the right from birth to the right to acquire nationality.

At the same time Article 7(2) places a limitation on that right by prescribing that States must ensure implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. It seems arguable, though, that there is general acceptance of the obligation to grant nationality to a child born on the territory of a State if that child would otherwise be stateless. This is supported by treaties aiming to reduce statelessness and other special treaties,16 State practice as well as increasingly supportive writings of scholars.17 In the European context the ECN explicitly provides that nationality should be granted to children whose parent possesses the nationality of the State, except if the child is born outside the State. The Convention also provides in Article 6(2) that children must be granted nationality if born on the territory of the State and do not acquire another nationality. Further cases of facilitated acquisition are mentioned in Article 6(3). Most of the cases when acquisition of nationality for children should be facilitated according to Article 6(4) concern situations when children are either born on the territory of a State party or are members of a family holding the nationality of a particular State. Therefore, it can be concluded that children represent a specific group for most preferential treatment in the context of acquisition of nationality. The discretion of States is restricted by different international instruments. If the rules of the ECN and CRC were effectively adopted, cases of stateless children in Europe or at least signatory States of the ECN could be significantly reduced. 14 Supra note 10, 105. See also Zilbershats Yaffa, The Human Right to Citizenship (Transnational Publishers: Ardsley NY 2002) 18. 15 Para 8 of UN Human Rights Committee ‘ICCPR General Comment No. 17: Article 24 (Rights of the child), (7 April 1989)’ in ‘Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) UN Doc HRI/GEN/1/Rev.9. 16 Article 11 The European Convention on the Adoption of Children (1967) ensures that loss of nationality resulting from adoption should be conditional upon acquisition of another nationality. 17 Chan Johannes M.M., ‘The Right to a Nationality as a Human Right. The Current Trend towards Recognition’ (1992) 12 1/2 HRLJ, 1–14, 13.

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7.3. Equality of Women Article 15 UDHR has also facilitated rules providing for equality of women with men in respect to acquisition, change or retention of their nationality. Several Conventions have been adopted providing for sex equality in relation to access to nationality, the first of these being the 1957 Convention on the Nationality of Married Women. Article 1 of this Convention provides that the nationality of the wife remains unaffected by marriage, dissolution of marriage or change of nationality by the husband during marriage. According to Article 9(1) of the 1979 Convention on Elimination of Discrimination against Women, States should grant women equal rights with men to acquire, change or retain their nationality and ensure that: [N]either marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.18

The provisions of the 1957 and 1979 Conventions have been further extended by the ECN. In Article 4(d) on general principles applicable in nationality issues it provides: [N]either marriage nor the dissolution of a marriage between a national of a State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other spouse.

Moreover, Article 5 ECN on non-discrimination provides inter alia that no distinctions should be applied on the basis of sex. Therefore, it can be concluded that at least in Europe prohibition of gender-based discrimination is a general rule applicable in cases of nationality. There is also a rule protecting nationality of both spouses irrespective of their marital status or changes in marital status. 7.4. Prohibition of Arbitrary Deprivation Two layers of rules have been adopted in this regard. The first is related to prohibition of deprivation of nationality ex lege leading to statelessness. The second is related to prohibition of depriving a person of nationality arbitrarily. Deprivation of nationality is linked to a decision on denationalization. Issues of denationalization were discussed by Special Rapporteur Maurice Kamto in the context of the topic of expulsion of aliens. He defined denationalization as a State decision depriving a class of people, or one or more individuals, of the nationality 18 The Convention is ratified by 187 States, including all EU Member States.

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of that State. On the basis of State practice the Rapporteur identified three cases of denationalization. First, collective withdrawal of nationality through enactment of a restrictive nationality law that, for ethnic or other reasons, takes away the nationality of a given State from a large number of citizens or permanent or long-term residents of the territory of that State. Second, denaturalization, which is an option made available under some bilateral conventions between countries of emigration and countries of immigration. Third, deprivation of nationality, which is withdrawal by a State of its nationality from an alien who has acquired it, for security reasons or any other grounds generally provided for in its domestic law.19 While noting that there still exists State practice on denationalization and deprivation of nationality, the Special Rapporteur emphasized that: Neither loss of nationality nor denationalization should lead to statelessness. In the case of denationalization in particular, there is a general obligation not to denationalize a citizen who does not have any other nationality. Likewise, nationality cannot effectively be lost unless the person concerned has effectively adopted another nationality. In addition, denationalization should not be arbitrary or based on discriminatory grounds.20

According to Article 4(c) the prohibition on depriving a person of nationality in an arbitrary manner is one of the main principles. Therefore, according to the ECN the general rule is that States Parties cannot provide in their legislation for loss of nationality ex lege. Article 7 (1) enumerates only seven cases when this may be allowed. Moreover, according to Article 7(3) those cases cannot lead to statelessness. There is only one exception, i.e., the case when a person acquired nationality by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant. Therefore, deprivation cases should be rare and in any case they cannot lead to statelessness. Moreover, even if a person is denationalized and does not become stateless  deprivation should not be arbitrary. This was confirmed by the ILC.21 Pro­ hibition of arbitrary deprivation of nationality has obtained the status of a rule of customary international law. Prohibition of arbitrary deprivation is closely 19 Kamto Maurice, ‘Fourth Report on the Expulsion of Aliens’ (March 2008) UN Doc. A/CN.4/594, 17–19. As an example case of draft French legislation on immigration, integration and nationality discussed by Kamto Maurice, ‘Seventh report on the expulsion of aliens’ (May 2011) UN Doc. A/ CN.4/642, 5–8. The draft law envisaged depriving foreign-born French citizens who gained nationality by naturalization of citizenship where they are convicted of a crime or misdemeanour that undermines the fundamental interests of the nation, or of a terrorist act. 20 Ibid., 19. 21 Ibid., 20. The Commission was opposed, not to expulsion on the grounds of dual nationality but to the arbitrary nature of that expulsion. It was noted that “in principle, the expelling State in such cases has the right to expel the person to the State of the remaining nationality because denationalization ends the situation of dual nationality”.

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related to the rule of non-discrimination applicable to nationality regulation. The concept of arbitrariness provides a standard of reference and is not confined to procedural fairness.22 According to Donner, “the meaning of arbitrary has been defined as deprivation of nationality as a discriminatory measure” which in the form of “punishment may become an international delict when the person rendered stateless is expelled to another State.”23 Chan has argued that deprivation of nationality on a discriminatory basis, such as on grounds of race, colour, sex, or religious or political belief would probably be arbitrary as well as denationalization leading to statelessness.24 He even considers that deprivation of nationality resulting in statelessness, especially on a large scale, might amount to degrading treatment within the meaning of Article 3 of the European Convention of Human Rights.25 The view that arbitrary deprivation is prohibited can be supported by international treaties,26 documents of international organizations,27 as well as scholarly writings.28 However, State practice is not entirely uniform as to what amounts to “arbitrariness”.29 This uncertainty raises the question whether prohibition extends beyond cases of statelessness.30 The Explanatory report of the ECN distinguishes between substantive grounds for deprivation and procedural safeguards. The report states that as regards substantive grounds, deprivation must in general be foreseeable, proportional and prescribed by law. If it is based on any of the grounds on which discrimination is not allowed, it would automatically be qualified as arbitrary deprivation. Thus withdrawal of nationality on, for instance, political grounds would be considered 22 Supra note 17, 3. However, he noted that the standard of reference is controversial. 23 Donner Ruth, The Regulation of Nationality in International Law, 2nd ed. (Transnational Publishers Inc.: Irvington-on-Hudson, NY 1994) 45. 24 Supra note 17, 3. 25 Ibid., 6. 26 Most notably the Convention on Reduction of Statelessness, the ECN. Also conventions ensuring the right to retain nationality: the Hague Convention on Nationality (Article 13–17), the CEDAW (Article 9). It can be argued that those human rights treaties which adhere to the principle that any limitations of human rights shall also be set by law support this custom (for instance, the ICCPR and ECHR). 27 See, for instance, CSCE Part IV on the Human Dimension of Summit document adopted at Helsinki, July 1992, which states: “The participating States recognize that everyone has the right to a nationality and that no one should be deprived of his/her nationality arbitrarily”. Also the Convention on the Suppression and Punishment of the Crime of Apartheid (1973) prohibits any legislative measure denying members of a racial group basic human rights including the right to nationality (II c). 28 Supra note 10, 104; Weis Paul, Nationality and Statelessness in International Law, 2nd ed. (Sijthoff Noordhofffrom the latest Table of Contents: Alphen aan den Rijn [u.a.] 1979) 54. But see supra note 17, 8. 29 Supra note 17, 8. 30 Zilbershats Yaffa, The Human Right to Citizenship (Transnational Publishers: Ardsley NY 2002) 25.

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arbitrary.31 It can also be argued that in certain cases a person might be indirectly forced to renounce the other nationality without becoming stateless if they want to exercise certain rights accorded to citizens. However, such a measure would be invalid if it is based on grounds which are not objective but discriminatory, for instance, on the basis of a person’s political convictions. The European Court of Human Rights dealt with such a situation in Tãnase v. Moldova.32 The applicants alleged that their right to stand as candidates in free elections was violated.33 They were required to renounce their other nationality in order to become MPs, although dual nationality was allowed. The Court distinguished between the loyalty oath to the State and the Government.34 The Court noted that: [V]ery few member States of the Council of Europe prohibit dual nationals becoming MPs. … The Court considers that a review of practice across Council of Europe member States reveals a consensus that where multiple nationalities are permitted, the holding of more than one nationality should not be a ground for ineligibility to sit as a member of Parliament. However, notwithstanding this consensus, a different approach may be justified where special historical or political considerations exist which render a more restrictive practice necessary.35

The Court considered the present approach as disproportionate to the treatment of opposition. Therefore, it is not only deprivations of citizenship which are prohibited and considered arbitrary but also disproportionate and discriminatory requirements to renounce another nationality to access certain posts. 7.5. Non-Discrimination The rule of non-discrimination and consequent equality of treatment constitute well-established rules of international human rights law binding on States.36 References to prohibition of discrimination can be found in both the United Nations Charter and the Universal Declaration of Human Rights. According to Alfredsson, “the universal applicability of the rules is guaranteed by these provisions regardless of the acceptance of additional instruments which serve to 31 Explanatory report. European Convention on Nationality (ETS no. 166), available at accessed 24 January 2013, para 36. 32 Tănase v Moldova (App no 7/08) ECHR [GC] 27 April 2010. 33 The applicants alleged a breach of their right to stand as candidates in free elections and to take their seats as MPs in violation of Article 3 Protocol. See paras 10, 17–28, 37 of the Judgment in Tănase v Moldova. 34 See supra note 32, paras 164–166. 35 See supra note 32, paras 171–173. 36 Alfredsson Gudmundur ‘Equality and non-discrimination: minority rights’, 7th International Colloquy on the European Convention on Human Rights, Council of Europe (Copenhagen, Oslo, Lund, 30 May-2 June 1990) H/Coll (90) 5.

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reinforce and on occasion expand the rules”.37 A non-discrimination clause is included in all the most important human rights instruments while most of them contain an open-ended listing of grounds on which discrimination is prohibited.38 Different human rights instruments refer to related but distinct concepts using the terms ‘equality before the law’, ‘equal protection of the laws’, and ‘prohibition of discrimination’ which are inter-related. Equality implies “justice in the sense that the law is applied correctly and consistently to each individual in the society, regardless of his or her personal attributes.”39 The principle of equality is not absolute and distinctions between individuals are permissible. Therefore, the crucial question is which distinctions are permissible and which constitute prohibited discrimination or violation of the principle of equal treatment. Therefore, the principle of equal treatment is the main element in establishing whether distinctions are allowed, while prohibition of discrimination forms part of the principle of equal treatment disallowing distinction on the basis of prohibited criteria. However, in the field of nationality application of the principles of equality and non-discrimination is more nuanced. This section is limited to only two international instruments, namely, the Convention on Elimination of Racial Discrimination (CERD) and the ECN. While many human rights instruments include articles on non-discrimination, only these two include articles on the right to nationality. Therefore, other conventions have limited relevance for the discussion on application of non-discrimination to cases where access to nationality has been made subject to specific conditions. Although Article 1(2) CERD allows differentiation between citizens and noncitizens, Article 1(3) declares that concerning nationality, citizenship or naturalization, national legal provisions must not discriminate against any particular nationality. The Committee has adopted the General Recommendation on non-citizens.40 The monitoring Committee requires States to pay due attention to possible

37 Ibid. 38 ICCPR, ICESCR (1966), CERD (1965), CRC (1989), Convention concerning Discrimination in respect of Employment and Occupation (ILO, No. 111, 1958), Convention against Discrimination in Education (UNESCO, 1960) and regional instruments ECHR (Article 14), European Social Charter (1961), American Convention on Human Rights (1969), African Charter on Human and Peoples’ Rights (1981). 39 Gomien Donna, Harris David, Zwaak Leo, Law and practice of the European Convention of Human Rights and the European Social Charter (Council of Europe Publishing: Strasbourg 1996) 345. 40 UN Committee on Elimination of Racial Discrimination, ‘General Recommendation XXX on discrimination against non-citizens (10 October 2004)’ in ‘Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) UN Doc HRI/GEN/1/Rev.9 (Vol. II).

74  Chapter Seven

barriers to naturalization for long-term or permanent residents.41 The Committee encourages liberalisation of citizenship laws.42 According to the General Recommendation, States should encourage application for citizenship in order to reduce statelessness. The CERD also states that deprivation of citizenship on discriminatory grounds and denial of citizenship would be in violation of the Convention.43 Therefore, at least certain aspects of statelessness do fall within the scope of the Convention and nationality laws of States Parties will be subject to scrutiny as to whether they discriminate against a particular group. The interpretation attached to the Convention by the CERD makes it a progressive instrument which places considerable limitations on the nationality laws of States Parties as well as imposing additional obligations in relation to stateless persons. States must adopt provisions which are neutral to the ethnic origin of applicants for naturalization. Moreover, States should avoid policies which even indirectly would raise situations of discrimination by placing certain groups of residents in a situation disqualifying them for naturalisation. However, States Parties can still limit access to certain rights conditional on nationality. This means that States are allowed to impose requirements but they should not be discriminatory on the basis of grounds which are outlawed. Article 5 ECN provides that in their rules on nationality States must not make distinctions based on sex, religion, race, colour or national or ethnic origin. According to Article 5(2) States should be guided by the principle of non-discrimination between its nationals independently of the way nationality was acquired. The importance of this Article is that for the first time an international instrument expressly prohibits discrimination in the field of nationality on the grounds mentioned.44 This innovation is merited although a few remarks can be made. 41 Ibid., para 13. See also section 7.1. of this part. 42 See Concluding Observations on Germany which introduced ius soli and liberalized its policies in relation to multiple nationality. UN Committee on Elimination of Racial Discrimination, ‘Concluding Observations on Germany’ (27 April 2001) UN Doc CERD/C/304/Add.115. See also Concluding Observations on Sweden which accepted dual citizenship and simplified procedure for access to citizenship for children of foreign background. UN Committee on Elimination of Racial Discrimination, ‘Concluding Observations on Sweden’ (10 May 2004) CERD/64/CO/8. 43 Ibid., paras 14 – 15. See also UN Committee on Elimination of Racial Discrimination, ‘Concluding Observations on Latvia’ (10 December 2003) UN Doc CERD/C/63/CO/7. See also Concluding observation on Estonia which faced criticism on large numbers of stateless persons on their territory. The committee asked Latvia and Estonia to facilitate naturalisation. UN Committee on Elimination of Racial Discrimination, ‘Concluding Observations on Estonia’ (1 November 2002) CERD A/57/18(SUPP). 44 Compare with CERD 1(2). Schärer Roland, ‘The European Convention on Nationality’ (1997) 40 GYIL, 438–459, 444.

Human Right to Nationality  75

Firstly, the list is exhaustive and selective. For instance, not all grounds on which discrimination is prohibited in Article 14 of ECHR, are mentioned. It can be argued that the grounds mentioned are the most common in cases when discrimination takes place regarding access to nationality. However, this is a deviation from the usual open ended non-discrimination clauses in human rights treaties. Monitoring bodies of different human rights organisations have quite often referred to ‘other status’ because not all possible grounds of discrimination could be envisaged at the time of drafting the relevant instrument. Secondly, Article 5(2) of the ECN does not impose obligations on States but merely instructs them to be guided by the principle of non-discrimination. The authors focus on possible discrimination arising out of the mode of acquisition of nationality. The terminology of “shall be guided by the principle of non-discrimination” is somewhat moderate and the term “discrimination is not allowed” on the basis of the mode of acquisition of nationality seems to be more suitable. Introduction of the principle of non-discrimination does not mean that the ECN states precisely that everyone under any circumstances is entitled to nationality. As noted in the Convention’s Explanatory report “the very nature of the attribution of nationality requires States to fix certain criteria to determine their own nationals”.45 In this context preferential treatment should be distinguished from non-discrimination. For instance, the Explanatory Report singles out the EU. It would be acceptable under the ECN that a shorter period of habitual residence be accepted for naturalisation of nationals of other EU Member States than is required as a general rule in the Union. This would constitute preferential treatment on the basis of nationality and not discrimination on the ground of national origin.46 Moreover, the practice of granting nationality ‘as an exceptional measure’, ‘for special reasons’, ‘in special circumstances’, or sometimes simply if it is ‘in the interests of the State’ is still relevant.47 It does not seem that the Convention would limit discretion of States in this regard. However, when examining national provisions it should be kept in mind that discrimination or distinctions might take not overt but covert form. This means that preferential treatment should be examined from one case to another by taking into account the specific circumstances of the case. It can be concluded that national law which directly or indirectly discriminates against a particular group of persons applying for citizenship, or causes inequality on the basis of reasons complying with the requirements of proportionality would

45 Supra note 31. 46 Supra note 31. 47 Mervyn Jones J., ‘The Nottebohm Case’ (1956) 5 ICLQ, 230–245, 236.

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be contrary to international law. However, international law does not prohibit preferential treatment or granting nationality in special circumstances. Moreover, distinctions between nationals and non-nationals are allowed. Therefore, the principle or rule of non-discrimination is applicable in relation both to access to nationality and to exercise of rights of a national and should be evaluated in each particular case.

Chapter Eight Functions of Nationality A number of rights attach to the individual as a national of a particular State. These include diplomatic protection and free movement rights. They might also encompass access to social, property and political rights. The situation differs between different States because rights granted on the basis of nationality in national legislation are not identical. This part deals with the two most important functions which nationality has at the international level, i.e., diplomatic protection and free movement rights. References to application of the rule or principle of non-discrimination will also be invoked. The chapter will pay due regard to changes caused by international migration. 8.1. Diplomatic Protection 8.1.1. Contents of Diplomatic Protection It is a well established principle of international law that a State of nationality can afford diplomatic protection to its nationals wherever they are located.1 This is a right and not a duty of the State. The State will retain discretion whether to exercise diplomatic protection on behalf of a national. This has been re-confirmed by the ICJ. In Barcelona Traction Company the Court observed that: [W]ithin the limits prescribed by international law the State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease …2

The ICJ already expressed its opinion in Nottebohm: Diplomatic protection and protection by means of international judicial proceedings constitute measures for the defence of the rights of the State.3 1 For different definitions of diplomatic protection see Dugard John, ‘First report on Diplomatic protection’ (7 March 2000) UN Doc. A/CN.4/506, 13–14, paras 37–39. 2 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase, Judgment) [1970] ICJ Rep 3, para 79. 3 Nottebohm (Liechtenstein v. Guatemala) (Second Phase, Judgment) [1955] ICJ Rep 4.

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Borchard has qualified diplomatic protection as an extraordinary legal remedy whereas a duty to protect nationals will depend on the municipal legislation of the State.4 Therefore, in his view a State, in fact, defends its own right. Weis has argued that the concept of diplomatic protection is not concerned with protection of the rights of individuals but rather with the interest of the State to protect the national community as a whole.5 The State acquires the right to protect its nationals on the basis of its own sovereignty and a general prohibition on intervention in a State’s internal affairs.6 The right of the State has been called Vattelian fiction and is based on the strong positivist assumption that only States are subjects of international law.7 Therefore, it is an exclusive right of the State to settle questions with another State. It is irrelevant whether the dispute which gave rise to exercise of diplomatic protection has arisen from an injury to private interests. This was confirmed by the PCIJ which stated in Mavrommatis Palestine concessions: Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.8

Another view was held by Lauterpacht, who defended the idea that the State merely represents the individual at the international level because the individual does not have access to international tribunals.9 Both views are not contradictory but they emphasize different aspects of the concept of diplomatic protection. The main weakness of Lauterpacht’s approach is that it lessens the importance of the decision of the State whether to exercise the right to diplomatic protection. At the same time his view was indirectly supported by the ICJ in LaGrand.10 The case did not lead to a remedy for nationals but it proved that diplomatic protection becomes a remedy in cases when there are no international tribunals. 4 Borchard Edwin M., The Diplomatic Protection of Citizens Abroad or The Law of International Claims (The Banks Law Publ. Co.: New York 1916) 29 and 353. 5 Weis Paul, Nationality and Statelessness in International Law, 2nd ed. (Sijthoff Noordhofffrom the latest Table of Contents: Alphen aan den Rijn [u.a.] 1979) 34. 6 Sir P. Phillimore, quoted by Donner, Donner Ruth, The Regulation of Nationality in International Law, 2nd ed. (Transnational Publishers Inc.: Irvington-on-Hudson, NY 1994) 19. 7 Supra note 5, 36. See references by Donner to Scelle and Vattel, supra note 6, at 19. For further discussion on fiction see Dugard John, ‘First report on Diplomatic protection’ (7 March 2000) UN Doc. A/CN.4/506, 5, para 11. 8 The Mavrommatis Palestine concessions (Greece v. UK) (Judgment) [1924] PCIJ, Ser. A No. 2, Mavrommatis Jerusalem Concessions (Greece v. UK) (Judgment) [1925] PCIJ, Ser. A No.5, 12. 9 Quoted by Tiburcio Carmen, The Human Rights of Aliens under International and Comparative Law (Boston: Nijhoff 2001) 58. For similar views see Amador Garcia F.V., ‘State Responsibility. International Responsibility’ (20 January 1956) UN Doc. A/CN.4/96, 192–193, Bennouna Mohamed, Preliminary Report on Diplomatic Protection (4 February 1998) UN Doc. A/CN.4/484, 5–11, 14–15. 10 LaGrand (Germany v. United States of America) (Judgment) [2001] ICJ Rep 466. In this case the ICJ ruled that a violation of the obligation to provide for consular protection by a third State

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The Court noted that Article 36 (1) (b) of the Vienna Convention on Consular Relations (1963) spells out the obligations the receiving State has towards both the detained person and the sending State. According to the Court: Based on the text of these provisions, the Court concludes that Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person.11

The Court has confirmed that rights derived from Article 36 of the Vienna Convention are not only rights of the sending State but also those of the detained individual.12 According to the Court Article 36(1) creates individual rights for detained persons in addition to the rights accorded the sending State. Thus violation of individual rights to consular assistance can trigger invocation of the right to afford diplomatic protection by the State of nationality of the individual. In addition national authorities have to provide requisite consular information without delay, thus preventing a person from seeking and obtaining assistance from the sending State.13 Thus it has been argued that the right of protection and the right of the individual are on different planes: the former is a right under international law, the latter a right under municipal law.14 Public international law opted for the model which subsumed individuals into States and attached them by a bond of nationality instead of granting individuals rights to bring claims vis-à-vis States in general.15 Therefore, the bond of nationality is the ultimate precondition for the State to invoke the right to diplomatic protection and invests the concept of nationality with special status and derived consequences at international inter-State level. Injury to an individual amounts to an injury to the State of nationality under international law. In the judgment of the Permanent Court of International Justice in Panevezys-Saldutiskis Railway the Court concluded that: gives rise to both responsibility for violation of the Vienna Convention between States and a right to claim diplomatic protection on behalf of an individual. The case concerned two brothers – Walter and Karl LaGrand – who were German nationals residing in the USA since the age of 5 and 4 respectively. After they took part in an armed bank robbery involving human casualties in 1982 they were arrested and sentenced to death. The German authorities were informed about the arrest only in 1992. See also the Case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) [30 November 2010], paras 90–97 and the judgment in the same case of 19 June 2012 in relation to compensation owed by the Democratic Republic of the Congo to the Republic of Guinea. 11 Ibid., para 77. 12 Ibid., para 89. 13 Ibid., para 90. 14 Supra note 5, 38. This argument has also been used in order to deal with the right of the individual to waive their claim and implications of the waiver on the State. 15 Lillich Richard B., The Human Rights of Aliens in Contemporary International Law (Manchester University Press: Manchester 1984) 1.

80  Chapter Eight [I]t is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection.16

Similarly the ICJ stated in Barcelona Traction: [O]n a universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringement of such rights irrespective of their nationality.17

A State which has injured an individual should be given a chance to remedy the injury before a claim can be brought against it on the international level. Therefore, the principle of exhaustion of domestic remedies is applicable. The right to diplomatic protection has been the most widely discussed aspect of nationality because of its nature. A number of requirements exist for diplomatic protection to be exercised, namely, “there must first be proof that an injury had been inflicted on a national; that the injury was a breach of international law; that it was imputable to the State against which the claim was brought; and, lastly, that a causal link existed between the injury inflicted and the imputation of the injury”.18 For the purposes of this analysis the two first requirements are of interest, i.e., how to establish nationality and what constitutes injury. Questions have arisen in relation to what should be an injury to give rise to diplomatic protection and what should be the relationship between the State and the individual for the State to bring a claim. The first is important because it indicates to what extent an established standard exists in international law for treatment of persons irrespective of their nationality. The second is of interest to inquire to what extent nationality still plays a role as a precondition for international protection. 8.1.1.1. Standard of Treatment Two standards have been identified: the standard of national treatment and the international minimum standard.19 The EU in this context stands at a 16 Panevezys-Saldutiskis Railway (Estonia v. Lithuania) (Judgment) [1939] PCIJ Ser. A/B No. 76. See also The Mavrommatis Palestine concessions (Greece v. UK) (Judgment) [1924] PCIJ Ser. A No. 2 where it was stated that only ‘real nationality’ can give rise to the right of diplomatic protection of the State. 17 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase, Judgment) [1970] ICJ Rep 3, para 91. 18 Sepulveda, Summary record of the 2522nd meeting, Diplomatic Protection (1998) UN Doc. A/ CN.4/SR.2522, and A/CN.4/483, sect E A/CN.4/484, A/CN.4/L.553, available at accessed on 1 March 2011, 19, para 2. 19 From the procedural point of view there have also been discussions on the term ‘denial of justice’ and what specific contents it should entail, i.e., whether it is in cases when the State has not remedied the situation or it is confined to the judiciary of the State only. This specific aspect is

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crossroads – while it assures that the international minimum standard should be ensured in the case of immigrants, the ultimate objective is a standard of national treatment. Thus, the contents of both standards and their interrelationship in international law require closer examination. The standards applied are overlapping and at the same time different. Application of those standards is subject to heated discussions by both scholars and States.20 The reason for conflict is that the standard of national treat­ ment is based primarily on municipal law while the international minimum standard  on international law. Various tribunals and States, despite their efforts, have been unable to produce a conclusive definition of the standard applicable. Moreover, the Harvard Draft and the Hague conference provide no guidance.21 Under international law, a State is required to respect the basic human rights of its citizens and to accord to all people within its jurisdiction equal protection of their basic human rights without distinction as to inter alia race, sex, language or religion. This duty of States is reiterated in several human rights instruments. It follows that nothing prevents a State from treating its nationals better, provided that the international minimum standard is met.22 In relation to the standard of national treatment, as noted by Brownlie, there has always been considerable support for the view that an alien can only expect equality of treatment under local law because s/he submits to local conditions with benefits and burdens.23 This does not mean that an alien will acquire all rights of citizens. For instance, political rights are excluded from the standard of national treatment. The international minimum standard appeared at the beginning of this century. One of its proponents, Borchard, notes: [I]nternational law is concerned not with the specific provisions of the municipal  legislation of States in the matter of aliens, but with the establishment of a outside the scope of this study. For more details and relevant literature see Lillich Richard B., The Human Rights of Aliens in Contemporary International Law (Manchester University Press: Manchester 1984), 13. 20 Brownlie Ian, Principles of Public International Law, 6th ed. (Oxford University Press: Oxford 2003) 388 and 405. 21 Harvard research draft in Article 5 provides only for equality of aliens and nationals in relation to means of redress for injuries. See International Law Association, ‘Harvard draft of Nationality’ (1929) 23 AJIL. The Hague conference, although discussing the issue, could not reach agreement. See Lillich Richard B., The Human Rights of Aliens in Contemporary International Law (Manchester University Press: Manchester 1984) 31. 22 Lambert Hélène, The Position of aliens in relation to the European Convention on Human Rights (Council of Europe Publishing: Strasbourg 2006) 12. 23 Supra note 20, 501–502.

82  Chapter Eight somewhat indefinite standard of treatment which the state cannot violate without incurring international responsibility.24

From this, two conclusions can be drawn. Firstly, an international minimum standard based on international law possesses independent significance regardless of the way in which a State treats its own nationals.25 Secondly, taking into account that international law is developing, so is the international minimum standard.26 The minimum standard is based on the idea that nowadays international law affords aliens a minimum of guarantees, even though it is difficult to specify what they are.27 The first notable development in reconciling the two standards was undertaken by Special Rapporteur F.V. Garcia –Amador of the ILC. He submitted to the Commission Draft Articles on the Responsibility of the State for Injuries Caused in its Territory to the Person or Property of Aliens. This was later abandoned.28 His position taken in the report was that both standards mentioned are not as antagonistic and irreconcilable as might appear. The rapporteur thought they can be reformulated and integrated into a new legal rule incorporating the essential elements and serving the main purposes of both. He proposed that the basis of this new principle should be the “universal respect for, and observance of, human rights and fundamental freedoms” referred to in the Charter of the United Nations and in other general, regional and bilateral instruments.29 Therefore, he proposed 24 Supra note 4, 39. 25 Van Panhuys Haro Frederik, The Rôle of Nationality in International Law: An Outline (Sijthoff: Leyden 1959) 45–46. 26 For this reason Panhuys has suggested that international minimum standard should be defined as that “a State must behave towards the nationals of another State as is fitting in the intercourse between civilized States”, supra note 25, 46. 27 Kamto Maurice, ‘Preliminary Report on the Expulsion of Aliens’ (2 June 2005) UN Doc. A/ CN.4/554, 9. On existing international standards see also Kamto Maurice, ‘Sixth report on the expulsion of aliens,’(19 March 2010) UN Doc. A/CN.4/635, available at accessed 3 February 2013. 28 Garcia-Amador F.V. y Rodriguez, Sohn Louis B, Baxter Richard R., Recent Codification of the Law of State Responsibility for Injuries to Aliens (Dobbs Ferry NY: Oceana Publ. 1974). The book includes six reports to the commission on the topic of “State Responsibility”. After he left, ILC Special Rapporteur Roberto Ago took another approach on the topic. Although Articles on Responsibility of States for Internationally Wrongful Acts are indeed drafted by using different methodology and do not refer to primary rules (Commentary,74–78), it seems that they are rather favourable to an international minimum standard (see Article 3). See Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, Report on the ILC 53rd session, UN GAO, 56th Sess, Supp No. 10, p 43, UN Doc. A/56/10, GA Res. 56/83 (Dec 12 2001), para 3. 29 Amador Garcia F.V., ‘State Responsibility. International Responsibility’ (20 January 1956) UN Doc. A/CN.4/96, 5.

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to depart from various standards in protection of different groups of individuals and to fuse standards in favour of human rights. The aim of this fusion would be to ensure protection of the legitimate interests of human beings, irrespective of nationality. In his view human beings should be under the direct protection of international law. It is out of the scope of this study to inquire about specific regulation of rights of aliens in international law.30 Only recently have there been attempts to harmonize their treatment by granting rights to all individuals who are not nationals of the State in which they presently live.31 However, overall treatment of aliens resembles “a giant unassembled juridical jigsaw puzzle” and no clear-cut definition of an international minimum standard could be provided, except by reference to fundamental human rights.32 The standard of national treatment has been particularly strengthened by application of the ECHR and its Article 14 in particular. The Convention requires “objective and reasonable justification” for differentiation, which should be based on law, should pursue “a legitimate aim” and should be “necessary in a democratic society”. The article will be further strengthened by additional Protocol 12. Therefore, it can be concluded that in principle the international minimum standard is applicable in relation to immigrants, while lege ferenda remains the standard of national treatment which is particularly relevant in the EU context building upon the ‘near equality’ concept with regard to third country nationals.33 8.1.1.2. Nationality of Claims Before adoption of human rights instruments it was argued that an alien could not lay claim to legal protection by virtue of his general status as an alien but 30 For comprehensive studies in this regard see supra note 15 and Tiburcio Carmen, The Human Rights of Aliens under International and Comparative Law (Boston: Nijhoff 2001). 31 Declaration on Human Rights of Individuals Who are not Nationals of State in which They live. Adopted by General Assembly resolution 40/144 of 13 December 1985. It is indicative that work on the Declaration took more than ten years. The first draft was produced by Baroness Elles of Great Britain in 1974. It took five years for the General Assembly to adopt the declaration. 32 Supra note 15, 122. The main Conventions to be mentioned: Convention relating to the Status of Refugees, 1951; Protocol relating to the Status of Refugees, 1967; Convention on Status of Stateless persons and Convention on the Reduction of Statelessness; a number of ILO Conventions on Migration for Employment – the most important being the Migration for Employment Convention (Revised), 1949 (No.97) and the Migrant Workers Convention, 1975 (No. 143); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (GA Resolution 45/158 of 18 December 1990), the European Convention on the Legal Status of Migrant Workers, 1977 (ETS No.93); the European Convention on Establishment, 1955 (CETS No. 019), and the European Social Charter, 1961 (CETS No. 035). In addition to these there are also a number of bilateral treaties. The ratification record remains poor. 33 See section 14.1. of part IV of this book.

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rather by virtue of the fact that he was a national of a foreign State.34 Various national courts, a number of international tribunals and even international courts have faced this issue on different occasions when individuals have submitted claims or States intervened on their behalf. Problems have arisen when courts and tribunals had to decide whether domicile should take preference over nationality and what to do in cases when a person holds dual nationality or is stateless.35 In cases of single nationality the effective link between the individual and the State has been claimed to be a criterion for allowing States to exercise diplomatic protection. After thorough analysis of different claims commissions, Donner concludes that the connecting or effective link as established by Nottebohm has not replaced nationality as the criterion for determining whether a State has locus standi to espouse an international claim, or whether a tribunal has jurisdiction to hear claims brought by a State for persons other than those who possess its nationality. But, according to Donner, a State may be refused the right to bring a claim before an international tribunal on behalf of a person whose nationality is not, in law and fact, evidenced by an adequate connecting link.36 Even if there were instances when a State was allowed to grant protection to non-nationals, this was not unconditional and unlimited as to time and had to be recognized by other States and consistent with international custom and treaties.37 Under these conditions stateless persons and refugees could not expect their injury to be addressed by any State. In cases of multiple nationality the practice of different tribunals has led to sometimes contradictory practice.38 Moreover, scholars are divided between two

34 See supra note 25, 44 who refers to the writings of Vattel. 35 As summarized by Donner: “For purposes of status and capacity in municipal law some countries favoured nationality, others domicile. Thus the French Civil Code of 1804 provided in Section 3 that the status and capacity of a Frenchman is to be decided by his nationality regardless of whether he is domiciled (resident) abroad, while the common law countries and Sweden and Finland favoured the law of the country of domicile as the individual’s personal law. A similar assimilation of the concepts of nationality and domicile, or of the extent to which status is conferred by nationality or domicile, arose in a number of cases”. Supra note 6, 36–37. 36 Supra note 6, 88–89. This might cause difficulties not only in relation to EU citizenship acquiring external recognition but also in the case of Latvia’s non-citizens. See part V of this volume. 37 Weis refers to contradictory practice of the USA when they have used the right to diplomatic protection of domiciled aliens who have declared their intention to become citizens of the USA. However, as Weis notes there have also been cases in which the USA has denied protection in similar circumstances. Therefore, it is hard to conclude that there has been any custom established in this regard. See supra note 5, 40–43. See also discussion on non-citizens in Latvia in section 21.1. of part V of this volume. 38 Supra note 4; supra note 5, 170 ff; supra note 25, 73 ff.

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schools of thought in the doctrine, namely, one which upholds the principle of equality, the other the principle of effective (or dominant) nationality.39 At the Hague Conference the first school scored a victory which resulted in Article 4 which states: A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.

Other authors suggest that the two schools can be reconciled and argue in favour of the principle of effective (or dominant) nationality. Therefore, the equality principle would have to be applied in rather exceptional cases when ties with both countries are of equal strength.40 This approach has been adopted by the Iran-US Claims tribunal.41 In a way this challenged the view that, in the absence of a clear mandate and where customary international law is exclusively invoked, the forum may not entertain the claim of a dual national against a State of which he is national.42 When dealing with Esphahanian and Golpira 43 the Chamber of the tribunal was facing delicate questions in relation to diplomatic protection of multiple nationals against the State of their nationality, i.e., Iran. The Chamber’s approach was later confirmed by the full tribunal in Case A/18.44 The Chamber of the tribunal looked for guidance in the 1930 Hague Convention. It stressed that “[Article 4 of the Convention] must be interpreted very cautiously. Not only is it 50 years old, but great changes have occurred since then in the concept of diplomatic protection”.45 Therefore, in dealing with cases of multiple 39 Supra note 25, 74. 40 Supra note 25, 78 and Aghahosseini Mohsen, ‘The Claims of Dual Nationals before the Iran – United States Claims Tribunals’ (1997) 10(1) LJIL, 21–47, 30. 41 The Iran-US Claims Tribunal established in The Hague in 1981 by agreement of Governments is the first major claims commission to function since those established in connection with the peace settlements at the end of WW II in 1945 in Europe. It was shaped in the tradition of the Mixed Arbitral Tribunal set up pursuant to the Peace Treaties concluded after WW I on the basis of the so called Algerian Declarations. For more detailed analysis see R.Donner, supra note 6, 89; and Aghahosseini Mohsen, ‘The Claims of Dual Nationals before the Iran –United States Claims Tribunals’ (1997) 10(1) LJIL, 21–47, 22–24. 42 Aghahosseini Mohsen, ‘The Claims of Dual Nationals before the Iran –United States Claims Tribunals’ (1997) 10(1) LJIL, 21–47, 21. 43 Iran-Unites States Claims Tribunal, Esphahanian v. Bank Tejarat, Case No. 157 (Second Chamber) (1983) ILR, 72, 478. Iran-US Claims Tribulal, Ataollah Golpira v. Islamic Republic of Iran, Case No. 211 (1983) ILR, 72, 493. 44 Iran-Unites States Claims Tribunal, Case No. A/18 (1984), (1987) ILR, 75. 45 Quoted by Donner, supra note 6, 95. The full Tribunal added to the words of Chamber Two that not only is this treaty more than fifty years old, but also it is “found in a treaty to which only twenty States are parties”. This view is not shared by Jennings and Watts who claim that Article 4

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nationals the tribunal adheres to the principle of effective (or dominant) nationality and concludes that Article 4 should be read together with Article 5 of the same Hague Convention. This leads to the conclusion that in relations with a third State, a person having more than one nationality should be treated as if s/he had only one. The choice of nationality may be based either on the nationality of the country in which they mainly and principally reside, or on the nationality of the State to which, according to the circumstances, they appear to be more attached in fact.46 Thus, the Tribunal confirmed that multiple nationals can exercise the right to bring a claim against the State of their nationality if their dominant nationality is that of another State.47 In this context the principle is limited to cases of multiple nationality, which has been further developed by the ILC in the context of both Articles of Diplomatic protection and discussions related to expulsion of dual nationals. 8.1.2. ILC Articles on Diplomatic Protection As noted in the commentary to the Articles on Diplomatic protection, these are closely related to both Articles on State responsibility and work on topics related to Treatment of Aliens.48 The ILC confined its work to secondary rules only, i.e., rules that relate to the conditions that must be met for bringing a claim for diplomatic protection. It took about ten years for the ILC to adopt articles on diplomatic protection with commentaries.49 of the 1930 Convention “are probably to be regarded as rules of customary international law”, Jennings Robert, Watts Arthur (eds), Oppenheim’s International law, 9th ed. (Harlow: Longman: Harlow 1992) 516. 46 Supra note 6, 95. 47 For other cases decided on the same lines see Report of the International Law Commission on the work of its 56th session, Official Records of the General Assembly, 59th Session, Supplement No.10 (2004) UN Doc. A/59/10, 41–42. The most notable case is the Italian-United States Conciliation Commission, Mergé claim (1995) ILR, 22, 443 and the practice by the United Nations Compensation Commission established by the Security Council to provide for compensation for damage caused by Iraq’s occupation of Kuwait. UN Doc. S/AC.26/1991/7/Rev.1, para 11, available at accessed 27 January 2012. 48 Para 1–2 of the Draft Articles on Diplomatic Protection with commentaries (2006) available at accessed 27 January 2012. 49 The ILC at its 48th session in 1996 identified the topic of “Diplomatic protection” as one of the topics appropriate for codification and progressive development. Report of the International Law Commission on the work of its 48th session, UN Doc. A/51/10, Official Records of the General Assembly, 51st session, Supplement No. 10, 1996, para 249. In 1997 the Commission appointed Mr. Mohamed Bennouna as Special Rapporteur on the topic. He submitted his preliminary report in 1998 and it was considered by the Commission during the 2520th to 2523rd meetings,

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Initial discussions were about the focus of articles on diplomatic protection. ILC members agreed that human rights have an impact on diplomatic protection and the topic of State responsibility also bears relevance.50 They agreed that there is a need to adapt the traditional view to modern-day reality: for instance, the fact that political and economic strength has been reallocated and that multinational corporations are often more powerful than States.51 During discussions on the topic of diplomatic protection ILC member Galicki stated that “the very concept of nationality – the basis for the exercise of diplomatic protection – has available at and accessed 27 January 2012. After that an open-ended Working group was established. In 1999 John Dugard was appointed as Special Rapporteur on Diplomatic protection. In short, it should be mentioned that the approach by M. Bennouna differed from that adopted afterwards by J. Dugard. M. Bennouna undertook an unfortunate methodology by posing the question whether an individual could be considered as a subject of International law and to what extent human rights could substitute diplomatic protection, thus considering diplomatic protection a fiction. Bennouna Mohamed, Preliminary Report on Diplomatic Protection (4 February 1998) UN Doc. A/CN.4/484, 8 para 2. Dugard John, ‘First report on Diplomatic protection’ (7 March 2000) UN Doc. A/CN.4/506, 24. It should be noted, however, that he clarified his position during the 2523rd meeting by stating that exercise of diplomatic protection and of recourse procedures in human rights cases must be kept distinct and that no one had ever claimed otherwise. Diplomatic protection belonged with secondary rules, whereas human rights were primary rules. See Summary record of the 2523rd meeting, Diplomatic Protection (1998) UN Doc. A/CN.4/SR.2523, available at accessed 27 January 2012. 50 See views expressed by P.Economides on the institution of diplomatic protection losing ground. Discussion on Preliminary Report of the Special Rapporteur, Summary record of the 2520th meeting, Diplomatic Protection (1998) UN Doc. A/CN.4/SR.2520, available at accessed 1 March 2011, sect. E A/CN.4/484, A/CN.4/L553., at 7. The optimistic statements in relation to the status and rights of the individual in the sphere of diplomatic protection were objected to by Mr. Pambou-Tchivounda who argued that the structure of international society determining the material sphere of international law limits the personality of the individual as a subject of international law. Thus, his rights as a subject of law are still of limited character. Discussion on Preliminary Report of the Special Rapporteur, 2520th meeting, 28 April, 1998. A/CN.4/483, sect. E A/CN.4/484, A/CN.4/L553, 12. See also Summary record of the 2520th meeting, Diplomatic Protection (1998) UN Doc. A/CN.4/ SR.2520, available at accessed 4 February 2013. 51 See Discussion on Preliminary Report of the Special Rapporteur, Summary record of the 2520th meeting, Diplomatic Protection (1998) UN Doc. A/CN.4/SR.2520, available at accessed 4 February 2013. The open-ended Working group considered possible conclusions to the discussion so as to decide on the approach to the topic. The group favoured an approach based on customary law and focus on secondary rules of international law taking into account developments in international law. The report of the Working group was endorsed. Yearbook of the International Law Commission (1998) II Part Two, 49, paras 107–110.

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undergone significant changes”.52 At the same time developments in the human rights realm and increasing rights of individuals have not made the concept of diplomatic protection meaningless. They have prompted the ILC to propose several rules of diplomatic protection lege ferenda. In his first report on diplomatic protection in 2000 Special Rapporteur Dugard stated that debate over the question whether the individual is a mere ‘object’ of international law or a ‘subject’ of international law is unhelpful. He favoured the view of Higgins that an individual is a participant in the international legal order.53 Dugard concluded that although the individual can participate in the international legal order by using his/her rights, the remedies available are limited. This conclusion had seemingly been overlooked by previous Rapporteurs (both Garcia-Amador and Bennouna). One cannot exaggerate the strength of human rights in the present state of affairs. Apart from questions related to reservations introduced by States under different human rights treaties, the weaknesses of the enforcement system in this context should be acknowledged. In fact, only the ECHR provides for an effective system of enforcement.54 As rightly stated by Dugard: “until the individual acquires comprehensive procedural rights under international law, it would be a setback for human rights to abandon diplomatic protection”.55 However, he also admitted that the right of a State to assert its own right when it acts on behalf of its national is an outdated fiction which should be discarded – except in cases in which the real national interests of the State are affected.56 Article 1 of the Articles on Diplomatic Protection provides: For the purposes of the present draft articles, diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.57 52 Ibid., 25. 53 Dugard John, ‘First report on Diplomatic protection’ (7 March 2000) UN Doc. A/CN.4/506, 8, para 24. 54 Decisions made by treaty bodies in the UN system, such as the Human Rights Committee, the Committee on Elimination of Racial discrimination, the Committee Against Torture and the Committee on the Elimination of Racial Discrimination against Women, are quasi judicial. Moreover, recognition of their competence to deal with individual petitions is optional. Also the American Convention on Human Rights and the African Charter on Human and Peoples Rights do not provide for as efficient a mechanism as the ECHR. 55 Supra note 53, 9, para 29. 56 Supra note 53, 6, para 17. See also Bennouna Mohamed, Preliminary Report on Diplomatic Protection (4 February 1998) UN Doc. A/CN.4/484. 57 Draft Articles on Diplomatic Protection, International Law Commission, Report on the work of its 58th Session, General Assembly, Official Records, 61st Session, Supplement No. 10 (A/61/10)

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Thus, the customary international law rules on diplomatic protection that have evolved over several centuries, and the more recent principles governing protection of human rights, complement but do not exclude each other. Therefore, the Commission has confirmed that the international minimum standard is a standard available in international law. According to the Articles on State Responsibility, one of the elements of an internationally wrongful act is that it constitutes a breach of an international obligation of the State (Article 2). Article 12 of the same Articles clarifies that a breach occurs when an act of State is not in conformity with what is required of it by that obligation, regardless of its origin or character. This means that recourse to diplomatic protection can be sought in cases of human rights violations. The Articles reflect on the relationship between diplomatic protection and human rights. Article 16 states: The rights of States, natural persons, legal persons or other entities to resort under international law to actions or procedures other than diplomatic protection to secure redress for injury suffered as a result of an internationally wrongful act are not affected by the present articles.

Therefore, the ILC confirms that in addition to diplomatic protection procedures are also available under human rights law or even customary international law. It can be concluded that by inserting Article 16 the ILC has attempted to describe the current state of affairs clarifying the role of the State and the individual as participants in international legal relationships to seek redress in cases of injury. The basic rules of diplomatic protection have remained unchanged, i.e., States are beneficiaries of the right and they are entitled to exercise that right on the basis of the nationality of the injured individual. The ILC has formulated Article 1 in a way which leaves open the question whether the State exercising diplomatic protection does so in its own right or that of its national or both. However, in relation to nationality the ILC has gone further. Article 3 states the basic rule but it also refers to Article 8 which lists cases when the bond of nationality would not be required. Article 8 provides: 1. A State may exercise diplomatic protection in respect of a stateless person who, at the time of the injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State. 2. A State may exercise diplomatic protection in respect of a person who is recognized as a refugee by that State when that person, at the time of injury and at the

2006, available at accessed 27 January 2012, 24.

90  Chapter Eight date of the official presentation of the claim is lawfully and habitually resident in that State. 3. Paragraph 2 does not apply in respect of an injury caused by an internationally wrongful act of the State of nationality of the refugee.

In the view of Dugard, these complementarities do not exclude or trump the rights of States other than the State of nationality of an injured individual to protect that individual under either customary international law or a multilateral or bilateral human rights treaty.58 He notes: A State may protect a non-national against the State of nationality of an injured individual or a third State in inter-State proceedings under the ICCPR, ICERD, CAT, ECHR, ACHR, ACHPR. Similarly, customary international law allows States to protect the right of non-nationals by protest, negotiation and, if a jurisdictional instrument so permits, legal proceedings. The decision of the ICJ in the 1966 South West Africa cases, holding that a State might not bring legal proceedings to protect the rights of non-nationals is today seen as bad law and was expressly repudiated by the Commission in its articles on State responsibility. Moreover, article 48 of those articles permits a State other than the injured State to invoke the responsibility of other States if the obligation breached is owed to the international community as a whole.

The proposal of the Rapporteur was welcomed by the ILC as it represented progressive development of international law. However, some members questioned the validity of Article 8 because most States of residence did not intend to extend diplomatic protection to stateless persons and refugees. It was also thought that the article imposes an additional burden on States of asylum or States hosting refugees and stateless persons. However, since there was overwhelming support for progressive codification as suggested by the Rapporteur, his approach was accepted. Although Article 8 represents progressive codification, it also includes several conditions which make its application limited. Firstly, as stated in the Commentary to the ILC on the articles, the requirement set for refugees and stateless persons to be ‘lawfully and habitually resident’ is a high threshold. However, since this provision has been introduced as de lege ferenda it could not provide for too far-reaching consequences. Secondly, the provision contained in Article 8(3) excludes the possibility for the State of refuge to exercise diplomatic protection in respect of the State of nationality of the refugee. This paragraph has been inserted because of the basic approach that nationality is still the predominant basis for the exercise of diplomatic protection and policy considerations.

58 Dugard John, ‘Fifth report on diplomatic protection’ (4 March 2004) UN Doc A/CN.4/538, 19.

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Thirdly, recourse to diplomatic protection in these cases is optional, i.e., the decision as in cases of nationals is at the discretion of States. Finally, there is no link between this Article and access to nationality by refugees and stateless persons. Articles 6 and 7 deal with cases of multiple nationality. According to Article 6 any State of a dual or multiple national can exercise diplomatic protection against a third State. The Article does not require a genuine or effective link between the national and the State. The ILC was guided on this issue by decisions of various international tribunals. At the same time in other contexts the ILC Rapporteur has noted that States can in fact consider their nationals to be aliens if those nationals have an additional nationality. Although this may not serve as a basis for expulsion until a person is effectively deprived of nationality, it is indicative that the State would most probably not exercise diplomatic protection on behalf of a person whose dominant nationality is that of another State.59 Article 7 further provides conditions when a State is entitled to exercise diplomatic protection for injury caused to its national by the State of another nationality. According to the ILC this can be done if the nationality of the claiming State is predominant over another nationality.60 Although this provision departs from the rule established in the 1930 Hague Convention, it is supported by arbitral decisions which the ILC has identified.61 The ILC itself did not indicate factors which could assist in deciding which of the nationalities is predominant. However, it has referred to factors, which have been identified elsewhere, such as habitual residence, date of naturalization, language of education, employment, family ties and the like. It has also emphasized that all different factors should be weighed and examined in each particular case. Therefore, the Articles on Diplomatic protection have not only provided for progressive codification of international law, but also confirmed the practice of various international tribunals which will ensure a harmonized approach to issues of multiple nationality and diplomatic protection. Debates in the ILC signify that human rights play an important role in issues which have been geared to State sovereignty.

59 Kamto Maurice, ‘Fourth Report on the Expulsion of Aliens’ (March 2008) UN Doc. A/CN.4/594, 4. 60 The importance of dominant nationality has been also emphasised in cases of expulsion of aliens who are multiple nationals. See ibid., 5. 61 Draft Articles on Diplomatic Protection with Commentaries (2006) Yearbook of the ILC (2006) II, available at accessed 30 January 2012, 44, footnote 77.

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8.2. The Duty of Admission 8.2.1. General Framework International law is concerned with the duty of admission in two aspects. Firstly, to what extent the State is under a duty to admit its nationals and a prohibition to expel them. Secondly, in which cases the State is obliged to allow entry of aliens and is not allowed to expel them. In the first aspect the standard of national treatment applies, while in the second the international minimum standard is applicable. In general under international law nationals have a right to settle and to reside in the territory of their State of nationality. This can also be formulated as the obligation of the State to grant and permit residence to its nationals.62 As long ago as 1892 the Institute of International Law had expressed the idea that a State could not refuse access to its territory by its former nationals, including those who had become stateless persons.63 The right of any person to enter or return to his or her country is part of major human rights instruments However, it remains unclear to what extent a State is under obligation to admit its former nationals. Weis has distinguished between situations when nationality is lost by unilateral action of a national or by denationalisation. Whereas in cases of voluntary expatriation no duty of readmission would persist, in cases of denationalisation the obligation to receive a former national back on its territory would still be binding on a State.64 Moreover, arbitrary deprivation of nationality would have no legal consequences in international law. At the same time cases might arise when States consider their nationals to be aliens if those nationals have an additional nationality. This approach would allow the argument that expulsion of dual nationals by the State in question is possible. However, taking into account that expulsion of nationals would be contrary to international law, the correct approach would be that a national should be deprived of nationality before expulsion.65 As argued by Special Rapporteur Kamto, even if the receiving State is not the State of dominant or 62 Supra note 5, 45. 63 Kamto Maurice, ‘Sixth report on the expulsion of aliens’ (July 2010) UN Doc. A/CN.4/625/Add.2., 27–28. 64 Supra note 5, 53–54. Weis notes that this obligation would most probably be applicable only when denationalisation took place while a former national was outside the territory of the State because only in those cases is there an international aspect of the duty of admission. 65 Kamto Maurice, ‘Fourth Report on the Expulsion of Aliens’ (March 2008) UN Doc. A/CN.4/594, 4–5. Yet cases of expulsion of dual nationals without prior denationalization by the expelling State are not unusual in practice.

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effective nationality of an expelled person, nonetheless there exist between the latter and that State formal legal ties of nationality which the expelled person can invoke if necessary.66 In relation to the obligation of the State to admit or the right to expel aliens, territorial sovereignty leaves States considerable discretion. States are entitled to deny aliens access to their territory.67 Writers have expressed different views in relation to the right of the State absolutely to forbid entry to aliens. Borchard in this regard has concluded that international intercourse is so essential to the existence of the society of States that in practice the right of admission is freely accorded, subject to specific exceptions. He suggests that a government that would seek to take advantage of its right to exclude all aliens would violate the spirit of international law and endanger its membership in the international community.68 Although not under a duty to grant aliens unconditional rights of entry and residence, the State may not expel them arbitrarily.69 State discretion is limited in this regard by its international obligations. Expulsion without reasonable cause can lead to international claims and to arbitration.70 The ILC has almost finalised its work on Draft Articles on the Expulsion of Aliens.71 The Commission has noted that “the topic indisputably lent itself to codification, given the existence of a body of customary rules, numerous treaties, long-standing doctrine and well-established, albeit relatively recent, international and regional jurisprudence”.72 The Draft Articles represent an impressive codification of the main principles and rules limiting State discretion in expulsion cases as well as procedural guarantees for aliens. Indeed, over the years different human rights monitoring and judicial bodies have developed principles to be observed by States Parties to the respective instruments.73 The following 66 Kamto Maurice, ‘Fourth Report on the Expulsion of Aliens’ (March 2008) UN Doc. A/CN.4/594, 7. 67 The preamble to the International Rules on the Admission and Expulsion of Foreigners adopted by the Institute of International Law on 9 September 1892 proclaimed that “for each State, the right to admit or not admit aliens to its territory or to admit them only conditionally or to expel them is a logical consequence of its independence”. Kamto Maurice, ‘Sixth report on the expulsion of aliens’ (July 2010) UN Doc. A/CN.4/625/Add.2., 26–27. 68 Supra note 4, 45–46. 69 Supra note 5, 45–46; supra note 4, 49. 70 Verzijl Jan H.W., International Law in Historical Perspective, Part V (Sijthoff: Leyden 1972) 419. 71 See addendums to Kamto Maurice, ‘Sixth report on the expulsion of aliens’ (July 2010) UN Doc. A/CN.4/625/Add.1 and A/CN.4/625/Add.2. See also Kamto Maurice, ‘Seventh report on the expulsion of aliens’ (May 2011) UN Doc. A/CN.4/642, 8–14 where the rapporteur gives his critical comments on the ICJ judgment in the case concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo, 30 November 2010. 72 Report of the International Law Commission 59th Session (2007) 133. 73 Lambert Hélène, The Position of aliens in relation to the European Convention on Human Rights (Council of Europe Publishing: Strasbourg 2006) 12.

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sections will outline only the main obligations relevant for the purposes of this study, leaving procedural guarantees aside. 8.2.2. Human Right to Free Movement Human rights law provides the right to freedom of movement and residence under different headings. For instance the ECHR states in its 4th protocol that no one may be deprived of the right to enter the territory of a State of which he is a national. The UDHR and ICCPR instead state that no one may be deprived of the right to enter their own country. This entails not only obligations on States not to expel nationals but also to allow entry of non-nationals. Treaties may indirectly impose such an obligation on States.74 Therefore, the duty of admission appears under the heading of ‘respect for family life’, ‘private life’ or even ‘nondiscrimination’. Therefore, the duty of admission and expulsion is no longer limited to nationals but also applies to aliens under certain circumstances. Since the study is limited to legal migration, this part will not deal with cases of admission and expulsion of aliens claiming to be refugees or asylum seekers or the obligation not to expel persons subject to mistreatment in their country of nationality leading to torture or threat to the right to life. However, if some principles developed under those headings are found illustrative, they will be mentioned. 8.2.2.1. Right to Leave and Enter Article 12 ICCPR, which deals with free movement rights, provides the right to liberty of movement and to choose residence: 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country.

Further Article 13 prohibits arbitrary expulsion and requires that a decision should be reached in accordance with the law for an alien to be expelled.75 The only exception could be compelling reasons of national security.

74 Jennings Robert, Watts Arthur (eds), Oppenheim’s International law, 9th ed. (Longman: Harlow 1992) 898–899. 75 For interpretation see UN Human Rights Committee, ‘General Comment No. 15: the position of aliens under the covenant’, 27th session (1986) UN Doc. HRI/GEN.1/Rev.1/.

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Freedom to leave and emigrate as provided in Article 12 sets up positive and negative duties on both the State of residence and the State of nationality. The State of residence is primarily obliged to avoid interfering with the freedom to leave; the State of nationality is under a positive duty to ensure effective possibilities to leave by issuing the necessary travel documents.76 Freedom to leave a territory may not be made dependent on any specific purpose or on the period the individual chooses to stay outside the country. States are also precluded from using administrative measures which would adversely affect the right to leave.77 During the drafting history of Article 12 many States feared attaching a too far reaching guarantee of freedom of movement because that was better able than other rights to force its way into a central area of State sovereignty dogma.78 Both Articles 12 and 13 provide for free movement and residence to those who are lawfully within a State and prohibit arbitrary actions by States. As correctly argued by Nowak: [T]he “Sword of Damocles” in the form of possible expulsion has a not insignificant effect on the de facto enjoyment of many other human rights (in particular, freedom of expression, assembly or association), since aliens may in this way be compelled to conduct themselves properly in the eyes of the State of residence.79

Article 12 concerns only those who are lawfully in the territory. The distinction, therefore, is not between aliens and nationals, but rather between illegal aliens, on the one hand, and nationals and legal aliens on the other.80 In the General Comment to Article 12 the Human Rights Committee has stated that “the question whether an alien is ‘lawfully’ within the territory of a State is a matter governed by domestic law, which may subject entry of an alien to the territory of a State to restrictions.”81 In accordance with the General Comment an alien who entered the State illegally but whose status has been regularized must be considered to be lawfully within the territory for the purposes of Article 12.82 A similar approach has been adopted by Council of Europe institutions in relation to Article 1 of Protocol 7 to the ECHR. According to the explanatory report this 76 Nowak Manfred, CCPR Commentary (Kehl:Engel 1993) 206. 77 UN Human Rights Committee, ‘ICCPR General Comment 27: Art.12 (Freedom of movement), (2 November 1999)’ in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (12 May 2004) UN Doc CHRI/GEN/Rev.7, paras 8–10. 78 According to Nowak this scepticism is even more strongly expressed with regard to the right to nationality (Art. 15 UDHR), which for this very reason was not adopted in the Covenant. Supra note 76, 199. 79 Ibid. 80 Supra note 15, 47. 81 Supra note 77, para 4. 82 Ibid.

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Article applies to aliens who have entered unlawfully and whose position has subsequently been regularised.83 The limits on State discretion are outlined in Article 12(3) which provides a list of grounds allowing States to restrict residence rights on their territory to non-nationals. However, in the context of nationality the most important is Article 12(4) giving the right to enter and especially the right of residence in ‘one’s own country’. 8.2.2.2. Concept of ‘One’s Own Country’ Reference in Article 12 (4) to ‘one’s own country’ raises a question regarding the scope of obligation of the State to admit aliens.84 The Human Rights Committee (HRC) has interpreted the scope of rights protected by Article 12 (4) in a number of cases. In addition the HRC has adopted the General Comment which further specifies the scope of application of the provision mentioned. In Stewart the HRC stated that according to Article 12 (4) the concept ‘his own country’ applies to individuals who may not be nationals in the formal sense but nor are they aliens within the meaning of article 13.85 Therefore, the main question in the case was whether a person who enters a State under that State’s immigration laws can regard that State as his own country when he has not acquired its nationality and continues to retain the nationality of his country of origin. According to the Committee, a claim to be treated on the same basis as nationals 83 See Explanatory Report on Protocol No. 7 to the ECHR, (22 November 1984), ETS No. 117. Available at accessed 5 February 2013. See also Kamto Maurice, ‘Sixth report on the expulsion of aliens’ (July 2010) UN Doc. A/ CN.4/625/Add.1, 5–6. 84 According to Nowak this formulation can be traced to Art. 13 (2) of the Universal Declaration which differs from Art. 3(2) of the Additional Protocol No. 4 to the ECHR and Art. 22(5) of the American Convention on Human Rights in which the right of entry is expressly limited to nationals. The travaux preparatoires confirm that the protection of Article 12(4) extends to aliens and stateless persons who have such a strong attachment to a State that they view it as “their own country” or their home country. Whereas the original drafts by France, the Netherlands and the United States in the HRC sought to limit this right to nationals, the farther-reaching proposal by Australia was given preference by a vote of 10:2 with 6 abstentions. Supra note 76, 219–220. 85 Communication No 538/1993 Charles E. Stewart v. Canada, Human Rights Committee, 16 December 1996. Mr. Stewart was born in Scotland in 1960 and at the age of seven emigrated with his mother to Canada where other family members were already living. His mother was in poor health and his younger brother mentally disabled. The applicant himself had two young children who lived with their mother from whom the applicant was divorced. He had faced more than forty convictions for petty offences and participated in programmes to deal with drug abuse and alcoholism. Mr. Stewart claimed that he considered himself to be a Canadian citizen. However, he had not completed naturalisation requirements. After his appeals to remain in Canada were refused he applied to the Human Rights Committee claiming violation of a number of Articles including Article 12 of the Covenant. See para 12.4 of the decision.

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for the purposes of Article 12 (4) and admitted to a State whose nationality the applicant does not possess could be claimed only if the country of immigration is placing unreasonable impediments on access to nationality for immigrants. However, when the country of immigration facilitates acquisition of its nationality, and the immigrant refrains from naturalization, then the country of immigration does not become ‘his own country’ within the meaning of Article 12 (4) of the Covenant. the interference with Mr. Stewart’s family relations that will be the inevitable outcome of his deportation cannot be regarded as either unlawful or arbitrary when the deportation order was made under law in furtherance of a legitimate state interest and due consideration was given in the deportation proceedings to the deportee’s family connections.86

The interpretation given by the HRC restricts the application of Article 12 (4) and does not take into account other factors which a person might have in choosing not to naturalize. In their dissenting opinion experts Evatt, Medina Quiroga and Aguilar state: Individuals cannot be deprived of the right to enter ‘their own country’ because it is deemed unacceptable to deprive any person of close contact with his family, or his friends or, put in general terms, with the web of relationships that form his or her social environment. This is the reason why this right is set forth in article 12, which addresses individuals lawfully within the territory of a State, not those who have formal links to that State….there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality.87

This becomes even more evident if one is considering the case of long term immigrants. Expert Bhagwati in his dissenting opinion gave a hypothetical example of a situation when second generation immigrants would not even have visited their country of nationality. In their case, they would more often refer to the country of residence than the country of formal nationality as being ‘their own’. This, of course, might not be dependent on length of residence alone. Scheinin in his 86 Ibid., para 12.5. This is, indeed, a striking conclusion. While not of direct relevance one can still find a difference in standards applicable to different Articles in the Covenant. In the case of Article 12 strict interpretation was applied. In turn, the Human Rights Committee in ‘ICCPR General Comment 23 on rights of minorities’ two years earlier stated that in order for a person to enjoy rights set in Article 27 he or she “need not be a citizen of a State party… the State party is required under that article to ensure that the rights protected under the Covenant are available to all individuals within its territory and subject to its jurisdiction, except rights which are expressly made to apply to citizens”. UN Human Rights Committee, ‘ICCPR General Comment 23: Art. 27 (The rights of minorities)’ (8 April 1994) UN Doc. CCPR/C/21/Rev.1/Add.5, para 5.1. 87 Charles E. Stewart v. Canada, para 6 of the opinion.

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individual opinion attached to Canepa notes that there might be instances when a person is stateless or if it would be impossible or clearly unreasonable for him or her to integrate into the society corresponding to his or her de jure nationality. However, according to Scheinin the deportation of a person did not in itself mean that contact with his family members was made impossible because he could keep in contact by correspondence or telephone.88 This requires a balanced approach. Notwithstanding that communications nowadays are easily accessible and wide ranging it would not be proportionate to claim that effective and genuine family ties could be kept by using only technologies. This goes against the very concept of the family which is based on close personal ties established on the basis of everyday regular contact. Therefore, long-term resident and especially second generation immigrant situations should be treated with caution. At the same time an argument can be made that States do have discretion to facilitate integration of long-term residents by making their citizenship and naturalization procedures easily accessible. Indeed, in those cases long term residents would be invited to naturalize rather than claim extra rights on the basis of their residence. In cases where they have chosen not to naturalize they would have to put forward sufficiently serious arguments why they chose not to take steps to apply for naturalization. For instance, they can claim that it is impossible for them to renounce their other nationality. The dissenters, however, argue that ‘own country’ should be given more weight. As concluded by expert Chanet in her dissenting opinion, “the notion of ‘own country’ does not fall within established legal categories such as nationality or temporary or permanent resident status; it is a term that refers not to the State but to a geographical place whose content and boundaries are less precise, and hence, in the absence of any reference to a specific legal concept, a case-by-case appreciation of the term is required.”89 It can be agreed that the scope of the term ‘his own country’ is broader than the concept ‘country of his nationality’, as indeed the Committee has explicitly approved in its General Comment. According to the Comment the right of a person to enter his or her own country recognizes the special relationship of a person to that country.90 It may include not only the right to return after having left one’s 88 Communication No. 558/1993 Canepa v. Canada, Human Rights Committee, 20 June 1997, was similar to the Stewart case. Mr. Giosue Canepa was an Italian citizen who at the age of five emigrated to Canada with his parents and considered himself to be a Canadian citizen. He lived with his family in Canada. Canepa had a serious criminal record and therefore received a deportation order. 89 Ibid. 90 This was confirmed by the decision in Toala v. New Zealand when a family from Western Samoa claimed the right to reside in New Zealand. The HRC decided that a mere visitor’s permit

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own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country.91 However, at the same time it should not limit the right of the State to expel a resident in the case of compelling reasons of public policy or public security and State naturalization policy is not excessively restrictive. Individuals claiming the right to enter and to reside should put forward arguments why they remain indifferent to naturalization. An individual should also prove the existence of special ties to the State which does not allow that State to qualify them as a mere alien. The HRC in its General Comment gives a number of examples of such cases, for instance, denationalisation in violation of international law and loss of nationality as a result of territorial change.92 In the view of the HRC Article 12 (4) allows States to apply this Article more broadly including other categories of long-term resident. Nowak suggests specific examples, such as refugees, stateless persons, children of immigrants and alien workers who were born in the host country and who no longer have a home in their country of nationality; immigrants who have lived many years in the host country and broken all ties to their home country but have not – for whatever reasons – acquired the nationality of the host country are also protected by Art 12 (4).93 Moreover, the Committee on the Elimination of Racial Discrimination in its General Recommendation on Non-citizens has asked States to ensure that “noncitizens are not returned or removed to a country or territory where they are at risk of being subject to serious human rights abuses”.94 The Committee has also suggested that integration of non-citizens should be facilitated.95 without other proof of connection such as birth or descent is insufficient to claim rights under Article 12. Communication No. 675/1995 Toala v. New Zealand, Human Rights Committee, 22 November 2000. 91 Supra note 77, para 19. 92 Ibid., para 20. 93 Supra note 76, 220. 94 UN Committee on Elimination of Racial Discrimination, ‘General Recommendation XXX on discrimination against non-citizens (10 October 2004)’ in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies (27 May 2008) UN Doc HRI/GEN/1/Rev.9 (Vol. II), para 13. In relation to the practice of the ICCPR in this regard see Communication No.1222/2003 Johny Rubin Byahuranga v. Denmark, Human Rights Committee, 9 December 2004. 95  Communication No. 10/1997 Ziad Ben Ahmed Habassi v. Denmark, Committee on the Elimination of Racial Discrimination, 6 April 1999. The Committee noted that where an individual had been refused a loan because he was an alien the CERD concluded that “financial means are often needed to facilitate integration in society.” In the view of the Committee nationality is not the most appropriate requisite when investigating a person’s will or capacity to reimburse a loan. The applicant’s permanent residence or the place where his employment, property or family ties are to be found may be more relevant in this context. See para 9.2.

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Therefore, discretion of States in expulsion or non-admission of aliens, especially of long-term residents, that would result in disproportionate interference with the right to family life is limited.96 States can invoke their sovereignty argument to the extent that their naturalization laws allow for naturalization of long term immigrants and there are no other arguments by immigrants as to why they have not availed themselves of exploring the possibility to naturalize. Similarly they can invoke arguments related to State security by denying issue of permanent residence permits.97 For instance, in Winata the HRC was not persuaded by State practice to order expulsion of the parents of a national without providing them with the right to appeal the expulsion order.98 The HRC agreed that there was interference in family life and at the same time noted that: There is significant scope for States parties to enforce their immigration policy and to require departure of unlawfully present persons. That discretion is, however, not unlimited and may come to be exercised arbitrarily in certain circumstances.99

Although the outcome of the case remains unclear, family life can serve as an argument for claiming the right to remain in a State despite the naturalization requirements. This would be a particularly strong argument if a child had the right to reside while the parents were subject to a deportation order and if a significant duration of time has passed since the family has settled in the State asserting the right to expel. 8.2.2.3. Right to Private and Family Life The ECHR has been invoked by nationals and other status holders in the context of the right to private and family life. The Convention does not guarantee the rights of individuals to reside within the territory of the State chosen.100 The 96 Supra note 94, para 28. 97 See, Communication No. 1136/2002 Borzov v. Estonia, Human Rights Committee, 26 July 2004, and Communication No. 1223/2003 Vjatseslav Tsarjov v. Estonia, Human Rights Committee, 26 October 2007. 98 Communication No. 930/2000 Winata v. Australia, Human Rights Committee, 26 July 2001. The parents were Indonesian nationals but stateless at the time of application. They also complained on behalf of their son who was an Australian national. The parents were subject to removal because they had overstayed their visa. The parents were in a de facto relationship recognised in Australian law. The State party referred to ECtHR rulings (para 4.15). The Committee ruled only in relation to remedies available to applicants to challenge the Minister’s decision not to allow them to remain in Australia. 99 Ibid., para 7.3. 100 Fawcett has explained this omission in the Convention as due to the fact that a right of residence based only on nationality is uncertain because some States base the ‘right of entry or return on the idea not of nationality, but of permanent home’. Quoted by R. Donner, supra note 6, 225.

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ECtHR has been able to control States’ freedom in the area of immigration, residence and integration of aliens through application of the principle of proportionality and interpretation of the provisions of the ECHR.101 Freedom of movement is dealt by the Fourth Protocol of the Convention. Its Article 2 guarantees the right to free movement, residence and the right to leave the country for everyone who is lawfully in the territory of the State. Article 3 prohibits expulsion both individually and collectively in cases of nationals and provides the unconditional right to enter the State of nationality. Therefore, non-nationals are denied a possibility to claim the right to enter and reside in a State under the Fourth protocol. There is only a prohibition on collective expulsion of aliens in accordance with Article 4 of the same Protocol. What is worrisome is that cases of expulsion en masse are increasing.102 Thus, only nationals have the unconditional right to enter and reside and not be expelled from their country of nationality. Rights of non-nationals would be weighed by applying the principle of proportionality on a case by case basis. Cases on rights of aliens to reside in a State were dealt with by the Court on the basis of Article 8 ECHR on private and family life. The Convention does not in principle prohibit Contracting States from regulating entry and length of stay of aliens.103 The Court has acknowledged that it is for States to maintain public order, “as a matter of well–established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens”.104 States enjoy a particularly wide margin of discretion in cases when an individual is not granted leave to enter.105 However, there are developments suggesting that 101 Lambert Hélène, The Position of aliens in relation to the European Convention on Human Rights (Council of Europe Publishing: Strasbourg 2006) 14. 102 See Press Unit of the European Court of Human Rights, ‘Factsheet: Collective expulsion’ (December 2010), available at accessed 11 February 2011. Most of the cases originated from 2002 onwards. They concern people of Roma origin, applicants originating from Afghanistan, Somalia, Eritrea, Libya, Sudan. See also, supra note 73, 22–23 and comment by the ILC that there is “the increasing tendency among States to carry out expulsions without observing fundamental human rights norms, notably in the context of efforts to combat terrorism and in the face of the rising phenomenon of illegal immigration and refugee flows”. Report of the International Law Commission 59th Session (2007) UN Doc. A/62/10, 133. The ECtHR has successfully attempted to provide a solution by adopting the judgment in Hirsi Jamaa and Others v. Italy (App no 27765/09) 23 February 2012, paras 159–186. 103 Berrehab v. Netherlands (App no 10730/84) ECHR 28 May 1988, para 28. 104 Beldjoudi v. France (App no 12083/86) ECHR 26 March 1992, para 74, and Boughanemi v. France (App no 22070/93) ECHR 24 April 1996, para 41. 105 Gheorghe Dalea v. France (Requéte 964/07) Décision sur la recevabilité, 2 février 2010. The applicant, a Romanian national, was refused a Schengen visa on the basis of a decision of the French authorities which included him on the list of alerts of the Schengen area.

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the Court is becoming more favourable towards individuals in accepting a wide interpretation of the relevant concepts. However, a number of criteria still have to be met to effectively claim rights under Article 8. To the extent that a particular case meets those criteria, the rights of resident aliens have been granted equal protection to that of the rights of nationals. So far the Court has dealt with three possible cases: • foreign parents seeking to remain with children resident in a State; • young foreign adults who have spent their formative years in a State other than that of their nationality; • foreign children seeking to join other family members in the host State.106 Therefore, the Court has had to deal with claims for residence, non-expulsion and admission of aliens. In several cases claims were made by aliens wishing to unite with their families not holding the nationality of the State In relation to the first group of cases concerning residence, the Court would not limit itself to establishing the fact that a person is allowed to visit a country on the basis of a short term visa. The fact that a person is not allowed to reside in a country together with his or her family would be qualified as interference in family life. The Court admits that States enjoy a certain margin of appreciation when allowing aliens to reside in their territory: [I]t accepts that the Convention does not in principle prohibit the Contracting States from regulating the entry and length of stay of aliens. According to the Court’s established case-law, however, “necessity” implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.107

In cases when a claim to reside has been contested, the Court does not replace national immigration authorities but evaluates to what extent applicants’ mutual interest in continuing their relations are taken into consideration. Important factors in this context would be whether applicants lawfully reside in the State and for how long, whether they have a home and a job and whether they have real family ties. This was the situation in Berrehab, where it was established that Mr. Berrehab had close ties with his daughter.108 Similarly in Yildiz the Court first 106 Guild Elspeth, The Legal Elements of European Identity. EU Citizenship and Migration Law (The Hague: Kluwer Law International, 2004) 137. 107 Supra 103, para 28. See also Ciliz v. the Netherlands (App no 29192/95) ECHR 11 July 2000. 108 Supra 103, para 29. Mr. Berrehab was ordered to be expelled from the Netherlands to Morocco. He would thus have to leave his daughter, a Dutch national, and ex-wife. His permit was conditional on living with his Dutch wife and working. The Court ruled that allowing Mr. Berrehab to visit the Netherlands on the basis of a short term visa constituted a violation of his right to respect for family life. The Court concluded that the expulsion measure, in practice, prevented exercise of the right to family life and thus violated Article 8 of the ECHR.

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established that the applicant had a private and family life. It proceeded with considerations on the length of residence of the applicant. Although, as the Court noted, he could not be considered a second generation immigrant, he had been living in Austria for seven years. Furthermore, he was co-habiting with a person born in Austria and they had a daughter. The Court, however, noted that the authorities had not established whether his wife could be expected to follow him to Turkey, the country of her nationality.109 Therefore, established family life and the fact that a spouse might be a national of the country of residence are important factors to be taken into account in expulsion cases. The ECtHR, however, did not attach particular importance to whether the applicant had attempted to naturalize. An even more complicated situation was involved in Rodrigues da Silva.110 The Applicant – mother of a child born in the Netherlands – was unlawfully resident there. Therefore, the decision to expel her did not constitute interference with the applicants’ exercise of the right to respect for their family life.111 The Court still referred to the margin of appreciation of States and reflected extensively on the facts of the case. It inferred additional criteria for family life by stating: Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control … or considerations of public order weighing in favour of exclusion. Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. The Court has previously held that where this is the case it is likely only

109 Yildiz v. Austria (App no 37295/97) ECHR 31 October 2002, paras 42–46. The applicants were a family: father, mother and their little daughter. The father entered Austria with his family. After five years he started co-habiting with his partner who gave birth to their daughter. They got married. He was convicted several times and issued with a five year residence ban. The Court disregarded the fact that since the application to the Court the family had separated and while the wife remained in Austria, Mr.Yildiz resided in Turkey. The Court was of the opinion that offences committed by the applicant were minor and thus a fair balance was not struck in taking the decision to expel him. 110 Rodrigues da Silva and Hoogkamer v. the Netherlands (App no 50435/99) ECHR 31 January 2006. Ms. Solange Rodrigues da Silva, a national of Brazil, came to the Netherlands leaving her two sons from a previous relationship. In the Netherlands she lived with her partner Mr. Hoogkamer. Applicant da Silva gave birth to their daughter Rachael who obtained Dutch nationality. Soon afterwards, the applicant and Mr. Hoogkamer split up and their daughter stayed with the father. The mother was issued with an expulsion order. Moreover, she invited one her sons to live with her. 111 Ibid., para 38.

104  Chapter Eight to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8.112

The Court took into account the age of the applicant when she moved to the Netherlands. It also referred to the consequences if the applicant were separated from her daughter. Even if the father did not object to his daughter moving to Brazil, this was not considered either by the Dutch authorities or the Court to serve the best interests of the child. Moreover, the only fault of the applicant was that she had not regularized her status in the Netherlands. Therefore the Court found a violation of rights protected by Article 8 and in fact regularized the residence of a non-national in the Netherlands. The Court’s approach differed in Darren Omoregie.113 The ECtHR applied the same test as in da Silva, i.e., whether the persons involved were aware that the immigration status of one of them was such that the continuance of family life within the host State would from the outset be precarious. The Court noted that the applicant arrived in Norway as an adult and applied for asylum. He subsequently formed his family and their daughter was born pending the proceedings. Therefore, both partners should have been aware that the prospects of their family life in Norway were precarious. The applicant’s request for asylum was rejected and he stayed in Norway illegally. The birth of his daughter did not alter the fact that a family was not entitled to expect that the father would be granted a residence permit. The Court did not find insurmountable obstacles in the way of the applicants developing a family life in the father’s country of origin. Although this approach by the Court allows abuse of asylum proceedings and immigration laws to be excluded, the approach is not entirely consistent. The Court did not give enough weight to the argument that the wife and daughter were Norwegian citizens.114 It rather sided with the national court’s view that the wife of the applicant had resided for several periods in South Africa and knew English, which is the official language of Nigeria. The Court also did not take into account that the applicant had already resided in Norway for seven years and was expelled (not allowed to enter Norway) for five years. An important fact was that he resided most of the time illegally and could not expect that his status would be regularized. It can be argued that the Court was not fortunate with its methodological approach in this case which leads to confusion as to scope of obligations of States. Possibly the approach indicated by Judge Jebens in his dissenting opinion would

112 Ibid., para 39. 113 Darren Omoregie and Others v. Norway (App. No. 265/07) ECHR 31 July 2008. See in particular paras 57, 64–66. 114 See for comparison section 12.2.3.3. of part III on EU law of this volume, especially the comments on the Zambrano case.

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streamline the case-law. He argued that the Court should clearly separate cases in which expulsion of a person lawfully residing in a country is ordered and cases when an expulsion order is issued for a person who has not been granted lawful residence. However, the Court seems to have chosen a different approach, i.e., even in cases of illegal stay the applicant can claim the right to reside if this is required to ensure the best interests of a child. In the Nunez case the Court returned to its approach in Rodrigues da Silva. The applicant had committed several offences under the Immigration Act and resided in Norway under a false identity for years.115 She could not have had reasonable expectations of being able to remain in the country. But the Court noted that the applicant had long lasting and close bonds with her children, which had already suffered from the fact of disruption of the family and the stress of being separated from their mother. Therefore, the Court found a violation of Article 8 of the ECHR and also referred to Article 3 of the UN Convention on the Rights of the Child, according to which the best interests of the child should be the primary consideration in all actions taken by public authorities concerning children. It remains unclear, though, why the interests of the child were not taken into account in the case of Omeregie, but this might also depend on the facts submitted to the Court. The second group of cases concerns expulsion of non-nationals. This group involves cases when a person has been living for a long period in the State of residence and is facing expulsion because of criminal convictions. In those cases the Court establishes whether the applicant can invoke infringement of family or private life. For instance, in Moustaquim the court found a violation of Article 8 on the basis of the fact that the applicant had relatives residing in Belgium and he had resided there since the age of two. Thus, the fact that he was subject to criminal proceedings was by itself not sufficient ground for expulsion.116 In Nasri the Court noted that the applicant was handicapped since birth and in need of support from the family.117 In Beldjoudi the fact that a person was born in France and 115 Nunez v. Norway (App no 555977/09) ECHR 28 June 2011. Ms. Nunez, a Dominican national, arrived in Norway in 1996 as a tourist. She was arrested on suspicion of shoplifting and deported with a prohibition on re-entry for two years. However, she returned four months later under a different name. She married a Norwegian national in 1996 and applied for a residence permit. She did not inform the authorities that she had previously visited Norway. She separated in 2001 and started co-habiting with Mr. O. who also originated from the Dominican Republic and had a permanent settlement permit. They had two daughters born in 2002 and 2003. In 2001 the Norwegian authorities learned about her false identity and started proceedings. In 2005 Ms.Nunez and Mr. O separated and in 2007 Mr. O was granted sole parental responsibilities while Ms. Nunez was issued an expulsion order with a ban on re-entry for two years. 116 Moustaquim v. Belgium (App no 12313/86) ECHR 18 February 1991. 117 Nasri v. France (App no 19465/92) ECHR 13 July 1995, para 43. Mr. Nasri arrived in France at the age of five. He is deaf and dumb. He was refused studies either because of lack of funds or

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originated from Algeria, a territory which was French at the time, was important.118 Although the criminal record of Mr. Beldjoudi was much worse than in Moustaquim, the Court found a violation of Article 8 because of the personal circumstances of the case, i.e., Mr. Beldjoudi had never had any links with Algeria except citizenship.119 The judgment was controversial because of the complicated facts of the case. For instance, as judge Pettiti noted in his dissenting opinion, the Court did not pay sufficient attention to the fact that the person had refused to acquire French nationality. Moreover, opportunities to choose nationality granted by the Evian agreements were not considered, despite the fact that it is an international treaty.120 Judge Martens was of a different opinion. In his concurring opinion he claimed that it was high time to ask whether aliens, and especially second generation immigrants, should be equally protected against expulsion as nationals in cases when they were born and bred in a Member State or who had otherwise, by virtue of long residence, become fully integrated there.121 In his view: because his knowledge was poor. He was convicted on a number of occasions of theft and rape and as a result an expulsion order was issued. The rest of his family were resident in France and most of his brothers and sisters were French nationals. The Court noted that due to the fact that Mr.Nasri is deaf and dumb and that most of his family are French nationals, his residence with his family is the only means to ensure minimum psychological and social equilibrium. 118 Beldjoudi v. France (App no 12083/86) ECHR 26 March 1992, para 71. The case concerned an Algerian citizen born in France and married to a French wife. He lost his French nationality according to the Evian agreements and did not submit a declaration for renewal. He faced a number of convictions in France and was subject to deportation. Mr. Beldjoudi did not regard himself as a “second generation immigrant” and claimed that all his family ties, social links, cultural connections and linguistic ties were in France. He claimed that there were no exceptional  circumstances which could justify deportation. The Court considered deportation as disproportionate. 119 Mr. Beldjoudi had been a persistent offender as well as refusing to acquire French nationality. The Court noted that he had spent his whole life – over forty years – in France, was educated there and appeared not to know Arabic. He did not seem to have any links with Algeria apart from that of nationality. Ibid., para 77. 120 Judge Pettiti in his dissenting opinion objected that it was incorrect to consider Mr. Beldjoudi a quasi-Frenchman, a concept unknown in international law. He also thought that any deportation affects private or family life, just as any detention does. 121 See also in this context Parliamentary Assembly, ‘Recommendation 1504 (2001), Non-expulsion of long term immigrants’, available at accessed 11 February 2011. The Parliamentary Assembly of the Council of Europe recommended that the Committee of Ministers invite Member States to guarantee that longterm migrants born or raised in the host country cannot be expelled under any circumstances. However, see also the Mutlag case in which the Court ruled that expulsion corresponds to Article 8. Mutlag v. Germany (App no. 12083/86) ECHR15 March 2010.

Functions of Nationality  107 mere nationality does not constitute an objective and reasonable justification for the existence of a difference as regards the admissibility of expelling someone from what, in both cases, may be called his “own country”.122

At the same time one can agree with Maurice Kamto who claims that the expelling State’s interest in maintaining public order and security seems to serve as the yardstick against which jurisprudence evaluates whether or not there has been a violation of the right to private or family life. The Convention does not require States to refrain from deporting aliens who have repeatedly committed criminal offences. However, the proportionality test applied by the Court requires weighing the interests of the expelling State with respect to public order and security against offences committed by applicants in assessing the decision to expel.123 The Court itself has summarized the relevant criteria in assessing proportionality in the following way: • the nature and seriousness of the offence committed by the applicant; • the length of the applicant’s stay in the country from which he or she is to be expelled; • the time elapsed since the offence was committed and the applicant’s conduct during that period; • the nationalities of the various persons concerned; • the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life; • whether the spouse knew about the offence at the time when he or she entered into a family relationship; • whether there are children of the marriage, and if so, their age; and • the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.124

The Court made a detailed examination of criteria set in Boultif.125 According to the ruling it can be argued that all criteria should be evaluated cumulatively. If personal behaviour corresponds to only one or several of them it will not be 122 See also separate opinions of Martens and Pettiti in Boughanemi v. France (App no 22070/93) ECHR 24 April 1996, where the Court did not find violation of Article 8. In that case the Court noted that Mr. Boughanemi not only committed serious crimes, but also retained his Tunisian nationality and links with Tunisia. 123 Kamto Maurice, ‘Fifth Report on the Expulsion of Aliens’ (March 2009) UN Doc. A/CN.4/611, 46. In the cases of Bouchelkia v. France (App no 23078/93) ECHR 29 January 1997, Boujlifa v. France (App no 25404/94) ECHR 21 October 1997 and C. v. Belgium (App no 21794/93) ECHR 7 August 1996 both the seriousness of the crime as well as the nationality of the applicant, links with the country of residence and nationality. Conversely, if the crimes committed are of non-violent nature and committed by a person who is a minor, the Court will not allow expulsion. See Maslov v. Austria (App no 1638/03) ECHR 23 June 2008. 124 Üner v. the Netherlands (App no 46410/99) ECHR 18 October 2006, para 57. 125 Boultif v. Switzerland (App no 54273/00) ECHR 2 August 2001. The case concerned an Algerian national who entered Switzerland as a tourist and married a Swiss citizen after three months.

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sufficient for expulsion. For instance, the fact that a person has committed a serious offence will not alone be sufficient for expulsion. As in Boultif, the Court took into account not only his criminal record, but also the behaviour of Mr. Boultif after he had served his sentence in prison. The Court noted that the seriousness of the threat is not the offence committed but also the circumstances of the person and their behaviour after release.126 The Court also considered whether family life is possible elsewhere and concluded that the Swiss authorities had violated Article 8 in respect to the applicant.127 The Court will grant extra protection in cases of young persons and pay due regard to the situation in the country to which a person is to be expelled.128 Similarly in the case of Maslov the Court relied on criteria established in Boultif and Üner.129 The Court noted that the fact that the applicant was born in his country of residence or moved there in early He was then convicted of unlawful possession of weapons, robbery and damage to property. Mr. Boultif was imprisoned for two years. After that he was refused a residence permit. He had a good record of behaviour from prison and he had worked well as an assistant gardener since his release. The national courts concluded that since the applicant’s wife spoke French and Mr. Boultif had lived in Italy prior to entering Switzerland, they could live in either Algeria or Italy. 126 See also A.A. v. the United Kingdom (App no 8000/08) ECHR 20 September 2011. The applicant, a Nigerian national, arrived in the UK in 2000 at the age of thirteen to join his mother. In 2002 he was convicted of rape and sentenced to four years imprisonment. He was released after two years for good conduct. However, he was issued a deportation order. The proceedings at domestic level continued until 2010, but the applicant’s behaviour did not raise any concerns. The Court noted that the government had to take into account the applicant’s conduct after release which had not been done at any stage of national proceedings. 127 See in particular Boultif v. Switzerland, paras 53–55. See also Amrollahi v. Denmark (App no. 56811/00) ECHR 11 July 2002. The facts were very similar, i.e., a national of Iran married a Danish national. They had two children and he became the adoptive parent of a child of a Danish national. Mr. Amrollahi was issued an expulsion order after criminal convictions. The Court placed emphasis on finding whether the family life of the couple was possible elsewhere and decided that there had been a violation of Article 8. 128 Jakupovic v. Austria (App no 36757/97) ECHR 6 February 2003. The Applicant was a national of Bosnia-Herzegovina. He arrived in Austria to join his mother and other relatives. His father remained in Bosnia-Herzegovina. He committed several crimes and faced expulsion. The problem in this case was related to the fact that the father of the applicant was residing in his country of nationality and that the applicant had not spent many years in Austria, i.e., he did not qualify as a second generation immigrant. The Court, however, concluded that very weighty reasons have to be put forward to justify expulsion of a young person (16 years old), alone, to a country which has recently experienced a period of armed conflict with all its adverse effects on living conditions and with no evidence of close relatives living there. See para 29 of the judgment. 129 Maslov v. Austria (App no 1638/03) ECHR 23 June 2008. The applicant arrived in Austria at the age of six. His parents acquired Austrian nationality. Mr. Maslov was convicted on a number of occasions at the age of 15. He served his prison term. After release he was issued an exclusion order for ten years.

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childhood are not in themselves sufficient to protect a person against expulsion. Not all of the criteria can have equal weight when applying them to the facts of the case. In the particular case importance was given to the age of the person when offences were committed as well as their non-violent nature. The length of the exclusion order and the fact that the applicant had no close ties with his country of origin were also emphasised. The Court also referred to the case-law of the CJEU and Directive 2004/38/EC in order to strike the right balance.130 As noted by Elspeth Guild, central to the ECtHR approach is the principle that people who have been born in a territory or who have spent most of their formative years in a State cannot be liable to expulsion except in very exceptional cases.131 Moreover, the age of the applicant and other circumstances such as the situation in the country of nationality might be taken into account. Regarding the right to be admitted, the Court has stated that: “[t]he extent of a State’s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved”.132 As a matter of well-established international law and subject to treaty obligations, a State has the right to control entry of non-nationals into its territory and their residence there.133 Article 8 of ECHR cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorize family reunion in its territory.134 Early Court practice shows that rules have been applied strictly. In its early case-law – Gül135 and Ahmut136 – the Court did not find a violation of Article 8 130 See paras 82 and 93 of the judgment. 131 Guild Elspeth, The Legal Elements of European Identity. EU Citizenship and Migration Law (The Hague: Kluwer Law International, 2004) 139. 132 Abdulaziz, Cabales and Balkandali v. UK (App no 9214/80, 9473/91, 9474/81) 28 May 1985, para 67. 133 See Gül v. Switzerland (App no 23218/94) ECHR 22 January 1996, para 38. See also Ahmut v. the Netherlands (App no 21702/93) ECHR 28 November 1996, para 67; Nunez v. Norway (App no 555977/09) ECHR 28 June 2011, para 66. 134 See Gül v. Switzerland, para 38. 135 The case concerned a Turkish national born in 1947 and residing in Switzerland. He had a partial-invalidity pension. In 1987 his wife in Turkey seriously burned herself and since she could not obtain proper treatment in the area she joined him in Switzerland. She left their two sons behind. In Switzerland she gave birth to their third child. In 1989 the Minister for Refugees rejected an application for political asylum by Mr. Gül. However, he got a residence permit because of the length of time he had been living in Switzerland and his wife’s state of health. His attempts to bring his sons from Turkey to Switzerland, however, were unsuccessful. The Court ruled that from the facts of the case it was evident that both parents could visit Turkey and their stay in Switzerland was not permanent. 136 The Ahmut case concerned Mr. Ahmut, a Moroccan national who migrated to the Netherlands and worked as a trader. He left five children behind, including his youngest daughter. He

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and refused claims brought by parents requesting family reunification with their children left behind. In both cases the Court did not find that the arguments of the applicants were convincing in relation to the impossibility of developing family life in their country of nationality. This was despite the fact that in Ahmut the applicant father was a Dutch national. The Court disregarded the factual situation where parents have been integrated in their host country, have established a family there and their return home would be difficult, for instance, on humanitarian grounds. The Court’s approach was similar to residence cases. However, these cases should be looked at critically. Dissenters have argued that cases of children should be considered by avoiding excessive formalism.137 Judge Russo and Judge Martens considered that the judgment in Abdulaziz, Cabales and Balkandali has been a considerable evolution in the Court’s general doctrine on Article 8, but not in relation to admission of persons.138 They convincingly argued for the need to change the perspective of the Court and suggest that it is per se unreasonable, if not inhumane, to give parents the choice between giving up the position which they have acquired in the country of settlement or to renounce the mutual enjoyment by parent and child of each other’s company which constitutes a fundamental element of family life.139 In general it has been noted that the Court has adopted a more liberal approach towards aliens already present in the territory of a State. At the same time further cases show that the ECtHR has adopted a consistent approach in cases of family reunification if the children have been left behind while the parents settled in the country of residence. This started with Sen. The case originated from a request for family reunification with the applicant’s daughter in the Netherlands. Although the Court noted that the daughter had spent all her life in Turkey, there was a major obstacle for the rest of family to return to Turkey.140 The Court held unanimously that there

dissolved his marriage in Morocco and married twice in the Netherlands. After the death of his divorced wife, the children were cared for by the applicant’s mother. Two of his sons joined him in the Netherlands. The Applicant acquired Dutch nationality. His mother was in bad health and therefore his daughter started frequently visiting her father. She was enrolled in school in the Netherlands. Mr. Ahmut applied for a residence permit on behalf of his daughter. This was refused. The Court argued that residence in the Netherlands was a decision by Mr. Ahmut. He was not prevented from maintaining family life by returning to Morocco. Article 8 does not guarantee a right to choose the most suitable place to develop family life. 137 Judge Valticos and Judge Morenilla in the case of Ahmut v. the Netherlands. 138 See Gül v. Switzerland (App no 23218/94) ECHR 22 January 1996, dissenting opinion, para 4. 139 Ibid., dissenting opinion of Martens and Ruso, para 14. 140 Sen v. the Netherlands (App no 31465/96) ECHR 21 December 2001. The applicants had settled as a couple in the Netherlands, where they had been legally resident for many years. Two of their three children had always lived in the Netherlands and went to school there. Therefore, the Netherlands had a positive obligation to allow family reunification.

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had been a violation of Article 8 ECHR. Similarly in Tuquabo-Tekle and others the Court found a violation of Article 8.141 The Court emphasized that the circumstances to be examined require having regard to the age of the children concerned, their situation in their country of origin and the extent to which they are dependent on their parents.142 The Court also rejected the Government’s argument that the application for reunification should have been made much sooner. The Court repeated its decision in Sen that: [P]arents who leave children behind while they settle abroad cannot be assumed to have irrevocably decided that those children are to remain in the country of origin permanently and to have abandoned any idea of a future family reunion.143

In this context the timing for application is not decisive, even more so if the parents have proved that they never explicitly waived their interest in family reunification. The Court should rather pay attention to whether family reunification in a particular context is the most adequate means for the applicants to develop family life together. In the particular case it was important that both parents had opted for Dutch nationality and their two children had always lived in the Netherlands. Moreover, as opposed to Ahmut the age of the daughter of Mrs. Tuquabo-Tekle and the fact that she had always resided in Eritrea were not decisive. Therefore, it can be concluded that the Court will allow family reunification in cases when it is requested by parents who have resided in the host State for a long time and even more so if they have opted for the nationality of the host State. An additional argument supporting family reunification would be if the circumstances of the case show that family life together can be better developed in the host State. For instance, that would be true in cases where other children have always resided in the host State. The age of children left behind might be important, although not decisive, if it is proved that the parents were always willing to have their children with them. The overall tendency is that length of residence rather than nationality is important for reaching a decision in cases of expulsion, residence, and admission. 141 Tuquabo-Tekle and others v. the Netherlands (App no 60665/00) ECHR 1 December 2005. Mrs. Tuquabo-Tekle fled from Ethiopia to Norway where she had been granted a residence permit on humanitarian grounds. She left her three children behind. She later applied for unification with her children and soon afterwards one of her sons joined her. Subsequently she married and moved to the Netherlands where her husband was granted refugee status. She gave birth to two children in her new relationship. She and her husband applied for a provisional residence visa for her daughter residing in Eritrea. The visa was not granted because the authorities considered that close family ties had ceased to exist between Mrs. Tuquabo Tekle and her daughter, while they had never existed between the stepfather and the child. 142 Ibid., para 44. 143 Supra note 140, para 40, supra note 141, para 45.

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Although States are left a wide margin of appreciation in immigration issues, they do have to take into account private and family life considerations. Moreover, the approach of the Court on immigration has had repercussions in other spheres such as non-discrimination in cases of social benefits.144 Those, however, for the time being remain more controversial as will be outlined in the case study section. More recent cases show that the ECtHR is willing to refer to the practice of the CJEU and relevant legislation of the EU. This suggests that in principle the Court is developing practice which would be consistent with the EU approach. However, the question regarding the competences of the two Courts remains. Lately the CJEU has refused to invoke provisions of the ECtHR. The next part, on EU law, will look more closely at the practice of the CJEU and relevance of rulings by the ECtHR.

144 See, for instance, Gaygusuz v. Austria (App no 17371/90) ECHR 16 September 1996, on contributory benefits, and Koua Poirrez v. France (App no 40892/98) ECHR 30 September 2003, Stec and other v. the United Kingdom (App no 65731/01 and 65900/01) ECHR 12 April 2006 on noncontributory benefits.

Chapter Nine Summary Current developments in international law were rightly predicted by Weis in his 1956 book where he stated: If nationality is not a purely formal concept, the efforts for the development of international law relating to nationality can hardly be separated from the efforts for the integration of human rights in international law and for their guarantee by the safeguards of international law. The further development of international law in the field of nationality is therefore closely, if not inseparably, linked with the entire development of the position of the individual in international law.1

The traditional ideal has been based on a presumption of perfect distribution of individuals among States who would never move outside the borders or enter into relationships with citizens of other States. It was assumed that this approach could solve the problems of multiple nationality and statelessness. Each and every individual would have somebody to exercise diplomatic protection on their behalf while exceptional cases of statelessness and multiple nationality would be treated as an anomaly and normalized by adopting international treaties. Nowadays this perspective seems to be naïve. By 1930 States had come to the conclusion that certain international regulation is needed in relation to nationality issues. However, to achieve the perfection initially envisaged it would be necessary for international law to regulate the problems of nationality directly by substantive rules establishing uniform principles for the grant of nationality.2 This did not seem politically feasible at that time or even today. Developments, particularly in human rights law, show that the traditional approach to nationality issues is gradually changing. By 1945 States had realized the importance of human rights as well as the need to limit the discretion of States in their treatment of individuals. However, there is no universal human rights convention which would impose an obligation on States to grant nationality. Article 15 UDHR remains largely declaratory, but it has served as guidance for

1 Weis Paul, Nationality and Statelessness in International Law (London: Stevens & Sons limited 1956) 259–260. 2 Kunz Josef L., ‘The Nottebohm Judgement (second phase)’ (1960) 54 AJIL, 536–572, 564.

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further elaboration of human rights aspects of nationality. As indicated by Ziemele, while there is a lack of general opinio juris of Article 15 as a general customary norm, it also has clear limitations.3 Human rights have been able to develop certain rules in the area of reduction of statelessness. When applying principles of jus soli and jus sanguinis, States have to avoid creating situations where persons would remain without nationality. Special rules in relation to children allow the conclusion that there is a customary norm that a child should acquire nationality at birth. Moreover, arbitrary deprivation is prohibited. States are also limited by the rule of non-discrimination whether they grant nationality at birth or subsequently under procedures of naturalization. Thus, for instance, nationality of women is no longer dependent on that of men in cases of marriage. Attempts in Europe have been made to agree on main principles and rules on access to nationality and subject it to general principles of human rights. There is also certain progress in tolerating multiple nationality and introducing obligations on States to grant nationality in cases of State succession. Although it was thought that international law would turn to the task of providing a full list of rights to be conferred upon citizens, developments took a different approach and established rights that every State must confer but not only upon citizens.4 The legal framework in relation to functions of nationality is expanding. The basic rule that a State can grant diplomatic protection only to its nationals still holds true. Although developments in human rights have given a chance to the individual to defend their rights independently, the procedural possibilities are rather limited. The ILC Draft Articles on Diplomatic Protection is progressive codification in this area. It firstly extends the possibility to exercise diplomatic protection in cases of refugees and stateless persons. Secondly, it offers the possibility for multiple nationals to claim diplomatic protection against the State of nationality. Thirdly, there are also developments in linking diplomatic protection and human rights mechanisms. Regarding admission, residence and expulsion the difference between nationals, long term residents, and immigrants in specific circumstances becomes blurred. Although it is primarily immigration laws which determine who and under what circumstances have the right to stay in a State, human rights are imposing increasing limits in exercising those rights. There are important legal safeguards for those who are already lawfully in a State and can prove that they have substantial connections with that State. Recently, the same approach has 3 Ziemele Ineta, State continuity and nationality in the Baltic States: international and constitutional law issues (DPhil thesis, Wolfson College, University of Cambridge 1998) 104. 4 Zilbershats Yaffa, The Human Right to Citizenship (Transnational Publishers: Ardsley NY 2002) 64.

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been taken in relation to persons seeking access to residence, especially if the facts of the case would involve children whose best interests would prevail over the State’s immigration rules. This leads to the conclusion that tension exists between nationality and residence in international law. At the same time there is no sufficient basis to claim the existence of an independent concept of nationality in international law. This is because nationality is not rooted in human rights. It is rather connected with the State and its people who have used their right to self-determination. Therefore, nationality is connected with national history, identity, and traditions. While States are still the main masters in relation to nationality, rights and guarantees which are granted to residents are increasing in international law. Those lead to both strengthening the position of the individual in international law and making a human right to nationality substantive. The question remains what the result of these tensions will be, i.e., whether those entitled to residence should be encouraged to access nationality or rather strengthen their rights as long term residents. This approach, pre-determined by legal developments in international law, would have direct impact on the choice of States to adopt multiple nationality, agenda for integration policies of States and most importantly EU policy choices in developing a multitude of statuses in EU law.

Part Three Regulation of European Union Citizenship

118  Part Three

This part analyzes European Union citizenship as a status which differs from national citizenship but which is capable of offering more powerful regulation compared to international law. This becomes possible because the EU builds upon a common area beyond the State and EU citizenship is regarded as a fundamental status within its borders. EU citizenship is developing incrementally. Different principles have been gradually introduced which affect both Member State discretion in access to and loss of national citizenship as well as its functional aspects.1 The principle task is to establish whether EU citizenship in essence remains a derived concept or whether it can be argued that by becoming a fundamental status it has acquired a certain degree of independence from Member State nationality regulation. Therefore, this study will analyse situations in which EU citizens can benefit from EU regulation and in which cases that regulation affords better protection than international law. By analyzing the rights attached to status, the limits of Member State discretion will be established and possible future developments will be discussed. Forward looking comments aim to suggest how to strengthen EU citizenship status and its functional aspects. Analysis of principles and rules prevalent in international law will serve as a basis for discussion of EU law.

1 In relation to voting rights, indeed they are important for construction of democratic governance in the EU. However, this is mostly associated with governance rather than regulation of nationality in international law. For a more detailed account of the right to vote granted to non-nationals (citizens) while they have not been granted nationality see for instance Garot Marie-Jose, ‘A New Basis for European Citizenship: Residence?’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 229–250, 234–235. The right to petition is excluded because third country nationals can use the procedures  already according to Articles 227 and 228 TFEU. Shaw Jo, ‘Citizenship: Contrasting Dynamics  at the Interface of Integration and Constitutionalism’ (EUI Working Paper, RSCAS 2010/60), available at accessed 12 February 2013.

Chapter Ten Concept of EU Citizenship Part Two of the TFEU on non-discrimination and citizenship includes a number of articles. The main Article establishing EU citizenship (Article 20 TFEU) proclaims: Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

Although there have been changes with adoption of the Lisbon Treaty, in essence the provisions on citizenship remain the same.1 The other Articles in Part Two of the TFEU provide for the rights of citizens to move and to reside freely within the territory of Member States (Article 21 TFEU), to vote and to stand for local and European elections (Article 22 TFEU), to be entitled to protection by the diplomatic and consular authorities of any Member State (Article 23 TFEU), to petition the European Parliament and the Ombudsman, and to take part in citizens’ initiatives (Article 24 TFEU). In addition to the TFEU, a number of provisions included in the Charter of Fundamental Rights are of particular relevance for EU citizens. If human rights provisions are applied in combination with Articles on citizens’ rights they might acquire different dimensions resulting in additional rights. For instance, the right to private and family life (Article 7), prohibition of discrimination (Article 21), rights of the child (Article 24), legal, economic, and social protection of the family (Article 33), social security and social assistance (Article 34), freedom of movement and residence (Article 45) as well as the right to diplomatic and consular protection (Article 46). Notwithstanding the limited field of application defined in Article 51 of the Charter, all these provisions should be taken into account when interpreting provisions on EU citizens and their rights.

1 The phrase “shall be additional to” in Article 20 TFEU was inserted by the Lisbon Treaty amendments. Previously the words used were “shall complement”. It can be argued that ‘additional’ has more weight than ‘complement’ but no far reaching consequences of this change can be envisaged. In addition there are changes in decision making procedures to adopt rules for implementation of Treaty Articles. See specifically, Articles 18, 19, 21 and 23 TFEU.

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The EU citizenship concept is something unknown to the international community and is to be treated with caution. It has been called a derivative status based on national citizenship, an additional status providing for certain rights beyond the State border or a potentially autonomous status which might be extended to persons who do not hold Member State nationality. The concept is still closely linked with possession of national citizenship and the decision of each Member State as to which of their nationals will be entitled to EU citizen status and rights.2 This has led to critical comments in doctrine on the need for such a concept at all. For instance, D’Oliveira has stated that “citizenship is, in other words nearly exclusively a symbolic plaything without substantive content”.3 It was argued that insertion of EU citizenship in the Treaty was incidental.4 There were still few who noted that the concept has potential. Siofra O’Leary held the opinion that some shared understanding should be developed of what citizenship does, can, should and should not mean, despite the absence of a uniform and shared understanding at the national level.5 Moreover, the objectives for establishing EU citizenship were nowhere explicitly mentioned. In doctrine citizenship has been viewed as a means to increase democracy in the EU. Thus, Siofra O’ Leary has enumerated the following objectives of EU citizenship:6 •  granting acceptable legal protection to persons mobile in the EU; •  reducing the democratic deficit; •  constructing a European identity; •  delimiting the personal scope of the political union.

Although the concept of EU citizenship has failed to achieve all of these objectives, it has the necessary potential to develop further. The main difficulty is that 2 See outline of practice in Section 11.1. of this part. For a short history of the EU citizenship concept see von Bogdandy Armin, Kottmann Mathias, Antpöhler Carlino, Dickschen Johanna, Hentrei Simon, Smrkolj Maja, ‘Reverse Solange – Protecting the Essence of Fundamental Rights Against EU Member States’ (2012) 49 CMLR, 489–520, 301–503. 3 D’Oliveira Jessurun, ‘European Citizenship – Pie in the Sky?’ in Rosas Allan, Antola Esko (eds), A Citizen’s Europe: in search of a new order (Sage: London 1995) 58–84, 82. 4 A story is told by Joseph Weiler about drafting the EU citizenship articles. According to him, the issue of citizenship was far from the mind of the drafters of the TEU until the very last minute when one Prime Minister (Felipe Gonzalez according to this legend), unhappy with the non-EMU parts of the Treaty and conscious of the brewing legitimacy crisis, suggested that something be done about citizenship. A sceptical IGC quickly drafted the Citizenship ‘Chapter’ in response. Weiler Joseph H.H., ‘European Citizenship – Identity and Differentity’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 1–26, 10. 5 O’ Leary Siofra, European Union Citizenship: The Options for the Reform (Institute for Public Policy Research: London 1996) 12. 6 Ibid., 37–41.

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the perspective chosen at the outset was unfortunate. Union citizenship was designed to respect definitions derived from national citizenship rather than based on strengthening a common pre-defined ideal belongingness to the EU. Moreover, for over ten years there was apparent conflict in the approach to individuals in primary and secondary law. While the Treaty established citizenship, the actual exercise of rights was based on sector directives. Until the Lisbon Treaty there was no catalogue of binding EU fundamental rights. There is still a view that EU citizenship cannot have an autonomous meaning and that it is limited in light of EU competences. For instance, Kay Hailbronner asserts that Union citizenship unlike nationality is not an open concept but rather a term describing a set of additional rights as determined by the Treaty. Assistance in determining the content of these rights may be drawn from international and constitutional law and the practices of EU Member States about the essentials of nationality.7 However, this seems to be too narrow an approach to the concept. The linkage to national and international law does not necessarily mean that EU citizenship cannot have its own added value. In 1992 Advocate General Jacobs in his Opinion in Konstantinidis introduced the concept of ‘civis europeus sum’ based on a common code of fundamental values and human rights.8 There still are directions where the EU citizenship concept can be extended and strengthened. The history of the concept already allows the concluion, opposite to that of Hailbronner, that EU citizenship is an open concept. As noted by Weiler “[the concept of EU citizensip] would be changing because of a change in the understanding of the State and the nation, but also, perhaps, because of a change in our self-understanding and our understanding of the self and its identity”.9 The success of the EU citizenship concept is dependent on the success of the European Union as a new form of socialization in general. This requires self-deconstruction and self-redefinition: tasks primarily for EU Member States and EU citizens themselves. As argued by Thomas Franck, it is not just a personal or psychoanalytical task. For him it is also a social, interpersonal task of the greatest political importance.10 It is also not limited to the presence of an imminent external threat. For the time being the

7 Hailbronner Kay, ‘Union Citizenship and Social Rights’ in Carlier Jean Yves, Guild Elspeth.(eds), The Future of Free Movementj of Persons in the EU (Bruylant: Bruxelles 2006) 65–78, 68. 8 Case C-168/91 Christos Konstantinidis v Stadt Altensteig – Standesamt and Landratsamt Calw – Ordnungsamt [1993] ECR I-1191, paragraph 46 of the Opinion. 9 Weiler Joseph H.H., ‘European Citizenship – Identity and Differentity’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 1–26, 2. 10 Franck Thomas M., The Empowered Self. Law and Society in the Age of Individualism (Oxford University Press: Oxford 1999) 4.

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situation with the European Union in general and EU citizenship in particular can be compared with a well-known quote of Michel Foucault referring to a certain Chinese encyclopedia in which ‘animals’ are defined as: […] (a) belonging to the Emperor, (b) embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f) fabulous, (g) stray dogs, (h) included in the present classification, (i) frenzied, (j) innumerable, (k) drawn with a very fine camel hair brush, (l) et cetera, (m) having just broken the water pitcher, (n) that from a long way off look like flies.

Indeed, the EU citizenship concept as such has already undergone considerable changes since its insertion with the Maastricht Treaty amendments. Initially the Court was cautious and opted for a ‘consolidating’, rather than a ‘constitutionalising’ approach to EU citizenship, that is, European citizenship was used as a supplementary basis in order to reaffirm existing EU law.11 Thus, the EU citizenship concept has been more of an evolutionary rather than a revolutionary character. Developments were further advanced not only by the CJEU but also with support from political institutions which adopted favourable decisions for the fur­ ther development of EU citizenship.12 Political initiatives created a favourable environment to advance the concept. For instance, in 2004 the Commission stressed that all rights attached to citizenship are ‘genuine’ under EU law.13 In 2006 in its Communication “A citizens’ agenda – Delivering results for Europe”,14 the Commission states that one of the tasks ahead is “to focus on respect and promotion of fundamental rights for all people and to develop the concept of EU citizenship” which repeats the CJEU approach and implies the dynamic nature of 11 Kostakopoulou Dora, ‘Ideas, Norms and European Citizenship: Explaining Institutional Change’ (2005) 68(2) MLR, 233–267, 244. See for instance Case C-193/94 Criminal proceedings against Sofia Skanavi and Konstantin Chryssanthakopoulosi [1996] ECR I-929, Case C- 4/95, 5/95 Fritz Stöber and José Manuel Piosa Pereira v. Bundesanstalt für Arbeit [1997] ECR I-511, Case C-299/95 Friedrich Kremzow v Republik Österreich [1997] ECR I-2629. 12 ‘Second Report from the European Commission on Citizenship of the Union’ COM (1997) 230 final, 27 May 1997, European Parliament resolution on the second Commission report on citizenship of the Union OJ C 226, 20 July 1998, 61, Proposal for a European Parliament and Council Decision establishing an Advisory Committee on freedom of movement and social security for Community workers and amending Council Regulations (EEC) no. 1612/68 and (EEC) no 1408/71, COM (1998) 394 final, 22 July 1998 and Proposal for a European Parliament and Council Directive amending Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, COM (1998) 0394 final, 22 July 1998. For more details see supra note 11, 246. 13 Report from the Commission ‘Fourth Report on Citizenship of the Union (1 May 2001 – 30 April 2004)’ COM (2004) 695 final, 26 October 2004. 14 Communication from the Commission, ‘A citizens’ agenda. Delivering results for Europe’ COM (2006) 211 final, 10 May 2006.

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the concept. In relation to definitions and concepts the Court has always advocated its own approach.15 As a result the concept of EU citizenship has been advanced from declaratory to fundamental status and Member States do have an obligation to take into consideration EU law when taking decisions on nationality.16 The Court arrived at the conclusion that EU citizenship grants important status after almost ten years from introduction of the concept in the Treaty: Under Article 17 (1) EC, every person holding the nationality of a Member State is to be a citizen of the Union. Union citizenship is destined to be the fundamental status of nationals of the Member States.17

This proclamation in turn has a fundamental impact on how citizenship is placed in the general Treaty system. If EU citizenship is destined to be fundamental, then it cannot be interpreted as lex generalis subject to change and modifications brought about by some lex specialis.18 This is in line with the argument put forward by Advocate General La Pergola who in Martinez Sala insisted that the right to move and reside is not created by directives, which only concern actual exercise, not the existence of, the citizen’s right.19 If status is ‘destined’ to be fundamental it also signals that construction of the status and rights attached to it has not been completed. Fundamentality of EU citizenship is of direct relevance for the rights of individuals to move and reside freely in the European Union without necessarily being economically active or having complied with all necessary formalities. The Court agreed with this reading in Baumbast: Moreover, the Treaty on European Union does not require that citizens of the Union pursue a professional or trade activity, whether as an employed or self-employed person, in order to enjoy the rights provided in Part Two of the EC Treaty, on citizenship of the Union. Furthermore, there is nothing in the text of that Treaty to permit the conclusion that citizens of the Union who have established themselves in another Member State in order to carry on an activity as an employed person there

15 See especially the Court’s jurisprudence on the concept of worker, Craig Paul, de Búrca Gráinne, EU Law. Text, Cases and Materials, 4th ed. (Oxford: Oxford University Press 2008) 747–748. 16 See discussion on C- 369/90 Micheletti and C-135/08 Rottmann in 11.2.1. and 11.2.2. of this part. 17 Case C-184/99 Rudy Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-6193, par 31; Case C-413/99 Baumbast, R v. Secretary of State for the Home Department [2003] ECR I-7091. 18 la Torre Massimo, ‘Citizenship, Constitution, and the European Union’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 435–457, 436. See also section 12.2.2.3. on extension of application and reference to Advocate General Kokott confirming the position of the CJEU on this approach. 19 Case C-85/96 María Martínez Sala v. Freistaat Bayern [1998] ECR I-269, para 18.

124  Chapter Ten are deprived, where that activity comes to an end, of the rights which are conferred on them by the EC Treaty by virtue of citizenship.20

Therefore, individual status is no longer market-based but rather individualbased. This development has further consequences for the rights of individuals especially in the context of non-discrimination as well as bringing in new aspects of citizenship regulation. As noted by Advocate General Geelhoed in Bidar: [W]ith respect to matters coming within the scope ratione materiae of the Treaty, citizenship itself may provide a basis for bringing certain matters within that scope where the objectives pursued by the national measure correspond with those pursued by the Treaty or secondary legislation.21

Thus, in cases of EU citizens’ rights and especially non-discrimination the methodology to ‘read in’ the relevant competences for the Court is based on an interpretation of EU objectives. This has paved the way for the Court to draw further conclusions on the scope of the EU element applicable in nationality cases. For instance, in Rottmann the CJEU accepted its competence on nationality issues and stated that there might be a situation which ‘by reason of its nature and consequences’ falls within the ambit of EU law.22 This applies both to the status of EU citizenship and rights attached to it. It can be concluded that on the basis of citizenship individuals acquire stronger status which does not depend solely on regulations imposed by a Member State.23 Member States become more limited in their discretion to regulate residence and other rights attached to EU citizenship because they become subject to international judicial scrutiny which allows enforcement in cases for which there was no international judicial redress available.24 While these developments are still based on solidarity between Member States, i.e., reciprocal extension of rights given by Member States to each other’s 20 Case C-413/99 Baumbast, R v. Secretary of State for the Home Department [2003] ECR I-7091, para. 83. One can note that the radical shift in the Court’s approach coincides with release of the proposal for Directive 2004/38 by the Commission. See Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM (2001) 257 final, 23 May 2001. 21  Case C-209/03 The Queen ex parte Dany Bidar v. London Borough of Ealing, Secretary of State for Education and Skills [2005] ECR I-2119, para 52. 22 Case C-135/08 Janko Rottmann v. Freistaat Bayern [2010] ECR I-1149, para 42. At the same time it should be emphasised that the final solution of the case was left with national courts, i.e., the CJEU only advised the national courts to take EU law into account when making a final decision on the nationality of Mr. Rottmann. See more on this ruling within this part of the book. 23  Spaventa Eleanor, ‘From Gebhard to Carpenter: Towards a (Non-) Economic European Constitution’ (2004) 41 CMLR, 743–773, 768. 24 See for instance section 8.2.1. of part II in this volume and references to the ILC work.

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nationals,25 the concept should be placed in a wider context which can lead to introducing solidarity between individuals themselves. However, even if seen from this angle a number of important issues remain to be addressed to grasp the limits of EU action. Three considerations should be mentioned in this context. First, a question arises regarding the competence of the EU on issues of access and loss of citizenship status. Taking into account that EU citizenship has been declared to have fundamental status in the EU as well as developments in nationality regulation in international law, one could argue for at least limited EU competence in relation to acquisition and loss of citizenship cases. This might be facilitated by the Charter of Fundamental Rights being now part of primary EU law as well as envisaged accession of the EU to the ECHR in Article 6 TEU.26 Interpretation and application of the Charter started relatively recently. While co-operation between the ECtHR and CJEU when interpreting their respective instruments becomes evident in judgments, the results of EU accession to the ECHR are as yet unclear in terms of mechanisms and procedures.27 Moreover, ECtHR competence is limited in cases of access to and loss of citizenship. Second, legal protection of migrating individuals should increase with the development of secondary legislation and application of the Charter in other contexts, i.e., non-discrimination. The rule on non-discrimination has a major role to play in this regard. This can be exemplified by the CJEU’s change of approach in relation to non-contributory social benefits.28 One could agree with Helen Toner that the potential of citizenship lies more in the field of extending citizens’ rights in the area of equality and non-discrimination, rather than in effecting a major advance in areas already established and elaborated in other

25 Evans Andrew, ‘Union Citizenship and the Constitutionalization of Equality in EU Law’, in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 267–292, 272–274. 26 Concerning interpretation of the Charter see opinions of Advocates General in cases Case C-617/10 Akerberg Fransson, Advocate General Villalón, 12 June 2012 and Case C-40/11 Yoshikazu Iida v. Stadt Ulm, Advocate General Trstenjak, 15 May 2012 and Case C-399/11 Criminal proceedings against Stefano Melloni, Advocate General Bot, 2 October 2012. 27 Accession to the ECHR, however, is still subject to negotiation and further acceptance by EU institutions and ratification by individual Member States. The most important part of accession will be related to the (1) arrangements for responsibility of Member States and the EU; (2) involvement of the CJEU as an element for exhaustion of local remedies. This becomes particularly important if one takes into consideration the difficulties the CJEU has itself in relation to national constitutional courts. See, for instance, case from the Czech Constitutional Court. See decision of the Court on Pensions Case Pl. ÚS 5/12 of 31 January 2012, available at accessed 13 February 2013. 28 See section 12.2.2. and especially section 12.2.2.3. of this part.

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Treaty provisions and case law.29 This was confirmed by Advocate General Legér in Boukhalfa: The recognition of European citizenship, enshrined in Articles 17 to 22 of the EC Treaty [20–25 TFEU], is of considerable symbolic value and is probably one of the advances in the construction of Europe which has received most public attention. Admittedly the concept embraces aspects which have already been largely established in the development of Community law and in this respect it represents a consolidation of existing Community law. However, it is for the Court to ensure that its full scope is attained. If all the conclusions inherent in the concept are drawn, every citizen of the Union must, irrespective of nationality, enjoy exactly the same rights and be subject to the same obligations. Taken to its ultimate conclusion, the concept should lead to citizens of the Union being treated absolutely equally, irrespective of nationality. Such equal treatment should be manifested in the same way as among nationals of one and the same Member State30 [emphasis added by author]

Third, more recently the problem of reverse discrimination has become acute. Not only have national courts been approached with questions on reverse discrimination, but also the CJEU.31 The CJEU has argued that its jurisdiction is limited to cases which are purely internal but might lead to denial of genuine enjoyment of the substance of rights conferred by virtue of the status of the Union.32 Otherwise rules applicable under the ECHR would apply.33 Taking into account the fact that free movement rights are exercised by only 3–5% of EU citizens makes it more difficult to build upon European identity. Those who do not use their Treaty right to move have limited possibilities to experience the results of the EU integration process in terms of their rights as EU citizens. It should also be noted that EU citizenship cannot stand alone as a panacea for building a European society. It is neither strong enough to replace national identity, nor capable of building a common EU identity. Identity cannot be built by simply offering certain rights in addition to national citizenship. Belongingness is something in addition to passport, rights and obligations. It also has a social dimension based on historically built dimensions of national cultures.34 Thus, the

29 Toner Helen, ‘Judicial Interpretation of European Union Citizenship – Transformation or Consolidation?’ (2000) 7/1 MJ, 158–183, 175. 30 C-214/94 Boukhalfa v. Bundesrepublic Deutchland [1996] ECR I-2253, para 63. 31 See especially sections 12.2.2.1. and 12.2.3.3. of this part. 32 See, for instance, Case C-256/11 Murat Dereci and Others v Bundesministerium für Inneres, 15 November 2011 [not yet reported], paras 63–69. 33 See supra note 26 and Case C-256/11 (supra note 32), and Case C-40/11 Yoshikazu Iida v Stadt Ulm, 8 November 2012 [not yet reported]. 34 See typology of national cultures by Hofstede Geert Jan, ‘Dimensions of National Cultures’ available at accessed 7 May 2013. A dimension data matrix based on his typology shows the scale of difference in

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EU is facing a much more complicated task in overcoming historical-cultural differences, not to be erased but replaced by the growing value of the EU dimension. Thus, we are confronted with a question of EU citizenship which has been invented as a status without clear contents and which is an open-ended concept strengthened by the presumption of being fundamental. Should we still be stuck with derivative or additional rights, or rather attempt to define a new concept which has developed to the stage where independent definition is deserved? The hypothesis is that the EU citizenship concept might offer different insights on rights to be claimed by individuals and be subject to autonomous regulation which goes beyond national borders under supranational judicial scrutiny. The final point or definition remains unclear. In order to provide some answers the following parts will aim at clarifying where we now stand in terms of access to EU citizenship and the rights of EU citizens to identify gaps where EU regulation would be necessary to strengthen the status further.

national identities among, inter alia, EU Member States available at accessed 8 November 2011.

Chapter Eleven Access to EU Citizenship This part takes as a basis Article 20 TFEU granting competence to Member States to decide who their nationals are for the purposes of the EU and limitations which exist in EU law. 11.1. Competence of Member States Some Member States were not supportive of the new concept in its entirety. They feared that EU citizenship is being brought in to replace national citizenship. In the case of the EU national identity of Member States plays a much stronger role than in the USA or other immigration-led federations where unification has been reached down-upwards rather than the other way around. Taking into account these sensitivities and national complexities of perception, Declaration No. 2 on the Nationality of Member States attached to the Maastricht Treaty stated: The Conference declares that, wherever in the Treaty establishing the European Community reference is made to nationals of the Member States, the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned. Member States may declare, for information, who are to be considered their nationals for Community purposes by way of a Declaration lodged with the Presidency and may amend any such Declaration when necessary. [emphasis added by author]

This Declaration is not an integral part of the Treaty and was not incorporated in the Final Act. It could serve as a source for a better understanding of the scope and contents of Article 20 TFEU. It strengthens the autonomy of Member State citizenship laws as reconfirmed by the Council during the Edinburgh session of 11 and 12 December 1992 where they stated that “the question whether an individual possesses the nationality of a Member State will be settled solely by reference to the national law of the Member State concerned”.1 Therefore, Member States adopted declarations clarifying the contents of the concept.2 1 Edinburgh European Council, Conclusions of Presidency (11–12 December 1992), Denmark and the Treaty of European Union 92/C, OJ C 348/2 31 December 1992. 2 See next chapter on access to citizenship.

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It can be argued that the autonomy of Member States is wider than it might seem at first glance. This autonomy is considerably strengthened by the second sentence of the Maastricht declaration providing for the possibility to attach special declarations “for information” and amend them “when necessary”.3 This has led to the practice that Member States either exclude certain groups of nationals from the scope of EU citizenship or ease access to EU citizenship on the basis of liberal nationality laws. This chapter does not aim to outline the comparative perspective of practices in all Member States but to provide a few examples to illustrate the limits of EU competence.4 The Danish declaration adopted at the time of adoption of the Maastricht Treaty specifically provided that: Citizenship of the Union is a political and legal concept which is entirely different from the concept of citizenship within the meaning of the Constitution of the Kingdom of Denmark and of the Danish legal system. Nothing in the Treaty on European Union implies or foresees an undertaking to create a citizenship of the Union in the sense of citizenship of a nation-State.

Denmark has excluded its citizens residing in the Faroe Islands from EU citizenship, and citizens residing in Greenland are excluded since a referendum in 1982 on Greenland’s withdrawal from the Community. In relation to the Faroe Islands the Danish accession Treaty of 1972 states that “Danish nationals resident in the Faroe Islands shall be considered to be nationals of a Member State” only from the date on which a declaration extending the Community treaties to the islands is made by the Danish government. However, Denmark has never made a declaration and currently Article 355(5) TFEU provides that the Treaty does not apply to the Faroe Islands. The Netherlands consists of three territories, namely, the European part, the Netherlands Antilles, and Aruba. Although each part is governed in accordance with its own constitution, only one nationality is shared by all citizens of the Kingdom. Thus Dutch citizens originating from the Netherlands Antilles and Aruba have all rights of EU citizens if they are in the Netherlands or another EU Member State; however, EU law is not directly applicable to these territories.5 3 de Groot Gerard-René, ‘The Relationship Between the Nationality Legislation of the Member States of the European Union and European Citizenship’ in la Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 115–147, 122–123. 4 For comprehensive and updated databases on nationality laws and modes of acquisition of citizenship see EUDO databases available at accessed 14 February 2013. 5 For details see Case C-300/04 M.G. Eman, O.B. Sevinger v. College van burgemeester en wethouders van Den Haag [2006] ECR I-8055.

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Thus, for instance, a Dutch citizen from Aruba will enjoy all rights of an EU citizen in Spain. But a Spanish citizen will not be able to enjoy EU citizen rights in Aruba because EU law does not apply to that territory. A different approach is established by the UK. The Nationality Act adopted in 1948 provided for the right of former colonies to establish their own citizenship laws. Migration at that time was facilitated by the colonial authorities. Thus, many from British colonies in the Indian sub-continent moved to Africa. Integration did not go smoothly especially in Eastern Africa. As former colonies acquired independence, many immigrants decided to retain their British nationality, and not to take the nationality of the new State. As local conflicts between Asians and Africans increased in scale, even threatening collective expulsions, Asians wished to move to the UK. However, in 1968 the UK, which had adopted an exclusionary approach since 1962, passed a new Immigration Act. The Act permitted entry to the UK as a right to those British nationals with an ancestral connection to the UK.6 Thus, Asians in Africa found themselves in the situation that they did not have a State where they would have an unconditional right of residence. When the UK acceded to the EU in 1973 it submitted a declaration which it revised later following adoption of the new British Nationality Act of 1981.7 The 1982 Declaration provides that as of 1983 the term ‘national’ in the Community context refers to ‘British citizens’, “persons who are British subjects by virtue of part IV of the British Nationality Act 1981 and who have the right of abode in the United Kingdom and are therefore exempt from United Kingdom immigration control” and those who are “British Dependent Territories Citizens who acquire their citizenship from a connection with Gibraltar”. Thus ‘British Dependent Territories Citizens’, ‘British Overseas Citizens’, ‘British Subjects without Citi­ zenship’ and ‘British Protected Persons’ are excluded from EU citizenship. In 1981 upon submission of the British declaration, the European Parliament stressed the desirability of some degree of harmonization of nationality laws.8 Germany in its declaration in 1957 provided that not only Germans according to the citizenship law but also Germans according to Article 116 of the German Constitution covering ethnic Germans in Eastern Europe are considered Germans for European Community purposes.9 Thus Aussiedler once settled in Germany became included in German citizenship. After the fall of the Berlin Wall many 6 Guild Elspeth, The Legal Elements of European Identity. EU Citizenship and Migration Law (Kluwer Law International: the Hague 2004) 71. 7 OJ 1983 C 23, 1. 8 de Groot Gerard-René, ‘Towards a European Nationality Law’ (2004) 8/3 EJCL, available at accessed 16 March 2013. 9 Treaties Establishing the European Communities (Office for Official Publications of the European Communities 1978) 573.

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Aussiedler came to Germany, and their numbers exceeded 200, 000 yearly for a substantial part of the 1990s. However, many of these persons did not speak German and lacked links with contemporary Germany.10 The newcomers nevertheless had equal rights with others and they had access to EU citizenship.11 One of the most debated cases concerned double nationality agreements concluded between certain Latin American States, Spain and Italy. Spain was well known for its latitude in relation to immigration. Only under pressure from the CJEU did it abandon its traditional policy of allowing entry without visas by citizens of the Maghreb and most Latin American countries in 1991 and 1992 respectively.12 The Spanish reading of Tratados de doble nacionalidad was that a person does not lose Spanish citizenship once having acquired Latin American citizenship. However, during the time they reside in a country outside Spain, they do not enjoy any right attached to Spanish citizenship. Thus, Spanish citizenship is dormant. According to Italian agreements with Latin American States, however, both citizenships were effective. Spain had refused to recognize Italian citizenship and based its view on its own approach to dual nationality. The CJEU agreed with Italy which has already had a considerable impact on the number of persons acquiring EU citizenship ‘overnight’. In 2001 amendments were made to the SpanishArgentinean treaty and became effective the same day. As a result of this and an extremely bad economic situation in Argentina, large numbers of persons applied for Spanish passports. According to the Spanish Consulate in Buenos Aires alone 21,511 Argentinean citizens received a Spanish passport in 2000 and 25,400 passports were granted in 2001.13 The above section confirms that apart from differences in naturalization requirements access to EU citizenship is unequal because a Member State referring to autonomy may effectively exclude or include large groups of persons.14 This is especially so because the rule of non-discrimination does not cover the 10 Supra note 6, 11. 11 Supra note 6, 12. At the same time Turkish nationals living in Germany for generations are not considered citizens. There is no mechanism for them to acquire facilitated or automatic citizenship. Under the 2000 Law on nationality, persons born in Germany to parents who have resided lawfully for seven years acquire citizenship. However, they cannot become dual nationals and they have to confirm their status between ages 16 and 23. 12 Cornelius, Wayne A., ‘Spain: The Uneasy Transition from Labor Exporter to Labor Importer’ in Cornelius, Wayne A., Martin Philip, Hollifield James F. (eds), Controlling Immigration. A global Perspective (Stanford University Press: Stanford Calif. 1992) 350–366, 350–366. 13 de Groot Gerard-René, ‘Latin-American European citizens: Some consequences of the autonomy of the Member States of the European Union in nationality matters’ (2002) 9/2 MJ, 115–120, 119. 14 More on this point see Garot Marie-Jose, ‘A New Basis for European Citizenship: Residence?’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 229–250, 232–233.

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individual’s legal status in its entirety but is limited to the competences of the EU.15 Since the principle of non-discrimination is limited and EU competence does not involve the right to grant EU citizenship, considerable differences in access to EU citizenship will remain. The possibility of a Member State to exclude groups of persons or in turn provide for liberal access to citizenship is rooted in historical and identity grounds of regulation of citizenship issues. The question remains whether it is at all desirable that the EU actively intervenes in these processes, except when intervention would be required in order to ensure respect for EU law, including the Charter, as well as principles stemming from international law. Extending EU competence to acquisition of EU citizen status would require more profound re-consideration of the division of competences between the EU and its Member States. 11.2. EU Law Approach to Nationality This section aims at establishing general principles which limit the autonomy of Member States in granting or depriving a person of EU citizen status. The section discusses CJEU case law and identifies the principles in different situations. There is space for an argument that EU citizenship has developed certain rules and principles which affect Member State discretion on access to citizenship, cases of statelessness and multiple nationality. EU rules and principles in some cases differ from those which have been identified in part two of this volume on international law. 11.2.1. Scope of Competence Although the discretion of Member States regarding acquisition and loss of citizenship is considerable, the CJEU over the years has developed certain criteria and principles which Member States have to observe. At issue in Micheletti16 was the Spanish refusal to grant EU citizen’s rights to a Mr. Mario Vicente Micheletti, who held Argentinean and Italian nationalities and who had never resided in Italy. He acquired Italian citizenship on the basis of the 15 Lippolis Vincenzo, ‘European Citizenship: What it is and what it could be’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 317–326, 319. See also Toner Helen, ‘Judicial Interpretation of European Union Citizenship – Transformation or Consolidation?’ (2000) 7/1 MJ, 158–183. 16 Case C-369/90 Mario Vicente Micheletti and others v. Delegación del Gobierno en Cantabria [1992] ECR I- 4239. Although without direct linkage with Micheletti, Dutch citizenship law was amended to replace the provision providing for loss of Dutch nationality if a dual national has resided outside the country for ten years with a provision specifying absence from the territory of

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ius sanguinis principle. The Spanish authorities based their decision on the Spanish Civil Code, according to which, in cases of dual nationality where neither nationality is Spanish, the nationality corresponding to the habitual residence of the person concerned before arrival in Spain is to take precedence. In the view of Italy such a person had all rights granted to EU citizens and the CJEU agreed with this interpretation. The Court, when dealing with interpretation of the ItalianArgentinean agreement on multiple citizenship, stated: [T]he provisions of Community law concerning freedom of establishment preclude a Member State from withholding that freedom from a national of another Member State who at the same time possesses the nationality of a non-member country, on the ground that the legislation of the host State deems him to be a national of the non-member country.

Thus, in principle, the EU would require its Member States to recognise nationality granted by another Member State if this is done in accordance with international law. The fact that a person does not have an effective link, i.e., the person has never resided in the country of nationality, has no relevance according to EU law. Thus, a person holding the nationality of an EU Member State and any third country could arrive in an EU Member State and claim residence rights on the basis of EU citizenship, if other criteria of the case have been satisfied.17 Although excluding possibilities for Member States to refuse recognition of nationality granted by other States, the Court established limitations on the absolute discretion of Member States in relation to granting and withholding nationality: Under international law, it is for each Member State, having due regard to Com­ munity law, to lay down the conditions for the acquisition and loss of nationality. However, it is not permissible for the legislation of a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.[emphasis added]18

That approach has been subsequently approved by the practice of EU institutions including the CJEU. This statement might give rise to two possible consequences. First, it might warrant EU Member States to tighten their regulation of the ius

the EU for ten years. See van Oers Ricky, de Hart Betty, Groenendijk Kees, ‘The Netherlands’ in Bauböck Rainer, Ersbøll Eva, Groenendijk Kees, Waldrauch Harald (eds), Acquisition and Loss of Nationality. Volume 2: Comparative Analyses (Amsterdam University Press: Amsterdam 2006) 393–436. 17 On differences in applying the effective link principle in cases related to social benefits see 12.2.2.2. of this part. 18 Supra note 16, para 10.

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soli principle.19 The process would be facilitated by attempting to prevent third country nationals residing in the EU from abusing their residence rights. Second, it might serve as grounds for the EU to expand its competence on issues related to acquisition and loss of nationality if that would run against general international law, for instance, grant of nationality en masse outside a State’s territory. Third, it would also allow the EU to get involved in situations where ‘due regard to Community law’ should be required to secure EU citizens’ rights within the EU law ambit. An example of the first situation is Chen where the question arose of recognition of the rights of Irish citizens. The case concerned a Chinese couple and their newborn baby Catherine. The father had established a business in China but he frequently visited the EU, especially the UK. Once he arrived in the UK accompanied by his pregnant wife. His wife decided to give birth in Ireland because under the Irish Nationality and Citizenship Act her daughter would automatically acquire Irish nationality. This in turn would allow them to reside in the UK. The UK Secretary of State for the Home department refused to issue a permanent residence permit because Catherine was not able to invoke EU rights.20 According to the Advocate General, since Catherine used her free movement rights by travelling from Ireland to the UK, the dispute fell within the sphere of EU law. Similarly to the Court’s rationale in Micheletti the Advocate General noted: In those circumstances, it is not necessary to express any view as to the existence or otherwise of any provision of general international law to the effect that no State is required to recognize nationality granted to an individual by another State in the absence of a real and effective link between the individual and that State21 19 See section 5.1. of part II on jus soli and jus sanguinis principles. 20 Irish citizenship policy is based on Article 2 and 41 of the Constitution. Article 2 establishes ius soli, but Article 41 recognizes the family as the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. Thus, in Ireland most families are allowed to reside with their children. In 2002 more than 4000 non-EU immigrants were granted residence because they were parents of babies born in Ireland. It was only in 2003 when the Irish Constitutional Court ruled that parents of Irish-born children did not enjoy an automatic right of residence. However, it did not stop the numbers rising. While in 1999 the number of babies born to non-nationals was barely 2%, it went up to 20% in 2004. 70% of non-Irish mothers came from Sub-Saharan Africa. Davies Gareth T., Rostek Karolina, ‘The Impact of Union Citizenship on National Citizenship Policies’ (2006) 10/5 EIOP, available at accessed 16 March 2013. Abuse by many mothers was self-evident. As a result of the Chen case Ireland amended its Nationality and Citizenship Act (38/2004) which now in Article 6A provides that as a general rule persons not holding Irish or British nationality should within 4 years immediately preceding the birth of a child reside in Ireland for 3 years. This seems to be in contradiction to the Constitution (Article 2). 21 Advocate General in Case C-200/02 Kunqian Catherine Zhu, Man Lavette Chen v. Secretary of State for the Home Department [2004] ECR I-9925, paras 34–37.

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Therefore, since a Member State can grant nationality on the basis of jus soli no other criterion could be invoked by the Member State where a child has migrated together with parents of different nationality. This is because the jus soli principle is an internationally recognized mode of acquisition of nationality. The nationality of a Member State would not have an effect on the EU level if it were granted in breach of international law, for instance by imposing nationality without the consent of the individual. However, the Advocate General should be corrected because he did not have to address the question of the existence of a real and effective link but rather the question of a conditional jus soli principle as a general principle of law in Europe. The criterion of a ‘real and effective link’ in international law has a narrower meaning and application which is not suitable for establishing the validity of nationality in international law in general.22 It has rather been invoked in cases of loss of nationality and as a precondition for naturalization. Arguments were made to the effect that the behaviour of Mrs. Chen was abusive. According to the Advocate General it is only in exceptional cases that the exercise of a right conferred by the Treaty can constitute an abuse, because nonapplication of a national provision as a result of reliance on a right conferred by EU law constitutes the normal consequence of the principle of supremacy of EU law. Nor, according to Advocate General Tizzano, does the fact that a person knowingly places themself in a situation which causes a right deriving from EU law to arise in their favour in itself a sufficient basis for the relevant EU provisions to be rendered inapplicable.23 The fact that a parent decides that for the welfare of their child they should acquire EU citizenship is not abusive of Article 21 TFEU. The Advocate General supported the view that the problem, if there is a problem, lies with the Irish jus soli principle and not with EU law.24 Although the Court did not discuss the circumstances under which nationality granted by a Member State may not be recognized under EU law, it agreed with the Advocate General and repeated the conclusion in Micheletti that additional criteria cannot be imposed by an EU State for recognition of nationality.25 22 See section 5.2.3. of part II of this volume. As noted by Rainer Hoffmann, in cases of naturalization the link is established by an application for citizenship. In the Nottebohm case the decision did not deal with conferral of nationality in general, or with conferral of nationality by naturalization, but only with diplomatic protection in cases of multiple nationality; thus, the so-called genuine link requirement does not as such apply to every conferral of nationality by naturalization. Hoffmann Rainer, ‘German Citizenship Law and European Citizenship: Towards a Special Kind of Dual Nationality?’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 149–166, 156. 23 Supra note 21, paras 112–113. 24 Case C-200/02 Kunqian Catherine Zhu, Man Lavette Chen v. Secretary of State for the Home Department [2004] ECR I-9925. 25 Ibid., para 39.

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This passage outlines different sets of law involved in citizenship matters and their interrelationship. The second consideration, i.e., the need for the EU to expand its competence on issues related to acquisition and loss of nationality if that would run against general international law, becomes apparent. At the same time this allows assurance of respect for national identity, traditions and also the competence of the State as to who its nationals will be and under what conditions. However the third principle remains the most important in the EU context where ‘due regard to Community law’ should be required to secure EU citizens’ rights within the EU law ambit. The principle of ‘due regard to Community law’ stems from the principle of sincere co-operation enshrined in Article 4 TEU.26 However, it is unclear as to how far this principle should be applied in relation to access to nationality. For instance, Jessurun d’Oliveira has argued against the possibility that granting nationality without consulting the European Union may violate the obligation of solidarity.27 He referred to the German declaration as an illustration of this interpretation. However, the German case is outstanding. It can be argued that a formal consultation with Brussels on a well established position under international law was unnecessary. Indeed, Gerard-René de Groot is right when he argues that because of the German declaration on nationality in 1957, the entire population of the Democratic Republic of Germany already belonged to the group of persons that were German for Community purposes: the Federal Republic of Germany.28 However, the German case should be distinguished from other cases because the Federal Republic of Germany has claimed continuity de jure of a united Germany and thus German citizenship. This claim was confirmed by the Bundesverfassungsgericht in DDR Citizenship where the Court stated: [A]cquisition of the citizenship of the German Democratic Republic, even in ways that do not have any correspondence in the Citizenship and Nationality Act of 1913, in principle simultaneously brings about acquisition of German nationality within the meaning of the Basic Law of the Federal Republic of Germany. This legal effect for the legal order of the Federal Republic of Germany arises equally on acquisition

26 Supra note 3, 123–124. For an identical view see Hoffmann Rainer, ‘German Citizenship Law and European Citizenship: Towards a Special Kind of Dual Nationality?’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 149–166, 156. 27 d’Oliveira Jessurun, ‘Nationality and the European Union after Amsterdam’ in O’Keeffe David, Twomey M. Patrick (eds), Legal Issues of the Amsterdam Treaty (Hart: Oxford 1999) 395–412, 402–403. 28 Supra note 8.

138  Chapter Eleven of the citizenship of the German Democratic Republic directly in virtue of a legal norm in force there or following an individual act conferring citizenship.29

This position was accepted by the international community. Therefore, no further consultations were necessary at the EU level. Quite the opposite, in the cases of Spanish treaties with Latin American States and the British declaration, there were discussions at the EU level because the solutions accepted had no clear-cut answers from the international law point of view. Therefore, for the time being it remains moot when consultations should take place if States extend their nationality in accordance with international law but those policies might have repercussions for the EU due to any number of reasons. The topicality of the scope of obligation regarding ‘due regard to Community law’ is relevant in at least three contexts. First, the context of Central and Eastern Europe in which the institution of non-resident external citizenship represents a practice that is at once widespread and widely contested.30 There are 16 European States that have special naturalization provisions for persons who are perceived as ethnically or linguistically related to the majority population.31 As noted in part two of this book, the 2008 Bolzano Recommendations state that granting citizenship to specific non-resident groups in other countries on the basis of ethnic, national, linguistic, cultural or religious ties may conflict with the rules on prohibition of discrimination.32 The EU might become an effective mechanism to ensure that these principles of international law are observed. Second, several EU Member States recently introduced strict naturalization requirements thus making national citizenship less accessible.33 Although EU competences are limited it can act in at least two directions on the basis of Charter provisions. On the basis 29  “DDR Citizenship” BVerfG 21.10.1987 (2 BvR 373/83) BverfGE 77, 137, in Decisions of the Budesverfassungsgericht (1992) vol. I/II, 718 as quoted by Ziemele Ineta, State Continuity and Nationality: The Baltic States and Russia. Past, Present and Future as Defined by International Law (Martinus Nijhoff Publishers: Leiden 2005) 234. 30 For a detailed description of cases see Pogonyi Szabolocs, Kovács Mária M., Körtvélyesi Zsolt, ‘The Politics of External Kin-State Citizenship in East Central Europe’ (EUDO Citizenship Observatory, October 2010), available at accessed 15 February 2013. 31 Bauböck Rainer, Wallace Goodman Sara, ‘Naturalization’ (EUDO Citizenship Policy Brief, No. 2, October 2010), available at accessed 15 February 2013. 32 See section 5.2.2. of part II of this volume. OSCE High Commissioner for National Minorities ‘Bolzano Recommendations on National Minorities in Inter-State Relations and Explanatory Note’ (2008), available at accessed 15 February 2013. 33 Several EU Member States have tightened their naturalization requirements by placing extensive social security requirements, raising fees (up to almost 1000 EUR) and introducing complex naturalization exams. See supra note 31.

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of Article 21 of the Charter and Article 20 TFEU one could bring a claim against discriminatory provisions of naturalization if such were to appear. The CJEU ruling in Rottmann indicates that the EU could intervene and place obligations on Member States in the context of naturalization.34 In turn on the basis of Article 24(2) of the Charter and Article 20 TFEU a claim can be brought where children born to stateless parents on the territory of a Member State would not be entitled to acquire citizenship.35 Third, when intervening in nationality issues the EU should bear in mind the close relationship between citizenship and immigration. The question remains about the general vision which the EU as an organization has for its future and society residing on its territory. Therefore situations might arise when, by applying the principle of ‘due regard to Community law’, the EU and the CJEU could intervene. This does not suggest that the EU and the CJEU would alter a citizenship structure based on the principles of ius soli, ius sanguinis or naturalization as such. As argued by Stephen Hall, “the fact that nationality is, in the context of the Community, no longer within the Member States’ reserved domain does not mean that they lack competence to make dispositions of their nationality.”36 At the same time some situations might trigger invocation of EU law. The question remains whether national practices have reached the threshold to be subject to developing common EU principles in relation to access to citizenship. For the time being the answer varies depending on the facts of the specific case and the national context. The overall position is that the EU acts on the basis of conferred powers and respects the identity of Member States so that its competences in nationality issues are marginal as will be demonstrated in the next section on Matthews.37 11.2.2. Discretion of Member States The complexity of interrelationship between the EU and national citizenship regulation has been brought to the attention of the CJEU in different contexts. For the purposes of this book the three three types of situation will be discussed. All of these are related to access to rights attached to EU citizenship qua nationals of EU Member States, i.e., cases when persons qualify for Member State nation­ ality but are limited in their entitlement to EU citizens’ rights. These include: 34 See Case C-135/08 Janko Rottmann v. Freistaat Bayern, [2010] ECR I-1449, para 62, and section 11.2.2. below on Case C-192/99 The Queen v. Secretary of State for the Home Department ex parte Kaur [2001] ECR I-1237. See also section 7.5. of part II of this volume. 35 See section 7.2. of part II of this volume. 36 Hall Stephen, Nationality, Migration Rules and Citizenship of the Union (Martinus Nijhoff Publishers: Leiden Boston 1995) 98. 37 Matthews v. the United Kingdom (App no 24833/94) ECHR 18 February 1999.

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(1) nationals of EU Member States are not entitled to voting rights either because they are not affected by EU law or because they are not EU citizens; (2) nationals of EU Member States are not entitled to residence rights because they are not EU citizens; (3) nationals of EU Member States are exempt from free movement rights for employment. The first situation came up in the context of entitlement of persons without EU citizenship to vote in European elections, i.e., the joined case on (1) the UK European Parliament (Representation) Act of 2003, drafted after the ECtHR ruled in Matthews that the UK had infringed human rights of Gibraltarians under Article 3 of Protocol 1; and (2) the Dutch electoral law in accordance with which citizens of Aruba and the Netherlands Antilles acquire voting rights only after 10 years of residence in the Netherlands.38 In Matthews the applicant complained that as a resident of Gibraltar she was denied the right to register for European Parliamentary elections.39 She claimed that her human rights were violated. The case was unusual because violation of her rights derived from EU primary law rather than national law. For these reasons the CJEU could not have been a forum where she could bring her case. As stated by the ECtHR: Indeed, the 1976 Act40 cannot be challenged before the European Court of Justice for the very reason that it is not a “normal” act of the Community, but is a treaty within the Community legal order. The Maastricht Treaty, too, is not an act of the Community, but a treaty by which a revision of the EEC Treaty was brought about.41

The ECtHR decided that Gibraltar is affected by EU law and that the European Parliament can qualify as a legislature according to the provisions of the Convention. Since there was no possibility for Gibraltarians to take part in elections, the ECtHR found a violation of Article 3 of Protocol No. 1. As a result of the Matthews ruling by the ECtHR the UK amended the law and allowed citizens of the Commonwealth residing in Gibraltar to vote in European elections, although this did not extend EU citizenship to that group of persons. This was a fact contested in the CJEU, i.e., whether persons without EU citizenship can vote in European Parliamentary elections.

38 Case C-145/04 Kingdom of Spain v. United Kingdom of Great Britain and Northern Ireland [2006] ECR I-7917 and Case C-300/04 M.G. Eman, O.B. Sevinger v. College van burgemeester en wethouders van Den Haag [2006] ECR I-8055. For factual information see section 11.1. of this part. 39 QCC – Qualifying Commonwealth Citizen is a person who does not, under the law of Gibraltar, require a permit or certificate to enter or remain in Gibraltar or who has a permit or certificate entitling them to enter or remain in Gibraltar. 40 Act on the basis of which the UK declares who are to be considered as EU citizens. 41 Supra note 37.

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Advocate General Tizzano stated that, in principle, extension of the rights listed in Articles 20 to 24 TFEU to persons not having citizenship of the Union is not an exceptional phenomenon which ‘dismembers’ the unity of the concept of citizenship. However, this right should not be extended to persons who have no actual link with the EU.42 By reference to Schmidberger,43 the Advocate General stated that in the EU legal order both the EU and its Member States are required to respect fundamental rights on a primary basis and that therefore, in that legal order, ‘measures which are incompatible with observance of those rights are not acceptable.44 However, in his view all that has been required by the ECHR was to ensure that EU citizens rather than QCCs are given the possibility to vote in European Parliamentary elections.45 According to the Advocate General citizens of Aruba and the Netherlands Antilles should have the right to vote because they are EU citizens. In turn persons holding QCC status who reside in Gibraltar are not allowed to vote because they are considered third country nationals. This is ambiguous because the Advocate General adhered strictly to the autonomy of Member States in nationality issues as well as disregarding whether the respective territories were or were not affected by EU law. The interpretation provided by the CJEU, however, differed. In the case of QCC the Court concluded that ‘people’ in the context of elections to Parliament might have a different meaning among Member States. Moreover, while citizenship concerns the fundamental status of nationals, that statement does not necessarily mean that rights recognized by the Treaty are limited to citizens of the Union.46 A Member State can extend rights also to non-citizens, providing that those persons have a close link with it.47 Thus, QCC were entitled to vote once the UK granted them voting rights. In the case of Dutch election law the Court concluded that a person holding nationality of a Member State can rely on Treaty provisions irrespective of the place of residence. Although the Treaty does not contain a rule defining expressly and precisely who is to be entitled to voting rights, the criterion linked to residence does not appear, in principle, to be inappropriate for determining who

42 Case C-145/04 Kingdom of Spain v. United Kingdom of Great Britain and Northern Ireland [2006] ECR I-7917, paras 92 and 104. 43  Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v. Republik Österreich [2003] ECR I-5659, para 71. 44 Case C-145/04 Kingdom of Spain v. United Kingdom of Great Britain and Northern Ireland [2006] ECR I-7917, Advocate General Tizzano, para 121. 45 Ibid., paras 130–133. 46 Supra note 42, paras 71 and 74. 47 Ibid., paragraph 76.

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possesses that right.48 When a Member State chooses to differentiate between nationals on the basis of residence, the principle of non-discrimination has to be observed.49 Thus, the Dutch requirement of 10 year residence before nationals of Aruba and the Antilles acquired the right to vote could be regarded as not proportionate without objective justification. The second situation appeared in Kaur50 where the Court by reference to the declaration of the UK could avoid dealing with the politically sensitive issue of British passport holders from East Africa. Mrs. Manjit Kaur was born in Kenya and had the status of ‘British Overseas Citizen’, which did not qualify her as an EU citizen. When she applied for leave to remain, it was refused. After that she challenged the legal effects of the British government’s declarations on nationality of 1972 and 1982. The Court decided that the UK was acting in compliance with customary international law when defining several categories of British citizens. Therefore, Mrs. Kaur had not been deprived of her rights under EU law. In the Court’s view such rights never arose for Mrs.Kaur. Stephen Hall considers that this approach reaffirmed the position in customary international law, which is reflected in Article 1 of the Convention on Certain Questions Relating to the Conflict of Nationality Laws, i.e., it is for each State to determine under its own law who are its nationals in accordance with international law.51 Therefore, once a Member State has declared who are to be considered as EU citizens, the Court is limited by those declarations. The CJEU has more powers to deal with cases on exercise of citizens’ rights rather than to review access to nationality which is in the competence of Member States. A possible change of perspective can be derived by the dual position on Kaur expressed by the Court when dealing with Rottmann.52 On the one hand the Court refers to the Kaur situation and notes that the situation of Kaur is different from that of Rottmann.53 On the other hand, as noted by de Groot, the CJEU also stated that “the principles stemming from this judgment with regard to the powers of Member States in the sphere of nationality, and also their duty to exercise those powers having due regard to EU law, apply both to the Member State of naturalization and to the Member State of the

48 Case C-300/04 M.G. Eman, O.B. Sevinger v. College van burgemeester en wethouders van Den Haag [2006] ECR I-8055, paras 29, 40 and 55. 49 Ibid., para 61. 50 Case C-192/99 The Queen v. Secretary of State for the Home Department ex parte Kaur [2001] ECR I-1237. 51 Hall Stephen, ‘Determining the Scope ratione personae of European Citizenship: Customary International Law Prevails for Now’ (2001) 28(30) Legal Issues of Economic Integration, 355–360, 358. 52 For details of the case see section 11.2.3. on statelessness below. 53 Supra note 34, para 49.

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original nationality”.54 For instance, the Member State of naturalization should take EU law into account in order not to reach an arbitrary decision, while the Member State of the original nationality might be obliged to admit a former national who has become stateless. Therefore, EU competence in cases of access to citizenship cannot be excluded in toto. The third situation is related to conditions set by the accession treaties. For instance, upon enlargement in 2004 when several countries in Central and Eastern Europe were admitted to the EU, a transition period was established for the free movement of workers for up to seven years. Citizens of those countries could not move freely in the EU to take up employment.55 Similar provisions are still in force regarding Bulgaria and Romania.56 Although some EU Member States did not apply these conditions or lifted them soon after adoption, the phenomenon as such is detrimental to the concept of fundamental EU citizenship status. Taking into account that transitional measures are decided upon at the level of primary law, there is little room for the Court to deal with such cases. The lex generali and lex speciali approach to different Treaty articles is also not helpful. Therefore, functional aspects of EU citizenship, i.e., free movement and residence rights for employment in the territory of the EU, can be limited at the level of primary law. It can be concluded that the EU leaves a considerable margin of appreciation for Member States when they extend nationality or rights attached to it to groups of nationals. In this context the autonomy of Member States remains considerable. There are, however, emerging red lines for absolute freedom of action. Member States are obliged to pay due regard to their fundamental rights obligations as well as to take into account the principle of proportionality. When dealing with proportionality, States can take into account the link a particular group has with the territory. Moreover, any exclusionary measure should not lead to violation of the rule of non-discrimination. Finally, by reference to voting and residence cases it should be noted that all of them in fact concerned internal situations because the right to vote and to reside was claimed either by EU citizens to

54 Ibid., para 62. See De Groot Gerard René, Seling Anja, ‘The consequences of the Rottmann judgment on Member State autonomy – The Court’s avant-gardism in nationality matters’ (2010, EUDO Citizenship forum), available at accessed 7 May 2013. 55 Acts of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, (OJ L326, 23 September 2003), available at accessed 11 February 2011. 56 On restrictions to move for work in three phases see information available at accessed 15 February 2013.

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their State of nationality or persons not holding citizenship but with status linking them to the desired State of nationality. At the same time cases like Matthews have proved that the competence of the EU remains limited and accession of the EU to the ECHR could be of great help in such situations. 11.2.3. Cases of Multiple Nationality Although in doctrine dual nationality is supported and tolerated on the level of the Council of Europe, few Member States provide an absolute right to multiple nationality.57 There are several possible situations in the case of dual nationals using their free movement rights in the Union.58 In this section four situations will be examined. It should be noted that most of the cases were dealt by the CJEU at the time when EU citizenship had not been introduced in the Treaties and legal doctrine was discussing the so called ‘market citizen’. Therefore, those cases were analysed as ‘pure market cases’ where the Court focused on the cross-border element. However, from the present day perspective they are helpful to illustrate the difference in approach to regulation of rights of multiple nationals in international law and EU law. The Court’s methodology leads to the conclusion that it often uses precedents from different areas of Union law as will be illustrated more specifically in part IV of this book. Moreover, certain of the cases show the possible extension of the competence of the EU or the need for reconsideration of the Court’s perspective to ensure a harmonious approach to EU citizenship cases. National of States X and Y Is Domiciled in State X and Moves to State Y The Court has dealt with cases involving such situations on a number of occasions and its interpretation has changed taking into account general developments of EU law. Thus, in Gullung the Court had to deal with the situation of a dual French and German national. He had practiced law in France as a notary.59 The notaries’ disciplinary committee found that he had infringed the rules related to professional ethics and Mr.Gullung had to resign. Then he moved to Germany and established his practice at the same time wishing to act as a legal advisor in 57 de Hart Betty, van Oers Ricky, ‘European trends in nationality law’, in Bauböck Rainer, Ersbøll Eva, Groenendijk Kees, Waldrauch Harald (eds), Acquisition and Loss of Nationality. Volume 1: Comparative Analyses (Amsterdam University Press: Amsterdam 2006) 310–349, 330 and supra note 31. 58 See for instance Case 197/86 Steven Malcolm Brown v The Secretary of State for Scotland [1988] ECR 3205 where the Court denied financial assistance to a student who was a dual French and British citizen on the basis that he was not born when his parents were working in the UK and thus he did not qualify for advantages under Regulation No. 1612/68. 59 Case 292/86 Claude Gullung v. Conseil de l’ordre des avocats du barreau de Colmar et de Saverne [1988] ECR 111.

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France. Although the Court agreed with France that Mr.Gullung could lawfully be denied the right to practice in France, the importance lies in the fact that the Court acknowledged his right to rely on Community law. The Court held: Freedom of movement for persons, freedom of establishment and freedom to provide services, which are fundamental in the Community system, would not be fully realized if a Member State were entitled to refuse to grant the benefit of the provisions of Community law to those of its nationals who are established in another Member State of which they are also a national and who take advantage of the facilities offered by Community law in order to pursue their activities in the territory of the first State by way of the provisions of services.60

A slightly different situation arose in Scholz.61 Mrs. Scholz was of German origin and acquired Italian nationality by marriage. She applied for a job at the University of Cagliari but was not granted the required number of points because her employment in public service in Germany was not taken into account. The Court established its jurisdiction in the case because at the outset it could have been regarded as an internal situation: Any Community national who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in another Member State, falls within the scope of the aforesaid provisions.

More complicated situations arise in cases when a person is living in one Member State and working in another Member State. The case of Mr. and Mrs. Gilly concerned a married couple residing in France near the German border. Mr. Gilly was a French national teaching in France. Mrs. Gilly was a German national who acquired French nationality by marriage. She was teaching at a school in Germany in the frontier area. She complained about taxation which placed her at a disadvantageous position in France. During the proceedings the French Government expressed the view that Mrs. Gilly had not exercised the rights under Article 45 TFEU in France, since she was working in her State of origin. The Court disagreed and stated by reference to Gullung: It need merely be pointed out here that Mrs. Gilly has acquired French nationality by her marriage and works in Germany whilst residing in France. She must therefore be considered in France as a worker exercising her right to freedom of movement as guaranteed by the Treaty, in order to work in a Member State other than that in which she resides. The circumstance that she has retained the nationality of the

60 Ibid., para 12. 61 Case C-419/92 Ingetraut Scholz v. Opera Universitaria di Cagliari and Cinzia Porcedda [1994] ECR I-505.

146  Chapter Eleven State in which she is employed in no way affects the fact that, for the French authorities, she is a French national working in another Member State.62

The Court followed the same approach in the case of Mr. and Mrs. Ritter-Coulais. The case concerned a married couple who were employed in Germany as secondary school teachers but lived in a private dwelling in France, which they owned.63 Mrs. Ritter Coulais had dual French and German nationality. They complained that ‘loss of income’ from their property in France was not taken into account in Germany for the purposes of determining the rate for their tax liability. The Court did not reflect on the fact of dual nationality at all but ruled on the basis of free movement of workers. However, it noted that a national who, irrespective of their place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in a Member State other than that of residence falls within the scope of Articles determining free movement of workers.64 Thus, the Court applied the same approach as in Gilly although the situations were different. In Gilly a complaint was filed in France by a person employed in Germany while in Ritter Coulais a complaint was filed in Germany by a person working in Germany and holding German nationality. Advocate General Leger considered that in this case there was no sufficient basis to ‘communitise’ the situation because they had not availed themselves of freedom of movement. He referred to Werner65 where the dispute concerned taxation of a German national residing in the Netherlands but practising as a dentist in Germany. In that case the CJEU concluded that Germany has liberty to impose heavier tax burdens for persons not residing in Germany. Undoubtedly, the Werner case is ‘bad law’ because it limits the freedom of a person to choose their place of residence. This runs against the idea of the EU as an area without borders. However, it is worth paying due attention to the approach by the CJEU in Gilly and Ritter Coulais. In the first case the Court applied an inclusive reading of the rights of dual nationals. The Court did not evaluate which of the nationalities is dominant but treated the situation from the common market perspective, i.e., since a person is working outside France she is considered to be a worker under EU law. In Ritter Coulais the Court did not address nationality issues. Only the fact that a person did not reside in the State were s/he was employed was important. This gave the possibility to apply EU law in what seems 62 Case C-336/96 Mr. and Mrs. Robert Gilly v. des services fiscaux du Bas-Rhin [1998] ECR I-2793, paragraph 21. See also Case C-135/99 Ursula Elsen v. Bundesversicherungsanstalt für Angestelte [2000] ECR I-10409. 63 Case C-152/03 Hans-Jurgen Ritter Coulais, Monique Ritter-Coulais v. Finanzamt Germersheim [2006] ECR I -1711. 64 Ibid., para 31. 65 Case C-112/91 Hans Werner v. Finanzamt Aachen-Innenstadt [1992] ECR 429.

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to be an internal situation. This also means that it is quite possible for the Court to follow this line of reasoning in cases of single nationality. The conclusion is that dual nationals are in a better position to invoke EU law, especially if they have moved from one country of nationality to another or might potentially wish to exercise free movement. They can refer to their interests or rights in relation to another Member State of nationality. They are allowed to refer to or rely on another nationality while in the State of nationality. In these cases the concept of dominant nationality is of little or no relevance in EU law. All that is required is that a person at a certain point should cross the border or wishes to do so. The next subsection will look at this type of situation. National of States X and Y Is Domiciled in State X and Claims EU Citizenship Rights in State X In its early case law before EU citizenship was invented the Court was cautious in granting rights to nationals in their own territory. In Auer, Mr.Auer was an Austrian national who studied in Austria and France, but obtained his degree in Italy subject to transitional provisions. Then he moved to France and was naturalized. He invoked his EU rights after obtaining French nationality and wished to practice veterinary medicine in France. His diploma was not recognized as sufficient to practice as a vet. However, he continued to practice as a result of which he had been prosecuted on several occasions. Thus in Auer66 the Court ruled: There is no provision of the Treaty which, within the field of application of the Treaty, makes it possible to treat nationals of a Member State differently according to the time at which or the manner in which they acquired the nationality of that State, as long as, at the time at which they rely on the benefit of the provisions of Community law, they possess the nationality of one of the Member States and that, in addition, the other conditions for the application of the rule on which they rely are fulfilled.

Although the final outcome of the case was dependent on different arguments, the importance lies with the Court’s conclusion that the date on which a person acquires the status of a national of a Member State is irrelevant as long as they possess it at the time when relying on the provisions of EU law. The cross-border element was also remote but rather concerned the fact that a person had acquired education in another EU Member State. This conclusion should be read in the light of developments in treatment of dual nationals in the previous chapter. It is important, however, that a French national could claim rights under the Treaty against their State of nationality.

66 Case 136/78 Criminal proceedings against Vincent Auer [1979] ECR 437, para 28.

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The Avello case67 has attracted the attention of many, especially private international law lawyers. The case concerned Mr. Carlos Garcia Avello, a Spanish national, and Ms Isabelle Weber, a Belgian national, as well as their two children. Their children had dual nationality of Spain and Belgium. The family resided in Belgium. The case originated from the refusal of the Belgian authorities to register their children with two surnames – the mother’s and the father’s. This, they claimed, is a Spanish tradition. The Belgian authorities refused to do so because that option was not available in Belgian law. The applicants argued that this policy violated their rights under Articles 18 and 20 of the TFEU. Advocate General Francis Jacobs after examining the practice of different Member States, EU law as well as regulations in international law concluded that there had been a violation of rights of EU citizens.68 While the Advocate General referred to the rights of Mr.Garcia Avello for finding a link with EU law, the Court found a link in relation to the children directly: [C]itizenship of the Union, established by Article 20 TFEU (ex Article 17 TEC), is not … intended to extend the scope of the Treaty also to internal situations which have no link with Community law.

However, the Court continued by arguing: [S]uch a link with Community law does, however, exist in regard to … nationals of one Member State lawfully resident in the territory of another Member State. That conclusion cannot be invalidated by the fact that the children involved in the main proceedings also have the nationality of the Member State in which they have been resident since birth and which […] is by virtue of the fact the only nationality recognized by the latter.69

The Court declined a Belgian reference to Article 3 of the Hague Convention on certain questions relating to conflict of nationality laws. The provisions of the Convention stated that in cases of persons having two or more nationalities they may be regarded as a national by each of the States whose nationality they possess. According to the Court this provision does not impose an obligation but simply provides an option for the contracting parties to give priority to that nationality over any other. Therefore, according to EU law in cases where dual nationals want 67 Case C-148/02 Carlos Garcia Avello v. État belge [2003] ECR I-11613. Concerning use of names see also Case C-208/09 Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien [2010] ECR I-13693. While the applicant was not a dual national, her surname was granted to her by an adoptive parent holding another nationality. The Court did not find a violation of Article 21 TFEU because she was not required to change her name but only precluded from using a title of nobility which had been constitutionally abolished by Austria. 68 Case C-148/02 Carlos Garcia Avello v. État belge [2003] ECR I-11613, AG Jacobs. 69 Supra note 67.

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to register their names, the provisions of the Hague Convention are not applicable and there is an obligation to respect both nationalities of the person concerned. In this context the Court seems to be premised on the assumption that prohibited measures are not only those which deny national treatment to persons moving between Member States but also those which disadvantage such movement in comparison with remaining at home.70 This approach has been confirmed by the CJEU in the Grunkin-Paul case where the Court also concluded that discrepancies in surnames registered in different EU Member States might cause serious inconvenience. The CJEU refused to accept the argument that rules on surnames form part of the connecting factor of nationality.71 They were not considered of such importance as to justify refusal by the authorities to recognise the surname of a child as already determined and registered in another Member State. Moreover, the CJEU concluded that the connecting factor in such cases will result in an outcome contrary to that sought, i.e., every time a person crosses the border, they will bear a different name. However, the state of affairs in relation to dual nationals who have not used the possibility to move after Avello and Grunkin-Paul remains unclear. While in Avello the Court found a violation of Articles 18 TFEU and 20 TFEU, in Grunkin Paul the Court noted that Article 18 TFEU is irrelevant because German substantive law on surnames cannot constitute discrimination on grounds of nationality. The choice of the CJEU might depend on the preliminary question sought and Articles invoked by national courts. Notwithstanding, refusal to deal with Article 18 TFEU in Grunkin Paul, while relying substantively on the same Article in Avello, is confusing. From the cases discussed above it might seem sufficient for a person to hold two nationalities in order to trigger rights deriving from EU law. They would enjoy  rights granted by the EU without crossing borders. However, in Grunkin Paul the Court signalled that it will evaluate whether the regulation contested poses an obstacle to freedom of movement which results in serious inconvenience. It could be justified only if based on objective considerations and proportionate to the legitimate aim.72 Moreover, Avello and Grunkin Paul could have 70 Evans Andrew, ‘Union Citizenship and the Constitutionalization of Equality in EU Law’, in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 267–292, 270–271. 71 Case C- 353/06 Stefan Grunkin, Dorothee Regina Paul, Leonhard Matthias Grunkin-Paul v. Standesamt Niebüll [2008] ECR I-7639. The case concerned a child born to a German couple while they were residing in Denmark. He was a dual citizen registered in Denmark with a double surname of both of his parents. However, registration of a child with two surnames of both parents was not allowed under German law. The child continued to reside in Denmark. 72 Ibid., para 29. See in this context also Case C-208/09 Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien [2010] ECR I-13693, where the CJEU agreed with the Austrian government that it was

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been strengthened by reference to the rights of the child and the obligation to serve children’s best interests included in Article 24 of the Charter. The approach of the CJEU further crystallised in McCarthy where it was confronted with the question whether a dual EU national who had never exercised free movement rights can rely on EU law against the State of nationality.73 Since Directive 2004/38 requires a cross-border element, it was not dealt with by the Court. It focused on interpretation of Article 21 TFEU. The Court noted that situations when a person has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation. It further strengthened its approach adopted in Zambrano and stated that Article 20 TFEU precludes national measures which have the effect of depriving EU citizens of genuine enjoyment of the substance of the rights conferred by virtue of that status.74 Thus, in a way the Court sided with the view of the Advocate General that the facts of the case indicate that there might be interference with the right to respect for family life under Article 8 of the ECHR. The Advocate General admitted that this is not a question of EU law, but only a question of UK obligations under the ECHR.75 The Court concluded that in the case of Mrs. McCarthy no measure at issue has the effect of depriving her of genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the Member States, in accordance with Article 21 TFEU.76 Since Mrs. McCarthy was neither limited

justified on grounds of public policy and proportionality that a person is prohibited from using a nobility title as part of their name. 73 Case C-434/09 Shirley McCarthy v. Secretary of State for the Home Department [2011] ECR I-3375. The case concerned Mrs. McCarthy, a British and Irish national who had always resided in England. Her husband was a Jamaican national who had no right to reside in England. The applicant invoked her EU citizenship and Irish nationality to obtain residence rights for herself and her husband. She applied for Irish nationalilty only after marriage to get a passport. In this context the case concerns family unification which is intended to be achieved circuitously via EU law because domestic law in the UK does not permit unification. The important factor was that Mrs. McCarthy, unlike the Metock situation, did not cross the border at any time. It is interesting to note that the CJEU disregarded the question whether the applicant’s Irish nationality is real and effective, while the Advocate General said expressis verbis that this issue was irrelevant. See Opinion of Advocate General Kokott, para 33. 74 Case C-34/09 Gerardo Ruiz Zambrano v. Office national de l’emploi [2011] ECR I-1177, Advocate General Sharpston, para 47; Case C-256/11 Murat Dereci and Others v Bundesministerium für Inneres, 15 November 2011 [not yet reported], para 64, supra note 73, para 47. See also section 12.2.3.3. 75 Supra note 73, Opinion of Advocate General Kokott, para 59 and 60. 76 Supra note 73, para 49.

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to exercise of the right to move within the EU nor was obliged to leave the territory of the EU, Article 21 TFEU was not triggered. The Court explained that what matters in these cases is a regulation which might cause serious inconvenience for EU citizens to exercise free movement rights. If genuine enjoyment of the substance of the rights conferred is not affected or impeded, EU law cannot be invoked. The main arguments raised in the doctrine, inter alia, on the cases discussed above, relate to the competence of the CJEU and ‘division of labour’ among the CJEU and the ECtHR as well as the role of the Charter in further shaping the concept of ‘substance of rights’. The Court has been praised and blamed for developing the ‘substance of rights’ principle to overcome the ‘cross-border’ test. However, in both cases it was noted that so far there is no sound methodological basis for the concept. It has been argued that instead Charter rights or rights derived from the ECHR should have been invoked.77 While situations of dual nationals are context-specific, the repercussions of these rulings inevitably might affect other areas which will be addressed in the following sections, for instance cases of family reunification or rights of children. Although the test on ‘substance of rights’ might seem unclear and methodologically not well explained by the Court, it has substantive potential for advancing EU citizenship as a sui generis status. As evident from McCarthy and following case law on family reunification the principle cannot be easily abused because the CJEU has not introduced it to apply without inherent limits. Although the cases in which the CJEU has referred to the principle remain limited they might serve as a signal that the case-law might be expanded and elaborated to include an increasing number of internal situations affecting rights of EU citizens. However, the methodology for invoking the test remains unclear. Far reaching proposals have been introduced that ‘substance of rights’ should be applicable on the basis of Article 20 TFEU and Article 2 TEU to public authorities throughout European legal space, including purely internal situations. Moreover the ‘substance of rights’ test should not be limited to the scope of application of Charter Article 51(1).78 This approach should be further tested in other contexts discussed 77 See, for instance, Hailbronner Kay, Thym Daniel, ‘Case C34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), Judgment of the Court of 8 March 2011’ (2011) 48 (4) CMLR, 1253–1270. 78 See, von Bogdandy Armin, Kottmann Mathias, Antpöhler Carlino, Dickschen Johanna, Hentrei Simon, Smrkolj Maja, ‘Reverse Solange – Protecting the Essence of Fundamental Rights Against EU Member States’ (2012) 49 CMLR, 489–520, 491. They argued that the “reverse” Solange doctrine should be applied to Member States. This proposal concentrates on systemic violations of EU citizens’ rights under Article 20 TFEU and providing for a new approach to interpretation of Article 2 TEU. However, see part II of this volume, especially section 4. on comments by Kiwan.

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in this volume, especially in regard to application of Articles 18 and 21 TFEU, rights of third country nationals as well as by keeping in mind differences between approaches to the rights of residents and EU citizens. For the time being the Treaty articles invoked when the CJEU deals with the ‘substance of rights’ test remain divergent. National of States X and Y Is Domiciled in State X, but Claims That Nationality of State X Is Ivalid under International Law The court has not so far declared the nationality of a Member State invalid expressis verbis for Community purposes on the basis of international law. In Airola79 Mrs. Airola complained that she had been refused an expatriation allowance granted to officials because she was an Italian national and was employed in Italy. Although residence and not nationality was the paramount consideration for deciding on entitlement to the allowance Mrs. Airola argued that she was discriminated against in comparison with male officials. Mrs. Airola was a dual Belgian and Italian national. Italian nationality was granted her automatically as a result of marriage without the right to renounce it. However, she had made an express declaration to retain her Belgian nationality. Therefore, the will of a person to become a national was not given adequate attention, which is contrary to international law. Although the Court at the time did not refer to any international standards applicable in such cases it agreed with the applicant.80 It ruled on the basis of the principle of non-discrimination. From the present day perspective this might seem to be too narrow an approach. However, it could be argued that the CJEU can regard one of the nationalities as dormant, if not irrelevant from the EU law perspective. Furthermore, this means that in cases where one of the nationalities would be granted not in accordance with international law and there would be a link between a person and the EU, the nationality would be disregarded at the EU level. This approach differs when the Court is approaching dual nationality cases when a person holds the nationality of a EU Member State and a non-EU Member State. 79 Case 21/74 Jeanne Airola v. Commission of the European Communities [1975] ECR 221. For similar cases see Case 257/78 Evelyn Devred, née Kenny-Levick, v Commission of the European Communities [1979] ECR 3767, paras 12–17, where the Court took into account the fact that a person did not choose to renounce a second nationality and that the principle of effective nationality as a private law concept is not applicable); Case 37/74 Chantal van den Broeck v. Commission of the European Communities [1975] ECR 235. 80 For instance the Convention on Nationality of Married Women, 11 August 1958, to which a number of Member States were parties at the time when the case was decided – Austria, Belgium, the Netherlands, Germany.

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National of EU Member State X and Non-Member State Z Is Residing in X. The CJEU dealt with such a situation in Mesbah81 and Kahveci and Inan.82 The Mesbah case concerned a Moroccan national. She was the mother-in-law of a worker who was originally Moroccan and lived in Belgium. He had subsequently acquired Belgian nationality while retaining his Moroccan nationality. His mother-in-law applied for social security payment but was denied on the ground that only those family members who are Belgian nationals can have access to social security. However, according to the Moroccan-EC Cooperation Agreement, workers of Moroccan nationality and members of their families living with them enjoy equal treatment with nationals in relation to social security in the Member State where they are employed. This meant that their family members could have access to social security on the basis of Article 41 of the Agreement. According to Advocate General Alber, the situation might differ if there had been loss of Moroccan nationality before the agreement between the EC and Morocco came into force or after that date or if nationality had not been lost at all. In the first case no right exists to claim rights under the agreement. In the second case the consequences would be the same because of voluntary denial of Moroccan nationality. In the third case of dual nationality, however, according to the Advocate General the situation is entirely different and should be decided on the basis of Micheletti. In Micheletti precedence by the Member State in the dispute was given to the nationality of a non-member country, while in Mesbah to the nationality of the Member State. Belgium did not dispute the existence of dual nationality but denied that a Moroccan national could derive benefits from both nationalities. The Belgian arguments were that a claimant who could derive benefits from both nationalities would enjoy more rights than other EU citizens not qualifying for social security benefits and Moroccan citizens not enjoying benefits of Belgian nationality. However, as rightly argued by the Advocate General this situation arises because of the Agreement the EC has with Morocco providing for rights of Moroccans and the fact that Belgium allows dual nationality.83 Therefore, in a situation where a dual national having the nationality of a Member State and a non-Member State is residing in the EU both of their nationalities must be taken into account or the Court would have to invoke the principle of dominant nationality. However, the Court disagreed with the Advocate General and argued that the situation should be distinguished from Micheletti because, first, the applicant is denied the right to refer to the citizenship of a nonMember State while in Micheletti the applicant was denied the right to refer to the 81 Case C-179/98 Belgian State v. Fatna Mesbah [1999] ECR I-7955. 82 Case C-7, 9/10 Staatssecretaris van Justitie v. Tayfun Kahveci, Osman Inan, Judgment of 29 March 2010 [not yet reported]. 83 Supra note 81, paras 49 and 51.

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citizenship of the Member State.84 Second, while Micheletti involved the right to free movement, in the current case no fundamental freedom was involved. The Agreement with Morocco does not provide for free movement within the Community but aims to provide social security of resident Moroccan nationals and their family members.85 Third, Belgium is entitled to refuse to pay social security if in accordance with national law a person is considered only a Belgian citizen. However, the interpretation of the Court is not convincing. The issue cannot be resolved on the basis of Belgian law alone because the rights of Moroccan nationals are granted at the EU level. If Belgium was unwilling to grant social protection to dual Moroccan-Belgian citizens, the only way to avoid that was to prevent cases of dual nationality arising. The Mesbah case should be seen as exceptional. The position of the CJEU has been further clarified in Kahveci and Inan.86 The case concerned Turkish nationals who were naturalized in the Netherlands but retained their Turkish nationality. They were joined by their family members who subsequently faced depor­tation orders due to their convictions in the Netherlands. They relied on Article 7 of Decision No. 1/80 of the EEC-Turkey Association Council providing for the right of the members of the family of a Turkish worker to join him. The question to the CJEU was whether Turkish nationals, who are at the same time nationals of the Netherlands, are entitled to invoke their rights as Turkish nationals according to Decision No. 1/80. The Court in its judgment differentiated the situation in Mesbah from the present case because the objectives of Decision No. 1/80 differed the from co-operation agreement concluded between the EEC and Morocco, i.e., the Decision aims to improve treatment of Turkish workers and their family members with a view to achieving gradual freedom of movement. Therefore, Turkish nationals cannot be deprived of their rights deriving from the Decision with a view to closer integration between EU and Turkey. The Court stated: According to the Court’s settled case-law, it follows both from the primacy of European Union law and from the direct effect of a provision such as the first paragraph of Article 7 of Decision No. 1/80 that Member States are not permitted to modify unilaterally the scope of the system of gradually integrating Turkish nationals in the host Member State and therefore no longer have the power to adopt measures which may undermine the legal status expressly conferred on such nationals by the law resulting from the EEC-Turkey Association Agreement.87 84 Supra note 81, para 35. 85 Supra note 81, para 36. 86 Supra note 82. Advocate General Sharpston in her opinion delivered on 20 October 2011 held a similar position to the CJEU. 87 Supra note 82, para 37. On differences in approaching Moroccan and Turkish agreements see Case C-416/96 Nour Eddline El-Yassini v. Secretary of State for Home Department [1999] ECR

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The criteria invoked by the Court suggest that primacy of EU law and directly effective provisions of international agreements take precedence over the national approach to treatment of its nationals. Therefore, if an individual is a citizen of a Member State, this is an issue of national law, but if the same individual holds the status of a citizen of a third country with which the EU has an agreement, the latter would take precedence in the context of EU law. In this regard EU regulation is detached from the national level by providing for extra rights in purely internal situations. The Court did not dwell on the dominant nationality argument, which is of no relevance in EU law. It qualified national treatment of Netherlands nationals as a measure undermining legal status derived from EU law. Although the differences between Mesbah and this case have been explained they are not entirely convincing. Possibly, the fact that Turkish nationals faced expulsion on the basis of national law and close integration envisaged in the Decision could have played a role in the Court’s approach. It has been a constant approach by the CJEU that changes in the status of a Turkish worker who was subsequently joined by his family are irrelevant for considering the rights of family members. At the same time this approach might have repercussions on further interpretation of rights derived from other association agreements and directives on third-country nationals. The ruling also exemplifies the EU’s approach to nationality issues as well as possibilities for nationals to benefit from EU regulation without migrating within the EU.88 All in all dual nationals trigger EU rights more often even when claims are made to the country of nationality. Therefore, it can be argued that both international law and EU law tolerate dual nationality as a phenomenon. At the same time the approach differs. The CJEU does not invoke examination of the dominant nationality and effective link to decide on rights of dual nationals against their State of nationality. The EU approach would be that in cases of dual nationals EU citizenship regulation would be applicable as to free movement rights, while third-country nationality could be invoked if no free movement has taken place but an individual has preserved the other nationality of the country with which the EU has a specific agreement. However, it will disregard nationality if that has been granted against the will of a person. 11.2.4. Cases of Statelessness Cases involving persons becoming stateless in the EU have significant consequences because this leads to automatic loss of EU citizen status. This was I-01209, paras 49–62. It should also be noted that the Court disregarded arguments referring to Article 3 of the Hague Convention as in the case of Avello. 88 See also Metock below in section 12.2.3.2. of this part.

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confirmed by the CJEU in Rottmann.89 The case concerned an Austrian national subject to criminal charges. After a court hearing in Austria he settled in Germany and after four years of residence acquired German nationality. It should be noted that the ruling does not contain references to specific reasons for movement based on exercise of EU market-related freedoms but refers to the fact of movement in general. This led to loss of his Austrian nationality. When Germany discovered that he had acquired citizenship by fraud, i.e., by not informing about his criminal charges, Mr. Rottmann was subject to withdrawal proceedings. The result of proceedings could lead him to become stateless, including loss of his EU citizenship. In this context the CJEU had to make a ruling whether this situation triggers EU law considerations. There are several important observations to be made. First, the Court had to address the scope of autonomy of Member States in nationality issues. The CJEU emphasized its conclusion in Micheletti that a Member State in the sphere of acquisition and loss of nationality should have ‘due regard to Community law’.90 Moreover, the CJEU stressed that the fact that Mr. Rottmann might lose EU citizen status and the rights attached to that status falls, ‘by reason of its nature and consequences’, within the ambit of EU law.91 Therefore, contrary to Advocate General Maduro’s reference to the autonomy of Member States, the Court was of the opinion that merely because a matter is governed by national law does not mean that the national law in question is exempted from the obligations of EU law.92 Therefore, there is no absolute immunity of Member States in nationality issues, especially since EU citizenship is intended to be the fundamental status. Refe­ rences to, inter alia, Chen, allowed the Court to claim that the test of ‘by reason of its nature and consequences’ allows it to deal with the case irrespective of the fact that Rottmann was not exercising his free movement rights in the ‘traditional sense’. Second, the Court remained mindful of the international law maxim. It quoted  international law provisions on withdrawal of nationality acquired by 89 Supra note 34. 90 Supra note 34, paras 39 and 45. 91 Supra note 34, para. 42. 92 Advocate General Maduro argued that since States should determine who are nationals and this is confirmed by Declaration No. 2 attached to the Treaty, the Court should be limited by declarations of States on nationality. Otherwise that would produce a paradoxical solution whereby the secondary would determine the primary: maintenance of Union citizenship would serve as a basis for demanding maintenance of the nationality of a Member State. See para 24 of the Advocate General’s Opinion, supra note 34 and comment by Davies Gareth T., ‘The entirely conventional supremacy of Union citizenship and rights’ (2010 EUDO citizenship forum), available at accessed 16 March 2013.

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fraud.93 Indeed, loss of nationality acquired by fraudulent activities ex lege is allowed in international law and is enshrined inter alia in Article 7(1)(b) of the ECN. Third, in order to strike a balance between the autonomy of Member States and Community interests the Court invented an obligation on the national courts to pay due regard to the principle of proportionality, if a decision would lead to loss of EU citizenship.94 As argued by Jo Shaw, the Court does not focus on a human rights imperative to avoid statelessness but rather on the specific EU rights which a person will lose.95 This means that national courts have to weigh considerations of national interest against the significance of losing EU citizenship. In this regard, it can be argued that Rottmann is in line with the Court’s previous case law, for instance Baumbast and Grzelczyk, requiring an individualized approach to the personal circumstances of EU citizens which is possible if the proportionality test is applied in each particular case. The approach in Rottmann had been signalled already in Kaur where the Court held: [A]doption of that declaration did not have the effect of depriving any person who did not satisfy the definition of a national of the United Kingdom of rights to which that person might be entitled under Community law. The consequence was rather that such rights never arose in the first place for such a person.96

Therefore, the CJEU, for the time being, attaches stronger protection in cases of deprivation of nationality rather than acquisition of EU citizen status. Once a person has been granted EU citizenship, deprivation can only take place by having ‘due regard to Community law’ and the principle of proportionality. If a Member State leaves a person stateless this loss becomes an obstacle to free movement and residence rights in the EU, which are considered to be fundamental according to EU law. This suggests, as stated by Hall, that there may be circumstances in which a person who has already acquired the status of a Member State national for EU purposes may be protected by EU law when subjected to attempts to withdraw that status, especially where any such withdrawal violates the general principles of law protected by the Court.97 93 Supra note 34, paras 52 and 53. 94 Supra note 34, para 55. 95 See Shaw Jo, ‘Setting the scene: the Rottmann case introduced’, available at accessed 7 May 2013. 96 Supra note 50, para 25. 97 Hall Stephen, ‘Determining the Scope ratione personae of European Citizenship: Customary International Law Prevails for Now’ (2001) 28(30) Legal Issues of Economic Integration, 355–360, 360.

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This approach requires further analysis of possible grounds for deprivation which become not only limited but undesirable in the EU law context. Four situations can be described as examples, most probably giving rise to concern under EU law.98 Acquisition of Nationality by Fraud As in Rottmann a Member State would have the right to declare nationality nonexistent and a person would become stateless if renouncing their previous nationality to acquire a new one. This would be considered lawful under international law (Article 7(b) ECN). However, the CJEU has now added additional EU law safeguards for cases like this. At the moment only five EU Member States do not have a fraud provision in their national legislation. Moreover, except for France and Luxembourg, other Member States allow revocation even when this leads to statelessness. Certain States admit that a genuine connection might have been built up until fraud was established. In those cases countries establish time limits beyond which fraud cannot cause loss of citizenship. The time limits range from 1–2 years to 15 years.99 This is indicative of the scale of possible cases where a person is deprived of nationality because of fraudulent activities during acquisition procedures. In Rottmann part of the problem was that a person lost Austrian citizenship upon acquisition of German citizenship. This would require at least easy procedures to recover national citizenship. It should be noted that in Rottmann the CJEU did not announce itself to be the supreme adjudicator on the acceptable standard of rights and obligations of Member States of original nationality. It did not make a final decision but left it to the national court to deal with the specific circumstances of the case and to make the final decision.100 According to the Explanatory report to the ECN, in cases where acquisition of nationality has been the result of improper conduct, States are free either to revoke the nationality or to consider that the person never acquired their nationality (void ab initio).101 In the EU context this might be important to establish the 98 For detailed analysis see Kruma Kristine, ‘How do We get More out of EU Citizenship?’ in Pascouau Yves, Strik Tineke (eds), Which Integration Policies for Migrants? Interaction between the EU and its Member States (Wolf Legal Publishers:rhe Netherlands 2012) 185–210, 195–199. 99 For details see de Groot Gerard René, Vink Maarten P., Honohan Iseult, ‘Loss of Citizenship’ (EUDO Citizenship Policy Brief No. 3), available at accessed 19 February 2013 and de Groot Gerard René, Vink Maarten P., ‘Loss of Citizenship: Trends and Regulations in Europe’ (EUDO Citizenship Observatory: Comparative Reports, Revised October 2010), available at accessed 16 March 2013. 100 See supra note 34, paras 60–64. 101 Explanatory Report of the European Convention on Nationality (ETS No. 166), available at accessed 16 March 2013, para 61.

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scope of obligation of a Member State whose nationality a person possessed originally to re-instate that former nationality. In that context in Rottmann Advocate General Maduro was right in arguing that since German nationality was declared void ab initio the Austrian nationality of Mr. Rottmann should be restored.102 Absence from the Territory A citizen of a Member State is absent from the territory of Member State A for many years while residing in Member State B. Therefore, Member State A deprives that individual of citizenship due to lack of a genuine link between the State and the individual. This situation, although not leading to deprivation of EU citizenship, might lead to violation of free movement rights in the EU either as an EU citizen or so as to take up gainful employment. This situation, however, would be dependent on the facts of the case. Yet another situation is possible when a person who is a citizen of Member State A is absent from the territory of this Member State and resides in nonMember State C. In these cases deprivation of citizenship of Member State A would lead to loss of EU citizenship. Permanent residence abroad is a ground for loss in 10 EU Member States.103 Although there are significant differences with respect to procedures, personal scope, statelessness, age, and possibilities for citizens to prevent loss of citizenship, these cases can potentially lead to invocation of principles developed by EU law. In the case of those EU Member States which are parties or at least signatories to the ECN the problem is less acute because according to the Explanatory report in such cases a person has to be resident abroad for generations, the State has taken all reasonable measures to communicate with that person and the person holds another nationality.104 In the context of the EU one could rely on Advocate General Maduro who has said that: A State rule providing for loss of nationality in the event of a transfer of residence to another Member State would undoubtedly constitute an infringement of the right of movement and residence conferred on citizens of the Union by Article 18 EC [Article 31 TFEU].105

Therefore, it is worth considering whether national citizenship laws reflect this possible outcome once the national provisions are applied in the EU law context. 102 Supra note 34, Opinion of Advocate General Maduro, 30 September 2009, para 34. See also section 8.2.1. of part II in this volume. 103 For details see, de Groot Gerard René, Vink Maarten P., Honohan Iseult, ‘Loss of Citizenship’ (EUDO Citizenship Policy Brief No. 3), available at accessed 19 February 2013. 104 See section 6.1.2. of part II of this volume. 105 Supra note 34, Opinion of Advocate General Maduro, 30 September 2009, para 32.

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Voluntary Service in a Foreign Military Force Four EU Member States provide for automatic loss of citizenship if a citizen voluntarily enters the military service of a foreign State or of a hostile State. Five others provide for withdrawal to be determined by the State. Moreover, seven Member States consider that other public service for a foreign State is also a ground for loss.106 These practices might amount to excessive and disproportionate withdrawal of nationality. Cases of ‘public service for a foreign State’ giving rise to withdrawal within the EU should be brought to a minimum. This is especially so when taking into account the ongoing harmonization process of access to public service in Member States.107 While the armed forces, the police, the judiciary, the tax authorities and the diplomatic corps in general are sectors performing functions of the State, not all posts in these fields imply the exercise of public authority and responsibility.108 Developments in international security regulation, including competences of the EU after the Lisbon Treaty and the EU’s increasing competence in common security and defence policy sectors as well as NATO, should be taken into account. The format, however, will be important. According to the Explanatory Report of the ECN participation in a multilateral force on behalf of the State of which the person concerned is a national cannot be considered as service in a foreign military force.109 Voluntary Acquisition of Another Nationality Voluntary acquisition of another citizenship might serve as a basis for loss either of Member State citizenship or of EU citizenship. The procedure is present in eleven EU Member States. However, in some countries, such as Germany, the 106 For details see supra note 99. 107 See for instance, Case C-47, 50, 51, 53, 54, 61/08 Commission v. Belgium, France, Luxembourg, Austria, Germany and Greece [2011] ECR I-4105. Communication from the Commission ‘Free movement of workers: achieving the full benefits and potential’ COM (2002) 694 final, 11 December 2002. 108  Case 152/73 Giovanni Maria Sotgiu v Deutsche Bundespost [1974] ECR 153; Case 149/79 Commission of the European Communities v Kingdom of Belgium [1980] ECR 3881, [1982] ECR 1845; Case 307/84 Commission v. France [1986] ECR 1725; Case 66/85 Deborah Lawrie-Blum v. Land Baden-Württemberg [1986] ECR 2121; Case 225/85 Commission of the European Communities v Italian Republic [1987] ECR 2625; Case C-33/88 Pilar Allué and Carmel Mary Coonan v Università degli studi di Venezia [1989] ECR 1591; Case C-4/91 Pilar Allué and Carmel Mary Coonan v Università degli studi di Venezia [1991] ECR I-5627; Case C-473/93 Commission of the European Communities v Grand Duchy of Luxemburg [1996] ECR I-3207; Case C-173/94 Commission of the European Communities v Kingdom of Belgium [1996] ECR I-3265; Case C-290/94 Commission of the European Communities v Hellenic Republic [1996] ECR I-3285; Case C-405/01 Collegio de Oficiales de la Marina Mercante Espanola v. Administracion del Estado [2003] ECR I-10391, Case C-47/02 Albert Klaas Raas, Albertus Snoek v. Bunderepublik Deutchland [2003] ECR I-10447. 109 Supra note 101, para 65.

Access to EU Citizenship  161

Netherlands and Spain, significant exceptions are provided for.110 Here, it could be arguable that if another EU Member State’s citizenship is acquired, the loss in itself does not have consequences for EU citizenship. This, however, is not the case because effectiveness of enjoyment of citizenship rights in the case of change of nationality might entail a number of practical difficulties if the family remains resident in the country of original nationality.111 This also limits the choice of the individual as an EU citizen to move and to reside freely in the EU. The question remains whether this might lead to infringement of ‘substance of rights’ if a person changes national citizenship within EU borders, i.e., whether EU law should remedy provisions of national law which result in inconveniences knowingly accepted by EU citizens. This is rather a policy question until particular cases appear for judicial review. However, the situation might be different if a person voluntarily acquires citizenship of a non-EU Member State and thus loses EU citizenship. The present case-law of the CJEU does not give a clear-cut answer. However, judicial discourse and the tests introduced by Rottmann, Zambrano, and Dereci leave the question open. For the time being the EU has tolerated national practices but re-interpreted their consequences from EU law practice and the CJEU should remain incremental in order to preserve the right balance between national and the EU approaches to nationality. 11.3. Summary EU citizenship was an unknown category in international law. Its introduction has been called incidental and without having substantive content. It was also argued that it is solely in the competence of Member States to grant or withhold nationality. Moreover, any rights attached to the concept cannot transgress those specifically mentioned in the Treaties and they can only be additional to those of nationals of a Member State. EU citizenship has developed incrementally: CJEU case law, secondary legislation as well as political instruments by various EU institutions have facilitated timely proclamation of the fundamental status of EU citizenship in EU law.112 However, the debate remains open on the precise scope of EU competences and discretion of Member States in questions related to access to and loss of nationality. These factors do not allow a conclusive statement on the scope of the EU citizenship concept. 110 For details see supra note 99. 111 See supra note 98, 196–197. 112 von Bogdandy Armin, Kottmann Mathias, Antpöhler Carlino, Dickschen Johanna, Hentrei Simon, Smrkolj Maja, ‘Reverse Solange – Protecting the Essence of Fundamental Rights Against EU Member States’ (2012) 49 CMLR, 489–520, 501–505.

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The preceding sections demonstrated that the discretion of Member States regarding acquisition and loss of EU citizenship remains strong. This has been illustrated by several case-studies deeply embedded in national history, traditions and identity. In addition several hypothetical situations on loss of citizenship have been outlined. Practice by the CJEU is fragmented because it is limited by its competences set in the EU Treaties, but at the same time willing to make EU citizenship a more substantial and independent concept. The CJEU has attempted to place limits on that discretion by introducing the tests of ‘due regard to Community law’ and ‘substance of rights’, whereas the situation ‘by reason of their nature and consequences’ might trigger invocation of EU rights. In this context there are also several forward looking comments to be made. The approach to different cases which identify the contents and limits of EU competence is closely linked to development of new tests attached to interpretation especially in the context of Article 20 TFEU. Those tests and principles should be devoted particular attention when discussing the concept of EU citizenship. In certain cases they are also applicable in the context of Article 18 and 21 TFEU and relate to cases of statelessness and multiple nationality.113 First, and most profound, is the principle limiting Member States’ discretion by requiring them to pay ‘due regard to Community law’. The latest developments highlight that there is an emerging question on mutual relationships between EU citizenship and national citizenships. In doctrine it has been argued that EU law would be infringed if national citizenship laws violated principles of EU law such as fundamental rights and the solidarity clause either by extending EU citizenship outside State borders or limiting it to those who are already resident in a Member State. CJEU competence is the widest in relation to exercise of rights of citizens rather than granting them particular status. Second, international law requirements should apply, save in cases where the EU develops lex specialis rules to the benefit of EU citizens. However, there might be cases when the CJEU cannot effectively prevent human rights violations. This is in cases when the EU lacks competence to rule on compatibility of national law with human rights as in Matthews. In this context EU accession to the ECHR might be helpful to strengthen the rights of EU citizens if those rights are limited at the level of primary EU law. It has also been argued that EU competences can be extended to purely internal situations by reference to Article 2 TEU and the Charter of Fundamental Rights.114 In addition, EU law would be applicable in certain cases of dual EU citizens and third-country nationals. The CJEU seems to be inclined not to apply an international law approach to dominant nationality but 113 Discussion of application of tests in the context of Articles 18 and 21 TFEU is primarily addressed in the following sections on functional aspects of EU citizenship. 114 Supra note 112, 491.

Access to EU Citizenship  163

rather to seek to apply the EU regime if there is sufficient information that a person holds the nationality of a third-country providing for additional rights (Kahveci and Inan). Therefore, rights derived from EU law would prevail over national regulation on national treatment of citizens. This approach might extend application of immigration directives to be discussed in the next part, i.e., regulation under directives rather than under the nationality of the EU Member State would be applied to a purely internal situation. At the same time one should apply the Charter with caution. It can be used as a basis for extensive interpretation of rights that in EU law are linked to nationality. However, the importance of the Charter lies in the fact that most of its articles are applicable despite nationality. Thus, even if the Charter may be used to solve violations of fundamental rights of EU citizens, it is equally applicable to solve violations of rights of third country nationals. Invocation of the Charter has little to do with the fact that EU citizenship is a fundamental status even if violations of EU citizens’ rights are large-scale, i.e., they would be dealt under the Charter similarly to any other violations of fundamental rights falling within the scope of EU law. Third, the CJEU has consistently held that Member States are obliged to respect citizenship laws of other Member States. The principle or requirement of effective link or previous residence in the country of nationality is not set as a requirement. In this sense Rottmann follows the same approach as in Micheletti and Chen by adding the proportionality test as well as placing this obligation on both the country of naturalization and the country of original citizenship. As correctly argued by Michael Dougan, the Court’s rulings seem to be premised upon the view that Union citizenship is additional to, rather than merely derived from Member State nationality.115 However, this does not introduce a hierarchy between national and EU citizenships. It rather suggests a plurality of citizenships which are closely interlinked. At the same time different dimensions are introduced compared to the traditional understanding of nationality in national and international discourse. Dora Koustakopoulou advances an argument on the basis of Rottmann that this might be a step towards detaching EU citizenship from national citizenship. This would lead to the proposition that EU law precludes automatic loss of Union citizenship if a Union citizen is rendered stateless.116 This might be too far reaching for several reasons. For the time being 115 Dougan Michael, ‘Some comments on Rottmann and the “personal circumstances” assessment in the Union citizenship case-law’, available at accessed 7 May 2013. See also Supra note 77. 116 Kostakopoulou Dora, ‘European Union citizenship and Member State nationality: updating or upgrading the link?’, available at accessed 7 May 2013. On the negative outcome of Rottmann in German courts see Kirsch Andrea, ‘The Loss of Citizenship by Revocation of Naturalization or ex lege: Overview of German Case Law and Legislative Changes of 2009’ (2011) 12/08 German Law Journal, 1659–1680, 1675. German court (Bundesverwaltungsgericht [BVerwG] [Federal Administrative Court]) considered revocation of naturalization proportionate. The principle of proportionality did not demand the affording of a time periodi n which Mr. Rottmann could try to recover his Austrian citizenship. 117 Supra note 77. 118 Davies Gareth T., ‘The entirely conventional supremacy of Union citizenship and rights’ (2010, EUDO Citizenship forum), available at accessed on 16 March 2013. Moreover, it can also be argued that situations of EU and nonEU citizenship can trigger invocation of EU Law. The question is still open. For instance, allowing for loss of EU citizenship in cases where a dual non-EU/EU national would possibly contravene the EU aim of facilitating free movement and run against Micheletti logic. EU citizenship rather than non-EU citizenship would be the one to be subject to a proportionality test. In such cases the issue of co-ordination between Member States would not be important. It would rather be only a proportionality criterion. 119 See news section of EUDO-citizenship site reporting on ongoing amendments of national citizenship laws available at accessed 21 February 2013.

Chapter Twelve Functions of EU Citizenship This part will deal with the functions of EU citizenship, i.e., diplomatic protection and free movement rights. It is exactly in this context that the argument that EU citizenship could be additional to national citizenship rather than derivative gains its strength. Closer examination will show to what extent EU citizenship has become a fundamental status in the EU and outside its borders. 12.1. Protection of EU Citizens outside the EU Ever since introduction of EU citizenship the provisions on diplomatic protection and consular assistance have been neglected. Apart from brief references to a couple of cases the discussion stopped by general reference to international law.1 This has had good reasons because the EU’s action was limited due to the inter­ governmental approach and differences in national practices. However, the Lisbon Treaty has changed the situation in three contexts. First, it has strength­ ened EU competence in common foreign and security policy and external action in general. Article 35 TEU provides that diplomatic and consular missions of Member States and Union delegations should co-operate and contribute to implementing the right of EU citizens to protection in the territory of third coun­ tries. Second, the legally binding Fundamental Rights Charter in Article 46 refers to entitlement of every EU citizen to protection by the diplomatic or consular authorities. Third, the TFEU has been strengthened. In addition to a general refer­ ence to diplomatic and consular protection in Article 20 TFEU, Article 23 TFEU provides: Every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to pro­tection 1 See, for instance, Cases 53/84 Stanley George Adams v. Commission of the European Commu­ nities [1985] ECR 3595, Case T-572/93 Odigitria AAE v Council of the European Union and Commission of the European Communities [1995] ECR II-2025, as well as Condinanzi Massimo, Lang Alessandra, Nascimbene Bruno, Citizenship of the Union and Free of Movement of Persons (Martinus Nijhoff Publishers: Leiden 2008) 43–46.

168  Chapter Twelve by the diplomatic or consular authorities of any Member State, on the same condition as the nationals of that State. Member States shall adopt the nece­ ssary  provisions and start the international negotiations required to secure this protection.  The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordi­ nation and cooperation measures necessary to facilitate such protection.

The first paragraph does not significantly change the principle as once enshrined in ex Article 20 TEC. It provides for entitlement to enjoy equal protection if com­ pared to nationals of the protecting Member State when no national consular or diplomatic protection is offered by the Member State of their nationality. This clause thus amounts to an extension of the principle of equal treatment of EU citizens when in third countries.2 The main added value is that after elimination of the inter-governmental aspect of Article 23 TFEU the Council has express competence in the field of con­ sular protection.3 Article 23(2) TFEU gives a sufficient basis for pragmatic cooperation environments that can be fine-tuned on a regular basis to establish environments by its various partners.4 Moreover, the Council acting under spe­ cial legislative procedure may adopt directives to facilitate co-operation and a system of protection. The Council can also facilitate fulfilment of the obligation to start negotiations for conclusion of an international agreement by Member States. Individual pro­ tection as prescribed in the EC Treaty is dependent not only upon treaties between Member States but also on cooperation from third countries. Decisive for protection in reality, therefore, is the extent to which the third country accepts cooperation as well as to what extent it views the EU as creating a sufficient tie between the individual and the country offering protection.5 Article 8 of the Vienna Convention is very open to taking over of consular functions by third States, though subject to the agreement of the receiving State. Even in relation to consular protection according to Article 8 of the Vienna Convention on Consular Relations (1963) the acceptance of the receiving State is necessary: 2 O’ Leary Siofra, European Union Citizenship: The Options for the Reform (Institute for Public Policy Research: London 1996) 63. 3 ITTIG-CNR, IISA, UniWien, CELI, ‘Consular and Diplomatic Protection. Legal Framework in the EU Member States’ (CARE-Citizens Consular Assistance Regulation in Europe December 2010), available at accessed 16 March 2013, 18. 4 Ibid. 5 Lokrantz Bernitz Hedvig, Medborgarskapet i Sverige och Europa, Räckvidd och rättigheter (Iustus Förlag AB: Uppsala 2004) 540.

Functions of EU Citizenship  169 Upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State.

All EU Member States have ratified the Vienna Convention on Consular rela­ tions.6 However, Member States were reluctant to conclude or to re-negotiate agreements. Only few Member States have bilateral agreements with third coun­ tries including provisions on extension of their consular and diplomatic protec­ tion.7 The Commission has already encouraged Member States to work on receiving explicit consent from non-EU Member States which would enhance legal certainty for EU citizens. The Commission acknowledges that this should be done on a case by case basis. It intends to propose including a consent clause in future “mixed” agreements concluded by the EU and its Member States with third countries.8 The need to enhance co-operation has been noted by the EU institutions. For instance, the European Commission has stated: [A]t present there are only three countries where all the Member States are repre­ sented: the People’s Republic of China, the Russian Federation and the United States of America, and in 107 out of 167 third countries a maximum of 10 Member States are represented. This situation became patently clear at the end of 2004 when the tsu­ nami hit South East Asia, where most of the Member States did not have a represen­ tation in the countries affected by the disaster.9

The statistics suggest that the need for consular protection is expected to increase in the coming years. The Commission has admitted that recent major crises affected a considerable number of EU citizens in third countries.10 However,

6 This might explain why the European Convention on Consular Functions has a poor ratification record. It has so far been ratified by only four countries – Greece, Norway, Portugal and Spain, and signed by another five countries. For its entry into force five ratifications are required. 7 Supra note 3, 1–2, 8, 586–588. 8 Communication from the Commission ‘Effective consular protection in third countries: the con­ tribution of the European Union. Action Plan 2007–2009’ COM (2007) 767 final, 5 December 2007, section 5.5. 9 Green paper ‘Diplomatic and consular protection of Union citizens in third countries’ COM (2006) 712 final, 28 November 2006. 10 The number of trips EU citizens take to third countries has increased from over 80 million to over 90 million trips in 2008 and travel activity is expected to further increase. Moreover, crises such as in Libya, Egypt and Bahrain in 2011, the earthquakes in Japan in 2011 and Haiti in 2010, Iceland’s volcanic ash cloud in spring 2010, showed the need for consular protection. More than 100 000 EU citizens were present in these countries when the crises occurred. Communication from the Commission ‘Consular protection for EU citizens in third countries: State of play and way forward’ COM (2011) 0149 final, 23 March 2011.

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“in view of the limits to the Member States’ consular and diplomatic networks, the current Community acquis is fairly slim”.11 At the moment, entitlement to protection by diplomatic and consular authori­ ties is further specified in two Decisions. Decision 95/553/EC entitles unrepre­ sented EU citizens to consular protection by any Member State diplomatic and consular representation on the same conditions as the nationals of that State.12 Assistance covers the following situations: (a) assistance in cases of death; (b) assistance in cases of serious accident or illness; (c) assistance in cases of arrest or detention; (d) assistance to victims of violent crime; (e) relief and repa­ triation of distressed citizens of the Union; and (f) issuance of emergency travel documents. The grounds listed are not exhaustive. In turn, Decision 96/409/CFSP entitles unrepresented Union citizens who have lost their travel document to an emergency travel document issued by any other Member State represented in the respective non-EU Member State.13 In addition, various guidelines have been adopted in the field of consular assis­ tance. Following on from Council guidelines on consular protection for EU citi­ zens in third countries14 the Council adopted guidelines which aim to “strengthen consular cooperation between EU Member States through the implementation of the consular Lead State concept”.15 The Lead State concept means that in the event of a major consular crisis the Lead Sate will endeavour to ensure that all EU citizens are assisted and will coordinate between Member States on the ground. A working party on consular cooperation (COCON) has also been set up to orga­ nize exchanges of information on best national practices.16 They have adopted non-binding guidelines which focus on exchange of information between Member States with a view to close co-operation. Several proposals have already been tabled and the potential of Article 23 TFEU, allowing adoption of directives, has been acknowledged. For instance, introduction of Article 23 TFEU passports,17 amendments to Decision 95/553 to 11 Supra note 9, section 1.6. 12 See Decision 95/553 regarding protection for citizens of the European Union by diplomatic and consular representations, OJ L 314, 28 December 1995, 73–76. 13 Decision 96/409/CFSP on the establishment of an emergency travel document, OJ L 168, 6 July 1996, 4–11. 14 ‘Guidelines on Consular Protection of EU Citizens in Third Countries’ (16 June 2006) 10109/2/06 Rev 2, COCON 14 Council of the EU, Lead State Concept, 12 June 2007, 1071507, see also ‘Lead State Concept’ (12 June 2007) 10715/07, COCON 19. 15 Council of the European Union, ‘European Union guidelines on the implementation of the con­ sular Lead State Concept’ (12 December 2008) 2008/C 317/06, OJ C317/6. 16 Supra note 9. 17 Supra note 9. Barnier Michael ‘For a European civil protection force: Euroope aid’ (9 May 2006), available at accessed 3 March 2011.

Functions of EU Citizenship  171

provide explicitly for extension of assistance to EU citizens’ family members, sim­ plification of financial advances. Member States are also encouraged to accede to the Council of Europe Convention on the transfer of corpses.18 In addition, it is important to ensure that Decision 88/384 setting up a prior communication and consultation procedure on migration policies in relation to non-EU Member States is properly implemented.19 The European Commission has released a proposal for a Council Directive on consular protection for Union citizens abroad.20 The proposal is based on Articles 20 and 23 TFEU as well as Article 46 of the Charter. The proposed Directive is intended to replace Decision 95/553. Adoption of the Directive would not only increase the involvement of the EU in consular protection but would also clarify ambiguities in consular services available to EU citizens. For instance, the pro­ posal clarifies the scope of beneficiaries of consular assistance (Article 2) and defines the ‘accessibility’ criteria for consulates where EU citizens can seek assis­ tance (Article 3).21 Chapter 2 of the proposed Directive is devoted to co-ordina­ tion measures between Member States’ diplomatic and consular authorities. Therefore, Member States will be under obligation to establish local cooperation meetings for exchange of information and to nominate a Chair for these meet­ ings. Moreover, Union delegations would act as supporters or even take the Chair. Special attention in the proposal is devoted to crisis situations and financial reimbursement. Currently decentralized operations complicate the logistics of the procedure. According to the Directive, Union delegations will be involved in co-ordination of contingency plans. Article 13 also provides an option for Member States to request support by intervention teams at Union level including consular experts from unrepresented Member States. In the event of crisis the Lead State may seek support from the EU Civil Protection Mechanism22 and the crisis man­ agement structures of the European External Action Service (Article 16 (4)). Therefore, the EU dimension in consular protection will significantly increase. However, several initiatives require continuation. First, the European External Action Service should be strengthened. It has been argued that this might be done by a two step approach, i.e., as a first step to entrust FEAS with functions of

18 Supra note 9, section 3.1. 19 Ibid., 3.3. 20 ‘Proposal for a Council Directive on consular protection for citizens of the Union abroad’ COM (2011) 881 final, 14 December 2011. 21 The draft directive includes as beneficiaries an EU citizen’s family members who are not citizens of the Union. Embassies, consulates or honorary consuls are considered accessible if they can be reached within one day’s travel. 22 See accessed 21 February 2013.

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consular protection and the second step would entrust FEAS with dealing with Schengen visa applications representing those Member States that are not present in the particular location.23 Second, the Commission should continue awareness-raising among EU citizens on their rights when they are in non-EU Member States. And third, another measure which the EU could pursue is estab­ lishment of common diplomatic representation of all Member States.24 The main task of these common representations would be to offer consular assistance for EU citizens in need. This would require a special budgetary contribution to cover expenses incurred by the respective authorities. One could even go as far as sug­ gesting that this function could be transferred to the EU and delegations of the Commission which could undertake tasks on behalf of EU Member States. This would not only facilitate the ‘visibility’ of EU citizenship for citizens of Member States but would also assist the EU in elaborating its international standing vis-àvis third States. This option is also preferred by the European Commission which sees it as a long term measure.25 Notwithstanding that diplomatic protection is mentioned along with consular protection, EU competence in relation to diplomatic protection is much less developed. Article 23 TFEU envisages conclusion of international agreements which might inter alia provide that the EU or a nominated Member State could exercise diplomatic protection. However, at this stage of development it can be argued that any harmonization measures in relation to diplomatic protection at the EU level should be distinguished from the realm of consular protection. First, although the competence of the EU in the sphere of common foreign and security policy has increased, it has not reached the level necessary for the EU to replace its Member States in external relations in general. There are no supra-national organs independent of Member States that could undertake the function of diplo­ matic protection. Second, this would require significant changes in relation both to the perception of EU citizenship by non-EU Member States as well as percep­ tion of the concept of diplomatic protection in international law. The possibilities for international organizations to submit international claims have been recog­ nized since the ICJ ruling in the Reparation for Injuries case26 where the Court inter alia stated:

23 Supra note 3. 24 La Torre Massimo, ‘Citizenship, Constitution, and the European Union’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 435–457, 441. 25 Supra note 8, section 5.5. 26 Reparation for Injuries suffered in the service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174.

Functions of EU Citizenship  173 The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights and their nature depends upon the needs of the com­ munity. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States.

However, in Reparations for Injuries the ICJ recognized the right of the UN to bring a claim on behalf of its agent who suffered injury which could be attributed to the Organization. In the case of the EU exercising diplomatic protection on behalf of its citizens it should have competence adequate for claiming injury to be attributed to it. This inter alia differentiates the status of the EU in interna­ tional law compared to the competence of the State. Even if overall developments might lead in that direction this would be more meaningful for the EU as a sub­ ject of international law, rather than individuals who in turn could benefit from developments in harmonizing consular protection. The role of the EU in the consular segment is subject to significant increase. With amendments to the Lisbon Treaty it can be argued that EU policy for pro­ tection of its citizens moves from ‘within the EU’ to ‘outside the EU’. It also changes from an area entirely governed by the sovereign powers of EU countries into an area where the Union has the competence to make uniform rules aimed at protecting its citizens also outside the borders of the Union.27 The complexity in further exploring these developments is that both internal and external aspects are involved. The EU cannot organize consular protection and assistance all by itself. It should seek conclusion of relevant agreements with non-EU countries. This in turn requires political commitment from both EU and non-EU Member States. 12.2. Rights of Citizens to Move and to Reside This section is divided into three sub-chapters. First, free movement and resi­ dence will be discussed in the context of the EU. This concerns not only the right to enter and to reside but also protection against expulsion and the criteria to be applied in those cases. The second chapter will look at how EU citizenship rights have been affected by provisions on non-discrimination on the basis of national­ ity and possibly extended the scope of application of EU law. Finally, the study will devote particular attention to family reunion as part of the right to private life of EU citizens and their family members who might also happen to be third coun­ try nationals. The tests of ‘substance of rights’ and ‘by reason of their nature and 27 Supra note 3, 2.

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consequences’ will be analysed in the context of EU citizens’ rights discussed, including their possible application in purely internal situations. In terms of sources attention will be devoted not only to interpretation of Treaty Articles 18, 20, 21 and 23 TFEU and CJEU case law but also Directive 2004/38 which codifies secondary norms on free movement and repeals or amends a great amount of previously existing secondary legislation.28 The aim of the Directive in the words of the Commission is that: Union citizens should, mutatis mutandis, be able to move between Member States on similar terms as nationals of a Member State moving around or changing their place of residence or job in their own country.29

In addition, the role of the Charter of Fundamental Rights will also be examined, especially because its Article 45 enshrines the right of every citizen of the EU to move and reside freely within the territory of the Member States. The aim is to see to what extent internal borders between EU Member States and different treatment of nationals from other EU Member States still matter. 12.2.1. Free Movement within the EU Article 21 TFEU (ex Article 18 TEC) in paragraph 1 provides: Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

Two alternative interpretations of Article 21 TFEU are possible. First, free move­ ment and residence rights are fundamental and secondary norms merely provide certain conditions. Another way of reading Article 21 TFEU is that it serves as a codification of secondary law. According to Advocate General Kokott the decisive difference of the first reading from the second is that the right to free move­ ment can only be restricted within the limits of, for example, proportionality.30 28 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the ter­ ritory of the Member States amending Regulation 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC. Official Journal, L 158, 30 April 2004, 77. 29 ‘Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States’ COM (2001) 257 final, 23 May 2001. 30 Kokott Juliane, ‘EU citizenship – citoyens sans frontieres?’ (Durham European Law Institute, European Law Lecture 2005), available at accessed 21 February 2013, 2.

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This assertion has found its supporters and objectors in legal doctrine.31 The Court sided with the first approach, especially before adoption of Directive 2004/38/EC. This has allowed for extension of EU law application both ratione materiae and ratione personae. 12.2.1.1. Entry The right to enter has been significantly simplified by establishing the Schengen area which has been incorporated in the EU framework by a protocol attached to the Treaty of Amsterdam. This provides for removal of checks on persons at internal borders and a common set of rules applying to people crossing external borders of EU Member States. In relation to the right of entry the only requirement is that an EU citizen must be in possession of a valid travel document. According to Article 5 of Directive 2004/38 Member States must grant Union citizens with a valid identity card or passport leave to enter their territory. If a Union citizen does not have the neces­ sary travel documents, the State concerned must allow reasonable opportunity to obtain them. If the right of entry is refused, according to paragraphs 25 and 26 of the Preamble to the Directive, procedural safeguards and judicial redress proce­ dures should be made available. The requirement of possession of travel documents has been dealt with by the CJEU on a number of occasions. The Court’s interpretation sets the limits of Member States’ right to refuse the right to enter. Although there have been developments since the Court’s ruling in Wijsenbeek32 the general principle of obligation to present an identity card or passport has remained. According to the Court the discretion of Member States is limited because EU citizens acquire the right to enter not because they possess a document but because they have been granted those rights by the Treaty. This was repeatedly confirmed by the Court in the more recent Oulane case.33 The case concerned a French national who 31 Davis Roy W., ‘Citizenship of the Union … Rights for all?’ (2002) 27/2 ELR, 121–137, 129. Bodnar Adam, ‘Legitimacy of European Citizenship’ in Bodnar Adam, Kowalski Michal, Raible Kare, Schorkopf Frank (eds), The Emerging Constitutional Law of the European Union. German and Polish Perspectives (Springer: Berlin, Heidelberg 2003) 287–310, 299–300. See also supra note 24, 436. 32 Case C-378/97 Criminal proceedings against Florus Ariël Wijsenbeek v. Arrondissementsrecht­ bank Rotterdam [1999] ECR I-6207. The Court was asked to interpret Article 21 TFEU in relation to a Dutch national travelling back from France who refused to present his passport to the national police officer at the border or to establish his nationality by other means. As a result Mr.Wijsenbeek faced criminal charges. 33 Case C-215/03 Salah Oulane v. Minister voor Vreemdelingenzaken en Integratie [2005] ECR I 1215. See in this regard also Case 48/75 Jean Noël Royer v. Tribunal de première instance de Liège - Belgium [1976] ECR 497.

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considered himself to be a tourist, i.e., service recipient. He was stopped twice in the Netherlands without identity documents on grounds of suspicion of illegal residence. In the first case he was detained and released after presenting his French identity card. On the second occasion he was detained and subsequently deported to France. The Court referred to Directive 2004/38 and concluded that there have been no developments leading to changes of requirement for recipi­ ents of services who are EU citizens and who wish to reside in the territory of other Member States, to provide evidence of their identity and nationality. The CJEU stated: The presentation of a valid identity card or passport for the purpose of proving that a person is a Community national is an administrative formality the sole objective of which is to provide the national authorities with proof of a right which the person in question has directly by virtue of their status.34

The Court did not consider that presentation of a valid identity card or passport in all cases is in line with EU law. If the person concerned is able to provide unequivocal proof of nationality by means other than a valid identity card or passport, for instance a driver’s licence, the host Member State may not refuse to recognise that person’s right of residence. Moreover, by applying such require­ ments only to foreigners a Member State would be violating Article 56 TFEU. According to the Court this might trigger invocation of Article 18 TFEU.35 In contrast to Wijsenbeek where the Court by reference to general develop­ ments in the EU did not rule out criminal charges for lack of documents, in Oulane the Court considered this as manifestly disproportionate to the seriousness of the infringement. It said that detention and deportation based solely on failure to comply with legal formalities concerning monitoring of aliens impairs the very substance of the right of residence directly conferred by Community law.36 Failure to comply with legal formalities pertaining to aliens’ access to movement and residence does not by itself constitute a threat to public policy or security. Therefore, deportation cases can only be exceptional.37 There seems to be a distinction between when a person does not identify him­ self at the border and when a person is unable to identify himself after entry to the State. It can be concluded that Article 5 of Directive 2004/38 applies to cases 34 Ibid., paras 24 and 25. 35 Ibid., para 35. 36 Ibid., para 40. Note that already in these cases the CJEU referred to the ‘very substance’ of resi­ dence rights conferred directly by EU law and in the particular case found applicable national measures to be manifestly disproportionate. If seen in this perspective the methodology adopted in Case C-135/08 Rottmann was not invented anew but rather adjusted to the special circum­ stances of the case. 37 Ibid., paras 40–42, and para 56.

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at the border when States must assist the individual to acquire necessary identity documents. Once having crossed a border individuals must not be detained and can identify their nationality by any means, not only a passport or identity card. In addition Article 32 provides that in cases when a person is issued an exclusion order on the grounds of public policy or public security this should be reviewed after a maximum three year period by putting forward arguments to establish whether there has been a material change in circumstances. Review of such appli­ cations should take no more than six months. Therefore, national immigration law in relation to the right to travel within the Schengen area is becoming more and more limited. The right to enter in the case of EU citizens is considered as an independent directly effective right subject to certain administrative formalities. An EU citizen can be deported only if unable to show proof of being an EU citizen or if they represent a threat to public policy, public security or health. 12.2.1.2. Residence Residence rights are directly effective in the EU and can be relied upon by all EU citizens. This is the result of gradual development of CJEU jurisprudence on the EU citizenship concept in the Treaty.38 In Baumbast39 the Court confirmed that residence rights of EU citizens are directly effective irrespective of economic activity of the citizen: A citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18(1)EC (Article 21TFEU). The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community law and, in particular, the principle of proportionality.40 38 The Court of First Instance in 1997 qualified the right to free movement as a principle and applied direct effect although without mentioning it explicitly. Case T-66/95 Hedwig KuchlenzWinter v. Commission of the European Communities, [1995] ECR-SC I-A-87, II-287. The first signs of changes in the CJEU position came with the rulings in Case C-85/96 Sala and C-274/96 Bickel and Franz, see section 12.2.2.2. of this section. 39 Case C-413/99 Baumbast, R v. Secretary of State for the Home Department [2003] ECR I-7091. Mrs. Baumbast a Colombian national married Mr.Baumbast, a German national, in the UK. They had two daughters one of Colombian, another of German and Colombian nationality. Mr. Baumbast was employed in the UK and soon after became self-employed there. Both daugh­ ters attended school in the UK. However, when Mr.Baumbast’s business failed he took a job with German companies in Asia. Mrs. Baumbast failed to find a job. When after a couple of years they applied for indefinite leave to remain, their applications were refused. 40 Ibid., para 94.

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Therefore, the Court acknowledged that each citizen qua citizen enjoys the right of free movement and residence. However, the actual exercise of that right is still subject to limitations and conditions brought about by secondary legisla­ tion, which should be applied in a manner that does not affect the existence of the right as such. The reasoning of the Court can be at least partially explained by the fact that at that time the Commission released a draft of Directive 2004/38. The Directive deals with residence conditions which can be divided into sev­ eral parts: (1) one to three months, (2) from three months until permanent resi­ dence status, (3) after permanent residence status is acquired. Residence for three months is not conditioned by any requirements except possession of valid docu­ ments discussed under the previous section. The most conditional is the period after three months and until permanent residence is acquired, i.e., the period of temporary residence. Individuals who fall into one of the categories that can claim the right to reside over three months are set in Article 7 of the Directive, i.e., workers, self-employed persons, persons who have sufficient resources, students, job-seekers and those subject to involuntary employment. Article 7(3) provides detailed rules for exemptions when a person would still qualify for residence rights, although possibly temporarily unable to work. Article 7 of the Directive lists cases when family members are entitled to residence. In this regard the Directive codifies regulation which was previously scattered in different directives on specific categories of persons. Individuals residing over three months have to register with the competent authorities and to acquire a registration certificate under Article 8 of the Directive. Concerning the obligation to register the Court has stated: [I]ssuance of a residence permit to a national of a Member State is to be regarded not as a measure giving rise to rights but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of Community law.41

Thus, a residence certificate, the same as travel documents, is regarded as a for­ mality and the fact that an individual has not complied with formalities might lead to ‘proportionate and non-discriminatory sanctions’ according to Article 8 (2) of Directive 2004/38 requiring registration. However, failure to register cannot entail deportation. This was confirmed in Commission v. Belgium, where the Court emphasised that automatic deportation impairs the very substance of a right of residence directly conferred by EU law and is disproportionate.42 41 Supra note 33, para 18. 42 Case C-408/03 Commission of the European Communities v. Kingdom of Belgium [2006] ECR I-2647, paras 66–71.

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Paragraph 10 of the Preamble to the Directive states that during the initial period of residence a person must not become an unreasonable burden on the social assistance system of the host Member State. According to Article 8 (4) a Member State may not lay down a fixed amount which they regard as “sufficient resources”, but they must take into account the situation of the person concerned. In all cases this amount must not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State. This formulation conforms with the CJEU interpretation, developed over the years, of resources which can be required for residence in Member States.43 For instance, in Commission v. Belgium44 the Commission was concerned with application of, at that time, Directive 90/364 by Belgium requiring production of evidence of sufficient resources and sickness insurance of family members of EU citizens. The Court stated that the Directive is to be considered as a condition under Article 21 TFEU and to be applied in com­ pliance with the limits imposed by EU law and in accordance with general prin­ ciples of law, in particular the principle of proportionality. By reference to Chen it was sufficient for EU citizens to ‘have’ the necessary resources whatever their ori­ gin. This corresponds to the obligation to interpret the fundamental principle of free movement broadly.45 Therefore, in each particular case Member States should seek to establish whether a person de facto has sufficient resources irre­ spective of their origin. For the purposes of the Directive recourse to existing case law would be neces­ sary to qualify a person under any category of persons who can enjoy the right to temporary residence.46 In this context the case-law of the Court might seem to be a ‘patch-work blanket’ as a result of the methodology and jurisdiction of the Court.47 This is not remedied by the Directive and it can hardly be achieved by taking into account the Court’s approach when every situation should be 43 See, for instance, Case 66/85 Deborah Lawrie-Blum v. Land Baden-Württemberg [1986] ECR 2121, Case 139/85 R.H.Kempf v. Staatssecretaris van Justitie [1986] ECR 1741, para 14, Case C-3/90 M.J.E. Bernini v. Minister van Onderwijs en Wetenschappen [1992] ECR I-1071. 44 Supra note 42. The case concerned a Portuguese national who had established a stable partner­ ship with a Belgian citizen. She had arrived in Belgium with her three daughters. 45 Supra note 42, para 39. 46 To mention a few relevant cases reference should be made to Case 53/81 D.M. Levin v. Staatssecretaris van Justitie [1982] ECR 1035, Case 196/87 Udo Steymann v. Staatssecretaris van Justitie [1988] ECR 6159, Case 3/87 The Queen v. Ministry of Agriculture, Fisheries and Food, ex parte Agegate Ltd. [1989] ECR 1621 and Case C-3/90 M.J.E. Bernini v. Minister van Onderwijs en Wetenschappen [1992] ECR I-1071. 47 Staples Helen, The Legal Status of Third Country Nationals Resident in the European Union (Kluwer Law International: the Hague 1999) 54.

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evaluated on a case by case basis to observe the proportionality principle. The Court is becoming more relaxed in relation to criteria to be applied. For instance, recourse to public funds of social assistance is not sufficient to lose status under EU law.48 In this very context Article 21 TFEU should be seen as potential for development of EU citizenship. The Directive places special safeguards on those EU citizens who have settled permanently, i.e., paragraph 18 of the preamble states that the right of permanent residence, being a genuine vehicle for integration into the society of the host Member State, once obtained should not be subject to any conditions.49 In order to obtain permanent residence according to Article 16(1) of Directive 2004/38, a Union citizen must reside in the host Member State for five years. This also applies to family members in accordance with Article 16(2). Continuous resi­ dence according to Article 16 (3) is not affected by absence from the territory for up to six months a year or even longer in special circumstances such as military service. Absence for one year will not affect continuous residence in cases of preg­ nancy and childbirth, serious illness, study or vocational training, posting to another Member State or third country. The list is not exhaustive and these grounds are given as examples of important reasons justifying absence. Article 16 (4) provides that once acquired a permanent residence right can be lost only through absence from the host Member State for a period exceeding two consec­ utive years. Article 17 enumerates exemptions from Article 16 in cases where a person is no longer working in the Member State. The three groups of persons envisaged include those who retire, who stop working as a result of permanent incapacity to work, or who continue to reside in the host Member State while being employed in yet another EU Member State. Specific conditions are attached to each group. Article 17 also contains specific provisions for family members in the case of death of a worker or a self-employed person. The CJEU has had to give preliminary rulings on calculation of periods of continuous residence. For instance, in Lassal50 the Court was facing the question 48 See section 12.2.2. of this part. 49 See also in this context Opinion of the Advocate General in Case C-325/09 Secretary of State for the Home Department v. Maira Dias, Judgment of 11 July 2011 [not yet reported] Advocate General Trstenjak, para 78–79. The Advocate General also links a level based system to achieve balance between the EU citizen’s right of free movement in the Union and the objective of social cohesion and financial interests of Member State. See in detail section 12.2.2. of this part. 50 Case C-162/09 Secretary of State for Work and Pensions v. Taous Lassal [2010] ECR I-9217. The case concerned Ms. Lassal, a French national, who resided in the UK for a number of years and was considered a worker from January 1999 to February 2005. She left to visit her mother in 2005 for 10 months and after that returned to the UK and qualified for Job Seeker’s Allowance. In 2006 she applied for income support on the basis that she was pregnant. The application was refused on the ground that she had no right to reside in the UK.

Functions of EU Citizenship  181

of the starting date for calculating five years of residence and length of absence from the territory of the Member State after five years of residence. The Court refused to accept the argument that five years of continuous residence should be counted from the date of transposition of Directive 2004/38, i.e. 30 April 2006. In the view of the Court this would be contrary to the purpose of the Directive.51 Article 16 (4), allowing absence for two consecutive years, applies also to situations of temporary absences prior to 30 April 2006 which occurred where continuous periods of five years legal residence had been completed before that date. The CJEU ruled that Article 16(4) is applicable independently of periods of residence completed before or after the date of transposition. Therefore, the Directive is applicable to continuous periods of five years’ legal residence before the date of transposition and absence from the host Member State for less than two consecutive years does not affect applicability of the Directive.52 The CJEU approach was further specified in Dias, where more detailed count­ ing of relevant residence periods was at issue.53 The CJEU was confronted with the question whether a residence permit validly issued issued under Directive 68/360 can be counted for acquisition of the right to permanent residence under Article 16(1) of the Directive 2004/38 although the holder of that permit did not satisfy the conditions governing entitlement to a right of residence.54 According to Lassal, periods preceding transposition of Directive 2004/38 do count for the purposes of Article 16(1). At the same time the Court declared the residence per­ mit declaratory which meant that any stay which did not correspond to the resi­ dence permit issued could not be counted as legal on the basis of Directive 68/360 and thus not qualified as an interrupted period for the purposes of Directive 2004/38. The Court noted: 51 Ibid., paras 34–38. The Court stated that this reading does not give retroactive effect to Article 16 of the Directive, but simply gives present effect to situations which arose before the date of its transposition. 52 Ibid., paras 54–57. Therefore, Ms. Lassal was entitled to permanent residence rights because she resided continuously for five years in the UK before transposition of the Directive and her absence was also to be interpreted in the light of the provisions of the Directive. 53 Case C-325/09 Secretary of State for the Home Department v. Maira Dias, Judgment of 11 July 2011 [not yet reported]. Mrs. Dias was a Portuguesse national who entered the UK in January 1998. She resided on the basis of Directive 68/360/EC. At the same time during certain periods she was not entitled to reside on the basis of the Directive mentioned, i.e., during maternity leave and unemployment. After a certain period of legal employment she applied for income support while jobless. She referred to her right to permanent residence under Directive 2004/38. See paras 23–25 of the ruling. She based her claim on residence periods preceding transposition of directives which cumulatively were more than five years even if periods of her being outside the labour market were taken into account. 54 Ibid., para 42.

182  Chapter Twelve Consequently, it must be held that periods of residence completed before 30 April 2006 on the basis solely of a residence permit validly issued under Directive 68/360, without the conditions governing entitlement to any right of residence having been met, cannot be regarded as having been completed legally for the purposes of the acquisition of a right of permanent residence under Article 16(1) of Directive 2004/38.55

Thus, interpretation of Article 16(4) on absence from the territory entails not only physical absence but also the case when a citizen resides in the host Member State without having a right of residence under EU law. The integration objective for permanent residence is based not only on territorial and time factors but also on qualitative elements relating to the level of integration in the host Member State, which is proved by legal residence based on provisions of secondary legisla­ tion.56 This means that, although residence periods before transposition of Directive 2004/38 should be taken into account, the factual circumstances do matter. In Dias factual circumstances were not the reason to refuse rights derived from Directive 2004/38 because periods of legal residence corresponded to the requirements set. At the same time the CJEU’s approach was formalistic, i.e., if a person was granted a residence permit on the basis of the Directive and no longer satisfied the conditions for which the residence permit was issued, the conduct of the authorities allowing residence rights cannot be interpreted to the detriment of an individual. In this case residence rights are derived primarily on the basis of Article 21 TFEU which applies irrespective of the specific status of EU citizens according to national law. While Article 21 TFEU did not eliminate conditions applicable to certain cate­ gories of EU citizens who exercise free movement rights, these conditions have become much more nuanced in their scope. Some requirements have become pure administrative formalities while others are subject of broad interpretation. In general, all limitations and conditions should be read in the light of Article 21 TFEU in order not to deprive it of its fundamental meaning for the purposes of free movement and residence rights of EU citizens. International law require­ ments are of limited importance because the EU is building its own common area for EU citizens where different rules apply for movement and residence. EU law is thus capable of bringing extra rights for EU citizens outside their country of nationality, and placing additional obligations on the host country. 55 Ibid., para 55. 56 Ibid., paras 63–64. However, taking into account the other residence periods of Ms Dias, the Court concluded that periods of residence of less than two consecutive years on the basis of a residence permit validly issued under Directive 68/360, without the conditions governing entitle­ ment to a right of residence having been satisfied, which occurred before 30 April 2006 and after a continuous period of five years’ legal residence completed prior to that date, are not such as to affect acquisition of the right of permanent residence under Article 16 (1) of Directive 2004/38.

Functions of EU Citizenship  183

12.2.1.3. Expulsion Cases when expulsion of EU citizens or their family members can be ordered are limited and subject to a number of tests. Directive 2004/38 codifies the main tests established by the Court in its case law. For instance, Article 14 (4) limits expulsion of EU citizens and their family members who are workers, self employed persons or job-seekers.57 Article 14 (3) of Directive 2004/38 provides that expulsion must not be an automatic consequence of recourse to the social system. Member States should examine whether such recourse is had because of temporary difficulties. In addition, the State must take into account the dura­ tion of residence, personal circumstances and the amount of aid requested. Expulsion is thus possible only in cases where a person constitutes an ‘unreason­ able burden’. This conforms with the Court’s rulings in social assistance cases where minimum financial solidarity between the Member States has been established.58 The Directive aims at tightening the provisions of previous Directive 64/221 in relation to public policy and public security conditions. According to paragraph 23 of the preamble and Article 27 (2) of the Directive, Member States have to comply with the principle of proportionality and expulsion should be based exclusively on the personal conduct of the individual concerned. Previous crimi­ nal convictions do not in themselves constitute grounds for taking such mea­ sures. The CJEU has stated that expulsion must not be based on considerations of general prevention.59 The definition of personal conduct in Article 27 (2) of the Directive also reflects the conclusions drawn by the CJEU, i.e., the conduct of a person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. The added value of the Directive is additional protection against expulsion for long-term residents in Article 28. This is primarily based on the length of resi­ dence of the EU citizen in the host Member State, i.e., the longer the residence the stricter the conditions for expulsion. This is connected with the presumption that length of residence is closely related to integration of the individual in 57 This is a similar formulation which can be found in the Antonissen case. The Council does not specify a time limit for residence on these bases as long as “the person concerned provides evi­ dence that he is continuing to seek employment and that he has genuine chances of being engaged”. Case C-292/89 The Queen v Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen [1991] ECR I-745. 58 See section 12.2.2. of this part. 59 For instance, Case 67/74 Carmelo Angelo Bonsignore v Oberstadtdirektor der Stadt Köln [1975] ECR 297, Case 36/75 Rutili v. Minister of Interior [1975] ECR 1219. See also judgment in Case 30/77 Régina v Pierre Bouchereau [1977] ECR 1999, para 35, Case C-363/89 Danielle Roux v Belgian State [1991] ECR I-273, para 30, Case C-348/96 Criminal proceedings against Donatella Calfa [1999] ECR I-11.

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society.­In this sense it resembles the approach of the ECtHR.60 It should be noted that the test elaborated by the ECtHR when dealing with expulsion cases is detailed as to conditions to be taken into consideration when weighing propor­ tionality of the measure. The CJEU has repeatedly acknowledged that those crite­ ria should be applied by the national courts in expulsion cases because human rights form part of the general principles of EU law. None of the criteria estab­ lished by the ECtHR has been explicitly excluded.61 The general rule set in Article 28 (1) provides that the principle of proportional­ ity in expulsion cases requires paying due regard to the age, state of health, fam­ ily, social and cultural integration, economic situation and links with their country of origin of the person concerned. Moreover, there must be no discrimi­ nation in relation to citizens of other States, i.e., if the State permits certain actions on the part of its own citizens then no sanctions can be applied in cases of citizens of other EU Member States.62 However, differences might arise in treatment of EU citizens in cases not lead­ ing to expulsion but limiting free movement rights within the host Member State. For instance, decisions can be made in cases of serious threats of terrorism or violence. This was addressed by the CJEU in Olazabal.63 Mr. Olazabal was sen­ tenced in France for being linked with an armed and organized group involved in terrorist acts. This led the Court to the conclusion that: In situations where nationals of other Member States are liable to banishment or prohibition of residence, they are also capable of being subject to less severe mea­ sures consisting of partial restrictions on their right of residence, justified on grounds of public policy, without it being necessary that identical measures be capable of being applied by the Member State in question to its own nationals.64

60 See section 5.2.2.3. of part II in this volume. See, for instance, also Mutlag v. Germany (App no 40601/05) ECHR 25 March 2010, but see also Gezginci v. Switzerland (App no 16327/05) ECHR 9 December 2010. 61 Compare to section 5.2.2.3. of part II in this volume. 62 For case law which inspired the drafters of the Directive see Case 41/74 Yvonne van Duyn v Home Office [1974] ECR 1337, paras 22–23, Joined cases C-65/95 and C-111/95 The Queen v Secretary of Sate for the Home Department, ex parte Mann Singh Shingara and Abbas Radiom [1997] ECR I-03343, para 28, Joined cases 115–116/81 Rezguia Adoui v Belgian State and City of Liège; Dominique Cornuaille v Belgian State [1982] ECR 1665. 63 Case C-100/01 Ministre de l’Intérieur v. Aitor Oteiza Olazabal [2002] ECR I- 981. Mr. Oteiza Olazabal was a Spanish national of Basque origin, having links with ETA. He arrived in France where he was denied refugee status. Mr. Olazabal was sentenced by the French authorities for intimidation of terror. Afterwards he was granted limited residence without the right to leave the territory of the French department without authorisation and he was refused the right to enter 31 French departments in order to keep him away from the Spanish frontier. 64 Ibid., para 41.

Functions of EU Citizenship  185

The Court concluded that neither the Treaty nor the provisions of secondary leg­ islation preclude Member States from imposing limits on residence rights if this relates to reasons of public security which are sufficiently serious and if it is pro­ portionate to measures which would be applicable in cases of its own nationals. The Directive differentiates the degree of protection for different groups of long-term residents. EU citizens holding permanent residence rights can be expelled only on serious grounds of public policy or public security according to Article 28 (2). But EU citizens who have resided in the host Member State for the previous 10 years or minors can be expelled only in cases of imperative grounds of public security according to Article 28(3). Expulsion of minors is allowed only in cases where necessary for the best interests of the child as provided in the UN Convention on the Rights of the Child. A number of cases shed light on interpre­ tation of these provisions and actions which might trigger invocation of either Article 28(2) or (3). For instance, the Tsakouridis case concerned a Greek national born in Germany and residing there most of his life.65 He left Germany for a couple of months to run his pancake stall in Greece. At the time of his departure the German court issued an international arrest warrant. Mr. Tsakouridis was arrested and accused on eight counts of illegal dealing in substantial quantities of narcotics as part of an organized group. Taking into account his previous criminal record he was sen­ tenced to six years and ordered to be expelled. The Court was confronted with questions of interpretation of Article 28 of the Directive. First it was asked to explain whether temporary absence from Germany would still allow Mr. Tsakouridis to qualify as a person residing for the ‘previous 10 years’ in Germany which would qualify him for stronger protection against expulsion. According to the Court, application of Article 28(3) requires individu­ alization of each particular case. National authorities should take into account the duration of each period of absence, the cumulative duration and the fre­ quency of those absences and the reasons why the person concerned left the host Member State. Second the Court was asked to explain the distinction between ‘serious grounds’ and ‘imperative grounds’ which might lead to expulsion. The Court emphasized that ‘imperative grounds’ of public security is a concept considerably stricter than that of ‘serious grounds’. It presupposes not only the existence of a threat to public security but also that such a threat is of a par­ ticularly high degree of seriousness. This covers both internal and external Member State security.66 According to the Court each case requires individual 65 Case C-145/09 Land Baden-Württemberg v. Panagiotis Tsakouridis [2010] ECR I-11979. 66 Ibid., para 40–43. The examples given by the Court included: threat to the functioning of institu­ tions and essential public services and the survival of the population, as well as the risk of a seri­ ous disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military

186  Chapter Twelve

examination. The authorities should pay due regard to the severity of sentence, the degree of involvement of the person in criminal activity, the risk of reoffend­ ing, and possibilities of social rehabilitation in the host Member State. In addi­ tion, the consequences of expulsion in the context of private and family life should be observed and the test of proportionality applied. According to Article 33 of the Directive expulsion orders may not be issued as a penalty or legal consequence of a custodial sentence, unless they conform to the requirements of Articles 27, 28 and 29. For instance in Orfanopoulous and Oliveri Mr. Orfanopoulos was a Greek national living in Germany with minor interrup­ tions since he was 13.67 He married a German national and had three children. He was employed from time to time. Mr. Orfanopoulous was a drug addict and alcoholic, convicted on a number of occasions as a result of which he had been warned of the possibility of expulsion. The expulsion decision was based on the number and seriousness of the offences committed by Mr. Orfanopoulos and by the real risk of him re-offending in future, by reason of his dependence on drugs and alcohol. In turn Mr. Oliveri, an Italian national, was born in Germany in 1977, was a drug addict for several years and became infected with HIV and chronic hepatitis C. Mr. Oliveri committed numerous offences and was subject to criminal sanctions and lost links with his parents. Mr. Oliveri interrupted treat­ ment and received a warning as to possible expulsion because of his conduct. According to the Court file he was seriously ill and was likely soon to die of his illness. The Court was dealing with the case on the basis of its previous methodology. First, the Court acknowledged that the principle of free movement of workers must be given a broad interpretation whereas derogations from that principle must be interpreted strictly. Second, a particularly restrictive interpretation of derogations from that freedom is required by virtue of a person’s status as a i nterests. The Court also added that the fight against crime in connection with dealing in narcot­ ics as part of an organized group is not necessarily excluded from that concept. See, paras 44–45. A further example is provided in Case C-348/09 I. V Oberbügermeisterin der Stadt Remscheid, Judgment 22 May 2012 [not yet reported]. The case concerned an Italian national living in Germany since 1987. He was single, with no children and had been employed only occasionally. In 2006 he was sentenced for the sexual assault, sexual coercion and rape of a young girl, who was eight years old when the offence commenced. The acts which gave rise to the conviction took place in 1999 and 2001. The Court referred to Tsakouridis and criteria to be applied. At the same time it acknowledged that Article 83 TFEU sheds light on what crimes are covered by the concept of ‘imperative grounds of public security’. However, such offences may justify expulsion only if the manner in which they were committed discloses particularly serious characteristics. 67 Joined Cases C-482/01 and C-493/01 Georgios Orfanopoulous, Natascha Orfanopoulos, Melina Orfanopoulos, Sofia Orfanopoulos and Land Baden-Württemberg; Raffaele Oliveri and Land Baden-Württemberg [2004] ECR I- 5257.

Functions of EU Citizenship  187

citizen of the Union.68 Third, restrictions must be based exclusively on the per­ sonal conduct of the individual concerned whereas criminal convictions them­ selves cannot justify those measures. Legislation providing for automatic expulsion in cases when a certain crime had been committed was recognized as incompatible with EU law. Apart from the three criteria mentioned above the Court noted that the principle of proportionality and fundamental freedoms must be observed.69 However, the Court concluded that application of the crite­ ria and principles does not preclude instances of expulsion if an EU citizen: [H]as received a particular sentence for specific offences and who, on the one hand, constitutes a present threat to the requirements of public policy and, on the other hand, has resided for many years in the host Member State and can plead family cir­ cumstances against that expulsion, provided that the assessment made on a case-bycase basis by the national authorities of where the fair balance lies between legitimate interests at issue is made in compliance with the general principles of Community law and, in particular, by taking proper account of respect for funda­ mental rights, such as the protection of family life.70

Therefore, the national court should inter alia apply criteria adopted by the ECtHR in addition to prescriptions of EU law.71 Although the final decision was left to the national court, this statement by the Court is also relevant for proper implementation of Article 33 of the Directive. Moreover, according to Article 33 (2) if expulsion is not enforced within two years a fresh examination of the case must be undertaken to establish whether a current and genuine threat to public policy or public security exists and to assess whether a material change in circum­ stances may have occurred.72 It can be concluded that the Directive does not serve as a guarantee against expulsion but obliges States to ensure that each case is reviewed on an individual basis by applying the criteria established in the Directive and interpreted by the Court. Moreover, EU citizens who are either permanent or long-term residents should constitute ‘serious’ or ‘imperative’ grounds to warrant their expulsion. It can also be suggested that criteria will be applied more and more strictly by the CJEU than by the ECtHR because of the different perspectives of the two courts. While the CJEU safeguards the rights of migrating EU citizens within the EU, the ECtHR most often considers situations when persons from outside Council of 68 Ibid., paras 64–65. 69 Ibid., paras 97–99. 70 Ibid., para 100. 71 See argumentation of the ECtHR in Moustaquim (App no 12313/86), Nasri (App no 19465/92) and Beldjoudi (App no 12083/86) cases in section 8.2.2.3. of part II of this volume. 72 For similar approach see judgment of the ECtHR in Boultif v. Switzerland (App no 54273/00) in section 8.2.2.3. of part II of this volume.

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Europe States claim the right not to be expelled. Moreover, even if those persons were from Council of Europe Member States, there are no similar mutual obliga­ tions regarding residence rights established among Council of Europe States as in the case of EU Member States. At the same time tests of the ECtHR are helpful to ensure observance of fundamental rights. In relation to public health as a ground for expulsion Article 29 of the Directive provides wide discretion for Member States to limit residence of EU citizens dur­ ing the first three months of residence. According to Article 29 (1) free movement can be limited in relation to a person who after a three month period from the date of arrival is diagnosed with diseases (i) of epidemic potential as defined by the relevant instruments of WHO, (ii) other infectious diseases, (iii) contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State. The formulation of the Article seems to be excessively wide since it might include persons who are diagnosed with HIV, HCV and even influenza. The group of infectious diseases can be applied to an exces­ sive number of cases because of the three month rule, which provides that only diseases occurring after a three month period from the date of arrival do not con­ stitute grounds for expulsion from the territory. Moreover, the Directive does not contain an annex on diseases as was the case for Directive 64/221. Several important developments on free movement rights should be noted. In relation to entry, residence and expulsion, residence rights are no longer viewed as immigration rights. According to the Directive and the Court’s consistent inter­ pretation the right to enter and to reside as well as to be protected from expulsion is rather an EU citizenship right than compliance with administrative formali­ ties.73 Abolition of residence permits is a great achievement as is creation of an unconditional right to permanent residence and clarification of the conditions for access to social benefits.74 In relation to issues of expulsion Directive 2004/38 is an achievement in codifi­ cation of the main criteria scattered through CJEU case law into a single second­ ary law instrument. For expulsion of EU citizens who are residing in the host Member State for longer periods, the criteria are particularly strict. This makes 73 See also Case C-193/94 Criminal proceedings against Sofia Skanavi and Konstantin Chryssantha­ kopoulosi [1996] ECR I-929, Case C-274/96 Criminal proceedings against Horst Otto Bickel and Ulrich Franz [1998] ECR I-7637, Case C-85/96 María Martínez Sala v. Freistaat Bayern [1998] ECR I-0269, paras 51, 61–62. The same view is held by Elspeth Guild, see Guild Elspeth, The Legal Elements of European Identity. EU Citizenship and Migration Law (The Hague: Kluwer Law International, 2004) 57. Toner Helen, ‘Judicial Interpretation of European Union Citizenship – Transformation or Consoli­dation?’ (2000) 7/1 MJ, 158–183, 166. 74 De Bruycker Philippe, ‘La Libre Corculation Des Citoyens Europeens Entre Codification et Reforme’ in Carlier Jean-Yves, Guild Elspeth (eds), The Future of Free Movement of Persons in the EU (Bruylant: Bruxelles 2006) 21–44, 21.

Functions of EU Citizenship  189

residence of EU citizens in other Member States secure. The final decision-makers­ on expulsion are national courts. However, they are well equipped with detailed criteria allowing them to treat each case on an individual basis and to arrive at a proportionate and well-argued decision. EU citizens who have availed themselves of the right to move within the EU and their family members will be protected from expulsion on the basis of both EU law, including the EU Charter, as well as the proportionality principle and criteria introduced by the ECtHR. 12.2.2. Equal Treatment Equal treatment entails an obligation of Member States not to discriminate against EU citizens on the basis of nationality.75 The legal basis of this rule can be found in Article 18 TFEU: Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

When dealing with possible violations of Article 18 TFEU the Court applies a three-step test. First, it considers whether the measure falls within the scope of application of EU law. Second, it enquires whether the national measure has a discriminatory effect towards nationals of other Member States. Third, it exam­ ines whether that difference in treatment can be justified.76 It has been argued that by introducing EU citizenship the first criterion has been significantly extended to sectors which do not fall within the ambit of EU competence. It has been acknowledged that by using citizenship both the scope of the non-discrimi­ nation principle and the same principle in the context of market freedoms have been broadened.77 The case law of the CJEU is developing when it comes to spe­ cific situations when citizens rely on Article 18 TFEU. The attempt to codify case law was made upon adoption of Directive 2004/38.78 Directive 2004/38 added 75 As argued by Gareth Davies discrimination and equality go together, as matching opposites. To discriminate is to violate the principle of equality. It is to choose on the basis of a factor that the law regards as illegitimate. Davies Gareth, Nationality Discrimination in the European Internal Market (Kluwer Law International: the Hague 2003) 10. 76 Lenaerts Koen, ‘Union citizenship and the principle of non-discrimination on grounds of nation­ ality’, Festskrift til Claus Gulmann - Liber Amicorum (Thomson: Kobenhavn 2006) 289–309, 289. 77 Jacobs Francis G., ‘Citizenship of the European Union – A Legal Analysis’ (2007) 13/5 ELJ, 591– 610, 593. 78 For instance Kay Hailbronner is sarcastic about the drafting of the Directive by saying: “It is probably common legislative practice to follow the Court’s reasoning and take up phrases used in the judgement of the Court to draft Community legislation… The Court’s task is to decide in individual cases rather than framing general applicable Community law.” Hailbronner Kay,

190  Chapter Twelve

expressis verbis family members to the scope of equality treatment by stating in Article 24 (1): Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the terri­ tory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

In general, the Article mentioned and Preamble paragraph 20 of the Directive convey the message the Court was putting forward in its case law, for instance in Bickel and Franz79 where it stated: [B]y prohibiting ‘any discrimination on grounds of nationality’, Article 6 of the Treaty [Article 18 TFEU] requires that persons in a situation governed by Community law be placed entirely on an equal footing with nationals of the Member State.

The Advocate General in Boukhalfa concluded that it is the ultimate objective of the EU citizenship concept to achieve absolute equality of treatment of citizens irrespective of their nationality.80 This chapter looks at non-discrimination in the context of EU citizenship status to establish to what extent rights attached to resi­ dence have been extended by virtue of EU citizenship. This part deals with three problem areas illustrating the scope of Treaty application, i.e., the cross border element; a link to the territory of the person concerned; extension of the scope of the Treaty if those two criteria are satisfied and beyond. This chapter will also look at the problem of reverse discrimination. 12.2.2.1. Cross-border element In order to invoke EU law ratione personae a person must be an EU citizen who has availed themself of using free movement rights. For instance, in Gravier the Court noted that in order to fall within the scope of the Treaty the issue cannot be “unconnected with Community law”.81 Therefore, the applicant has to prove a ‘Union Citizenship and Access to Social Benefits’ (2005) 42 CMLR, 1245–1267, 1262. This argu­ ment, however, is not correct because the Court does not deal with individual cases but provides national courts with necessary interpretative tools. Therefore, by definition the Court’s rulings are general to fit different situations in different Member States to the maximum extent possi­ ble. The context of the case is important only to provide the national court with a helpful answer. 79 Case C-274/96 Criminal proceedings against Horst Otto Bickel and Ulrich Franz [1998] ECR I-7637, para 14. See also Case 186/87 Ian William Cowan v Trésor public [1989] ECR 195, para 10. 80 See section 10 on the concept of EU citizenship of this part. 81 Case 293/83 Françoise Gravier v. City of Liège [1985] ECR 593, para 19. The case concerned a French student in Belgium who was required to pay an enrolment fee which was not required from students of Belgian nationality.

Functions of EU Citizenship  191

connection with a certain policy or question falling within the scope of the EU to claim violation of the non-discrimination rule. One important requirement is the presence of a cross-border element, i.e., either a person has moved to another Member State or is returning to their country of nationality after living in another Member State. The Court confirmed this in Uecker when it stated that: [I]t must be noted that citizenship of the Union, established by Article17 of the EC Treaty [Article 20 TFEU], is not intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law… Any discrimination which nationals of a Member State may suffer under the law of that State fall within the scope of that law and must therefore be dealt with within the framework of the internal legal system of that State.82 [emphasis added]

Initial application of the cross-border element was strict. The Court has argued that EU law does not apply to purely internal situations. For instance, in Koua Poirrez this was the main argument for the Court to decline jurisdiction. The fact that the applicant, a citizen of the Ivory Coast, was the adoptive son of a French citizen did not qualify him for benefits under EU law because his father had never exercised the right to freedom of movement within the Community.83 However, the question of application of the cross-border test and possible reverse discrimination is attracting increasing attention not only in cases of free movement rights but also access to other rights within the territory of a single Member State.84 For instance, the case of Walloon Government v. Flemish Government concerned not only resident EU citizens from another Member State but also Belgian nationals. The Court was facing the question whether the Flemish Government was entitled to set up a special care insurance system based on resi­ dence in Flemish territory – the Dutch speaking region and the bilingual region of Brussels Capital – or in another Member State including parts of Belgian terri­ tory.85 The Court acknowledged that EU law clearly cannot be applied to purely internal situations. At the same time it noted: 82 Joined Cases C-64 -65/96 Land Nordrhein-Westfalen v. Kari Uecker and Vera Jacquet v. Land Nordrhein Westfalen [1997] ECR I-03171, para 23. 83 Case C-206/91 Ettien Koua Poirrez v. Caisse d’allocations familiales de la region parisienne, sub­ stituée par la Caisse d’allocations familiales de la Seine-Saint-Denis [1992] ECR I-06685. It should be noted that the European Court of Human Rights in the same case found a violation of Article 14 in conjunction with Article 1 of Protocol 1. Koua Poirrez v. France (App no 40892/98) ECHR 30 September 2003. 84 Case C-34/09 Gerardo Ruiz Zambrano v. Office national de l’emploi [2011] ECR I-1177, Opinion of Advocate General Sharpston, paras 123–150. See also Case C-434/09 Shirley McCarthy v. Secretary of State for the Home Department [2011] ECR I-3375 and Case C-256/11 Dereci, Heimi, Kokollari, Maduike, Stevic v. Bundesministerium für Inneres, 15 November 2011 [not yet reported]. 85 Case C-212/06 Government of the French Community, and Walloon Government v. Flemish Government [2008] ECR I-1683.

192  Chapter Twelve It may nevertheless be remarked that interpretation of provisions of Community law might possibly be of use to the national court, having regard too to situations classed as purely internal, in particular if the law of the Member State concerned were to require every national of that State to be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in a situation considered to be comparable by that court.86

In the view of the Court the legislation was brought within the scope of EU law because it makes affiliation to the care insurance scheme dependent on the condi­ tion of residence in a limited part of national territory. The legislation at issue could exclude from the care insurance scheme citizens of Belgium who migrated within Belgium and also citizens of other EU Member States residing in another part of Belgium. Although differentiation between EU citizens in this case was rather hypo­ thetical this argument was not upheld either by Advocate General Sharpston or the Court.87 National measures can restrict freedom of movement not only if based on nationality but also based on residence within a single Member State making trans­ fer of residence less attractive. The CJEU on the basis of its previous case law empha­ sised that a Member State “cannot plead provisions, practices or situations prevailing in its domestic legal order, including those resulting from the constitu­ tional organisation of that State, to justify the failure to observe obligations arising under Community law”.88 Therefore, it can be concluded that not only are Member States not entitled to make resident EU citizens subject to different treatment from their own nationals under certain circumstances, but also parts of individual Member States are barred from adopting laws which might lead to differential treat­ ment of EU citizens residing in different parts of the particular Member State. This case cannot be interpreted to solve the problems of reverse discrimina­ tion in cases which would not result in differential treatment of both migrating EU citizens and citizens of the Member State. Proposals have been made as to how the CJEU could approach the problem of reverse discrimination in more general terms. To solve the problem Advocate General Sharpston has suggested an approach when Article 18 TFEU would be triggered. This would require that three cumulative conditions are met: • •

 claim is brought by a citizen of the EU who has not availed themselves of the A free movement right but whose situation was comparable to that of other citizens; the reverse discrimination complained of would have to entail violation of a fundamental right protected under EU law, leaving the rest of the competence to the ECHR;

86 Ibid., para 40. 87 Ibid., para 51. 88 Ibid., para 58.

Functions of EU Citizenship  193 •

 rticle 18 TFEU would serve as only a subsidiary remedy, confined to situations A in which national law did not afford adequate fundamental rights protection. This condition serves to maintain an appropriate balance between Member State autonomy and the ‘effet utile’ of EU law.89

The avenue suggested by the Advocate General is a possible solution which might have far reaching effects on application of EU law by including ‘purely internal situations’ within its scope of application. The question arises about the exact scope of ‘fundamental rights protected under EU law’ allowing application of the test, because Article 51(1) of the Charter is limited to competences conferred by Member States on the EU, which requires the cross-border test to be satisfied.90 Several options are available. The Court itself has limited its competence to cases when the ‘substance of rights’ of EU citizens has been triggered, i.e., where national regulation applying to nationals endangers enjoyment of the very sub­ stance of EU citizens rights. The CJEU so far has dealt with such situations on the basis of Articles 20 TFEU or 21 TFEU rather than by invoking Article 18 TFEU. This represents an approach strengthening the fundamental status of EU citizenship, but limits application of Article 18 TFEU to internal situations when fundamental rights of EU citizens included in the part of the Charter are breached. This approach leads to differentiation in approach to various breaches of EU freedoms. In turn, this affects legal certainty and uniform application of EU law at the national level. At the same time this methodology could strengthen EU citizen­ ship as a sui generis status. The second alternative had been suggested by Advocate General Sharpston who argues that EU fundamental rights should be applicable to all situations which fall within ‘the scope of Union law’. She argues that the clearest rule would be one that made the availability of EU fundamental rights protection dependent neither on whether a Treaty provision was directly appli­ cable nor on whether secondary legislation had been enacted, but rather on the existence and scope of a material EU competence. Therefore, the rule would be that, provided that the EU had competence (whether exclusive or shared) in a particular area of law, EU fundamental rights should protect the citizen of the EU even if such competence has not yet been exercised.91 Therefore, the decisive fac­ tor would not be the cross-border element in the case under consideration but rather competence over the ratione materiae of the particular issue by the Member State or the EU. The test is somewhat complicated. However, the argument the Advocate General has put forward is well substantiated and, indeed, might 89 Supra note 84, Advocate General Sharpston, paras 144–148. 90  See section 12.2.3.3. and Case C-256/11 Dereci, Heimi, Kokollari, Maduike, Stevic v. Bundesministerium für Inneres, 15 November 2011 [not yet reported] para 71, as well as critical note by Advocate General Mengozzi, paras 43–44. 91 Supra note 84, para 163 and paras 167–170.

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increase clarity in application of EU law to situations when seemingly there has been an extension of the scope of the EU law.92 In addition this approach could strengthen the role of fundamental rights in cases related to discrimination.93 Finally, one could stick with a more conservative approach involving solely the national level. For instance, Besson and Utzinger have correctly observed that reverse discrimination leads Member States to violate their own constitutional principles and the constitutional principle of non-discrimination.94 Indeed, in dealing with ‘purely internal situations’ and cases of reverse discrimination, the role of national courts becomes highly important. The construct of EU citizenship is not only supranational but rather a transnational endeavour which should be based on common approaches to the rights attached to EU citizens. For the pur­ poses of legal certainty EU citizens should be accorded equal treatment irrespec­ tive of whether they have crossed the border. Even if there remain differences which relate to immigration law, in the realm of equality of treatment on substan­ tive rights differences should be reduced to a minimum.95 The approach facilitat­ ing uniform treatment of substantive rights of EU citizens throughout the Union is important in strengthening the fundamental status of EU citizenship. 12.2.2.2. Link to Territory As mentioned in earlier sections the EU’s approach to the effective link principle differs from its application in EU law. The principle is invoked to verify whether an EU citizen is entitled to certain rights rather than to verify a citizen’s national­ ity. The approach also differs in relation to different rights invoked by EU citizens in different circumstances. Invocation of the principle will differ depending on the rights claimed and length of residence. These differences on length of residence allow a certain balance to be achieved between an EU citizen’s rights and the objective of social cohesion, on the one hand, and the Member State’s financial interests on the other. Advocate General Trstenjak in Dias explained that the Directive has adopted a level-based approach 92 See section 12.2.2.3. below. 93  For critical comments see von Bogdandy Armin, Kottmann Mathias, Antpöhler Carlino, Dickschen Johanna, Hentrei Simon, Smrkolj Maja, ‘Reverse Solange – Protecting the Essence of Fundamental Rights Against EU Member States’ (2012) 49 CMLR, 489–520, 500. The authors argue that Advocate General Sharpston’ s approach might not allow to square it with the wording of Article 51 (1) of Charter and it will not lead to more clarity and consistency in the scope of fun­ damental rights. They also note that Sharpston herself has suggested that due to the far-reaching consequences of this approach, it should not be adopted by the Court in the case at hand. 94 Besson Samantha, Utzinger André, ‘Introduction: Future Challenges of European Citizenship – Facing a Wide-Open Pandora’s Box’ (2007) 13/5 ELJ, 573–590, 583–584. 95 See also on differences in relation to immigration law Hailbronner Kay, Thym Daniel, ‘Case C34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), Judgment of the Court of 8 March 2011’ (2011) 48 (4) CMLR, 1253– 1270.

Functions of EU Citizenship  195

to entitlements provided in Article 24 of Directive 2004/38. While on the first level there is no entitlement to social assistance, on the second level there is a limited right to social assistance, i.e., under Article 14(3) an EU citizen may not be expelled as a consequence of recourse to social assistance, except if it is dispro­ portionate.96 The proportionality criterion might depend on the specific status of the individual in the host Member State and the length of assistance required. Permanent residence entails a level of integration of the EU citizen.97 Only those EU citizens who reside permanently in the host Member State may acquire unlimited rights to social assistance. This, however, would also depend on the nature of assistance required. The general approach has been clarified by both CJEU case law and Directive 2004/38. For instance, in the case of service recipients length of residence is not important while length of residence might be crucial in cases when a person claims non-contributory social assistance. When dealing with these issues the Court refers to the specific circumstances of the case and the principle of propor­ tionality. For instance, in Bickel and Franz the applicants were visiting Italy for a short time as service-recipients. The Court explained that: A residence requirement of that kind can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is pro­ portionate to the legitimate aim of the national provisions.98

The starting point for the Court’s analysis is application of residence require­ ments to both citizens of the State and other EU citizens. Through its case law the Court has also referred to the length of residence requirement by using different sub-criteria such as ‘reasonable period’, ‘genuine link’, ‘real link’ and ‘integration’. The case to case approach might be justified if certain tendencies could be estab­ lished. Different types of social benefit cases are helpful in this regard. In Martinez Sala99 a person was a resident of Germany for a number of years. She was residing in Germany when she applied for child care allowance. However, at the time of application of the relevant rules she was not considered a German residence permit holder. After examining whether benefit fell under relevant EU Regulations 1612/68 (now 492/2011) and 1408/71 (now 883/2004 and 987/2009) the Court turned to analyze the citizenship Articles and concluded that:

96 Case C-325/09 Secretary of State for the Home Department v. Maira Dias, Judgment of 11 July 2011 [not yet reported], Advocate General Trstenjak, para 78. 97 Ibid., para 79. 98 Supra note 79, para 27. 99 Case C-85/96 María Martínez Sala v. Freistaat Bayern [1998] ECR I-0269. Mrs. Sala was legally resident in Germany and had been employed at various intervals for 25 years. She was employed for 10 years and a couple of months. When she applied for child-raising allowance she had been unemployed for 4 years and did not have a residence permit.

196  Chapter Twelve It follows that a citizen of the European Union, such as the appellant in the main proceedings, lawfully resident in the territory of the host Member State, can rely on Article 6 of the Treaty [Article 18 TFEU] in all situations which fall within the scope ratione materiae of Community law.100

The Court noted that nationals from other Member States who are authorized to reside in the territory of the host Member State cannot be required to produce a formal residence permit in order to receive allowance, if its own nationals are only required to be permanently or ordinarily resident in that Member State. Therefore, formal proof of residence is not sufficient for disqualifying entitlement to the rights of citizens, while residence as such matters. An open question, however, is whether it was the considerable length of residence which persuaded the Court in Sala.101 Indeed, it can be agreed that otherwise Sala looks bizarre since she was granted a social advantage available only for workers thus extending the scope of Regulation 1612/68 (now 492/2011). As argued by Gareth Davies, the case would have made more sense had the Court simply ruled on the basis of Article 18 and 20 TFEU rather than ‘mixing and matching’ with different norms of the Treaty and second­ ary law.102 The methodology of the Court was indeed unfortunate. However, the Sala case can also be viewed as the case where the Court decided to advance the concept of EU citizenship. As argued by Dora Kostakopoulou, in Sala and Bickel and Franz the CJEU signalled its intention in a powerful way to advance Union citi­ zenship norms.103 However, at the time the EU had not yet crossed the threshold to a true social Union and true movement towards a social community.104 The fol­ lowing case law where the Court continues tinkering with residence requirements as a ‘hot potato’ illustrates the general course towards strengthening the rule of non-discrimination and deepening integration towards a social community. In Bidar105 the Court inter alia was addressing the fact that UK legislation did not discriminate on the basis of nationality but required not only residence 100 Ibid., paras 62 and 63. 101 In Case C-138/02 Brian Francis Collins v. Secretary of State for Work and Pensions [2004] ECR I-2703 the applicant referred in his submissions to the Martinez Sala case where the Court acknowl­ edged the right of Sala as a job-seeker to be considered as a worker for the purposes of Regulation 1612/68. Germany in response to this argument noted that Sala was a specific case, where a person was characterized by very close connections of long duration between the plaintiff and the host Member State. The Court did not comment on these submissions. See, paras 21 and 25. 102 Davies Gareth, Nationality Discrimination in the European Internal Market (Kluwer Law International: the Hague 2003) 193. 103 Kostakopoulou Dora, ‘Ideas, Norms and European Citizenship: Explaining Institutional Change’ (2005) 68(2) MLR, 233–267, 250. 104 Tomuschat Christian, ‘Case C-85/96 Maria Martinez Sala v. Freistaat Bayern, Judgment of 12 May 1998, Full Court [1988] ECR I-2691’ (2000) 37 CMLR, 449–457, 454. 105 Case C-209/03 The Queen ex parte Dany Bidar v. London Borough of Ealing, Secretary of State for Education and Skills [2005] ECR I-2119. A French national entered the UK accompanying his

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preceding studies within the UK but also that a student should be settled in the UK. The Court noted that: It must be recalled here that the principle of equal treatment prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, lead in fact to the same result.106

The Court confirmed its previous position that Article 18 TFEU applies to situa­ tions which fall within the scope ratione materiae of EU law. The Court also relied on Article 24 of Directive 2004/38 on equal treatment and concluded that student grants fall within the scope of the Treaty. A further question raised in Bidar was to what extent it is legitimate for the State to require residence and/or integration into society in order to grant assis­ tance to students. One of the arguments of the UK was that the residence require­ ment is set because it ensures that parents have made a previous contribution through taxes as well as that the student has a genuine link to the employment market of the host Member State. Moreover, the requirement of settlement in the UK for the purposes of national law was meant to satisfy residence conditions in England and Wales on the first day of the first academic year and the person hav­ ing resided in the UK and Islands for the three years preceding that date. The Court agreed that students have to demonstrate a certain degree of integration into society. However, a Member State cannot require them to establish a link with its employment market. According to the Court: […] the existence of a certain degree of integration may be regarded as established by a finding that the student in question has resided in the host Member State for a certain length of time.107

Therefore, although students can be required to comply with certain residence requirements, these should be based on objective considerations independent of nationality. The student cases indicate the emergence of a concept of integration based on residence in a Member State, which is a necessary link to the right to social benefits.108 This has been confirmed by Förster where a person could not mother in 1998. He lived in the UK with his grandmother and completed secondary education there. In 2001 he started a course at University in the UK. He received assistance with respect to tuition fees but assistance to cover his maintenance costs was refused because he was not set­ tled in the UK according to the requirements of national legislation. 106 Ibid., para 51. 107 Ibid., paras 57–59. In the case of Mr. Bidar the residence requirement was satisfied because he had acquired secondary education in the Member State and thus established a genuine link there. 108 Guild Elspeth, ‘Citizenship and Fundamental Rights’ in Carlier Jean Yves, Guild Elspeth.(eds), The Future of Free Movement of Persons in the EU (Bruylant: Bruxelles 2006) 45–64, 49.

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claim entitlement because before her degree in educational theory she had not been in any way integrated into Dutch society.109 The CJEU agreed that both Article 21 and Article 18 TFEU were applicable in that case. By reference to Bidar the Court noted that Dutch law did not require persons to be established in the Member State but only a certain degree of integration. In the view of the Court it was appropriate for the Member State to set a condition for uninterrupted resi­ dence to ensure that the applicant is integrated into the society of the host Member State.110 The CJEU also did not find violation of the principle of legal cer­ tainty, although the rule was applied retroactively. Three main reasons were mentioned as a basis for the decision: (1) the effects of Bidar were not temporarily limited; (2) the national rule was to cover the transitional period between Bidar and transposition of Directive 2004/38 and (3) national rules gave greater rights to the students concerned than those to which they were entitled under the for­ mer national rules.111 Therefore, the Court accepted that there might be certain residence requirements for a student in order to avoid abuse of the right to free movement and ‘social benefit tourism’. This complies with the approach in the Directive, whereas students would rarely qualify for the status of permanent residents. A similar approach is applied to cases of tideover allowance. The Court had a chance to deal with tideover allowance cases to clarify the genuine link test there on a number of occasions. For instance in D’Hoop the Court noted that it is legiti­ mate to require a ‘real link’ between the applicant and the employment market. However: […] a single condition concerning the place where the diploma of completion of sec­ ondary education was obtained is too general and exclusive in nature. It unduly favours an element which is not necessarily representative of the real and effective degree of connection between the applicant for the tideover allowance and the geo­ graphic employment market, to the exclusion of all other representative elements. It therefore goes beyond what is necessary to attain the objective pursued.112 109 Case C-158/07 Jacqueline Förster v. Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-18507. The applicant was a German national settled in the Netherlands where she was enrolled for training as a teacher and at the same time had various kinds of paid employment. She was granted a maintenance grant in 2000. Since she was not in gainful employment during the sec­ ond half of 2003 she was refused a maintenance grant by decision of the authorities in 2005 on the grounds that she was no longer a worker. 110 Ibid., para 52. 111 Ibid., paras 66–70. The new rule was liberalized as a result of the Bidar ruling. It made qualifica­ tion for assistance easier for students coming from EU Member States requiring only a five year residence criterion to be satisfied. See paras 10–13 on the facts of the case. 112 Case C-224/98 Marie-Nathalie D’Hoop v. Office national de l’emploi [2002] ECR I-6191, paras 38–39. The case concerned a Belgian national who returned to Belgium after acquiring secondary

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In this quote the Court, however, does not provide any guidance as to what could be considered a permissible test for an effective degree of connection. It seems that whatever criteria are established by the Member State they must not be ‘gen­ eral and exclusive by nature’. In this context even more challenging are the cases of job-seekers and persons not holding special status other than that of legally resident EU citizens. In Collins113 which concerned a job-seeker the Court refrained from references to financial solidarity and thus to the line adopted in Grzelczyk.114 The Court found that Mr.Collins came within the scope of Article 45 TFEU as a job-seeker and thus Article 18 TFEU applied: […] it is no longer possible to exclude from the scope of Article 48(2) of the Treaty [45(2) TFEU] – which expresses the fundamental principle of equal treatment, guar­ anteed by Article 6 of the Treaty [Article 18 TFEU] – a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State. The interpretation of the scope of the principle of equal treatment in relation to access to employment must reflect this development, as compared with the inter­ pretation followed in Lebon and in Case C-278/94 Commission v Belgium.115

The Court concluded that since UK regulations introduce a difference in treat­ ment based on habitual residence, they disadvantage citizens of other Member States who have used their right to free movement. In the view of the Court this can be justified only if based on objective considerations: […] the right to equal treatment laid down in Article 48(2) of the Treaty [45(2) TFEU], read in conjunction with Articles 6 [18 TFEU] and 8 [20 TFEU] of the Treaty, does not preclude national legislation which makes entitlement to a jobseeker’s allowance conditional on a residence requirement in so far as that requirement may be justified on the basis of objective considerations that are independent of the nationality of the persons concerned and appropriate to the legitimate aim of the national provisions.116

education in France and applied for tideover allowance. The authorities refused to grant her the allowance because she had not acquired secondary education in Belgium. 113 Case C-138/02 Brian Francis Collins v. Secretary of State for Work and Pensions [2004] ECR I-2703. The case concerned Mr. Brian Francis Collins, a dual US and Irish national. He arrived in the UK and claimed the right to be treated as a jobseeker and to be granted an allowance on the basis of his Irish nationality. The allowance was conditional upon habitual residence in the UK. After drawing the conclusion that Mr. Collins was not subject to Regulation 1408/71 and Treaty articles read in combination with Regulation No. 1612/68 the Court turned to analyze citizenship provisions. 114 See section 12.2.2.3. 115 Supra note 113, paras 63–64. 116 Supra note 113, para 73.

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The two criteria to be satisfied from the point of view of the national court are: (1) the applicant has a genuine link with the UK for the purposes of the allow­ ance117 and (2) the residence requirement must not exceed what is necessary in order for the national authorities to be able to satisfy themselves that the person concerned is genuinely seeking work (proportionality test). In relation to the first criterion Francis Jacobs has noted that in Collins the residence requirement, as a condition of entitlement to job-seeker’s allowance, was justifiable only on objec­ tive considerations that are independent of the nationality of the claimant and are proportionate to the legitimate aim of national provisions. It was legitimate for a Member State to ensure that there was a ‘genuine link’ between the claimant and the employment market.118 For instance, the CJEU in Vatsouras referred to a ‘real link’ between a job-seeker and the labour market of the Member State enti­ tling them to claim allowance. It agreed with the Advocate General that the objective of the benefit must be analysed according to its results and not accord­ ing to its formal structure.119 It concluded: Benefits of a financial nature which, independently of their status under national law, are intended to facilitate access to the labour market cannot be regarded as constituting ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38.120

Concerning the second criterion, since the Court’s ruling in Antonissen121 the period during which a person can reside in a Member State is not specified. In Antonissen the Court only stated that the State can lay down a ‘reasonable period’ for this purpose and after that expires a person can continue to reside if there are ‘genuine chances of being engaged’. Therefore, as far as conditions are applied irrespective of nationality and a person is not treated differently, the residence requirement is legitimate if applied proportionally and observes the principle of legal certainty.

117 This is in line with Case C-224/98 Marie-Nathalie D’Hoop v. Office national de l’emploi [2002] ECR I-6191, para 38, Case C-258/04 Ioannis Ioannidis v. Office national de l’emploi [2005] ECR I-8275, para 30 where, however, the Court used the term ‘real link’. 118 Jacobs Francis G., ‘Citizenship of the European Union – A Legal Analysis’ (2007) ELJ 13/5, 591– 610, 595. 119 Joined Cases C-22/08 and C-23/08 Athanasios Vatsouras, Josif Kouptantze v. Arbeitsgemeinschaft (AGE) Nürnberg 900 [2009] ECR I-04585. The case concerned Greek nationals who arived in Germany and after a short period of employment applied for social assistance which they were refused. See also discussion of Collins in this section. 120 Ibid., para 45. 121  Case C-292/89 The Queen v Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen [1991] ECR I-745, para 21.

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The proportionality requirement will also apply in relation to persons who are not specific status holders. For instance, in Trojani122 a person did not qualify under any of the specific statuses available in EU law and therefore the Court could only rely on citizenship rights, i.e., Article 21 TFEU. The question was raised as to what extent a person without sufficient resources can still claim residence rights and access to social assistance benefit. The Court stated that Mr.Trojani was legally resident in Belgium and noted: [W]hile the Member States may make residence of a citizen of the Union who is not economically active conditional on him having sufficient resources, that does not mean that such a person cannot, during his lawful residence in the host Member State, benefit from the fundamental principle of equal treatment as laid down in Article 12 EC [Article 18 TFEU].123

As a rule, the Court noted that, first, it should be established whether benefit falls within the scope of the Treaty, which was so in the case of the social assistance benefit at issue. Second, the applicant should be lawfully resident in the host Member State for a certain time or possess a residence permit. And, lastly, national legislation which does not grant assistance to non-nationals on the same grounds as nationals even though they satisfy the conditions is discriminatory under Article 18 TFEU.124 Therefore, in this case both length of residence (ratione temporis) and the nature of benefit (ratione materiae) were involved for the Court to find jurisdic­ tion and to rule on nationality as a prohibited criterion for differentiation. In rela­ tion to length of residence the Court left certain discretion to national courts to establish whether residence requirements are objectively reasoned and apply without discrimination. When setting the criteria the Court referred to residence of a ‘certain time or’ residence permit. This suggests that residence for at least more than three months would be a minimum requirement to apply for benefits. The overall conclusion is that the test for entitlement to rights of the EU citizen to reside and to apply for social or other benefits will be dependent on the status of the resident EU citizen and the specific circumstances of the case. The level of protection will depend on whether the person is a service recipient or resident on a more permanent basis as a student, worker, job-seeker and the like. Although 122 Case C-456/02 Michel Trojani v. Centre public d’aide sociale de Bruxelles (CPAS) [2004] ECR I-7573. The case concerned a French national who after a short stay in Belgium in 1972 returned there in 2000. He resided in Brussels and was given accommodation in a Salvation Army hostel in return for various small jobs within a reintegration programme. In 2002 he applied for mini­ mex which was refused. The Court established that this situation comes within the scope of the Treaty because Mr.Trojani is a EU citizen and thus can rely on the Treaty. 123 Ibid., para 40. 124 Ibid., paras 42–44.

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the specific provisions of secondary law are important, as will be illustrated in the next section, they are not necessarily crucial for invocation of EU law. 12.2.2.3. Extension of Application As already noted, in the extension of application of EU law the methodology of the Court differs depending on the rights and factual situations invoked. The judgments imply that if an EU citizen chooses residence on the basis of Article 21 TFEU then s/he cannot be discriminated against on the basis of Article 18 TFEU. Therefore, the list of rights from which EU citizens are exempted or treated differ­ ently on the basis of their nationality becomes very limited. EU citizenship offers additional protection to persons who do not fall into any specific category related to ‘market freedoms’ on the basis of sectoral directives but who are still legally resident in the EU. The CJEU in these cases invoked Article 18 TFEU directly even before transposition of Directive 2004/38, despite the absence of secondary legis­ lation in force at that time. Therefore, Treaty Articles have been applied in the absence of secondary legislation which would arguably detail the scope of appli­ cation. For instance in the case of Bickel and Franz125 they satisfied the ‘crossborder’ test for service recipients which led the Court to find a violation of Article 18 TFEU. The Court noted that: Although, generally speaking, criminal legislation and the rules of criminal proce­ dure – such as the national rules in issue, which govern the language of the proceed­ ings – are matters for which the Member States are responsible, the Court has consistently held that Community law sets certain limits to their power in that respect. Such legislative provisions may not discriminate against persons to whom Community law gives the right to equal treatment or restrict the fundamental free­ doms guaranteed by Community law.126

Therefore, it can be argued that the scope of the Treaties has been extended to the extent that there should be no discrimination among EU citizens in any spheres of life on the basis of nationality, subject to fulfilment of the ‘cross-bor­ der’ test and sufficient link if necessary. Non-discrimination against EU citizens has brought within the scope of the Treaties the most sensitive laws of the Member States and expanded application of EU law. In other cases the CJEU is developing the so-called ‘burden to move’ concept. In those cases the Court referred to Article 21 TFEU instead of relying on Article 18 125 Supra note 79. The case concerned an Austrian lorry driver and a German tourist who were sub­ ject to court proceedings in the Italian province of Bolzano. Since court proceedings in Bolzano can be conducted in both German and Italian, the applicants requested the court to deal with their cases in German. The national court was uncertain whether rules applicable to citizens of Italy should be extended to nationals of other Member States. 126 Supra note 79, para 17.

Functions of EU Citizenship  203

TFEU. In this regard the Treaty goes beyond prohibiting discrimination on the grounds of nationality and also prohibits non-discriminatory restriction under certain conditions.127 This streamlines the methodology the Court has adopted in cases for goods and services. The first group of cases can be illustrated by Grzelczyk128 where the Court over­ ruled its previous case law according to which student grants fell outside the Treaty.129 According to the Court the situation had changed since insertion of Article 21 TFEU and Title XII of TFEU which provides for co-operation in educa­ tion and vocational training in the Treaty. The CJEU found that national provi­ sions were contrary to both Articles 18 and 21 TFEU and stated: Whilst Article 4 of Directive 93/96 does indeed provide that the right of residence is to exist for as long as beneficiaries of that right fulfill the conditions laid down in Article 1, the sixth recital in the directive’s preamble envisages that beneficiaries of the right of residence must not become an ‘unreasonable’ burden on the public finances of the host Member State. Directive 93/96, like Directives 90/364 and 90/365, thus accepts a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States, particularly if difficulties which a beneficiary of the right of residence encounters are temporary.130 [emphasis added]

Kay Hailbronner was critical about the term ‘unreasonable burden’ which he regarded as useless if not harmful. He is right in saying that there are no criteria for deciding whether an individual may ever become an unreasonable burden on the social system because all dependence on a social system increases the bur­ den.131 However, the emphasis in this particular case should be placed on the 127 Jacobs Francis G., ‘Citizenship of the European Union – A Legal Analysis’ (2007) 13/5 ELJ, 591– 610, 597. See, for instance, the classic cases introducing concept of ‘obstacles to movement’ (or burden) – C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649, and test ‘hindering, directly or indireclty, actually or potentially, intra-community trade’ – Case C- 8/74 Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 837 para 5. 128 Case C-184/99 Rudy Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-6193. Rudy Grzelczyk was a French national studying in Belgium. He had a right of residence as provided in Directive 93/96. During the first years of his studies he was working to sustain himself. However, during the final year he decided to devote himself solely to studies and applied for minimex – a Belgian non-contributory social benefit intended to ensure a mini­ mum income. The Belgian authorities refused minimex to Grzelczyk on the grounds that he was neither Belgian nor a worker. See annotation by Iliopoulou Anastasia, Toner Helen, ‘Case C-184/99, Rudy Grzelczyk v. Centre Public d’Aide Sociale d’Ottignies-Louvain-la-Neuve, Judgment of the Full Court of 20 September 2001, [2001] ECR I-6193’ (2002) 39 CMLR, 609–620. 129 Case 197/86 Steven Malcolm Brown v The Secretary of State for Scotland [1988] ECR 3205, Case 39/86 Sylvie Lair v Universität Hannover [1988] ECR 3161. 130 Supra note 128, para. 44. 131 Hailbronner Kay, ‘Union Citizenship and Access to Social Benefits’ (2005) 42 CMLR, 1245–1267, 1262.

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word ‘unreasonable’ for two main reasons: first, the status of a student is tempo­ rary and, second, the benefit might be limited to specific situations which might not necessarily be burdensome for the State. Therefore, a student who has recourse to social assistance should not automatically be considered as not fulfill­ ing residence requirements. The Court further strengthened its argumentation in Bidar132 discussed in the previous section. The Court noted that secondary law in force at that time did not preclude an EU citizen from relying on the fundamental principle of equal treat­ ment during lawful residence in another Member State.133 However, in the con­ text of Bidar, it should be noted that, differently from Grzelczyk, the ruling was adopted when Directive 2004/38 was already adopted, i.e., the Directive was adopted on 29 April 2004, but the ruling on 15 March 2005. Therefore, the Court relied on Article 18 TFEU in conjunction with the provisions of Directive 2004/38.134 Since both Treaty amendments and the Directive have brought rights of citizens to social assistance within the scope of the Treaty ratione materiae and although limited residence requirements can be imposed, they have to be in line with Article 18 TFEU. Therefore, the primary emphasis was on primary EU law, while the fact of adoption of Directive 2004/38 played a secondary role. This approach has attracted criticism in the literature. For instance, Kay Hailbronner is sceptical and argues that free movement rights attached to EU citi­ zenship were made dependent on fulfilment of certain conditions, such as proof of sufficient resources.135 Thus, the Court’s interpretation ran against the wording and purpose of EU secondary legislation even when the judgment was delivered. Hailbronner claims that Union citizenship and the principle of proportionality were used to rewrite the rules laid down in secondary legislation.136 This interpre­ tation could be accepted if one assumes that the Treaties are declaratory or gen­ eral and further specified in secondary law. This approach would suggest that secondary law represents lex specialis to be applied instead of invocation of lex generalis Treaty law. Moreover, this would also require the Court to disregard the fact of adoption of Directive 2004/38. Although the transposition period of the Directive had not expired, the CJEU itself has overruled interpretation contrary to the provisions of Directives before the transposition period.137 Therefore, the arguments of Hailbronner are difficult to accept. 132 Supra note 105. 133 The Court referred to both Article 3 of Directive 93/96 and Article 18 [Article 21 TFEU] and Directive 90/364. See supra note 105, para 46. 134 Supra note 105, para 43. 135 Supra note 131, 1250. 136 Ibid., 1251–1252. 137 See, for instance, Case C-144/04 Werner Mangold v. Rüdiger Helm [2005] ECR I-9981.

Functions of EU Citizenship  205

The Court’s approach should be welcomed because strict adherence to direc­ tives would be detrimental to the EU citizenship concept which is meant to be fundamental. As argued by Juliane Kokott “it is not possible to restrict entitlement flowing from primary Community law by means of a restrictive Member State’s practice induced by secondary Community law.”138 If secondary law were to take precedence over primary law this might lead to a change of perspective on the hierarchy of EU law, where secondary law would take precedence as lex specialis rather than primary law being hierarchically above secondary law. Moreover, as correctly noted by Siofra O’Leary, EU law is not the source of these social benefits. These benefits originate and are funded at national level and EU citizens become entitled to receive them on the basis of the principle of equal treatment.139 The primacy of Treaty law is further strengthened by cases where the Court could draw on primary law only. As noted by Francis Jacobs, discrimination based on nationality between workers of the Member States was prohibited from the outset in the EU Treaties. However, as he notes, here too the CJEU has used the concept of citizenship to enlarge the scope of Article 45(2) TFEU.140 In the major­ ity of cases the Court invoked Article 18 TFEU in combination with other Articles on citizenship.141 However, in Ioannidis142 the Court limited itself by reference to only Article 45 TFEU and stated: The Court has already held that, in view of the establishment of citizenship of the Union and the interpretation of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 39(2) EC [45(2) TFEU)] a benefit of a financial nature intended to facilitate access to employ­ ment in the labour market of a Member State.143

Therefore, it seems that the Court will extend the reading of articles related to specific groups of residents by reference to general provisions on citizenship of the Union. As noted by Helen Oosterom-Staples, a Member State is therefore 138 Kokott Juliane, ‘EU citizenship – citoyens sans frontieres?’ (Durham European Law Institute, European Law Lecture 2005), available at accessed 21 February 2013, 7. 139 O’Leary Siofra, European Union Citizenship. The Options for reform (Institute for Public Policy Research: London 1996) 31. 140 Supra note 127, 595. 141 See, for instance, supra notes 122 (Articles 18 and 21 TFEU), 105, 128 (Articles 18 and 20 TFEU), 267 (Articles 18 and 20 TFEU). 142 Case C-258/04 Ioannis Ioannidis v. Office national de l’emploi [2005] ECR I-8275. The case con­ cerned a person who had completed his secondary education in Greece and was a Greek national. He went to Belgium and acquired a graduate diploma in physiotherapy. After that he followed a paid training course in France. His application for tideover allowance in Belgium was subsequently refused because he had not completed his secondary education in Belgium. 143 Ibid., para 22.

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expected to help out financially only until such time as employment is found or the ‘reasonable period’ has expired. The Court’s approach should have been to balance the temporary burden endured by the Member State against the individ­ ual’s fundamental right to take up employment in a Member State of choice.144 It seems that the Court was rather inspired by the facts of Collins, i.e., a person claiming rights of EU citizenship without having any link to the EU except citi­ zenship. Mr. Collins had not been employed in any EU Member State before arriving in the UK. Therefore, the Court signalled that entitlement to benefits might depend on the length of residence, i.e., a ‘genuine link’ to the territory of the host country and the benefit claimed. The second group of cases concerns situations in which neither Article 18 TFEU nor secondary legislation play a prominent role. These cases concern invocation of Article 21 TFEU rather than Article 18 TFEU. Those are the cases in which a bur­ den is placed on EU citizens exercising rights to free movement, rather than viola­ tion of the rule on non-discrimination. For instance, in Pusa concerning invalidity pension Advocate General Jacobs stated: The conclusion – which is consistent with and complementary to the Court’s judg­ ments in D’Hoop and Baumbast – must thus be that, subject to the limits set out in Article [21 TFEU] itself, no unjustified burden may be imposed on any citizen of the European Union seeking to exercise the right to freedom of movement or residence. Provided that such a burden can be shown, it is immaterial whether the burden affects nationals of other Member States more significantly than those of the State imposing it.145

The Court in its ruling relied extensively on its previous case law, i.e., Grzelczyk and D’Hoop. It noted that any situation which involved freedom to move and reside within the territory of a Member State, as conferred by Article 21 TFEU, would create a situation falling within the scope of EU law. Therefore, national legislation which would place nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State would give rise to inequality of treatment, contrary to the principles which under­ pin the status of citizen of the Union.146 The Court’s approach has been more 144 Oosterom-Staples Helen, ‘Case C-138/02, Brian Francis Collins v. Secretary of State for Work and Pensions, Judgment of 23.03.2004’ (2005) 42 CMLR, 205–223, 216. 145 Case C-224/02 Heikki Antero Pusa v. Osuuspankkien Keskinäinen Vakuutusyhtiö [2004] ECR I-5763, Advocate General Jacobs, para 22. The case concerned a Finnish national. Upon retire­ ment, he left Finland and settled in Spain. He received invalidity pension in Finland paid into a bank account. The problem concerned payment of income tax in Spain and his obligations recovering a debt in Finland. His obligation to pay tax in Spain was not taken into account. 146 Ibid., paras 17 and 20. See also Case C-403/03 Egon Schempp v. Finanzamt München V [2005] ECR I-6421.

Functions of EU Citizenship  207

confusing because it referred to inequality of treatment without invoking Article 18 TFEU. One could agree that methodologically the distinction drawn by the Advocate General in Pusa is more clear-cut without invoking the argument of inequality but referring to the burden placed on free movement. This is especially so if reference is made to De Cuyper147 where the Court did not find violation of EU law because of the nature of the benefit received and Nerkowska148 where vio­ lation was found. Therefore, application of the ‘burden concept’ might differ depending on the context of the case and nature of the benefit sought. The ‘burden concept’ entailed in Article 21 TFEU has been further strength­ ened by the Court in K. Tas-Hagen.149 The case concerned a person born in the Dutch East Indies and entitled to benefit paid to a civilian war victim. Although Mrs. Tas-Hagen and Mr. Hagen became entitled to benefit they were refused it because of his residence in Spain instead of the Netherlands. Although the Court initially concluded that the benefit as such falls within the competence of the Member State, they should exercise that competence in accordance with EU law. The Court concluded this by using reference to obligations derived from both Article 20 and 21 TFEU.150 By reference to D’Hoop the Court did not find objective considerations of public interest for differentiation. Therefore, it can be con­ cluded that an issue can be brought into the scope of the Treaty if it places a bur­ den on persons choosing to change their place of residence. Exceptions would be made only where there is public interest in differentiation. In cases of tax and allowances benefits this would relate to efficient control of abusive behaviour. However, different types of benefit cannot be easily classified and the CJEU should carefully examine each particular case and national regulation.151

147 Case C-406/04 Gérald De Cuyper v. Office national de l’emploi [2006] ECR I-6947. The Court noted that restrictions can be justified if based on objective considerations of public interest independent of nationality. This was the case because of unemployment benefit granted to Mr. De Cuyper. He was a Belgian national granted unemployment allowance but when inspec­ tion was carried out it was established that he resided in France. 148 Case C-499/06 Halina Nerkowska v. Zakład Ubezpieczeń Społecznych Oddział w Koszalinie [2008] ECR I-3993. The situation in the Nerkowska case concerned a Polish national who was entitled to a special pension because of her partial incapacity for work linked to her deportation by the former USSR regime. Her application for a pension was declined because she resided in Germany. The Court found that the requirement for residence was not proportionate and thus Poland had breached Article 21 TFEU (ex Article 18 TEC). 149 Case C-192/05  K. Tas-Hagen, R.A.Tas v. Raadskamer WUBO van de Pensionen – en Uitkeringsraad [2006] ECR I-10451. 150 Ibid., paras 21–25. 151 See, for instance, Case C-206/10 European Commission v. Federal Republic of Germany [2011] ECR I-3573, para 39; and Case C-287/05 D.P.W. Hendrix v. Raad van Bestuur van het Uitvoeringsinstitut Weknemersverzekeringen [2007] ECR I-6909, paras 47–54.

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The overall conclusion is that citizenship has and still is opening new avenues to apply Articles 18 and 21 TFEU. Member States can no longer literally apply strict requirements excluding persons from entitlements to different benefits and residence rights. As far as the issue is brought within the scope of EU law it is sub­ ject to Treaty provisions, including Articles 18 or 21 TFEU. Moreover, the provisions of the Directive should be read in the light of CJEU case law. The general rule in Grzelczyk as elaborated in subsequent case law has been transposed in Directive 2004/38. This provides that EU citizens should have a residence right as long as they do not become “an unreasonable burden” on the social assistance system of the host Member State.152 Therefore, it can be con­ cluded that Member States are under an obligation to provide equality between their own nationals and other EU citizens depending on length of residence and as long as they do not become an unreasonable burden on the social assistance system. These developments strengthen EU citizenship. However, once a Union citizen has integrated successfully and acquired permanent residence rights in the host Member State – according to the objective of the Treaty – they are also entitled to equal treatment with nationals of that Member State in rela­ tion to social benefits.153 Although the Court’s approach might differ in rela­ tion  to different benefits and allowances, differences should be based on objective, nationality neutral arguments and be balanced against overriding public interest. Individual Member States are barred from adopting laws which might lead to discrimination against EU citizens residing in different parts of the particular Member State. Member States should also avoid treatment which without objec­ tive reasons would differentiate between EU citizens. EU citizenship is strength­ ened because EU law is applicable not only to nationals residing in other Member States than their State of nationality, but also nationals of a Member State who are returning home. At the same time a Member State has a certain margin of appreciation to decide in which cases difference in treatment amounts to dis­ crimination on the basis of Article 18 TFEU. This is especially pertinent in cases when EU citizens explore rights to social assistance systems not harmonized between the Member States. 152 See for instance Articles 24 (2) and 14 (1) of Directive 2004/38. These articles, however, leave a wide discretion to Member States in cases when a person has not acquired a permanent resi­ dence permit. In Case C-200/02 Kunqian Catherine Zhu, Man Lavette Chen v. Secretary of State for the Home Department [2004] ECR I-9925, para 32, the Court explained that limitations and conditions of not to become an ‘unreasonable burden’ must be applied in compliance with the limits imposed by EU law and in accordance with the principle of proportionality. 153 Supra note 138, 8.

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Cases on equality of treatment demonstrate a departure from the sector based market approach. As correctly noted by Eleonora Spaventa, if previously the Court’s interpretation of persons’ provisions was instrumental to achievement of the internal market, the move towards a non-discriminatory assessment adds a new dimension to the rights conferred upon individuals by the EU.154 The further expansion of case law to a ‘burden’ oriented approach is another step towards equal methodology in cases of persons and other sectors of the internal market. It lifts unnecessary regulation and facilitates building of common space where mar­ ket considerations become secondary in comparison to rights of individuals. As a result of which one can agree with Kay Hailbronner who says that “the more essential rights are attached to Union citizenship, the less important becomes nationality of a particular EU Member State”.155 Expanding the concept of financial solidarity within the context of social assis­ tance is crucial for equality of treatment. It might also lead to certain harmoniza­ tion of social benefits which would most probably not be welcome by the Member States above the requirements of Directive 2004/38. Chapter IV of the Charter of Fundamental Rights bearing the title Solidarity looks disappointing from the ‘sol­ idarity’ point of view.156 At the same time CJEU rulings referring to the Charter, including the solidarity and equality clauses, give promising signals of the Court’s readiness to take those issues seriously despite the limited formulations in respec­ tive provisions on solidarity.157 There are worries that developments towards financial solidarity might lead Mem­ber States to re-orient themselves from ‘Welfare Sovereignty’ to ‘Immigra­ tion Sovereignty’ when Member States will seek to minimize the number of 154  Spaventa Eleanor, ‘From Gebhard to Carpenter: Towards a (Non-)Economic European Constitution’ (2004) 41 CMLR, 743–773, 750, 765. 155 Hailbronner Kay, ‘Union Citizenship and Social Rights’ in Carlier Jean Yves, Guild Elspeth (eds), The Future of Free Movement of Persons in the EU (Bruylant: Bruxelles 2006) 65–78, 66. 156 In 12 Articles of this Chapter a reference to conditions provided in “national laws and practices” is made in half of them. Each of the paragraphs of Article 34 on social security and social assis­ tance contains that reference. 157 See, for instance, Case C-149/10 Zoi Chatzi v. Ipourgos Ikonomikon [2010] ECR I-8489. The case concerned a claim brought by the mother of twins who was refused additional parental leave on account of the birth of the twins. This option was not provided in national legislation. The Court did not rule on the compatibility of national law with Article 33 (2) of the Charter giving entitle­ ment to parental leave and did not arrive at a clear-cut answer to what extent exactly the prin­ ciple of equality has to be ensured. However, the reference and consideration alone leaves room for the argument that such examination is impossible. Moreover, the facts of the case were spe­ cific by taking into account the EU law measures applicable (framework agreement). See also Case C-282/10 Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre, Judgment of 24 January 2012, Advocate General Trstenjak 8 September 2011, paras 72–79.

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nationals from other Member States who are lawfully resident in their territories but not economically self-sufficient.158 But as suggested by both Julianne Kokott159 and Advocate General Jacobs free movement of EU citizens has yet to be developed as a fully fledged fundamental freedom and for that matter it can­ not stop at the stage of prohibition of discrimination.160 There should be a prohi­ bition of all restrictions which hinder or make less attractive the exercise of rights guaranteed in Treaties. This probably requires an upgraded level of integration and harmonization which is not feasible at present. 12.2.3. Family Reunification The right to family reunification expressis verbis has been acknowledged in EU law at the level of secondary law. It has further been strengthened by Article 7 of the Charter of Fundamental Rights. The logic behind the right to reunification is based on the objective of the EU to facilitate free movement of EU citizens. Movement which would require leaving family behind would be less attractive. The right to family reunification is triggered upon movement, i.e., either the fam­ ily goes to another Member State than their own or returns to their home State after residence in another Member State.161 For decades, the right to family reunification was parasitic on workers or other economically active EU citizens under Regulation 1612/68 (now 492/2011). However, since adoption of Directive 2004/38 the situation has changed and family reunification is applicable in relation to all EU citizens. Paragraph 5 of the preamble of the Directive proclaims: The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. 158 Toner Helen, ‘Judicial Interpretation of European Union Citizenship – Transformation or Consolidation?’ (2000) 7/1 MJ, 158–183, 1. 159 Ibid., 175, supra note 138, 8. 160 Supra 145, the Advocate General suggested using Article 18 TFEU as it applies to non-discrimi­ natory restrictions. 161 See Joined Cases C-64 -65/96 Land Nordrhein-Westfalen v. Kari Uecker and Vera Jacquet v. Land Nordrhein Westfalen [1997] ECR I-03171. Ms. Uecker, a Norwegian national, and Ms.Jacquet, a Russian national, were teaching in German universities. They were married to German nation­ als and lived in Germany. Their husbands exercised professional or trade activity in Germany. Both ladies were not satisfied that their contracts were of limited duration. The Court consid­ ered that this is a situation purely internal to a single Member State and, consequently, Community legislation regarding freedom of movement for workers cannot be applied to the situation of workers who have never exercised the right to freedom of movement within the Community. See also Case C-189/00 Urszula Ruhr v. Bunderstalt für Arbeit [2001] ECR I-8225.

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When dealing with family reunification cases the Court has adopted the follow­ ing test. Firstly, the CJEU establishes whether a Union citizen can rely on EU law, i.e., whether the citizen has used free movement rights.162 Therefore, traditionally the test of cross-border movement played a crucial role. Where there is no holder of an original right, there cannot be a beneficiary of a derived right.163 Secondly, if an EU citizen has used free movement rights, then in the territory of another Member State that citizen must be treated the same as nationals of that host State. The principle of equal treatment is also applicable to family members. Moreover, in accordance with the Court’s case law this principle should be applied to them irrespective of their citizenship, including third country citizenship.164 This chapter will look more closely at recent developments in relation to fam­ ily reunification in order to establish trends in identifying rights which apply to EU citizens’ family members. It will also address issues related to interpretation of the concept ‘substance of rights’, the concept ‘by reason of its nature and con­ sequences’ as well as EU competence in ‘purely internal situations’. 12.2.3.1. Definition of Family Members Article 2 of Directive 2004/38 defines a group of relatives to be considered as ‘fam­ ily members’. These include spouses, direct descendants under the age of 21 or dependants, dependent direct relatives in the ascending line. According to Paragraph 6 of the Directive’s Preamble, Member States can adopt an even wider interpretation of the definitions provided in the Directive. Article 2(b) of the Directive also includes among ‘family members’ partners liv­ ing in registered partnerships by stating: [T]he partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State.

This is a welcome although moderate improvement of the existing situation. Although the family definition does not fall within the competence of the EU, free movement of EU citizens does. While it cannot be required that the EU itself rec­ ognizes the right to have same-sex registered partnerships lege lata, there are 162 See, for instance Joined cases 35–36/82 Elestina Esselina Christina Morson v State of the Netherlands and Head of the Plaatselijke Politie within the meaning of the Vreemdelingenwet; Sweradjie Jhanjan v State of the Netherlands [1982] ECR 3723 and Joined Cases C-297/88 and C-197/89 Massam Dzodzi v. Belgian State [1990] ECR I-3763. 163 Willy Alexander, ‘Free Movement of Non-EC Nationals. A Review of the Case-Law of the Court of Justice’ (1992) 3/1 EJIL, 53–65, 55. 164 Case 94/84 Office national de l’emploi v. Joszef Deak [1985] ECR 1873.

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considerable sources to legitimise practice of the Member States which respect their nationals’ opting for that choice.165 Respect for difference means not only respect and promotion of difference, but also non-discrimination of EU citizens who are living in a same-sex partnership or marriage. EU citizens living in regis­ tered partnerships, same-sex or otherwise, should not be deprived of free move­ ment on the same conditions as married persons.166 In this context, it should be noted that an ever growing number of EU Member States recognize same-sex marriage or partnership.167 The ECtHR has been approached with qualifications of rights of same-sex couples on a number of occasions. In the case of I. v.UK, the ECtHR noted that since a diversity of practices is followed in the Contracting States, the notion of respect in the context of Article 8 of the ECHR will vary considerably. At the same time the ECtHR acknowledged that “a failure by the Court to maintain a dynamic and evolutive approach would indeed risk render­ ing it a bar to reform or improvement”. Therefore, the Convention should be interpreted and applied in the “light of present day conditions”.168 The ECtHR has established that distinctions made on the basis of sexual orientation are unac­ ceptable under the ECHR as long as they are not proportionate to the legitimate aim pursued.169 165 See Joined Cases C-122/99 P and C-125/99 P D & Sweden v. Council of the European Union, [2001] ECR I-4319. The Court noted the great diversity of laws and the absence of any general assimilation of marriage and other forms of statutory union. Therefore, the Court accepted the fact that registered partners were not entitled to the same treatment as married heterosexual officials. 166 During the drafting process the reference to unmarried partners in Article 2 of the Directive was replaced with a reference to registered partnerships. The reason for the change might be seman­ tic because in its explanation the Commission noted that several Member States had intro­ duced a special status which cohabiting unmarried couples can register for. The original text in the proposal from the Commission read: “the unmarried partner, if the legislation of the host Member State treats unmarried couples as equivalent to married couples and in accordance with the conditions laid down in any such legislation”. See Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM (2001) 257 final, 23 May 2001. 167 In the EU context same-sex marriage is allowed in Belgium, Denmark, France, the Netherlands, Portugal, Spain and Sweden. Outside the EU same-sex marriage is also allowed in Norway and Iceland. In thirteen other states legislation permits same-sex couples to register their relation­ ships: Austria, the Czech Republic, Finland, Germany, Hungary, Luxembourg, Slovenia, and the UK. Two other European States have similar regulation: Andorra and Switzerland. In two more States, in Ireland and Liechtenstein, reforms intending to give same-sex couples access to some form of registered partnership are pending or planned. A narrower approach has been estab­ lished by Croatia in the Law on Same-Sex Civil Unions. Schalk and Kopf v. Austria (App no 30141/04) ECHR 24 June 2010, paras 27–29. 168 I v. UK (App no 25680/94) ECHR 11 July 2002, paras 52–55 and 80. 169 Salgueiro Da Silva Mouta v Portugal (App no 33290/96) ECHR 21 December 1999.

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The ECtHR has ‘taken seriously’ social changes in the institution of marriage in 2010. By referring to widespread acceptance of registration and marriage of samesex partners in the Council of Europe Member States the ECtHR concluded: In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.170

Therefore, it would have been legitimate to claim that contracted or registered partners can move freely in the Union even if the legislation of the host Member State does not provide for registration of such partnerships.171 Although provision on non-discrimination, which appeared in the Commis­ sion’s proposal as Article 4, was deleted altogether in the final text, paragraph 31 of the Preamble to the Directive requires that Member States implement the Directive without discrimination on grounds such as inter alia genetic character­ istics and sexual orientation.172 Taking into account that the EU is bound to observe fundamental rights in the areas falling within its competence, free move­ ment of same-sex couples cannot be excluded by reference to national law.173 This narrow approach would diminish the meaning of the EU as an area where all EU citizens can move freely and the status of EU citizenship being a fundamental status to benefit from Treaty rights. Moreover, acknowledgment of free move­ ment rights for same-sex couples or registered partners in general does not

170 Schalk and Kopf v. Austria (App no 30141/04) ECHR 24 June 2010. By reference to Article 9 of the Charter on the right to marry and found a family on the basis of national law, the ECtHR noted that the Charter deliberately dropped reference to men and women. However, the Commentary to the Charter does not go significantly beyond Article 12 of the Convention. It only tolerates that certain Member States recognize same-sex relationships, but does not require facilitation of such marriages. For the preceding position of the Court see Mata Estevez v. Spain [decision] (App no. 56501/00) ECHR 10 May 2005. For further interpretation see separate opinions of Garlicki, Hirvela and Vucnic in case J.M. v. United Kingdom (App no 37060/06) ECHR 28 September 2010. 171  For the most detailed discussion see Toner Helen, Partnership Rights, Free Movement and EU Law (Hart Publishing 2004). 172 It can be assumed that this reflects the CJEU ruling in Case C-117/01 K.B. v. National Health Service Pensions Agency and Secretary of State for Health [2004] ECR I-541. In this case the Court concluded that the prohibition to marry for transsexuals is inter alia a violation of Article 12 of the European Human Rights Convention. 173 This allegedly would lead either to discrimination on the basis of Article 8 of the ECHR in con­ junction with Article 14 of the same Convention or alternatively violation of Article 2 of Protocol 4 in conjunction with Article 14 of the ECHR.

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require recognition of such partnerships in national law. This would only require upgrading of the international minimum standard instead of opting for the stan­ dard of national treatment in cases of same-sex partners.174 Article 3(1) provides that the Directive applies to all EU citizens who move to or reside in a Member State and to their family members. In addition and accord­ ing to their national legislation Member States should facilitate entry and resi­ dence of certain groups of persons: (a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen; (b) the partner with whom the Union citizen has a durable relationship duly attested.

The first group is very similar to the one mentioned in Regulation 1612/68 (now 492/2011). However, the Directive is more specific mentioning exceptional cir­ cumstances such as health grounds. It should be noted that the requirement of a common household applies at the time of application for family reunification. After a family has been admitted and settled there should be additional proofs if the Member State is no longer willing to extend residence rights for family members. The Court had dealt with such a situation in Diatta,175 long before adoption of the Directive, where the question was whether Mrs. Diatta could request an extension of residence permit if she was no longer living with her husband. The Court ruled that: […] the marital relationship cannot be regarded as dissolved so long as it has not been terminated by the competent authority. It is not dissolved merely because the spouses live separately, even where they intend to divorce at a later date.176

In relation to the group referred to in Article 3(2) (b) the formulation is unclear. It can be argued that the provision is meant to cover persons who are co-habiting but have not registered their union. Such a reading is in line with the Court’s 174 See section 8.1.1.1. of part II of this volume. 175 Case 267/83 Aissatou Diatta v. Land Berlin [1985] ECR 567. 176 Ibid., para 20. But see Case C-40/11 Yoshikazu Iida v. Stadt Ulm, Judgment of 8 November 2012 [not yet reported] under 12.2.3.3. of this section where the CJEU found decisive lack of co-habi­ tation rather than the fact that the spouses’ marriage was not dissolved and both parents had contact with the child. The CJEU interpreted Article 2(2)(a) of Directive 2004/38 and Article 3(1) of the directive requiring family members of a Union citizen moving to or residing in a Member State other than that of which he is a national should accompany or join him. See para 61. See also paras 55–56 in relation to dependence of a child as a basis for family reunification.

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conclusions in Reed.177 The Court noted that there has not been any indication of a general social development which would allow the conclusion that unmarried companions can be considered as spouses. However, the Court found it discrimi­ natory that a Member State allows reunification for its own citizens and unmar­ ried companions but workers of other Member State are refused the right to enjoy this advantage.178 The value added of Article 3 is that it builds upon CJEU case law by requiring facilitation of reunification for these groups. The obligation to facilitate means that Member States are under obligation to undertake an extensive examination of personal circumstances and justify any denial. Therefore, Member States are no longer entitled to use their discretion but should provide citizens with a moti­ vated answer in case of refusal. It can be argued that family reunification will be difficult in cases of certain groups of EU citizens. For instance, due to age limits reunification might become difficult for descendants over 21 and who are not dependents but still have a com­ mon household with parents.179 The same applies to students whose case might not fall under strict requirements for reunification with direct relatives in the ascending line. Apart from these, a multitude of conditions can be identified when families might have difficulties in co-habiting and enjoying the EU as a common space for living and well-being together either in the host Member State or travelling to another EU Member State. 12.2.3.2. Right to Enter The right of exit and entry is regulated by Articles 4 and 5 of Directive 2004/38. Member States are under obligation to allow persons to leave their country sub­ ject to possession of valid documents for border controls. In relation to the right to enter the scope of obligations for Member States is rather strict. Family members must possess valid documents and, if necessary, an entry visa in accordance with

177 Case 59/85 State of the Netherlands v. Ann Florence Reed [1986] ECR 1283. The Dutch court was asking whether a residence permit can be refused to a person – Miss Reed, an unmarried UK citizen – accompanying a worker from another Member State. At that time Dutch immigra­ tion policy enabled unmarried partners to claim family reunification under certain circum­ stances, i.e., if one partner was a Dutch national, refugee, asylum seeker or permanent residence holder. Ms. Reed relied on Article 10 of Regulation No. 1612/68 and claimed that in the light of legal and social developments the word ‘spouse’ should also be applied in cases of unmarried companions. The Court noted that it is aware of the consequences of such a broad reading of the term ‘spouse’ in the Regulation which would then become directly applicable in all Member States. 178 The Court ruled on the basis of Articles 18, 45 TFEU and Article 7(2) of Regulation No. 1612/68. 179 See, for instance Case C-480/08 Teixeira discussed under section 12.2.3.3. of this part.

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Regulation 539/2001.180 Family members must get all necessary visas free of charge as soon as possible and on the basis of an accelerated procedure. The passports of family members need not be stamped. Therefore, third country nationals who are family members are exempted from regular visa and immigration procedures. Even if a Union citizen or family members are not in possession of a valid travel document or visa, the Member State cannot simply turn them back. Member States must grant such persons every reasonable opportunity to obtain the neces­ sary documents. Member States must explore other means that could help to establish that persons are covered by the right to free movement. If it turns out to be impossible on the border, the documents must be brought to them within a reasonable period. In relation to this obligation, most problems have appeared so far in cases of third country nationals.181 Several cases dealt with by the CJEU illustrate the scope of the obligations placed on Member States in this regard. For instance, in the case of Commission v. Spain182 the Commission challenged the decision of the Spanish authorities to refuse a visa to two nationals of a nonEU Member State who were family members of EU citizens on the ground that they appeared on the list in the Schengen Information System (SIS) of persons not to be permitted entry. The Court noted that the importance of protecting the family life of EU citizens has been recognized and EU law has considerably expanded on entry and residence of non-EU Member State nationals who are spouses of EU citizens. This right, however, is not unconditional. Therefore, the CJEU had to balance the effectiveness and the very idea of SIS against the right to family reunification. The Court acknowledged the problem of compatibility of the Schengen Implementation Agreement (SIA) and Directive 64/221, i.e., if an alert has been issued for refusal of entry a person cannot enjoy the protection offered by the Directive. In this context reference was made to the Declaration of Member States where they committed not to issue an alert for the purposes of refusing entry for persons covered by EU law under specific conditions. Therefore, Spain was under an obligation to verify the information, instead of relying on an alert 180 Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nation­ als must be in possession of visas when crossing external borders and those whose nationals are exempt from that requirement. 181 This can be explained on the basis that EU citizens are subject to Schengen regulation and exempt from regular immigration procedures. 182 Case C-503/03 Commission of the European Communities v. Kingdom of Spain [2006] ECR I – 1097. See also C-209/05 Kommission der Europäischen Gemeinschaften v. Republik Österreich, the case removed from the register on 29 June 2006. For comparison on the lower standard set by the ECtHR see in section 8.2.2.3. of part II in this volume on Gheorghe Dalea v. France, (Requéte 964/07) Décision sur la recevabilité, 2 février 2010.

Functions of EU Citizenship  217

issued by another Member State. During verification the Member State should establish whether the presence of those persons constituted a genuine, present and sufficiently serious threat to the interests of society in Spain.183 In this con­ text the Court emphasized the need for individual, case-by-case evaluation of each particular case. Directive 2004/38 attempts to transpose the conclusions drawn fom other cases including MRAX.184 The Court was confronted with the situation that EU legislation did not specify the measures which a Member State may take should a third country national married to an EU citizen wish to enter the EU without being in possession of a valid identity card, passport or visa. According to relevant Directives at that time, Member States had to accord to such persons every facil­ ity for obtaining visas.185 This, according to the Court, means that a visa must be issued without delay and at the border, if possible.186 A different interpretation, according to the Court, would be contrary to the importance the legislature has attached to protection of family life. MRAX proves that in interpreting secondary Community legislation the Court places spouses of EU citizens who are third country nationals on as equal a foot­ ing as possible with EU citizens. Therefore, EU law offers rights to third country nationals who are family members that do go beyond obligations under human rights treaties. The reason for this is that international law provides no general human right to enter for third country nationals.187 183 Ibid., para 59. 184 Case C-459/99 Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL (MRAX) v. État belge [2002] ECR I-6591. The MRAX case involved annulment of a Belgian circular from the Ministries of Interior and Justice concerning the procedure for publication of banns of marriage and the documents which must be produced in order to obtain a visa for the purpose of con­ tracting a marriage in Belgium or to obtain a visa for the purpose of reuniting a family on the basis of a marriage contracted abroad. The circular was contested on three main grounds: (1) whether a Member State can send back foreigners at the border, subject to a visa requirement if they are married to a Community national and attempt to enter without being in possession of an identity document or visa; (2) whether a Member State may refuse to issue a residence per­ mit to the spouse of a Community national who has entered their territory unlawfully and expel him; (3) whether a Member State may neither withhold a residence permit nor expel the foreign spouse of a Community national who has entered national territory lawfully but whose visa has expired when application was made for that permit. The applicants claimed that these regula­ tions are contrary to relevant provisions of Directive 68/360, Directive 73/148, Directive 64/221 and Regulation No. 2317/95. The CJEU confirmed their position that an expulsion order cannot be issued on the sole ground that a visa has expired. 185 See Article 3(2) of Directives 68/360 and 73/148. 186 Supra note 184, para 60. 187 See other parts of this section as well as discussion on right to family re-union in part IV of this volume.

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In other cases the Court had to deal with situations when leave to enter was refused either by one Member State or persons were declared non grata for the whole of Community territory. Akrich188 concerned a Moroccan citizen. He was refused leave to remain in the UK and was subsequently deported on several occasions as a result of criminal offences committed. Whilst residing unlawfully in the UK he married a British citizen. In accordance with his wishes he was finally deported from the UK to Ireland, where his spouse had been established. After half a year they both intended to return to the UK. The authorities refused Mr. Akrich the right to enter the UK on the grounds that he had entered into a mar­ riage of convenience in order to circumvent the provisions to entry and residence of nationals of non-EU Member States. The CJEU came to the conclusion that even if an EU citizen returns to the Member State of nationality in order to work and her spouse does not enjoy rights provided in EU legislation because he has not resided lawfully on the territory of that Member State, the authorities must, in assessing the application by the spouse, have regard to the right to respect for family life under Article 8 of the ECHR, provided that the marriage is genuine.189 It can be concluded that free movement of EU citizens, even when they return to their country of origin, is regulated by EU law. In the case of their spouses not only EU law but also the provisions of the ECHR should be taken into account. This applies also in the case of a spouse who has not previously resided lawfully in a Member State. This approach limits the autonomy of Member States in relation to admitting third country nationals on their territory beyond the standards set by the ECtHR. At the same time this does not signify that the CJEU would neces­ sarily extend Member State obligations under the ECHR. The CJEU requires fresh examination of the merits of the case by taking into account an EU citizen’s fun­ damental status. These cases require Member States to change their perspective when dealing with their own nationals returning to their country of origin, i.e., they are not moving as nationals of that State but as EU citizens. Although less controversial on the facts, a similar approach was adopted by the CJEU in Eind, where even no reference to the ECHR was necessary.190 Although 188 Case C-109/01 Secretary of State for the Home Department v. Hacene Akrich [2003] ECR I-9607. 189 Ibid., para 60. It is interesting to compare the Court’s approach in this case to the provisions of the ECHR and other cases discussed below on the right to reside (3.2.3.3.) and protection against expulsion (3.2.3.4.). The question arises whether the outcome of the case would have been dif­ ferent if the Charter had been binding at that time. Would a Member State have been invited to apply the Charter Article or would the Court rather have referred to the ‘substance of rights’ concept and concluded that EU citizens’ rights were not endangered? See for instance, C-256/11 Dereci, Heimi, Kokollari, Maduike, Stevic v. Bundesministerium für Inneres, Judgment of 15 November 2011 [not yet reported]. 190 Case C-291/05 Minister voor Vreemdelingenzaken en Integratie v. R.N.G. Eind [2007] ECR I-10719.

Functions of EU Citizenship  219

the case was not decided as a ‘citizenship’ case but a ‘worker’ case, the principles outlined are also important for current citizenship-related family reunion cases. The case concerned Mr. Eind, a Dutch national who went to work in the UK. He was joined there by his daughter arriving directly from Surinam. She was granted residence rights as a family member of an EU citizen. Upon return to the Netherlands, Mr. Eind was no longer economically active due to a health condi­ tion. He applied for a residence permit on behalf of his daughter as a family mem­ ber of an EU citizen, but the Dutch authorities refused his application. The reasoning for that decision was that despite the fact that Mr. Eind worked in the UK, he was not economically active upon return to the Netherlands. Therefore, he no longer qualified as a Community national according to law. The CJEU ruled that family members of workers do not have autonomous residence rights. They can instal themselves only in a country where the EU worker resides.191 However, the CJEU also noted that the approach by the Netherlands leads to a situation where a national of a Member State could be deterred from leaving his Member State to take up employment in the territory of another Member State if he did not have the certainty of being able to return to his Member State of origin, irre­ spective of whether he is going to engage in economic activity there. That deter­ rent effect would also derive from not being able, on returning to his Member State of origin, to continue living together with close relatives. Therefore, accord­ ing to the Court: Barriers to family reunification are therefore liable to undermine the right to free movement which the nationals of the Member States have under Community law, as the right of a Community worker to return to the Member State of which he is a national cannot be considered to be a purely internal matter.192

Thus, a person in the situation of Ms. Eind enjoys the right to reside with her father as long as she has not reached the age of 21 years or remains dependent on him. The fact that a third country national who is a member of an EU citizen’s family did not, before residing in the Member State where the worker was employed, have a right under national law to reside in the Member State of which the worker is a national has no bearing on the determination of that national’s right to reside in the latter State. Treating the situation as purely internal is excluded because of the preceding movement of the applicant.193 Therefore, 191 The residence permit was issued to his daughter not on the basis of Regulation 1612/68 but on the basis of national law. This was a political choice based exclusively on UK national legisla­ tion. According to the Court the right of a third-country national who is a member of the family of a EU worker to install himself with that worker may be relied on only in the Member State where that worker resides. See ibid., paras 24–25. 192 Supra note 190, para 37. 193 Supra note 190, paras 35, 37, 45.

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there was no need to apply the ECHR because (1) the cross border test was satisfied (2) family reunification is seen as a cornerstone for the facilitation of free movement of EU citizens (or workers as in Eind). There was no issue raising doubts of misuse of free movement rights. As a result, violation of Article 10(1)(a) of Regulation No. 1613/68 as amended by Regulation No. 2434/93 was found. The Metock case is important in interpretation of Article 3 (1) of Directive 2004/38. Article 3(1) of the Directive provides that the Directive is applicable to all EU citizens who move to or reside in a Member State other than that of their nationality and to their family members who accompany or join them. The case concerned a number of non-EU Member State nationals who applied for the right to family reunion with spouses who were EU citizens. The question arose whether spouses should be entitled to reunification if they have not had prior lawful resi­ dence in another EU Member State.194 Apart from the Metock family the others could have been claimed to be abusing rights of family reunification of EU citizens. According to the interpretation given by the Court, Directive 2004/38 does not require that the EU citizen must already have founded a family at the time of moving to the host Member State. The CJEU noted that Article 3(1) should be interpreted to encompass family members who entered the host Member State with him and to those who reside with him in that Member State. It is not neces­ sary to distinguish according to whether nationals of non-EU Member States entered that Member State before or after the EU citizen or before or after they have become family members. Moreover, the Directive does not decribe the place where the marriage of the EU citizen and non-EU Member State citizen should have taken place. This significantly expands the scope of application of the Directive. The requirement of the Directive ‘to accompany or join them’ does not require a marriage to be registered before an EU citizen arrives in the host Member State. It also does not require legal residence before marriage in another Member State. Although Metock concerned non-EU Member State nationals, this allows one to conclude that even in the case of an EU citizen who has not moved in the EU but is married to another EU citizen who did so, can rely on

194 Case C-127/08 Blaise Baheten Metock et al. v. Minister for Justice, Equality and Law Reform [2008] ECR I-6241. Ms. N. Ikeng had acquired UK nationality and in 2006 was joined by Mr. Metock in Ireland where he was refused asylum in 2007. They had had a relationship in Cameroon since 1994. They had two children. The couple married in Ireland in 2006. Mr. Ikogho arrived in Ireland in 2004 and was refused asylum in 2005. His wife, a UK national, had resided in Ireland since 1996. They met in 2004 and married in 2006. Mr. Chinedu arrived in Ireland in 2005 and was refused asylum in 2006. Ms. Babucke, a German national, resided in Ireland. They married in 2006. Mr. Igboanuse arrived in Ireland in 2004 and was refused asylum in 2005. Ms. Batkowska, a Polish national, had worked in Ireland since April 2006. They married in 2006.

Functions of EU Citizenship  221

EU law.195 This construction would lead to a situation when EU law could be invoked in so called ‘purely internal situations’. This in one way promotes EU citi­ zenship as a fundamental status but on the other hand it increases the situations in which the existing ‘cross-border test’ becomes artificial and needless. Apart from that national courts would have to be particularly cautious to ensure that cases of marriages of convenience can be effectively identified. Furthermore by referring to Article 5 (2) of the Directive the CJEU concluded that the Directive is also capable of applying to family members who were not already lawfully resident in another Member State. According to the Court the Akrich approach should be reconsidered: It is true that the Court held in paragraphs 50 and 51 of Akrich that, in order to ben­ efit from the rights provided for in Article 10 of Regulation No. 1612/68, the national of a non-member country who is the spouse of a Union citizen must be lawfully resi­ dent in a Member State when he moves to another Member State to which the citi­ zen of the Union is migrating or has migrated. However, that conclusion must be reconsidered. The benefit of such rights cannot depend on the prior lawful residence of such a spouse in another Member State.196

The Court also noted that if Member States were to retain exclusive competence to regulate first access to EU territory of family members from a non-EU Member State this would lead to a paradoxical outcome if compared to Directive 2003/86. The latter Directive authorizes entry and residence of the spouse of a non-EU Member State national who has not been resident in the EU. Therefore, family reunification of non-EU Member State couples would be treated better than in cases of EU citizens. The Court added that three conditions have to be satisfied. First, an EU citizen should have exercised free movement rights within the EU. Second, a non-EU Member State national can be refused reunification on grounds of public policy, public security or public health. Finally, reunification can be refused in the case of abuse of rights or fraud, such as marriages of convenience. Notwithstanding the conditions, the possibility of situations of reverse discrimination might increase.197 One can agree with Advocate General Sharpston that the Court’s approach has significant drawbacks and it should deal openly with the issue of reverse discrimi­ nation.198 The current approach does not provide for much legal certainty as to 195 At the same time EU law cannot be invoked in situations where an EU citizen has not crossed the border but is married to a third country national. See Cases C- 434/09 McCarthy and C-256/11 Dereci, referred to in sections 11.2.3. and 12.2.3.4. in this volume. 196 Supra note 194, para. 58. See also the Court’s ruling in Case C-291/05 Eind in this section. 197 See, for instance, Case C-60/00 Mary Carpenter and Case C-256/11 Dereci in section 12.2.3.4 of this part. 198 Supra note 84, paras 138–141.

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when the cross-border element will be crucial and when the Court will decline the case on the basis of lack of a link to EU law. However, further discussion on the possibilities to extend application of EU law to ‘purely internal situations’ is rather pertinent for the next section of this study. The Metock case is exceptional and definitely subject to further investigation at the national level in relation to possible abuse of EU rights by third country nationals not having legal residence in the EU before joining or forming a family with EU nationals. For the purposes of the current study it can be concluded that application of the Directive has been extended to non-EU Member State nationals who are not required to exercise movement in the EU if they join EU citizens who have done so. Apart from spouses, the Court had to deal with cases concerning other family members. Jia199 concerned the right of parents to reunification. The Court distin­ guished the case of Mrs. Jia from that of Mr. Akrich. According to the Court: […] Community law does not require Member States to make the grant of a resi­ dence permit to nationals of a non-Member State, who are members of the family of a Community national who has exercised his or her right of free movement, subject to the condition that those family members have previously been residing lawfully in another Member State.200

Therefore, it was not necessary for Mrs. Jia to be resident in another Member State before applying for a residence permit in Sweden. She could apply by being legally resident in Sweden where she came directly from China. This is in line with the approach the Court took in Metock and Eind. A further question related to criteria of ‘dependence’ where the Court was requested to interpret Directive 73/148 (Article 2(2) (d) of Directive 2004/38). The Court referred to its previous conclusions drawn in Lebon that the status of a dependent family member does not presuppose the existence of a right to main­ tenance and there is no need to examine whether a family member is able to sup­ port himself by taking up paid employment. The Court noted that in order to establish a situation of ‘dependence’ Member States must assess whether the need for material support exists and that given the lack of precision as to the means of acceptable proof of ‘dependence’ evidence may be adduced by any appropriate means. For family members to acquire residence on the basis of a 199 Case C-1/05 Yunying Jia v. Migrationsverket [2007] ECR I-1. Chinese national Mrs Jia was the mother of Chinese national Mr. Shenzhi Li who was married to German national Ms. Schallehn. Ms.Schallehn was working self-employed in Sweden. Mr. Shenzhi Li held a residence permit for the same duration as his wife. Mrs. Jia was granted a visitor’s visa for residence of a maximum 90 days. She applied for a residence permit claiming to be dependent on her son and his wife. An application was also submitted by the husband of Mrs. Jia – Mr. Yupu Li. Both applications were rejected on the grounds that there was no sufficient evidence of a relationship of ‘dependence’. 200 Ibid., para 33.

Functions of EU Citizenship  223

‘dependence’ situation they have to prove by any appropriate means available that they cannot meet their essential needs in the State of origin or the State from which they have come at the time when they apply to join the EU citizen. However, an undertaking by an EU citizen or their spouse to support family mem­ bers concerned will not be sufficient to establish a situation of dependence. Therefore, evidence submitted must be evaluated in each particular situation and EU law does not give strict prescriptions in this regard. Therefore, apart from an obligation of Member States to issue an entry visa under special procedure and, if possible, on the border, Member States have to evaluate each specific case to ensure that neither rights of persons under Article 8 of ECHR are violated nor that a person has been refused entry without their con­ stituting a sufficient threat to the interests of its society. In addition the right to enter and to join family can take place if a marriage is concluded after arrival and if the spouse personally has not exercised free movement rights. This leads to the conclusion that at least in certain cases of non-EU nationals the standard appli­ cable in the EU in relation to family reunification is higher than according to the ECHR. If EU citizens have moved within the EU their rights will be treated pri­ marily on the basis of EU law, while the ECHR will provide for the minimum pro­ tection afforded as part of general principles of EU law. The following sections, however, will shed some light on the future applicability of the ECHR and the Charter as well as division of power between national courts and the CJEU in their application. 12.2.3.3. Right to Reside According to Article 7 (2) of Directive 2004/38 residence for more than three months extends to family members who are not nationals of the Member State if the EU citizen satisfies conditions according to Article 7(1) of the Directive. Family members are entitled to the right of permanent residence on the same grounds as EU citizens according to Article 16 (2). However, a number of specific conditions are also attached to family members. First, those relate to their right of residence if they have stayed in the State illegally (regularization). This in most cases concerns third country nationals. Second, there are conditions for entitle­ ment to reside on the same terms as an EU citizen. This concerns cases when the family has moved between Member States. Third, there are certain requirements to be satisfied before family members acquire an independent right of residence. Fourthly, there are cases which challenge the strict approach to ‘purely internal situations’ and family members may invoke EU law without crossing the border. Since references to ‘purely internal situations’ in most cases are related to expul­ sion, those will be dealt in the next section. In relation to the first group of cases the CJEU has consistently favoured the possibility of regularization and access to EU rights because formalities of

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immigration laws cannot outweigh the right to family reunification. Thus in MRAX the Court concluded that Member States can introduce proportional sanc­ tions for breaches of immigration law.201 However, a residence permit is not a measure giving rise to rights, but serving as proof of an individual’s position in the State.202 A different interpretation would impair the very substance of the right of residence. The Court also concluded that Member States may neither refuse to issue a residence permit to a third country national who is married to a EU citizen and entered the territory lawfully, nor issue an order expelling him from the terri­ tory, on the sole ground that his visa expired before he applied for residence. More far reaching conclusions have been drawn in the context of regularization in cases involving children, such as Chen and Zambrano.203 In Chen the laws then granting Irish nationality to anyone born on the island of Ireland including Belfast, coupled with good legal advice, enabled Catherine to rely on citizenship of the Union, as noted by Advocate General Sharpston.204 This goes in line with the strengthened position of children in EU law, granting them an independent right to reside. This in turn leads to a situation where parents might benefit from residence rights under certain circumstances. Similar principles were applied in Zambrano which allowed regularization of parents residing with their children who held EU citizenship. The solution in these cases was derived from citizenship articles in the Treaties rather than secondary law. As correctly noted by Gareth Davies the situa­ tion where it is the Union citien who is dependent upon family members is differ­ ent and precisely the reverse of the scenario imagined by Directive 2004/38.205 Therefore, in cases of family reunification Treaty articles can ensure protection which stretches beyond the provisions on free movement in secondary law. The second group of situations where residence is related to free movement rights of EU citizens concerns cases where Member States have refused to issue residence permits to family members for the same duration as for EU citizens. In Kaba206 the Court noted that EU law does not provide an unconditional right for 201 Supra note 184. The Court was asked whether the possibility to expel a third country national who had entered and was residing in Belgium illegally, although married to a Member State’s national, is in line with EU law. 202 Ibid., paras 74–77. 203 For Case C-200/02 Chen see section 11.2.1., for discussion on Case C-34/09 Zambrano see section 12.2.3.4. of this part of this volume. 204 Supra note 84, para 78. Chen case could be interpreted as purely internal situation because Catherine was born on the territory of the UK. 205 Davies Gareth, ‘The Family Rights of European Children: Expulsion of Non-European Parents’ (EUI Working Papers, RCAS 2012/04, 2012), available at accessed 26 February 2013, 1. 206 Case C-356/98 Arben Kaba v. Secretary of State for the Home Department [2000] ECR I-02623 and Case C-466/00 Arben Kaba v. Secretary of State for the Home Department [2003] ECR

Functions of EU Citizenship  225

nationals of a Member State to reside in another Member State. Those who are nationals of the UK or those who are present and settled in the UK are not com­ parable for the purposes of EU law.207 Therefore, the applicant was not entitled to the same residence rights as his spouse. The Kaba ruling is questionable for its methodology in the light of the earlier Singh case which concerned Mr. Surinder Singh, an Indian national married to a UK national.208 The CJEU was asked to rule on the question whether the spouse of a national employed in another Member State after returning to the country of origin of the spouse should be treated in accordance with national or EU law. The CJEU stated: [T]his case was concerned not with a right under national law but with the rights of movement and establishment granted to a Community national by Articles 45 TFEU [ex 48 TEC] and 49 TFEU [ex 52 TEC] of the Treaty […]. Accordingly, when a Community national who has availed himself or herself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State.209

Therefore, as long as a third-country national is married to an EU citizen who is travelling back to their State of nationality, then their rights and status are no longer decided in accordance with national but on the basis of EU law. However, this does not mean that residence rights are unconditional. At the same time they are not as restrictive as in the case of Kaba. Currently, the approach consistent with Directive 2004/38 would be that Mr. Kaba is issued a residence permit for the same duration as his wife. A more complex situation appeared in Iida in which the CJEU had to address the question of applicability of Directive 2003/109, Directive 2004/38 as well as relevant articles on EU citizenship enshrined in the TFEU.210 Proceedings arose I-2219. The case concerned a Yugoslav national who arrived in the UK and after a couple of years married a French national there. His wife was granted a five year residence permit. He was refused indefinite leave to remain in the UK because his wife had remained in the UK for only one year and 10 months. Kaba found this discriminatory because he and his wife were treated differently in comparison to persons present and settled in the UK. 207 Ibid., paras 46–50. 208 Case C-370/90 The Queen v. Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for Home Department [1992] ECR I-4265. They worked in Germany for a number of years after returning to the UK in order to open a business. Upon arrival Mr. Singh was granted limited leave to remain in the UK as the husband of a British national. After a year his wife started divorce proceedings against him. Because of that, the British authorities cut short his leave to remain and refused to grant him indefinite leave to remain as the spouse of a British citizen. 209 Ibid., para 23. 210  Case C-40/11 Yoshikazu Iida v. Stadt Ulm, Judgment of 8 November 2012 [not yet reported]. Mr. Iida, a Japanese national, had been married to a German national since 1998. Their daughter was born in the USA in 2004 and holds German, Japanese and US nationalities. They arrived in

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when a non-EU national – Mr. Iida – applied for a family member’s residence per­ mit in Germany while his daughter and wife had moved to Austria. The Court established that both Directives are not applicable in the present case.211 When examining application of the Treaty the CJEU noted that any rights conferred on third-country nationals by the Treaty provisions on EU citizenship are not auton­ omous rights of those nationals but rights derived from the exercise of movement by a Union citizen. By this statement the Court confirmed that as a rule in the case of third-country nationals – family members, usually – the cross-border test remains relevant. Thus the main focus of the Court is not family re-unification as such but the possibility for EU citizens to exercise free movement rights without discouragement or ‘burden’ placed by national law. By reference to its previous case law in Chen, Eind and Dereci the CJEU stated: The common element in the above situations is that, although they are governed by legislation which falls a priori within the competence of the Member States, namely legislation on the right of entry and stay of third-country nationals outside the scope of Directives 2003/109 and 2004/38, they none the less have an intrinsic connection with the freedom of movement of a Union citizen which prevents the right of entry and residence from being refused to those nationals in the Member State of resi­ dence of that citizen, in order not to interfere with that freedom.212

Since Mr. Iida did not seek residence with his family in Austria and had been granted residence in Germany there were no grounds to consider that his spouse or daughter were denied genuine enjoyment of the substance of EU citizens’ rights. Contrary to the proposal by Advocate General Trstenjak, the Court refused to apply the Charter to the present case. By reference to Article 51 of the Charter, the Court noted that the residence permit of Mr. Iida was issued on the basis of national provisions which did not aim at implementing EU law. This is a somewhat narrow reading of the Charter and the provisions of EU citi­ zenship. The CJEU declined the EU element by simply referring to the legal basis on which a residence permit was issued to Mr. Iida but ignored his right to Germany in 2005 and Mr. Iida got a residence permit as the spouse of a German national. In 2008 his wife and daughter moved to Austria, while he remained in Germany. They are not divorced and exercise joint custody of their daughter. Mr. Iida’s residence is no longer linked to his family relationship but to employment. However, he takes the view that he should be enti­ tled to a residence permit as a family member of a EU citizen because of having custody over his daughter. He has also refused to apply for long-term resident status to which he would have been entitled according to German law. 211 Directive 2003/109 was not applicable because Mr. Iiida himself withdrew his application. Directive 2004/38 was not applicable because he did not qualify as a family member of his daughter within the meaning of Article 2(2) of the Directive, i.e., he was not dependent on his daughter; he also did not qualify as a beneficiary according to Article 3(1) of the Directive because he neither accompanied nor joined his spouse. 212 Supra note 210, para 72.

Functions of EU Citizenship  227

custody of a child who had used her free movement rights. Current day realities allow the conclusion that at a certain point of time any family may be separated between different Member States without being divorced. Moreover, a third country national might become integrated in one Member State and unwilling to move together with their family. The option to apply for long-term resident status is not an adequate alternative and the added value of that solution remains unclear in the present case. In this context the proposal by the Advocate General is more appropriate as it refers to Article 6(1) and (3) TEU and Articles 7 and 24 of the Charter which leads to the conclusion that a parent such as Mr. Iida in order to maintain a parental relationship and direct parental contact on a regular basis has a right of residence in the Member State of origin of his child who is an EU citizen exercising free movement rights. Refusal to issue an appropriate residence permit might have a restrictive effect on the child’s right of free movement and constitute disproportionate interference with fundamental rights.213 This pro­ posal not only signals the importance of EU citizenship status but also the role of the Charter in these cases which was neglected by the CJEU. The third group of cases concerns the autonomous residence rights of family members. Article 12 of Directive 2004/38 provides for cases where family mem­ bers retain the right to reside in the event of death or departure of the EU citizen. Article 13 provides for a residence right in the event of divorce, annulment of mar­ riage or termination of a registered partnership. In both cases family members should satisfy the conditions of Article 7(1) of the Directive, i.e., they should be workers or self-employed, have sufficient resources not to become a burden on social assistance, should be enrolled at a public or private establishment or be family members of one of those groups.214 This is a rather limited approach. As noted by Alvaro Castro Oliveira the family is legally protected only if a worker dies, not otherwise – no matter what the physical, mental, or financial condition of such workers may be.215 According to the CJEU approach, cases involving 213 Supra note 210, Opinion of Advocate General Trstenjak, 15 May 2012, paras 60–91 and conclu­ sions in para 92. 214 See, for instance, Case C-416/96 Nour Eddline El-Yassini v. Secretary of State for Home Department [1999] ECR I-01209. The applicant, a Moroccan national, married a British national and obtained leave to remain in the UK. The couple separated and the authorities refused to prolong the applicant’s residence. The CJEU held that the EEC-Moroccon Agreement does not preclude the host Member State from refusing to extend a residence permit where the initial reason for the grant of his leave to stay no longer exists by the time that his residence permit expires. The only difference would be in cases when refusal would affect the right to engage in employment conferred on the person concerned by a work permit duly granted for a period exceeding that of his residence permit. 215 Castro Oliveira Alvaro, ‘The Position of Resident Third-Country Nationals: Is it too early to grant them Union Citizenship?’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 185–200, 190.

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children would require a more liberal approach to serve the best interests of the child. Family members acquire the right to permanent residence irrespective of nationality if an EU citizen has acquired that right on the basis of Article 17 (3) of the Directive. According to Article 18 this also applies in cases of family members who are subject to Articles 12 and 13 and have resided in the host Member State for a period of five consecutive years. In the case of death of an EU citizen, family members who are not nationals of the host State retain their residence right if they resided as family members in the Member State for at least one year before the death of the EU citizen. In the case of divorce or separation, the residence requirement is three years. The Court explained the residence requirements in Nani Givane.216 The case concerned a Portuguese national who entered the UK and obtained a five year residence per­ mit. He re-entered the UK in 1996 accompanied by his wife and three children who were Indian nationals. In 1997 Mr. Givane died. The appellants applied for indefi­ nite leave to remain in the UK on the basis of Regulation 1251/70 as family mem­ bers of a deceased worker but their application was refused because according to the regulation Mr. Givane should have resided in the UK for a continuous period of two years immediately preceding his death. Mrs. Givane claimed that the require­ ment is that a person has generally resided in the UK for two years, while the respondents said that those two years should be counted preceding the death of the worker. The Court interpreted the Regulation grammatically and contextually. Both methods explored led the Court to conclude that residence should be con­ tinuous for two years before the death. There cannot be any intervals in between when an EU citizen has resided outside the host Member State. Directive 2004/28 has liberalized the residence requirement to the extent that Article 12 (2) provides that in cases of death of an EU citizen family members are required to be resident in the host Member State for at least one year before the death of the EU citizen. Moreover, according to Article 12 (3) of Directive 2004/38 residence rights would be retained in cases where children of an EU citizen reside in the host Member State and are enrolled at an educational establishment. In cases of divorce, according to Article 13 (2) residence rights are retained if a family mem­ ber has custody of an EU citizen’s children or the spouse of an EU citizen has the right of access to a minor child. According to Dora Kostakopoulou these provi­ sions were inserted as a result of the Baumbast ruling.217 In Baumbast218 part of the case concerned R who was a US citizen divorced from a French citizen and residing in the UK with two children holding dual 216 C-257/00 Nani Givane and Others v. Secretary of State for the Home Department [2003] ECR I-345. 217 Kostakopoulou Dora, ‘Ideas, Norms and European Citizenship: Explaining Institutional Change’ (2005) 68(2) MLR, 233–267. 218 Case C-413/99 Baumbast, R v. Secretary of State for the Home Department [2003] ECR I-7091.

Functions of EU Citizenship  229

French and US citizenship. The Court found Regulation 1612/68 (now 492/2011) applicable in those circumstances because the children pursued their education in the UK and they had to be considered as family members because their father continued to work in the UK. The Court also concluded that Article 12 of Regulation 1612/68 (now 492/2011) should be interpreted as entitling the parent who is the primary carer of those children to reside with them. Since the national courts had entrusted R with that task, she was allowed to reside in the UK. This line of reasoning was confirmed in Ibrahim. This concerned Ms. Ibrahim who was a Somali national married to a Danish citizen and who resided with him in the UK.219 They had four children of Danish nationality aged from one to nine. After approximately two years of residence the husband of Ms. Ibrahim left the UK and they separated. She was never self-sufficient and relied on social assistance. She also did not possess sickness insurance. Ms. Ibrahim was refused housing assis­ tance after three years of independent residence on the grounds that neither she nor her husband was resident in the UK under EU law. The main question was to what extent a family can rely on rights enshrined in Article 12 of Regulation 1612/68 (now 492/2011) providing for access of children to a State’s general educational courses under the same conditions as the nationals of that State. The Court agreed with the Advocate General and relied inter alia on conclusions already made in Baumbast and rights to family reunion included in Article 7 of Directive 2004/38. According to the Court a child has an independent right of residence in con­ nection with its right of access to education. This right is not dependent on the right of residence of the parents.220 When examining the contents of Article 12 of Regulation 1612/68 (now 492/2011), the Court emphasized that it still applies irre­ spective of adoption of Directive 2004/38. Article 12 does not require fulfilment of a condition of sufficient resources and comprehensive sickness insurance. Moreover, the CJEU noted that Article 12(3) of the Directive 2004/38 likewise does not make the right of residence in the host Member State of children who are in education and the parent who is their primary carer depend on their having suf­ ficient resources or sickness insurance.221 In Texeira the situation concerned a couple of whom both were Portuguese nationals residing in the UK where their daughter was born.222 After divorce 219 Case C-310/08 London Borough of Harrow v. Nimco Hassan Ibrahim, Secretary of State for the Home Department [2010] ECR I-1065. The husband – Mr. Yusuf – arrived in the UK in the autumn of 2002 and worked in the UK for 8 months after which he was granted incapacity ben­ efit. After being declared fit to work after 10 months he left the UK and returned after two years. His wife joined him shortly before he was granted incapacity benefit. 220 Ibid., paras 35, 40. 221 Ibid., para 56. 222 Case C-480/08 Maria Teixeira v. London Borough of Lambeth, Secretary of State for the Home Department [2010] ECR I-1107.

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their daughter was ordered to live with her father but she soon went to live with her mother who applied for housing assistance. Texeira argued that her daughter was enrolled at school and thus she had an independent residence right in the UK. The Court re-examined in detail its ruling in Baumbast and compared the provisions of Regulation No. 1612/68 and Directive 204/38. It concluded that: The interpretation that the right of residence in the host Member State of children who are in education there and the parent who is their primary carer is not subject to the condition that they have sufficient resources and comprehensive sickness insurance cover is supported by Article 12(3) of Directive 2004/38, which provides that the departure or death of the citizen of the Union does not entail the loss of the right of residence of the children or the parent who has actual custody of them, irre­ spective of their nationality, if the children reside in the host Member State and are enrolled at an educational establishment for the purpose of studying there, until the completion of their studies.223

This also corresponded to the Court’s interpretation of Article 12 of Regulation 1612/68. It is sufficient that a child is installed in the host Member State when one of the parents was exercising rights of residence there as a migrant worker. Moreover, the right of residence continues even after the child has reached the age of majority if the child continues to need the presence and the care of that parent in order to be able to pursue and complete their education.224 Therefore, legal certainty in the case of children has been strengthened by both secondary law as well as subsequent interpretation by the CJEU. This also strengthens the residence rights of third-country nationals who are parents of EU citizens.225 The acknowledgment that children possess independent residence rights and should be entitled to equal assistance if in need not only strengthens the status of EU citizenship in cases of children but makes their movement rights more secure especially if their parents lose sufficient income to ensure that they can continue studies in the host Member State. 12.2.3.4. Protection Against Expulsion Cases of expulsion quite often concern situations which can be qualified as purely internal. Although the Court has consistently refused to accept departure from the principle of invoking EU law in cases which do not go beyond the borders of one Member State, the cases to be discussed show that the Court had to invent or reconsider its line of argumentation at least in a limited number of cases. 223 Ibid., para 68. 224 Ibid., paras 81–86. See also Case 7/94 Landesamt für Ausbildungsförderung Nordrhein-Westfalen v Lubor Gaal [1995] ECR I-1031. 225 Hailbronner Kay, Thym Daniel, ‘Case C34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), Judgment of the Court of 8 March 2011’ (2011) 48 (4) CMLR, 1253– 1270, 1266.

Functions of EU Citizenship  231

In Carpenter226 the family had never left their Member State of residence. Mrs. Mary Carpenter was married to Mr. Carpenter, a UK national, and they resided in the UK. Mr. Carpenter had established the business of selling advertis­ ing space in different journals around Europe. Since Mrs. Carpenter’s stay in the UK was illegal for years, she was issued with a deportation order.227 Mrs. Carpenter had never left the UK at all while Mr. Carpenter was leaving the UK occasionally for business purposes. The Court concluded that Mr.Carpenter qualified as a ser­ vice provider. Although he was established in the UK, he provided cross-border services. Moreover, the Court did not find it difficult to extend application of Directive 68/360 and noted that separation would be to the detriment of the Carpenter family by stating that: The decision to deport Mrs Carpenter constitutes an interference with the exercise by Mr. Carpenter of his right to respect for his family life within the meaning of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms… which is among the fundamental rights which, according to the Court’s settled case-law, restated by the Preamble to the Single European Act and by Article 6(2) EU, are protected in Community Law.228

This is one of those cases where the CJEU has limited the discretion of a Member State on the basis of a possible human rights violation. Mrs. Carpenter herself could not be considered to be subject of either primary or secondary law.229 She had not herself exercised free movement rights. As noted by Eleonora Spaventa the Carpenter case should rather be seen as the Court’s self-perception of being a guarantor that an individual is protected from executive or legislative misbehav­ iour.230 Carpenter raises further legitimate questions about cases of reverse dis­ crimination when EU citizens arriving in a host Member State are subject to more 226 Case C-60/00 Mary Carpenter v. Secreatary of State for the Home Department [2002] ECR I-6279. 227 In relation to third country nationals the requirements are higher than for EU citizens. In the case of EU citizens, absence of a residence permit is not sufficient to expel them. See Case 118/75 Lynne Watson and Alessandro Belmann [1976] ECR 1185 and Case 8/77 Concetta Sagulo, Gennaro Brenca and Addelmadjid Bakhouche [1977] ECR 1495. 228 Supra note 226, para. 41. 229 See also annotation by Lienemeyer Max, Waelbroeck Denis, ‘Case C-94/00 Roquette Frères SA v. Directeur général de la concurrence, de la consommation et de la répression des fraudes, and Commission of the European Communities [2002], ECR I-9011’ (2003) 40 CMLR, 1481–1497. But Davies notes that the law on services protected her right of residence, although the Court was also influenced by Article 8 of the ECHR. Davies Gareth, ‘The Family Rights of European Children: Expulsion of Non-European Parents’ (EUI Working Papers, RCAS 2012/04, 2012), available at accessed 26 February 2013, 2. 230  Spaventa Eleanor, ‘From Gebhard to Carpenter: Towards a (Non-)Economic European Constitution’ (2004) 41 CMLR, 743–773, 767.

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preferential treatment under EU law than citizens of Member States claiming the same rights under national law, including the right to respect for family life. It also raises the question in which situations EU law would be applicable despite the fact that the cross-border element is is limited or hypothetical and what should be the correct legal basis for EU involvement: EU citizenship provisions, considerations derived from Article 8 of the ECHR or whether potential exists for the Charter to be invoked more often in the future. Following Carpenter there have been other cases where the Court had to clarify its position in relation to applicability of EU law in ‘purely internal situations’ and the scope of the concept of ‘substance of rights’ which would allow such invoca­ tion. The issue of reverse discrimination has been left with national courts. For instance, the Zambrano case concerned a couple of Colombian nationals in Belgium.231 Mr. Zambrano was unsuccessful in acquiring asylum status in 2000. Notwithstanding, the couple continued residing in Belgium and Mr. Zambrano even obtained full time employment without a work permit. His wife gave birth to two children in 2003 and 2005 respectively: both held Belgian nationality. The questions addressed to the CJEU essentially can be reduced to the issue whether EU law and provisions on EU citizenship can be invoked in a situation like that in Zambrano which related to children holding Belgian nationality residing in Belgium while their parents were illegal residents and issued an expulsion order. In its concise ruling the Court noted that Directive 2004/38 is not applicable in cases where persons have not used free movement rights. However, the same conclusion cannot be made in relation to applicability of Treaty articles. Rights of children should be given due regard because they cannot exercise their move­ ment and residence rights without support of their parents. The CJEU noted that conditions for acquisition of nationality are questions to be set by Member States. But since EU citizenship is destined to be a fundamental status, by reference to Rottmann, Article 20 TFEU precludes national measures which have the effect of depriving EU citizens of genuine enjoyment of the substance of the rights con­ ferred upon them as EU citizens. Therefore, in a Zambrano situation refusal to grant a right of residence and work permit to parents of children who were Belgian citizens would lead to breach of Article 20 TFEU.232 This would inevitably lead to a situation where those children – EU citizens – would have to leave the territory of the EU together with their parents. Therefore, in cases like Zambrano a cross-border element is not important because genuine enjoyment of the sub­ stance of the EU citizen’s rights is at stake, i.e., a Union citizen would have to leave not only the territory of the Member State of which he is a national, but also 231 Case C-34/09 Gerardo Ruiz Zambrano v. Office national de l’emploi [2011] ECR I-1177. 232 Ibid., paras 40, 42–43.

Functions of EU Citizenship  233

the territory of the Union as a whole.233 This is even more so, but not limited to, cases which concern dependent minor children who are bearers of EU citizen’s rights. If the CJEU were to stick to the ‘purely internal situation’ concept, children would be deprived of benefit from their EU citizen status. In this context the fact that the ruling of the Court meant legalization of the illegal residence status of the parents and even their illegal employment was of no importance. At least the CJEU did not rebut this argument. After all it was national law of Belgium which led to the situation that the parents could manage to reside illegally for a long period and register their children as Belgian citizens. In this context comparison to the ECHR can be made. One could argue that a case like Zambrano would belong to the competence of the ECtHR rather than the CJEU. While in the case of Carpenter it could have been assumed that the ECtHR would have ruled that there was a violation of Article 8 of the Convention, the outcome of Zambrano is much less clear. In Carpenter the family was inte­ grated in the UK and the prospects for the family to integrate in the country of origin of Mrs. Carpenter (the Philippines) would be much more difficult at least for children who were resident in the UK since birth and were UK citizens. Zambrano instead is more similar to the Omoregie case, i.e., a situation in which the parents could not be secure of their residence and the children had relatively good chances to integrate in the country of origin of the father.234 As is rightly observed the ECHR does not embody a right to regularize an illegal stay.235 An argument which could be invoked is the length of residence of the children and the fact that they are minors and Belgian citizens who are integrated in the coun­ try of residence similarly to Maslov.236 Another question arises whether the CJEU adopted correct methodology by invoking Article 20 TFEU instead of Article 21 TFEU and respective Charter provi­ sions. For instance, concerning the applicability of Article 21 in Zambrano Advocate General Sharpston rightly argued that the right to move and the freestanding right to reside should be de-coupled.237 By reference to the Carpenter, Chen, Akrich and Metock cases the Advocate General exemplified the CJEU test to be applied in relation to protecting family life: • A citizen of the EU should not be the claimant in the main proceedings to trigger pro­tection. Third country nationals are protected as family members of EU citizens. 233 Case C-256/11 Dereci, Heimi, Kokollari, Maduike, Stevic v. Bundesministerium für Inneres, 15 November 2011 [not yet reported], para 66. 234 See section 8.2.2.3. of part II in this volume. 235 Hailbronner Kay, Thym Daniel, ‘Case C34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), Judgment of the Court of 8 March 2011’ (2011) 48 (4) CMLR, 1253– 1270, 1260. 236 Maslov v. Austria (App no 1638/03) ECHR 23 June 2008. 237 Supra note 231, paras 50, 100. The approach resembles CJEU rulings where it ‘de-coupled’ the right of family members to “accompany and join”.

234  Chapter Twelve • A fundamental right can be invoked even if the family member is not legally resident. • The test of threat to public policy or public security should be applied. • The behaviour of the applicant will be taken into account in order to exclude cases of bad faith.238

This led the Advocate General to conclude that a person whose ability to move within the EU is ‘hampered’ or ‘made less attractive’, even by his Member State of nationality, can rely on EU law.239 According to Sharpston the cases of Avello, Chen and Rottmann have already allowed invocation of EU rights irrespective of prior trans-border movement. The open ended concept of ‘substance of rights’ has created legal uncertainty and a number of requests for preliminary rulings. Therefore, the concept of ‘sub­ stance of rights’ since Rottmann and Zambrano has been further clarified in cases such as McCarthy and Dereci.240 The last one is of particular importance under this section. Dereci concerned five family situations where applicants were all third-country nationals who wished to live with their family members, Austrian citizens residing in Austria.241 Their applications for residence permits were rejected and four of them were subject to expulsion orders. The Court applied the test of ‘deprivation of genuine enjoyment of the sub­ stance of the rights’ conferred on EU citizens. Despite the wide interpretation which was hypothetically attached by commentators after Zambrano, the CJEU considerably limited its application of Article 20 TFEU and ‘substance of rights’ in Dereci. The Court signalled that the concept of the ‘substance of rights’ depends on the facts of the case and should be applicable in very exceptional cases. It noted that a right of residence may not be refused to a third country national who is a family member of a Member State national if the effectiveness of Union citi­ zenship enjoyed by that national would otherwise be undermined. Economic rea­ sons or the wish to keep his family together in the territory of the Union are not sufficient as such to support the view that the Union citizen will be forced to leave Union territory if residence rights for a third-country national are not granted.242 238 Ibid., para 57. 239 Ibid., para 72. See also paras 77 and 84. 240 See section 11.2.3. of this part and Case C-434/09 Shirley McCarthy v. Secretary of State for the Home Department [2011] ECR I-3375, Case C-256/11 Dereci, Heimi, Kokollari, Maduike, Stevic v. Bundesministerium für Inneres, 15 November 2011 [not yet reported]. 241 Case C-256/11 Dereci, Heimi, Kokollari, Maduike, Stevic v. Bundesministerium für Inneres, 15 November 2011 [not yet reported]. Their situation differed as to whether they entered lawfully or unlawfully, what was their place of residence at the time of application and what was their family relationship with the EU citizen. There were also differences whether they had children born in the family relationship. 242 Ibid., paras 67–68.

Functions of EU Citizenship  235

Arguably, the Court’s ruling in Dereci could have been different if the CJEU dealt with it on the basis of Article 21 or it had been argued that EU citizens were financially dependent on third-country nationals, which was not the case. Should financial dependence be established and the right of residence of children in the country of origin confirmed, expulsion of third-country nationals would be less likely. The risk of children being separated from parents as in the case of the first applicant, was alone insufficient to invoke EU regulation.243 The present approach leads to a paradoxical conclusion – family members such as in the case of Dereci could have relied on the rather generous protection of family reunifica­ tion under EU law as soon as they crossed the border and used their free move­ ment rights in the EU. The fact that the situation was limited to Austria deprived them of any such rights. A possible solution might be forthcoming if national courts follow the advice of the CJEU on application of fundamental rights. The CJEU noted that Article 7 of the Charter contains rights which correspond to rights guaranteed by Article 8(1) of the ECHR and their meaning and scope are the same. At the same time the Charter is applicable only within the scope pro­ vided in Article 51(1) of the Charter. The CJEU further advised: [I]f the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.244

The CJEU concluded that it is up to the national court to take into account provi­ sions of EU citizenship and fundamental rights so as to ensure that if a thirdcountry national is refused residence rights this does not lead to denial of genuine enjoyment of the substance of the rights of the EU citizen. Therefore, national courts remain important actors in deciding when situations raise the necessity to invoke Articles either on EU citizenship or on fundamental rights. In this context the principle of proportionality becomes an indispensable element for analysis at the national level. Davies suggests that where expulsion of a family member makes the exercise of an EU right harder, albeit not impossible, the expulsion must be proportionate, in the sense that it reflects a balance of interests.245 This requirement stems from application of human rights considerations, as has been 243 The situation was resolved on the basis of Decision No. 1/80 between the EU and Turkey. 244 Supra note 241, para 72, see also 70–71. 245 Davies Gareth, ‘The Family Rights of European Children: Expulsion of Non-European Parents’ (EUI Working Papers, RCAS 2012/04, 2012), available at accessed 26 February 2013, 12.

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further confirmed in O.S. which is factually more complicated than Dereci in test­ ing the scope of the EU citizen’s ‘substance of rights’ concept.246 The case concerned two third-country nationals who were once married to Finnish citizens and had children by marriage holding Finnish citizenship. After divorce from EU citizens they married for the second time but now to third-coun­ try nationals applying for a residence permit in Finland. Both couples had a child born in their second marriage holding the nationality of a third country. The questions from the national court related to interpretation of Article 20 TFEU in the light of the facts of the case. The Court repeated its conclusions in Zambrano, McCarthy and Dereci by stat­ ing that cases of children who have not made use of the right of freedom of move­ ment cannot for that reason alone be assimilated to a purely internal situation. Children enjoy the status of EU citizenship and can rely on the rights pertaining to that status even against the State of which they are nationals. This in turn pre­ cludes national measures, including refusals to grant residence rights to their family members, if children would otherwise have to leave not only the Member State but the Union as a whole.247 Similarly to Dereci the CJEU distanced itself from drawing a final conclusion and stated that this is a matter for the national court.248 The factors the Court noted as important for the national court were: the status of the mothers, which does not oblige them to leave the territory of the Member State or the Union, cus­ todial rights and the possibilities for the children to maintain their relationship with their biological fathers.249 However, on the scope of application of ‘substance 246 Case C-356–357/11 O. and S. v. Maahanmuuttovirasto and Maahanmuuttovirasto v L, Judgment of 6 December 2012 [not yet reported]. Ms. S, a Ghanaian national, permanently in Finland, was married to a Finnish national. After two years she gave birth to a child, with Finnish nationality. The spouses divorced and Ms. S had sole custody of the child, whose father lives in Finland. Ms. S studied in Finland and is gainfully employed. After three years she married Mr. O, a national of Côte d’Ivoire. The child of their marriage, born in Finland, has Ghanian nationality and both spouses have joint custody. Mr. O was refused a residence permit because he could not prove secure means of subsistence. In another case Ms. L, an Algerian national, had a simi­ lar story. Her child has dual Finnish and Algerian nationality. After divorce she was granted sole custody. The father lives in Finland. Ms. L then married Mr. M, an Algerian national, who sought asylum there. Mr. M was returned to Algeria and his wife applied for a residence permit for him on the basis of their marriage. Their child was born in Finland but holds Algerian nationality and is in the joint custody of both parents. Mr. L has never been in gainful employment. Their application for a residence permit was refused. 247 Ibid., paras 43–47. 248 It seems that from the very beginning the CJEU was inclined to think that Directive 2003/86 and Articles 7 and 24 of the Charter are more pertinent for solving the case rather than invoking EU citizenship provisions. 249 Supra note 246, paras 49–50.

Functions of EU Citizenship  237

of rights’ which leads to residence rights for third-country nationals the Court emphasised that: [W]hile the principles stated in the Ruiz Zambrano judgment apply only in excep­ tional circumstances, it does not follow from the Court’s case-law that their applica­ tion is confined to situations in which there is a blood relationship between the third country national for whom a right of residence is sought and the Union citizen who is a minor from whom that right of residence might be derived.250

This statement widens the potential scope of beneficiaries in cases involving an EU citizen’s ‘enjoyment of substance of rights’. In the present case, though, the permanent right of residence was not sought for persons on whom those citizens were legally, financially or emotionally dependent.251 The cases discussed in this section outline the general approach of the CJEU to cases which can be qualified as ‘purely internal situations’. First, the Court looks at the applicability of free-movement directives. Second, after establishing that directives are not applicable, the court would turn to Treaty Articles. If ‘substance of rights’ is at risk, i.e., an EU citizen would have to leave not only the territory of the Member State but the Union as a whole, the Court would consider this a breach of EU law. So far, the Court has dealt with citizenship cases on the basis of Article 20 TFEU. It can be argued that in this group of cases Article 21 TFEU would have been more suitable by applying the test suggested by Advocate General Sharpston. While in Rottmann, indeed, Article 20 TFEU could be invoked because the person was risking loss of EU citizenship, Zambrano concerned a situation where exercise of rights deriving primarily fom Articles 21 TFEU was involved. Children did not risk losing their citizenship status but their right to reside and to exercise rights in the future were put at risk. Third, if the CJEU were not certain about the factual details of the case, this would leave it in the competence of the national court to establish whether ‘sub­ stance of rights’ is infringed and apply Charter rights, in cases where an EU law element exists, or the ECHR if the situation does not involve an EU law aspect. What derives is that in cases when the ‘substance of rights’ is affected no crossborder element is required.252 Therefore, the Court goes beyond the ratione materiae of EU law and applies it to situations which can be qualified as purely internal. 250 Supra note 246, para 55. 251 As the Advocate General observes in point 44 of his Opinion, it is the relationship of depen­ dency between the Union citizen who is a minor and the third country national who is refused a right of residence that is liable to jeopardise the effectiveness of Union citizenship, since it is that dependency that would lead to the Union citizen being obliged, in fact, to leave not only the territory of the Member State of which he is a national but also that of the European Union as a whole. Supra note 246. 252 Supra note 235, 1256.

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This was seen as a threat to national immigration matters with possible domino effects on other fields.253 For instance, Kay Hailbronner and Daniel Thym have argued that the ruling in Zambrano extends the scope of EU human rights, which would bring an increasing number of purely domestic situations within the reach of EU human rights and corresponding EU scrutiny.254 Quite the opposite, in Dereci and O.S. the CJEU advised the national court itself to take into consider­ ation its obligations deriving from the ECHR and the Charter and gave only gen­ eral guidelines. In general the CJEU builds upon the concept of EU citizenship, by strengthen­ ing the core or substance of rights attached to the status. It does so gradually and cautiously. It also does not deprive Member States of the obligation to evaluate whether there are strong family ties requiring protection on the basis of Article 8 ECHR or Articles 7 and 24 of the Charter. 12.3. Summary The Adonnino Committee, which started to elaborate the concept of Union citizenship, had the task of adopting EU measures “to strengthen and promote its identity and its image both for its citizens and for the rest of the world”.255 This general statement has been incrementally developed over the years. Bearing in mind that EU competence in relation to functional aspects of EU citizenship is comparatively wider than on regulation of issues of access and loss of national citizenship, significant changes can be observed since its introduction in 1992. Judicial incrementalism in the field of EU citizenship has been both evolution­ ary and fragmented.256 The CJEU has not had a chance to express itself on differ­ ent issues related to citizenship at once. Moreover, it took some time for Member States to abolish the sector approach in secondary law and to streamline resi­ dence requirements across different sectors. Development of EU citizenship signifies a departure from pure immigration and market perspectives to the fun­ damental status of EU citizens. Therefore, the latest codification of the main rules and principles related to free movement and residence rights in Directive 2004/38 253 Ibid., 1257. 254 Ibid. 255  Bull. EC 6-1984, 11: “A People’s Europe”. For more history see Kadelbach Stefan, ‘Union Citizenship’, (2003) Jean Monnet Working Paper 9/03, Symposium: European Integration. The New German Scholarship, available at accessed 16 March 2013. 256 Kostakopoulou Dora, ‘Ideas, Norms and European Citizenship: Explaining Institutional Change’ (2005) 68(2) MLR, 233–267, 265.

Functions of EU Citizenship  239

and the main CJEU rulings represent a set of rights “Inbegriff des Primärrechts”257 granted to citizens and forming part of EU sovereignty. Free movement rights have become an integral part of the legal heritage of every EU citizen irrespective of whether they pursue a gainful activity.258 This has strengthened the legal status of the person qua citizen in a number of areas. Taking into account that the CJEU is developing its own approach to EU citizen­ ship, the question arises how different are rights to be derived from EU citizenship. As Advocate General Sharpston has summarized the stance of the Court: The referring court’s main concern has to do with whether movement is needed to trigger the Treaty’s provisions on citizenship of the Union. The referring court is well aware that Articles 20 and 21 TFEU are different, conceptually, from free movement for workers under Article 45 TFEU, freedom of establishment under Article TFEU. But just how different are the citizentship provisions?259

In this context co-operation in offering consular assistance has been stagnating for a long time. However, recent changes brought by the Lisbon Treaty open up new avenues for the EU to strengthen EU citizens’ status outside the Union. It can be expected that new regulatory enactments in the form of directives and inter­ national treaties will help to strengthen external protection and assistance offered to EU citizens. This will lead to an increase in the role of the EU interna­ tionally in areas important for protection of EU citizens. This would be a develop­ ment which would reflect the approach which took place a long time ago in relation to goods and other commodities. The right to enter in the case of EU citizens is a directly effective right. Administrative requirements remain a formality and cannot alter the general right of an EU citizen to enter a host Member State and to reside there for a period up to three months. Internal borders remain unnoticed especially when citizens travel within the Schengen area. An EU citizen can be deported only in limited cases and recourse to the social assistance system is no longer sufficient for an EU citizen to lose residence rights. A Member State has an obligation to prove that a person represents a threat to public policy, public security or health. Moreover the longer the period of resi­ dence of an EU citizen in the host Member State, the stronger the protection afforded. The period which is most conditional for an EU citizen is after three months of residence and until permanent residence is acquired. 257 Ipsen Hans Peter, Europäisches Gemeinschaftsrecht (Tübingen: Mohr 1972), 4. See also Weiler Joseph H.H., ‘European Neo-constitutionalism: in search of Foundations for the European Constitutional Order’ (1996) 44/3 Political Studies, 517–533. 258 Kostakopoulou Dora, ‘European Union Citizenship: Writing the Future’ (2007) 13/5 ELJ, 623– 646, 635. 259 Supra note 231, para 46.

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In discussing the relevant rules of EU citizenship several conclusions were drawn. In cases of equal treatment the Court noted that, first, it will establish whether benefit falls within the scope of the Treaty. Second, the applicant should be lawfully resident in the host Member State for a certain time or possess a resi­ dence permit. The Court will also look at whether the national measure has a dis­ criminatory effect, i.e., whether any objective considerations based on public interest allow such differentiation. EU citizenship has also turned out to be instrumental in extending application of the non-discrimination clause and applying it to cases which do not necessar­ ily explicitly fall within the competence of the EU, i.e., non-contributory social benefits. However, the methodology is still to be elaborated and a common approach sought. For the time being the criteria invoked differ depending on the status of the individual in the host Member State and length of residence. The overall tendency is towards strengthening the position of EU citizens residing outside their country of nationality. In cases of social assistance, residence requirements and the principle of effec­ tive link are important. Invocation of the principle will differ depending on the rights claimed. The requirements for effective link are lower in cases of service recipients, and higher in cases of social assistance. However, the specific circum­ stances of the case will be crucial. Apart from that the Court has also referred to Article 21 TFEU in cases which concerned situations when free movement of the person was hampered or made less attractive because of different regulation which could lead to violation of Article 18 TFEU.260 Advocate General Sharpston has introduced tests so that Article 18 TFEU could address cases of reverse discrimination and advised that the right to reside in Article 21 TFEU should be interpreted as a free-standing right decoupled from movement as a necessary precondition. Moreover, she suggests that interpretation should be forward-looking, i.e., whether a decision made in relation to an EU citizen can ‘by reason of its nature and its consequences’ trigger invoca­ tion of EU law in the future.261 It can be argued that this would not be a radical change in interpreting Article 21 TFEU. The explicit pronouncement that the resi­ dence right is an independent right from free movement would simply allow plac­ ing case law in one perspective and to build on the fundamental status of EU citizenship. Re-interpreting Article 21 TFEU or relying on Article 18 TFEU and directly addressing the issue of reverse discrimination, the Court could build on the substantive core rights concept which is an open and autonomous concept. 260 See by analogy Case C-55/94 Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, Case C-285/01 Isabel Burbaud v. Ministère de l’Emploi et de la Solidarité [2003] ECR I-8219. 261 Supra note 231, paras 93 and 122.

Functions of EU Citizenship  241

The cross-border element, even if not expressly abandoned, has not been applied in several categories of cases. The Court does not invoke the cross-border element in cases of access to citizenship rights, such as voting rights, or in cases of deprivation of citizenship (Rottmann, Spain v. UK). In certain cases of dual nationals physical movement was not decisive for invoking EU law (Avello). There have been cases when nationals of a Member State could invoke EU law because they have returned home after residing in another Member State (D’Hoop). Or persons could invoke EU law when they have moved even only internally to benefit from the EU law (Chen). The CJEU has also accepted invocation of EU law if only one family member has exercised freedom of movement while other family members not only resided in the home Member State but did so illegally (Carpenter). Cases of family reunification represent another group where the principles developed by the CJEU have been applied. Although the definition of family in Directive 2004/38 and its rights to autonomous residence permit are limited, there have been several occasions when the Court significantly strengthened rights of family members by direct reference to Treaty Articles. The most far-reaching cases concerned situations when family members were allowed to enter a country without a previous record of legal residence (Akrich), when they have been included in the Schengen alert list (Commission v. Spain) or allowed to regularize their status by entering into marriage with migrating EU citizens in the host country (Metock). In all those cases the EU obliges Member States to review the case anew by invoking EU law standards irrespective of deci­ sions taken by Member States themselves at a certain point in the past or by another Member State. These and other cases lead to the conclusion that at least in certain cases of non-EU nationals the standard applicable in the EU in relation to family reunification is higher than according to the ECHR, especially in the context of regularization. Similarly to EU citizens, their family members are granted adequate protec­ tion when they cross the border. Non-possession of travel documents or visa cannot impair the exercise of the right to re-unification as such. Moreover, treat­ ment of family members who are non-EU Member State nationals is the same as in the case of family members who are EU citizens. They can invoke the right to family re-unification even without being legally resident in a Member State. Residence of family members has been secured by granting them protection from expulsion. This applies especially to children even if EU citizens no longer satisfy the criteria for residence or the family has separated. Therefore, although the definition of family is limited, the rights attached to family members are substantive. Protection in cases involving children has been strengthened by both second­ ary law as well as subsequent interpretation by the CJEU. Derivately this approach has also strengthened the residence rights of third-country nationals who are

242  Chapter Twelve

parents of EU citizens.262 The acknowledgment that children possess indepen­ dent residence rights and should be entitled to equal assistance if in need not only strengthens the status of EU citizenship in cases of children but makes their movement rights more secure especially if their parents do not have sufficient income to ensure that they can continue studies in the host Member State. Therefore, a resident non-EU national remains entitled to residence in cases when children holding EU citizenship have the right to reside in the host Member State even if the only income for the family is social assistance (Ibrahim). Further discussion on the treatment of EU citizens-children comes in the con­ text of the status of their parents who might be illegal residents (Zambrano). As noted by the Court in Dereci, the criterion relating to denial of genuine enjoyment of the substance of rights conferred by EU citizen status refers to situations in which the Union citizen has, in fact, to leave the territory of the EU as a whole. Therefore, in cases when EU citizens–children are deprived of or hampered in exercise of their right to free movement or exercise of other rights as EU citizens the CJEU will intervene even if situation could be considered ‘purely internal’.263 In this context Davies has correctly observed that the ‘internal situation’ is not so much a judicial constitutional construction as a consequence of a literal and straightforward approach to the wording of the Treaty. While provisions on free movement of goods, workers, services, legal persons and capital all speak of movement between States, the Treaty articles on citizenship are differently put together, and far more general.264 In general the CJEU builds upon the concept of EU citizenship, by strengthen­ ing the core or substance of rights attached to the status. Its task is to balance the effectiveness of EU citizenship rights, fundamental rights and issues which belong to the competence of Member States. It has been argued that according to a narrow and rather functionalist reading, EU fundamental rights serve to secure the primary and uniform protection of Union law. This has been admitted as unsatisfactory today. One can agree with the statement that the Union has overcome its existence as a functionalist entity devoted to market integration and should be seen as an open-ended polity where highly sensitive social choices are made. This is even more so because the 262 Hailbronner Kay, Thym Daniel, ‘Case C34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), Judgment of the Court of 8 March 2011’ (2011) 48 (4) CMLR, 1253– 1270, 1266. 263 Davies Gareth, ‘The Family Rights of European Children: Expulsion of Non-European Parents’ (EUI Working Papers, RCAS 2012/04, 2012) available at accessed 26 February 2013, 6. In addition Zambrano does not limit application of EU law to situations involving children or core family. This has been confirmed by the court in case O.S. See supra note 246. 264 Ibid., 6.

Functions of EU Citizenship  243

primary task of the EU mentioned in Article 3 TEU “is to promote peace, its values and well being of its peoples. The Union’s broad scope of competences increases demands for legitimacy. An EU fundamental rights discourse in the sense of pro­ tecting Union citizens’ individual autonomy is an important response to these demands.”265 For the time being the CJEU has not yet found a comfortable way to address the following cases: • limits of the ‘substance of rights’ concept which is open and could be devel­ oped in the future; • potential of the Charter as a legally binding instrument266 as well as future accession of the EU to the ECHR; • the possibility to invoke Articles 18 and 21 TFEU in the context of functional aspects of EU citizenship to deal with cases of reverse discrimination and internal situations instead of Article 20 TFEU.

265 Bogdandy Armin, Kottmann Mathias, Antpöhler Carlino, Dickschen Johanna, Hentrei Simon, Smrkolj Maja, ‘Reverse Solange – Protecting the Essence of Fundamental Rights Against EU Member States’ (2012) 49 CMLR, 489–520, 495. 266 See, for instance, a potential opening with the ruling in Case C-617/10 Åklagaren v. Hans Åkerberg Fransson, Judgment of 26 February 2013 [not yet reported].

Part Four Statuses of Immigrants in EU Law

246  Part Four

The Part aims to discuss regulation of EU legal immigrants. Politically the EU has emphasised that it aims at ensuring ‘near-equality’ between EU citizens and legal EU residents. The Treaty objective is to create a common immigration policy at the EU level. In order to implement these objectives a number of directives have been adopted. Moreover, since adoption of the Treaty of Lisbon, the role of the CJEU has significantly increased. The Court has already adopted several rulings in which the provisions of the Charter play a prominent role. The drafting process of the directives and national implementation policies illustrates the difficulties which different EU institutions and Member States are facing when dealing with immigration issues. The prospects for further developments remain open for debate. One of the options is further strengthening of EU immigrant statuses by adopting legislative changes in the directives or providing for interpretive guidelines by the CJEU in its rulings. Alternatively, these processes might affect the approach of EU Member States to naturalization procedures or make third country nationals themselves become more interested in applying for EU citizenship. This includes liberalisation of dual citizenship.1 The Commission is working on a draft EU immigration code and plans to propose it as a directive in 2013. The aim of the code is to further facilitate integration of third country nationals as envisaged in the Stockholm Programme. The code would not aim to offer ambitious harmonization but rather to focus on removing the most problematic provisions in current legislation.2 Therefore, references will be made to the publicly available version of the code when appropriate. As noted in the introduction, this part will focus primarily on legal regulation of legal migration excluding the Schengen regime on entry of third-country nationals to the EU as well as agreements concluded between the EU and third countries.3 1 See ‘Jus sanguinis revisited’, The Economist, March 2 1013, 25. Leader of Germany’s Turks calls the German citizenship law ‘absurdity cubed’ and invites re-consideration of Germany’s policy on multiple nationality. 2 For detailed analysis see Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 EJML, 33–61. See also Communication ‘Delivering an area of freedom, security and justice for Europe’s citizens. Action Plan Implementing the Stockholm Programme’ COM (2010) 171 final, 20 April 2010 and for the text of the code, available at accessed 12 March 2013. The regulation on Blue Card holders as well as Intra-corporate transferees and seasonal workers appears in Annexes I-III of the code. Since some of the proposals are only rudimentary and subject to further negotiations by the Member States, they will not be addressed in the present study. 3 For details see Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109 (Brill: Leiden, Boston 2011). On the right to entry see, for instance, Case C-23/12 Mohamad Zakaria, Judgment of 17 January 2013 [not yet reported] and Dalea v. France (App no 964/07) decision of 9 March 2010.

Chapter Thirteen Concept of Legal EU Immigrant For political, economic and historical reasons national migration policies of different EU Member States have shifted over the years. During the post WW II period it was estimated that more than 30 million foreign workers entered the EU legally. These were mostly from former colonies except in the case of Germany, where immigrants were invited from, for instance, Turkey. The situation changed with the oil crisis in the mid-1970s when European countries encouraged the return of migrant workers. However, migrants opted to claim the right to family re-unification, which has become one of the major contributors to migration statistics ever since.1 At the same time illegal immigration increased. This led to policies of regularization procedures during the 1980s and 1990s, especially in France, Spain and Italy.2 Later, in the 1990s, asylum gained importance, largely as a consequence of the war in the former Yugoslavia. At the same time, the new Member States which joined the EU in the 1980s, as well as Ireland and Italy, shifted from being countries of emigration to being countries of immigration.3 Since the end of the 1990s another increase in migration could be observed. This concerned high-skilled labour in the information, communication and technology sectors, but also the health and education sectors.4 The profile of immigrants and reasons for their arrival differs significantly between those EU Member States who were members of the Union until 2004 and those who joined afterwards. Therefore, the uniqueness of each country and the variety of immigration policies and immigrants’ profiles is even bigger. These national policies affect the common European market because different people with different rights are residing 1  Cholewinski Ryszard, ‘Family Reunification and Conditions Placed on Family Members: Dismantling a Fundamental Human Right’ (2002) 4/3 EJML, 271–290, 272. 2 Schneider Hildegard, ‘Towards a European Migration Policy: from Maastricht to Amsterdam, from Tampere to The Hague’ in Schneider Hildegard (ed.) Migration, Integration and Citizenship. A Challenge for Europe’s Future, Volume II (Forum Maastricht: the Netherlands 2005) 7–35, 14–15. 3 Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109 (Brill: Leiden, Boston 2011) 44–45. 4 See   accessed 21 January 2013. See also Communication from the Commission on the application of Directive 20013/109/EC concerning the status of third country nationals who are long-term residents, COM (2011) 585 final, 28 September 2011, 1.

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in EU Member States and they have very limited possibilities to transfer rights acquired to other Member States. It is against this complex national background that the EU became involved in migration issues in 1985 when Member States took a decision to set up a prior communication and consultation procedure on migration policies in relation to non-member countries.5 However, the interest of Member States in preserving control over immigration issues remained strong. In the 1990s the Community preference principle was introduced in order to address high levels of unemployment in the EU Member States.6 A major break of EU competences in immigration took place in 1997 with adoption of the Amsterdam Treaty which moved competences on visas, asylum and immigration from III Pillar to I Pillar and introduced a five year period starting from 1999 for drafting further legislation. This can be explained by a number of reasons such as decreasing populations, ageing populations, increased global competition and the like. At the same time it does not mean that Member States had arrived at a common understanding on immigration policies, which is exemplified by divergences in implementation of the directives adopted and opt-outs. Following Amsterdam, at the 1999 Tampere Council meeting Member States defined their policy aims in the immigration sector. This resulted in Commission proposals on virtually all areas of immigration and asylum covered by the competence of the EU and established the Scoreboard system.7 In November 2000 the 5 Commission Decision 85/381/EEC, OJ, L 217, 14 August 1985, 0025–0026. See also Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 EJML, 33–61, 34–36. The EU Member States were divided on the competence of the EC and turned to the CJEU. The CJEU gave its ‘green light’ to the EU. The CJEU in its judgment of 1987 stated that since social policy of the European Economic Community is affected by migration policies of the Member States, the Community has such competence under Article 137 (ex 118). Joined Cases 281, 283–285, 287/85 Federal Republic of Germany and others v. Commission of the European Communities [1987] ECR 03203, especially para 17. This is also confirmed by Resolution of the Council which adopted a social action programme. See OJ, C 013, 12 February 1974, 0001–0004. As a result of this judgment, a new decision was adopted setting up a mechanism for communication and consultations to regulate migration policies of Member States. Commission Decision 88/384/EEC setting up a prior communication and consultation procedure on migration policies in relation to nonmember countries. OJ, L 183, 14 July 1988, 0035–0036. 6 Council Resolution of 20 June 1994 on limitation of admission of third-country nationals to the territory of the Member States for employment, OJ C274/3. 19 September, 1996, adopted to coordinate implementation of ex Article K1 in A (iii). See also Chalmers Damian, Hadjiemmanuil Christos, Monti Giorgio, Tomkins Adam, European Union Law: Texts and Materials (Cambridge University Press: Cambridge 2006) 607. The principle has been used in application of Decision 1/80 and in cases of EU enlargement. However, it has not become a principle applicable to thirdcountry nationals in the context of immigration directives to be discussed in this chapter. 7 See section 1.2. of part I of this volume. “Scoreboard” includes various measures and a timetable for adoption. Thus, the Commission aims to keep a close eye on progress made in creating an area

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Commission declared that channels for legal immigration to the EU should be made available for labour migrants.8 However, during the drafting stage of different immigration related instruments the Commission encountered serious barriers.9 The Commission was efficient, while the Council was slowing down. The Seville Council meeting in 2002 sharpened conflicts and it was only with the Council meeting in The Hague that things went back to normal. Therefore, differences in national policies and a fragmented approach to the groups of persons arriving in the EU preclude arguing for a concept of an EU immigrant endowed with a certain determined set of rights. References to national contexts remain important. In addition, the particular circumstances of each case and the status of the person involved would be crucial for the outcome of the case. However, the EU is not created to solve national problems but to offer European solutions. This in part is substantiated by the competence of the EU in immigration issues which already became evident during the negotiations on relevant directives. The work of the Commission was affected by external and internal factors. First, the Member States became more cautious due to the rise in activity of international terrorism, marked by the events on 9/11 in the United States of America. Second, there were procedural barriers requiring unanimity to take a decision. Third, there was general hesitation to open up immigration issues for supra-national regulation. Therefore, adoption of the main secondary legislative acts on immigration took several years and in most cases led to compromise at the lowest common denominator. All in all it seems that the political objective of near equality has been forgotten during the drafting of sector directives. The approach has also not facilitated treatment of third country nationals as a single category similarly to EU citizens.

of freedom, security and justice. For more details see Guild Elspeth, The Legal Elements of European Identity. EU Citizenship and Migration Law (Kluwer Law International: the Hague 2004) 168–170. 8 Communication from the Commission ‘Community Immigration Policy’ COM (2000) 757 final, 22 November 2000. 9 Apap Joanna, Carrera Sergio, ‘Progress and Obstacles in the Area of Justice and Home Affairs in an Enlarging Europe’ in Apap Joanna (ed.), Justice and Home Affairs in the EU; Liberty and Security Issues after Enlargement (Edward Elgar: Cheltenham 2004) 1–24. Thus, in July 2001 the European Commission put forward a ‘Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities’ COM (2001) 386 final, 11 July 2001. However, Member States had divergent views on the proposal and the Directive was never adopted by the Council. See Murphy Kara, France’s New Law: Control Immigration Flows, Court the Highly Skilled (Migration Information Source, 1 November 2006), available at accessed 6 March 2013.

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The question remains whether existing instruments allow effective achievement of the objectives set in the Tampere Programme and the Lisbon Strategy. This includes not only directives already adopted and the CJEU interpretation attached but also Treaty and Charter provisions. Article 79 TFEU states: 1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings. 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures in the following areas: (a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification; (b) the definition of the rights of third-country nationals residing legally in a Member State including the conditions governing freedom of movement and of residence in other Member States…

Although fundamental rights form an important part of interpretation of the rights enshrined in the TFEU, Article 45(2) of the Charter of Fundamental Rights is of limited application. It provides: [F]reedom of movement and residence may be granted in accordance with the Treaties, to nationals of third countries legally resident in the territory of the Member States [emphasis added].

Therefore, entitlement to rights enshrined in the Charter is limited to the provisions of the Treaties. In the exercise of free movement rights the ultimate aim would be equal treatment or nearly equal treatment of third-country nationals as a group. The sections below will highlight the approach of the CJEU which is ready to invoke Charter rights in addition to Treaty provisions and rights derived from the directives. This happens in cases of third-country nationals more often in comparison to cases of EU citizens’ rights. This allows the hypothesis that treatment of third-country nationals under different EU statuses is more advanced and holds greater potential than under, for instance, the ECHR. For the time being there is no single and unified concept of a legal EU resident in general as well as the rights attached to such a status-holder. Different groups are specified on the basis of secondary legislation. This resembles the situation of EU citizens before EU citizenship status was created. The question remains whether different statuses of third-country nationals will be eliminated because an increasing number of status holders will acquire EU citizenship or rather their status will and should be strengthened because Member States might become stricter in providing naturalization options.

Concept of Legal EU Immigrant  251

EU competence in the immigration sphere has been increasing ever since Amsterdam when it acquired competence over these issues on the basis of Articles 77 and 79 TFEU. The EU has adopted several important directives regarding legal migration. These are currently subject to potential revision after initial reports on transposition have been collected. According to views expressed in doctrine the status of third-country nationals should be strengthened. For instance, Groenendijk and Acosta argue that Union law has tended to reinforce the idea that unequal treatment of EU citizens and third-country nationals is justified, regardless of the fact that third-country nationals formed an integral part of Europe’s societies and contributed to their development. Moreover, the fact is that most third-country nationals residing in the Union will remain there in the future and more will also be arriving in the coming years for a variety of reasons.10 Therefore, it is essential to analyse the directives adopted to establish the current standard of protection of migrants as well as establishing the main shortcomings to be addressed including repercussions on nationality policies of the Member States. The analysis takes a broad view by addressing only the most important aspects of directives setting common trends, with a focus on issues which best illustrate whether immigrant statuses granted on the basis of various directives11 offer an attractive alternative to nationality of Member States and thus have repercussions on EU citizenship. The aim of this section is to evaluate the main trends in EU migration policy by analysing relevant provisions and especially secondary legislative acts: Council Directive 2003/109 of 25 November 2003 concerning the status of third-country nationals who are long-term residents (LTR Directive);12 Council Directive

10 Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109 (Brill: Leiden, Boston 2011) 80 and Groenendijk Kees, ‘Security of Residence and Access to Free Movement for Settled Third-Country Nationals under Community Law’, in Guild E., Harlow C. (eds), Implementing Amsterdam, Immigration and Asylum rights in EC law (Hart Publishing: Oxford/Portland 2001) 225–240, 225–226. 11 Different immigrant statuses derive from directives which offer different sets of rights for status holders in the first Member State and different regimes for exercise of free movement in the EU. 12 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. OJ L 016, 23 January 2004, 0044–0053. The Directive has been amended to include beneficiaries of international protection – Directive 2011/51 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection, OJ L 132/1, 19 May 2011. The amendments will not be analysed in detail because they concern groups of persons which are not regular legal long-term migrants. See also Directive 2011//98 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third country workers legally residing in a Member State, OJ L 343, 23 December 20122, 1–9. This directive according to Article 3 (2) (i) is not applicable to long-term residents.

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2003/86 of 22 September 2003 on the right to family reunification (Family Reunification Directive);13 Council Directive 2004/114 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, adopted 13 December 2004, (Students Directive), Directive 2005/71 on a specific procedure for admitting third-country nationals for the purposes of scientific research, adopted on 12 October 2005, (Researchers Directive) and Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, adopted on 25 May 2009 (HQE Directive).14 It has been acknowledged that some provisions of existing directives are unclear and have led to divergent implementation.15 The proposed immigration code proposes to deal with some of the problems identified. Additional groups of persons have been included in annexes to the code and some of the controversial provisions abolished. While extensions of the groups of third-country nationals covered by EU legislation on immigration and further harmonization of secondary law in general would allow the argument that a concept of EU legal immigrant is emerging, the following sections will illustrate that more modest conclusions can be drawn. At the same time, CJEU rulings as well as legislative proposals presented by the Commission permit the argument that immigration law of the EU is gradually developing and diminishing differences in treatment between EU citizens and immigrants.

13 OJ L 251, 3 October 2003, 0012–0018. For comments see: Opinion of the Economic and Social Committee on the Amended proposal for a Council Directive on the right to family reunification. COM (2002) 225 final OJ C 241, 7 October 2002, 0108–0109. For information on transposition see, Groenendijk Kees, Fernhout Roel, van Dam Dominique, van Oers Ricky, Strik Tineke, The Family Reunification Directive in EU Member States. The First Year of Implementation (Centre for Migration Law: Nijmegen 2007). 14 Council Directive 2005/71/EC on a specific procedure for admitting third-country nationals for the purposes of scientific research, OJ L 289, 3 November 2005, 0015. Council Directive 2004/114 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, OJ L 375, 23 December 2004, 0012–0018. Council Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, OJ L 155, 18 June 2009, 17–29. 15 COM (2008) 610, 8 October 2008, COM (2011) 585, 29 September 2011, COM (2011) 587, 29 September 2011, COM (2011) 901, December 2011.

Chapter Fourteen Access to EU Immigrant Status The following subsections will deal with lege lata adopted so far and binding upon Member States. Policy plans will be noted where relevant as subsidiary means of interpretation or as guidance for further possible developments. The immigrant has three interests: first, conditions for entry and protection from expulsion; second, access to employment and conditions of employment; and third, family reunification.1 Statuses of immigrants would be more attractive in proportion to higher demand for strengthening current invented statuses instead of naturalization. 14.1. Long Term Resident Status The LTR Directive covers conditions for acquisition and loss of the status of longterm resident as well as conditions on which an individual can reside in another Member State than the one that granted the status. The Directive liberalizes the regulation that existed so far based on a Council resolution.2 The overall aim of the LTR Directive is to establish a common framework for integration of long term residents as well as to approximate national legislation, practice and conditions. A number of reasons can justify this approach. First, it would facilitate achievement of the aim of establishing solidarity between Member States in building a common area of freedom, security and justice. Second, the LTR Directive could help to avoid “status shopping”. Third, it could provide long term residents with additional guarantees attached to the status to help them integrate in any of the EU States irrespective of the Member State where they would acquire the status. However, critics admit that this was impossible because of the divergent needs of individual Member States and unwillingness to give too much of their freedom 1 Guild Elspeth, The Legal Elements of European Identity. EU Citizenship and Migration Law (Kluwer Law International: the Hague 2004) 83. 2 Council Resolution of 4 March 1996 on the status of third-country nationals residing on a long-term basis in the territory of the Member States, OJ C 80 18 March 1996, 0002–0004. The Resolution provided that Member States can require residence of up to 10 years without interruption before an individual is granted long-term resident status. For detailed discussion on ‘the historical antecedents’ of the Directive see supra note Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109 (Brill: Leiden, Boston 2011) 81–84.

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away. Indeed, if one compares the proposal for the directive submitted by the Commission with the one adopted by the Council, it becomes evident that the Commission’s approach based on EU interests has lost to national approaches which were the subject of successful lobbying by some Member States.3 Therefore, Member States’ interests outweigh the common European vision. The LTR Directive is addressed to all third country nationals who are not citizens of the EU, who reside legally in a Member State and who meet the other conditions set by the Directive. At the same time large groups of third country nationals are excluded from the scope of the LTR Directive. Thus, according to Article 3(2) those are third country nationals who are pursuing studies or vocational training, temporary protected persons, persons residing on the basis of a form of protection other than international protection or awaiting a decision on international protection, temporary residents or those whose ‘residence permit has been formally limited’ as well as diplomats. Although Article 3(3) provides that more favourable provisions found elsewhere might be applicable, the group of those excluded is rather broad. A third country national who fulfils all the conditions is issued a long term resident residence permit for at least five years, which should be renewable.4 Article 4(1) requires continuous residence in the Member States for five years, where periods of residence on a temporary or diplomatic basis do not count.5 Although more favourable treatment is allowed, concerns have been expressed in legal doctrine especially in relation to broad formulation on persons who possess a formally limited residence permit.6 Concerns have been minimised by the CJEU in Singh where the CJEU accepted a similar approach as in earlier cases of Turkish nationals on the basis of Decision 1/80.7 The applicant was issued a 3 As noted by Papagianni consensus on legal immigration is lacking for a number of reasons. First, it is generally easier to define what is not wanted than what is wanted. Therefore, compromise is easier to reach on illegal immigration. Second, admission of foreign workers has been a taboo for most Member States since the 1970s. Third, the approach taken by each Member State varies dramatically, since it reflects its own experience, socio-economic development and foreign labour need linked with foreign policy. Papagianni Georgia, Institutional and Policy Dynamics of EU Migration Law (Leiden, Boston: Martinus Nijhoff Publishers 2006) 272–274. 4 This is instead of the ten years that had been proposed by the Commission. See ibid., 166. 5 A five year permanent residence requirement is higher than provided, for instance in ILO Convention No. 143 Migrant Workers (Supplementary Provisions) Convention (1975) which requires only two years of residence to gain access to the labour market. But see interpretation of the CJEU in the Singh case below, infra note 7. 6 Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109 (Brill: Leiden, Boston 2011) 100–101. 7 Case C-502/10 State Secretary van Justitie v Mangat Singh, Judgment of 18 October 2012 [not yet reported]. Mr. Singh, an Indian national arrived in the Netherlands in 2001 and was granted an ordinary fixed-period residence permit, the validity of which was limited to the exercise of an

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number of consecutive residence permits of fixed duration. However, according to national law these permits may be extended indefinitely, so long as holders continue to comply with conditions of national legislation. Thus, the CJEU had to decide whether formulation of formally limited residence permits include permits whose validity may be extended indefinitely, without offering any prospect of a residence permit of indefinite duration. The CJEU stated: While the wording of Article 3(2)(e) of Directive 2003/109 does not give any guidance on how the terms ‘in cases where their residence permit has been formally limited’ are to be understood, the Directive does not contain any reference to national laws as regards the meaning of those terms either. It follows that those terms must be regarded, for the purposes of application of the Directive, as designating an autonomous concept of European Union law which must be interpreted in a uniform manner throughout the Member States.8

The Court defined the principal objective of the Directive on the basis of the Preamble, i.e., integration of third-country nationals who are settled on a longterm basis in a Member State. It concluded that the Directive aims to exclude only those third country nationals who have no intention to settle on a long-term basis in a Member State. Thus, a formally limited residence permit within the meaning of national law, but whose formal limitation does not prevent the longterm residence of the third-country national concerned, cannot be classified as a formally limited residence permit within the meaning of Article 3(2)(e) of Directive 2003/109, as otherwise achievement of the objectives pursued by the Directive would be jeopardised and, therefore, it would be deprived of its effectiveness.9 activity as a spiritual leader or religious teacher. The residence permit was subsequently prolonged on a number of occasions until 2008. Mr. Singh applied for long-term resident status in 2007 but was rejected because he was resident on the fixed-period permit until 2009. On CJEU practice in Turkish cases see for instance Case C-98/96 Kasim Ertanir v Land Hessen [1997] ECR I-05179, Case C-36/96 Faik Günaydin, Hatice Günaydin, Günes Günaydin and Seda Günaydin v Freistaat Bayern [1997] ECR I-05143, Case C-1/97 Mehmet Birden v Stadtgemeinde Bremen [1998] ECR I-07747, Case C-294/06 The Queen, on the application of Ezgi Payir, Burhan Akyuz and Birol Ozturk v Secretary of State for the Home Department [2008] ECR I-00203 as well as detailed analysis in supra note 6, 113–115. 8 Case C-502/10 State Secretary van Justitie v Mangat Singh, Judgment of 18 October 2012 [not yet reported]. para 43. The CJEU noted that it is not sufficient that a residence permit is formally limited for the purposes of the national law of a Member State for it to be regarded as a ‘formally limited residence permit’ within the meaning of Article 3(2)(e) of Directive 2003/109. This would mean that Member States can circumvent the provisions of the Directive by refusing or disqualifying certain groups of persons from applying for a permanent residence permit. See also paras 41–42 and supra note 6, 115. 9 Case C-502/10 State Secretary van Justitie v Mangat Singh, Judgment of 18 October 2012 [not yet reported], paras 47 and 51.

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According to the CJEU, the fact that the validity of a residence permit can be extended for successive periods, including beyond a five-year period and, in certain cases, indefinitely, may be a strong indication from which it can be concluded that the formal limitation attached to that permit does not prevent long-term residence of the third-country national in the Member State concerned.10 Therefore, a formally limited residence permit does not include a fixed-period residence permit the validity of which may be extended indefinitely without however offering any prospect of a residence permit of indefinite duration where such a formal limitation does not prevent the long-term residence of the third-country national in the Member State concerned, that being a matter for the referring court to ascertain.11 Another issue which has attracted scholarly interest is calculation of residence periods. Article 4(4) of the Directive provides for discretion of Member States in calculating residence periods and reasons for absence exceeding six consecutive months or a total of 10 months within five years as allowed by the Directive.12 As correctly mentioned by Louise Halleskov, the Directive raises several temporal issues because the starting date for calculation of residence might be attached to adoption of the Directive, its transposition or entry into force.13 Calculation might also apply independently of any of those dates. However, the most demanding requirement is embodied in Article 5, i.e., third country nationals must provide evidence that they have stable and regular resources sufficient to maintain themselves and their families as well as sick­ ness insurance.14 Member States are the main decision-makers on evaluation of 10 Ibid., para 54. 11 Ibid., para 56. The ruling resembles the approach of the Court in cases of Turkish residents according to Decision 1/80. See supra note 6, 108–112 and Case C-98/96 Kasim Ertanir v. Land Hessen [1997] ECR I-05179. It should be noted that the provision on ‘formally limited’ residence permit has been dropped in the proposed immigration code. Therefore, all residents who have resided in a Member State for five years will be entitled to apply for long-term resident status. 12 However, periods of study may be taken into account though only half the period of study will count. In the Commission proposal this was an obligation. Specific provisions on refugees and doctoral students were also included in the scope of the Directive. Supra note 3, 165. 13 Halleskov Louise, ‘The Long-Term Residents Directive: A Fulfilment of the Tampere Objective of Near Equality?’ (2005) 7 EJML, 181–201, 185. The proposed code aims at clarifying residence calculation and confirms that periods of legal residence before adoption of the code (or Directive) should be counted. See Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 EJML, 33–61, 56. 14 It is unclear whether this Article means that the CJEU will follow the interpretation under the Europe Agreements or the TFEU. For instance, in Case 53/81 D.M. Levin v. Staatssecretaris van Justitie [1982] ECR 1035 the CJEU decided that minimum wages set by Member States cannot become an obstacle for granting residence rights to individuals. Only marginal and auxiliary activities in order to obtain a residence permit are insufficient for a person to acquire rights in the EU. At the same time, the question arises whether other income, for instance from real estate outside the EU, can be considered a source of income.

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resources and they may take into account the level of minimum wages and pensions. In addition Article 7(1) ‘hides’ another condition which might be imposed by Member States along with proper documentary evidence that a person meets other conditions, i.e., documentation with regard to appropriate accommodation. The formulation as it is leaves considerable discretion for Member States.15 In addition some Member States have been creative when implementing the Directive and have found ways to discourage third-country nationals from applying for long-term resident status. Apart from integration measures and conditions, which will be discussed in the following section, some Member States have introduced excessive fees for residence permits.16 The CJEU has dealt with the case of the Netherlands which, with the exception of Turkish nationals, required third-country nationals to pay a charge whose amount varied from 188–830 EUR.17 The Commission considered those charges disproportionate because they must not discourage third country nationals from exercising the right of residence. The Court agreed by concluding that the charges must not have either the object or effect of creating an obstacle to obtaining the rights conferred by the Directive. Otherwise the objective of integration would be undermined. Long term resident status may be refused on grounds of public policy or security. Interestingly Article 6 does not require that a person should pose a real threat to policy or security. These conditions set a significantly lower standard of treatment for individuals when compared to EU citizens. At the same time it limits Member State discretion by mentioning criteria to be taken into account before refusing the status, i.e., severity or type of offence, the danger, duration of residence and links with a specific Member State. Moreover, those considerations need not be founded on economic considerations. Despite the obvious freedom in decision making the human rights conditions would still be applicable. It is true that in the case of EU citizens the standard in cases of expulsion is higher than in cases decided by the ECtHR. However, the EU should keep in mind the political objectives adopted in Tampere and interpret expulsion decisions according to the same principles in cases of both EU citizens and third country nationals. 15 Compare with the formulation on family re-unification, which is more specific but still inadequately imprecise. 16 The Commission has noted that high fees would be regarded as contrary to the principle of proportionality and as equivalent to an unlawful additional condition for admission endangering the ‘effet utile’ of the Directive. It has mentioned Belgium, Cyprus, Greece, France, the Netherlands and Poland as examples in which fees range from 260 EUR to 600 EUR. Communication from the Commission on the application of Directive 20013/109/EC concerning the status of third country nationals who are long-term residents, COM (2011) 585 final, 28 September 2011, 4–5. 17 Case C-508/10 Commission v. Netherlands, Judgment of 26 April 2012 [not yet reported]. Amounts of charges claimed by the Netherlands varied within a range in which the lowest amount was about 7 times higher than the amount payable to obtain a national identity card.

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This is a specific EU approach and based on statuses created under EU law which differ from international law. Although Article 13 provides that Member States may issue residence permits of permanent or unlimited validity on terms more favourable than those set by the Directive, the overall discretion of Member States in limiting certain rights is also considerable. As in many cases with immigration directives, their potential can be ascertained by the CJEU rather than the Council, and the Commission rather than the Member States. Moreover, the CJEU seems to be inclined to apply strict interpretation limiting discretion of the Member States by applying analogy in interpreting provisions of the Directive and the provisions of the Decision of the Association Council 1/80 with Turkey. This has been done by reference to the objectives of the Directive. This approach, coupled with the binding nature of the Charter, extended competence of the CJEU and initiatives of the Commission to amend the Directive gradually might turn the Directive into an influential instrument facilitating harmonisation of national immigration laws in the case of longterm residents. 14.2. Status of Selected Groups As noted above the EU has opted for a sector approach in its admission policies and in addition to the LTR Directive has adopted three other directives covering students, researchers and Blue Card holders. The sector approach is predetermined by the fact that the needs of Member States are rather diverse, i.e., while some focus on highly qualified migrants, others are more interested in low-skilled seasonal migration.18 All three directives are based on Article 79 TFEU. They aim not only to achieve the harmonization targets set in Tampere, but most importantly to ensure that the EU would become a world centre of excellence for studies as well as the most competitive and dynamic knowledge-based economy in the world by the target date of 2010 according to the Lisbon programme adopted in 2000. At the same time while the Lisbon Strategy is the primary target for the HQE Directive, it is not mentioned at all in the Students Directive while in the Researchers Directive it appears in a dubious manner.19 The Researchers Directive mentions a specific 18 Papagianni Georgia, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff Publishers: Leiden, Boston 2006) 272–274, 275. 19 Compare sections 2 and 7 of the Preamble to the Researchers Directive. While Section 2 mentions the general objective of the EU in the context of the Lisbon Strategy, Section 7 refers to an objective aiming to foster mobility of EU citizens who are researchers. The only plausible explanation is that this paragraph means to open the EU labour market to researchers coming from

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target to be achieved – 3% of GDP for investment in research, for the purposes of which it should be applied to as broad a category as possible. It also advocates relaxed admission procedures and residence conditions,20 while the preamble to the HQE Directive is already overburdened with conditions for those who would apply for status and freedom of Member States to determine admission quotas.21 The Students Directive after a promising title narrows its scope. According to Article 3(1) the Students Directive should be transposed only in relation to students, while provisions on pupil exchange, unremunerated training or voluntary service are optional. Therefore, norms providing for conditions regarding pupils, unremunerated trainees and volunteers remain in the loop. Directives apply only to those persons who are not EU citizens according to Article 20 TFEU and who reside in the EU for more than three months. Further conditions appear in the Researchers Directive and the HQE Directive. While a researcher is defined as a person holding an appropriate higher education qualification which gives access to doctoral programmes, doctoral students will be subject to the Students Directive according to Article 2(d) of the Researchers Directive. The definition of highly qualified employment is defined in great detail in Article 2 HQE Directive. This Directive applies to those who have either higher education qualifications or, by way of derogation in national law, five years of professional experience on a level comparable to higher education qualifications. The wide discretion left for Member States attests to two features – the impossibility of defining common criteria for highly qualified employment and different interests by Member States in the immigration sector. Each of the directives defines the scope, i.e., groups of persons to be excluded from application of the directives. Some categories are excluded from all three directives. These are: applicants for international protection or under temporary EU Member States admitted in 2004 and who were subject to restricted free movement rights for workers. 20 Paragraphs 8 and 9 of the preamble emphasize the need to apply the broadest possible definition of researchers and to accept both public and private institutions as inviting research organizations. The preamble to paragraph 13 stresses that special collaboration should be established between research organizations and immigration authorities, where the former play a key role. This is a novel approach which should be welcomed if the EU is serious about Lisbon targets. Another positive element is the provision on the need to facilitate and support preservation of the unity of family members of researchers which was acknowledged in the Council Recommendation of 12 October 2005 to facilitate admission of third-country nationals to carry out scientific research in the European Community, OJ L 289, 3 November 2005, 26–28. 21 See in particular paras 8–12, 20 of the Preamble to the Directive. But see Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 EJML, 33–61, 59–60 on amendments to the Directive envisaged by the proposed immigration code, Annex I. It should also be noted that other provisions of the HQE Directive had been chosen as a basis for amendments to be made in other immigrants’ directives.

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protection schemes; those facing expulsion. There are also specific groups. In the case of researchers these are researchers seconded by a research organization from another Member State. Both the Students Directive and the HQE Directive exclude long-term residents and family members of EU citizens. The Students Directive also refers to asylum seekers as well as workers or self employed persons. The HQE Directive should not be applied to beneficiaries of Directive 2004/83 and those who benefit from protection granted by national law, international law or practice. The Directive also excludes researchers, investors, seasonal workers, and service providers. Moreover, the HQE Directive should not apply to those third country nationals and their family members who are nationals of a third country with which the EU and Member States have made an agreement providing for equivalent rights of free movement to those of EU citizens. All the directives allow for more favourable provisions. The different groups excluded reveal a complicated and fragmented approach of the directives. For instance, asylum seekers are mentioned in one directive while persons subject to Directive 2004/83/EC are excluded in another directive. Apart from these cross-sector differences there are also categories the exclusion of which remain unclear. Notwithstanding the fact that highly qualified employees enjoy better regulation of family reunification, they are not allowed to qualify under the HQE Directive and LTR Directive simultaneously. At the same time highly qualified employees have better conditions to become long-term resident status holders. In this context it seems that the EU approach to third country national status holders is similar to mobile EU citizens, i.e., the longer the residence, the better the treatment offered. Therefore, long-term resident status should provide for most rights and opportunities. This could have been presented in a more coherent manner if the EU had adopted a single document for different groups of migrants on the basis of length of residence rather than the function in which they are engaging in the EU. In relation to criteria or conditions for admission, again, the directives have some provisions in common, for instance: valid documents and the requirement that a third country national should not be considered to pose a threat to public policy, public security or public health. However, the directives do not provide for adequate safeguards in cases when Member States invoke this clause arbitrarily. Article 18(4) of the Students Directive, Article 11(3) of the HQE Directive and Article 15(3) of the Researchers Directive provide that in cases when an application is rejected or a residence permit issued in accordance with the respective Directive is withdrawn, the person concerned shall have the right to mount a legal challenge before the authorities of the Member State concerned. The question remains whether the CJEU would adopt the same approach in evaluating national approaches as in cases of EU citizens or Turkish citizens, which would be in line with the Tampere principles. Steve Peers has argued that the discretion of

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Member States could be limited by general principles of EU law such as proportionality.22 Moreover, the Court would be guided by objectives of directives reflected in Preambles as well as provisions of the Charter. Therefore, discretion of the Member States would be interpreted narrowly and strictly in order to meet the objectives. The Students Directive, apart from general conditions specific to students such as parental authorization and proof that the fee has been paid, includes a list of additional conditions for each group in Articles 7, 9, 10 and 11. Additional conditions for applicants under the Researchers Directive require presentation of a hosting agreement and statement of financial responsibility issued by the research organization. Similarly the HQE Directive requires submission of an employment contract and documents attesting necessary qualifications for both regulated and unregulated professions. Only the Students Directive and the HQE Directive require presentation of evidence of sickness insurance. Both directives further include other requirements which, at least in the case of highly qualified employees, serve as indirect evidence of difficult negotiations. For instance, the HQE Directive deals in great detail with the salary threshold. The general rule is that gross annual salary must not be inferior to the relevant threshold defined by the Member State, which must be at least 1.5 times the average gross annual salary in the Member State. It is only by way of derogation and in cases of particular need that the threshold can be lowered to 1.2 times the average gross annual salary. Moreover, Member States are under obligation to communicate the list of these professions to the Commission annually. Lack of flexibility might be an obstacle to achieving the objectives set in the Lisbon strategy and the Europe 2020 programme. Article 6 provides that Member States remain entitled to determine admission volume for highly qualified employees. Labour market quotas contradict Fratini’s initial idea of a ‘job-seekers’ permit’ allowing highly skilled migrants to enter the EU and search for work.23 Duration of permits issued is similar: Article 8 of the Researchers Directive sets a period of at least one year and is renewable. The Students Directive, while providing for the same term in the case of students, notes that the period of validity of a residence permit might be shorter if courses are shorter. For other groups a residence permit can be issued for a maximum of one year and prolonged on an exceptional basis for unremunerated trainees and volunteers. Articles 7 and 8 of 22 Peers Steve, ‘Key Legislative Developments on Migration in the European Union’ (2005) EJML, 87–118, 106. The argument by Peers is certainly strengthened by recent CJEU case law on citizenship. 23 Collett Elizabeth, ‘The Proposed European Blue Card System: Arming for the Global War for Talent?’ (Migration Information Source 7 January 2008), available at accessed 6 March 2013.

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the HQE Directive provide for procedures to issue an EU Blue Card. Member States must set a standard between one and four years. If an employment contract is for a shorter duration then a Blue Card is issued for the respective term plus three months. The provisions of duration do not add significant rights to immigrants in comparison with rights which they might have had before. In the case of Blue Card holders it might even make the EU market a less attractive destination for migration. The grounds for refusal included in Article 8 of the HQE Directive are particularly strict and unattractive for persons otherwise qualified for the status. For instance, Article 8(2) provides that upon application for or renewal of a Blue Card during the first two years of legal employment, Member States may examine the situation of their labour market and apply national procedures. This means that Member States may verify whether a vacancy cannot be filled by the national or EU workforce, or alternatively by third country nationals already forming part of the labour market on the basis of EU or national law, including long-term residents. An application may also be refused because of the quota system provided in Article 6. If most Member States choose to apply the restrictive measures envisaged, the Blue Card system will be just lip-service to Lisbon strategy objectives mentioned in the Preamble. Arguably, there is nothing much that the CJEU will be able to harmonize by attaching greater weight to the objective mentioned in Article 79 TFEU. There is no general obligation for Member States to admit persons. Such an obligation also cannot be derived from the objective of a ‘common immigration policy’. However, admission is not the core objective. It is rather treatment of different groups of third country nationals equally or offering a feasible naturalization perspective. A more coherent approach by the drafters is evident when linking the status of highly qualified employee and long-term resident status. The HQE Directive links the status of a Blue Card holder with possible acquisition of long-term resident status. According to Article 16 (2) a Blue Card holder can cumulate periods resided in different Member States and apply for long term resident status if having resided in the EU continuously for five years as a Blue Card holder.24 Residence for two years prior to application is required in the Member State where application is made. Continuous residence should be considered uninterrupted if the period does not exceed 12 consecutive months and 18 months during five years. Periods of absence might be extended to 24 months but in those cases the remark ‘Former EU Blue Card holder’ would be added. Moreover, under Article 16 (5) absence of a third country national may be restricted to specific cases, which should be proven by evidence, for instance, economic activity or voluntary service in the country of origin. 24 This is in line with the case of Singh, supra note 9.

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The starting point offered by the directives is relatively low in comparison to the aims envisaged by both the Tampere Programme and the Europe 2020 growth strategy. Many of the provisions seem to exclude the possibility for the CJEU to interpret provisions broadly by applying EU law principles in the context of accession to the status. Member States are allowed to retain national conditions for access to employment so that intra-EU movement is hampered by a variety of national policy approaches. None of the directives replaces national immigration systems but imposes an additional layer. Moreover, the HQE Directive might even constrain those States already capable of attracting workers, such as the United Kingdom.25 Thus, a complex web of entitlements to the right to access and exceptions is created. This is unattractive for third country nationals and leaves room for abuse by Member States which do not feel solidarity because constrained in their local agendas. Directives leave a considerable margin of appreciation for Member States which can prioritise migration on the basis of their national self-interest. For instance, the Commission has noted that the Researchers Directive has had limited impact in practice, in particular as regards hosting agreements, research organizations and time periods for deciding on applications.26 Thus, it is expected that the new code could offer at least some solutions by streamlining the provisions of various directives. The proposed code envisages amendments to the current Researchers’ Directive in order to align it with the HQE Directive and to amend the Students Directive to require Member States to apply the rule concerning school pupils, unpaid trainees and volunteers, whereas at present application of these rules is purely optional.27 For the time being a national rather than an EU approach to migration would continue to dominate except in cases when national courts request a preliminary ruling from the CJEU. The CJEU is inclined to apply by analogy an interpretation applicable to international agreements (such as the EU-Turkey agreement) or Charter rights coupled with the objectives set in the Preambles of directives to provide national courts with sufficient arguments to adopt immigrant-friendly 25 Supra note 23. 26 Report from the Commission on the application of Directive 2005/71/EC on a specific procedure for admitting third-country nationals for the purposes of scientific research, COM (2011) 901, 20 December 2011. 27 For instance, in the case of researchers the amended provisions would concern admission of family members and acquisition of long-term resident status, an obligation to give reasons for a negative decision, an obligation to admit in-country applications, an obligation to decide on applications within 30 days, facilitation of mobility, rights on the basis of a residence permit, and the like. In the case of students, amendments would concern in-country applications by students to take up employment or self-employment at the end of their studies and the like. Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 EJML, 33–61, 49–50.

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interpretation. On the basis of existing case-law national courts are well-equipped to follow a similar approach. The question remains whether a draft immigration code will solve all existing problems in the texts of directives to avoid controversial implementation and interpretation. A number of provisions grant extended rights for third-country nationals to apply for in-country residence and facilitate their stay in the country, especially in the case of students who apply for the right to stay for employment after their studies. 14.3. Family Members This section focuses on the Family Reunification Directive. It will also refer to sector directives to identify commonalities and differences. Family reunification as a basis for third-country nationals arriving in the EU represents a significant share as a basis for issuing residence permits.28 Therefore, the exact scope of obligations placed on Member States is important for many third-country nationals residing in the EU. The main question is whether there is a legal obligation to allow family reunification which would transgress the obligations of Member States in the human rights realm. The drafting process of the Directive was lengthy and wide compromises had to be achieved.29 The Directive is based on Article 79 TFEU which provides that measures should be adopted for the purpose of family reunion. The aim of the Directive changed from one proposal to another.30 The Preamble to the Directive 28 The statistics between Member States vary. However, in most cases spouses and children are seeking the right to family reunification. The share of permits issued to third-country nationals joining non-EU citizens to total first permits issued to third country nationals varies from almost 40% (Greece) to 1% (Malta, Ireland). In the early 2000s, family migration seemed to make up about 50 percent of total legal immigration. Today, this share amounts to about one third of all immigration to the EU. Green Paper on the right to family reunification of third-country nationals living in the European Union (Directive 2003/86/EC), COM (2011) 735 final, 15 November 2011, 10–11 See also European Migration Network, available at accessed 12 March 2013. 29 The first proposals to address the issue of family reunification appeared at the European Council of Vienna in 1998 and its urgency was further stressed during the Tampere European Council in 1999. However, it took more than three years to reach final agreement on the text of the Directive. After its initial proposal the Commission submitted two modified proposals in 2000 and 2002. ‘Amended Proposal for a Council Directive on the Right to Family Reunification’ COM (2000) 624 final, 10 October 2000 and ‘Amended Proposal for a Council Directive on the Right to Family Reunification’ COM (2002) 225 final, 2 May 2002. ‘Proposal for a Council Directive on the Right to Family Reunification’ COM (1999) 638 final, 1 December 1999. 30 While the first draft aimed at establishing a right to family reunification, later drafts declared that they aim “to determine the conditions in which the right to family reunification may be exercised”.

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states that the aim is to harmonize national legislation on conditions for admission and residence of third country nationals. As noted by Georgia Papagianni, a number of conditions were included during negotiations which make family reunification harder, i.e., checking the right to enter and to reside, access of family members to the labour market as well as entitlement to autonomous residence permits.31 Most Articles grant Member States the right to adopt measures to ensure that their national approaches to family reunification are preserved32 or otherwise leave wide discretion in transposition.33 These differences make the gap between third country nationals and EU citizens even sharper. For the purposes of interpretation and application of the Directive, an important feature is the second paragraph of the Preamble stating that the Directive respects fundamental rights and observes the principles recognized in particular in Article 8 ECHR and the Charter of Fundamental Rights. It also refers to family reunification in the context of the objective to facilitate integration of third country nationals in Member States. These provisions and subsequent interpretation of the Directive by the CJEU allows the conclusion that there is a legally binding obligation for Member States to allow family re unification. Therefore, the perspective on the right to family reunification differs from the human rights approach which requires only respect for private and family life rather than imposing an obligation to allow family reunification in the State. Analysis of CJEU case-law will illustrate the difference. The CJEU has interpreted the Directive on several occasions.34 In a case on the validity of certain Articles of the Family Reunification Directive the CJEU outlined the general methodology for interpreting the Directive. First, the Court acknowledged that the Articles of the Directive do not guarantee the right to enter the territory of a State and States continue to enjoy a certain margin of 31 Supra note 18, 163–164. 32 For instance, Article 4(1) (3), Article 4 (2) (3), (5) (6), Article 5 (3) (2), Article 6–8, Article 14 (2) (3), Article 15 (1) (2), Article 16. 33 Article 4 (1)(b) (d), para 3 of Article 4 (1), Article 4 (2) (a), (b), Article 4 (3). In respect of refugees see Article 10 (2) abd Article 10 (3) (b). For more detailed analysis see Guild Elspeth, The Legal Elements of European Identity. EU Citizenship and Migration Law (Kluwer Law International: the Hague 2004), 114–115. 34 Case C-540/03 European Parliament v. Council of the European Union [2006] ECR I-5769. The CJEU dealt with validity of Articles 4(1), 4(6) and 8 of the Directive. The Court was guided by its earlier pronouncement in Wachauf, where it stated that Community provisions are compatible with fundamental rights if they are capable of being interpreted in a way which produces the outcome which those rights require. Case 5/88 Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609, para. 19. After analyzing the norms contested, the CJEU ruled that the Directive complies with EU human rights obligations. See also the proposed immigration code, which abolishes derogations contested by the European Parliament (Article 4(1) and 4(6)).

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appreciation.35 Second, the Directive imposes precise positive obligations, including individual rights, on Member States without being left a margin of appreciation.36 Third, the CJEU has placed considerable emphasis on the role of human rights instruments and principles in correct interpretation and application of the Directive.37 It has done so by relying not only on human rights as general principles and Article 6 TEU, but also Article 17 of the Directive. This article provides that individual family circumstances should be taken into account, such as: nature and solidity of family relationship, duration of residence, relationship with country of origin.38 This means that even if Member States are left with a margin of appreciation, they cannot either transpose or apply the norms of the Directive contrary to human rights obligations and without having taken due account of individual circumstances. This complies with the Court’s earlier approach to interpreting EU law. For instance, in Lindqvist the CJEU ruled that Member States, when they implement a Directive, must interpret it in conformity with fundamental rights. They must make sure that they do not rely on an interpretation which would conflict with fundamental rights protected by the EU legal order or with any other general principles of EU law.39 Therefore, the Directive does introduce new standards 35 Ibid., para 59. This seems to be in contrast to the approach of the ECtHR which states that it remains a sovereign right of States to control entry of foreigners subject to treaty obligations, while States retain a margin of appreciation in expulsion or deportation cases. See also Case C-137/08 Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform [2008] ECR I-06241, where the Court adopted a three step test, i.e., (1) not all third country nationals had a right of entry to a Member State, but only those who were certain family members of an EU citizen who had exercised the possibility of residing in a second Member State; (2) Member States could refuse entry on grounds of public policy, public security or public health; (3) States have the possibility to terminate any right in cases of abuse of rights or fraud. Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109 (Brill: Leiden, Boston 2011) 118. 36 Ibid., para 60. See also Joined Cases C-356/11 and 357/11 O, S v. Maahanmuuttovirasto, Judgment of 6 December 2012 [not yet reported], para 70. 37 See, for instance para 55 of Case C-540/03 European Parliament v. Council of the European Union where the Court borrows from the ECtHR the main principles of dealing with family reunification cases. 38 According to Kees Groenendijk the grounds mentioned in Article 17 are borrowed from Strasbourg case law. However, they have a different function. The ECtHR in its case law on Article 8 ECHR departs from the assumption that States are responsible for maintaining public order and thus they can control entry, residence and expulsion of aliens. The Directive grants a right to family reunification in a specific Member State subject to conditions to be interpreted restrictively, Groenendijk Kees, ‘Family Reunification as a Right under Community Law’ (2006) 8 EJML, 215–230, 219. Article 7 of the Directive is the guarantee. 39 See Case C-101/01 Bodil Lindqvist [2003] ECR I-12971, para 87. See also Case C- 403/09 PPU Jasna Detiček v. Maurizio Sgueglia [2009] ECR I-12193, para 34.

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within the EU if one looks at the norms imposing positive obligations on Member States to allow reunification, while in other cases standards should not fall below what is accepted in human rights law. This is further strengthened in Chakroun where the Court not only defined the scope of positive obligations of Member States but also referred to application of fundamental rights.40 According to the CJEU, the norms of the Directive should be interpreted strictly. The margin of manoeuvre, which Member States are recognized as having, must not be used so as to undermine the objective of the Directive, which is to promote family reunification and its effectiveness, as well as respecting human rights obligations. The Court stated: It follows that the provisions of the Directive, particularly Article 7(1)(c) thereof, must be interpreted in the light of the fundamental rights and, more particularly, in the light of the right to respect for family life enshrined in both the ECHR and the Charter. It should be added that, under the first subparagraph of Article 6(1) TEU, the European Union recognises the rights, freedoms and principles set out in the Charter, as adopted at Strasbourg on 12 December 2007 (OJ 2007 C 303, p. 1), which has the same legal value as the Treaties.41

Therefore, the CJEU by means of interpretation asks national courts to ensure that the Directive is implemented in compliance with human rights and, while being guided by general objectives set in the Directive, to bring the regulation closer to targets set at the Tampere Council Meeting. The quote from the ruling also emphasises that Charter norms have legal standing equal to Treaty norms. This is even more so since adoption of the Lisbon Treaty. Therefore, directives cannot alter or limit application of fundamental rights guaranteed at the level of primary law sources. In this light the most important Articles of the Directive will be briefly commented on. As a general requirement Article 3 requires the sponsor to hold a residence permit valid for at least one year and to have reasonable prospects of obtaining a right of permanent residence. The reference to the possibility to obtain permanent residence is vague and subject to interpretation in the specific circumstances of the case. Moreover, the Directive excludes persons who are awaiting their status such as asylum seekers, or subjects of any other form of temporary protection. In this context the amendments proposed in the immigration code should be welcomed because they do not require that the sponsor should have 40 It focuses mainly on positive obligations of Member States. But it remains unclear whether the CJEU would have dealt with the case if the Netherlands allowed family reunification on the basis of Article 8 ECHR. The Court only referred to the fact that it had not been done so far. Case C-578/08 Rhimou Chakroun v. Minister van Buitenlandse Zaken [2010] ECR I-1839, para 65. 41 Ibid., paras 43–44. See also Joined Cases C-356/11 and 357/11 O, S v. Maahanmuuttovirasto, Judgment of 6 December 2012 [not yet reported], para 74.

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prospects of obtaining permanent residence and extend the group of beneficiaries to those of subsidiary protection. One of the Articles the validity of which was contested by the European Parliament concerns the so-called waiting period. Under Article 8 of the Family Reunification Directive the maximum duration of stay which Member States may require for a third country national before their family can join cannot exceed two years. However, Article 8(2) provides for derogation to extend the period for no more than three years by reference to the State’s reception capacity. Moreover, this right is subject to a number of conditions. The reasoning behind waiting periods relates to the “feeling” among Member States that a year is too short to ensure integration of the applicant in the host Member State.42 The CJEU did not find that Article 8 per se would be contrary to fundamental rights.43 At the same time the Court emphasized the obligation of Member States always to weigh the individual circumstances of the case, with the waiting period being just one of the considerations. It can be argued that the most difficult conditions for family reunification are included in Article 7 of the Directive. This lists the requirements to be satisfied before family members are allowed to enter. Third country nationals should prove that accommodation is regarded as normal for a comparable family in the same region, the family has sickness insurance and the sponsor has stable and regular resources sufficient to maintain the family without recourse to the social assistance system of the Member State. The main problem is probably the discretion granted to Member States under Article 16 (1)(a) to withdraw or refuse to renew a family member’s residence permit where the conditions of the Directive are no longer met. Indeed, national requirements in relation to fees, accommodation, insurance and the like might be quite divergent. This can be concluded from studies on transposition of the Directive.44 The Commission has also noted that there is no 42  Cholewinski Ryszard, ‘Family Reunification and Conditions Placed on Family Members: Dismantling a Fundamental Human Right’ (2002) 4/3 EJML, 271–290, 286. However, this provision has been applied only by Austria and is dropped in the draft immigration code because it entails too severe a restriction on a fundamental right. Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 EJML, 33–61, 52. 43 Supra note 37, para 98. The Council argued that waiting periods are common practice in immigration law. However, the Advocate General disagreed and stated that the Article should be interpreted in the light of international obligations and of the general principles of Community law. According to her, Member States may only impose waiting periods if they take account of cases of hardship as required by Article 8 of the ECHR. Case C-540/03, Opinion of Advocate General Kokott, para 102. 44 See, for instance, information on the less favourable rules introduced by different Member States in Groenendijk Kees, Fernhout Roel, van Dam Dominique, van Oers Ricky, Strik Tineke, The Family Reunification Directive in EU Member States. The First Year of Implementation (Centre for Migration Law: Nijmegen 2007) 60–61. In relation to differences in fees see ibid., 48.

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harmonisation as regards fees and that excessive fees can undermine the effect of the Directive by hampering the right to family reunification.45 At the same time it cannot be concluded hypothetically and generally whether all Member States have transposed the Directive correctly by placing disproportionate obligations on third country nationals. Each case would require detailed examination from the point of view of the Directive, human rights and proportionality. Thus, the burden is upon the national courts and, if necessary, on the CJEU to check whether States and officials correctly interpret the text requiring accommodation to be ‘as normal for a comparable family’ in the Member State. This also applies in the case of the requirement for ‘stable and regular resources’ which was severely criticized by scholars even during the drafting stage. Critics noted that resources should not be the reason for denying reunification for a nuclear family. The alternative proposal was to exempt those who have resided in the territory of the Member States for a certain period from one or several conditions.46 Light is shed by the CJEU which adopted a reasonable interpretation of ‘resources’ in Chakroun by stating: Since the extent of needs can vary greatly depending on the individuals, that authorization must, moreover, be interpreted as meaning that the Member States may indicate a certain sum as a reference amount, but not as meaning that they may impose a minimum income level below which all family reunifications will be refused, irrespective of an actual examination of the situation of each applicant. That interpretation is supported by Article 17 of the Directive, which requires individual examination of applications for family reunification.47

The Court also sided with the argument of Mrs. Chakroun that the concept of ‘social assistance system’ is a concept which has its own independent meaning in EU law. Thus, by reference to differences between Member States in social assistance, that concept must be understood as referring to social assistance granted by the public authorities at all levels.48 It can be argued that the Court applied an approach which would serve individual family reunification to the maximum possible extent. It took into account the stability and length of marriage of the applicants and disregarded Member State arguments on a strictly national

45 ‘Green Paper on the right to family reunification of third-country nationals living in the European Union (Directive 2003/86/EC)’ COM (2011) 735 final, 15 November 2011, 8. 46 Supra note 42, 283. 47 Supra note 40, para 48. Mrs. Chakroun, a Moroccan national, was refused the right to join her husband, a Moroccan national, in the Netherlands. The couple had been married for 37 years. The decision to refuse family reunification was based on the fact that Mr. Chakroun was not in receipt of sufficient income within the meaning of national law, requiring the sponsor to have resources equivalent to 120% of the minimum wage. 48 Supra note 40, paras 43–44.

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approach and concepts. Similarly in O. and S. the Court emphasised that Article 7(1)(c) should be interpreted as meaning that, while Member States have the faculty of requiring proof that the sponsor has stable and regular resources which are sufficient to maintain himself and the member of his family, that faculty must be exercised in the light of the Charter, i.e., promotion of family life and ensuring that the interests of the child are duly taken into account. The CJEU stated: It is for the competent national authorities, when implementing Directive 2003/86 and examining applications for family reunification, to make a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned.49

It has been argued that one of the main weaknesses of the Directive is the narrow definition of family members.50 According to Article 4 this definition includes spouses and their unmarried minor children, including adopted children. Minor children must be below the age of majority and not married. This has been criticized in the literature since in the case of EU citizens the age limit is 21 and the European Committee of Social Rights has also suggested that the notion of family should cover dependent children under 21.51 Although a different approach in setting age limits for children of EU citizens and immigrants for the purposes of family reunification falls within the discretion of drafters, other limitations are of more concern. According to Elspeth Guild the definition of family members is fraught with limitations and must be substantiated by many official documents. An EU law which appears to justify national practices preventing some spouses and children from living together while privileging other spouses and children is unlikely to command the respect of those who suffer from its effects.52 This is a valid critique if the EU aims to achieve near equality between immigrants resident in the EU and EU citizens. Moreover, children might be dependent on their parents not only for health reasons, but also for social and financial reasons. The negative effects could be remedied by reference to the Charter of Fundamental rights and the requirement by the CJEU to take into account the best interests of the child. 49 Joined Cases C-356/11 and 357/11 O, S v. Maahanmuuttovirasto, Judgment of 6 December 2012 [not yet reported], paras 81–82. 50 Supra note 18, 161. 51 See discussion by John Arturo, ‘Family Reunification for Migrants and Refugees: A Forgotten Human Right?’, available at accessed 26 July 2010. On general international law provisions on family reunification see accessed 2 December 2011. See also para 77 of the Expl­ anatory report to the European Social Charter (revised 1996), on Article 19(6), ETS. No. 63, available at accessed 2 December 2011. 52 Guild Elspeth, The Legal Elements of European Identity. EU Citizenship and Migration Law (Kluwer Law International: the Hague 2004) 123.

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The three other groups which remain optional are: (1) first degree relatives in the direct ascending line, who are dependent either on the sponsor or their spouse, (2) adult unmarried children in cases when they cannot provide for their needs for health reasons, (3) an unmarried partner with whom the sponsor has a long-term relationship or registered partnership. The only exception to additional family members who may be allowed to reunify is mentioned in Article 4 (4) and relates to cases of polygamous marriage. In these cases Member States should not authorise reunification if the sponsor already has a spouse living with him in the Member State. Member States were allowed to limit application to minors under the age of 15 if those laws were adopted before the date of implementation of the Directive. Those children can be admitted on grounds other than family reunification under EU law.53 The logic behind this insertion might be linked with the three year wait­ ing period when the applicant might have reached full age under the Directive. According to Article 5(3) in principle an application for reunification should be submitted and examined when the family members are residing outside the State where the sponsor resides. However, Member States may in appropriate circumstance accept an application submitted when the family members are already in its territory. This could be of importance in cases when the State has adopted a strict integration exam policy requiring family members to pass integration exams before arriving in the State. If the Member State allows reunification outside or inside the EU, the requirements for re-unification cannot differ whether a person applies within or outside the EU. In the context of Article 7 this has been acknowledged by the CJEU. The Court referred to Article 2 (d) of the Directive and concluded that this provision defines family reunification without drawing a distinction based on the time of marriage of the spouses, i.e., whether the family relationship arose before or after the resident’s entry.54 The Court by reference to Metock said that introduction of such a distinction runs against the Directive: Taking account of the necessity of not interpreting the provisions of the Directive restrictively and not depriving them of their effectiveness, the Member States did not have discretion to reintroduce that distinction in their national legislation transposing the Directive.55 53 Case C-540/03 European Parliament v. Council of the European Union [2006] ECR I-5769, Opinion of Advocate General Kokott, para 94. The Advocate General by reference to Article 17 and Article 5 (5), essentially argued for application of the human rights aspect to family reunification. This means that children should be allowed to join the family if there is a human rights aspect. The Court argued similarly. See ibid., paras 86–87. These requirements will be omitted if the immigration code is adopted in the current version. 54 Supra note 40, paras 59 and 66. 55 Ibid., para 64.

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According to the Court that interpretation is supported by recital 6 in the Preamble to the Directive, which seeks to ‘protect the family and establish or preserve family life’. It is also supported by the travaux préparatoires, from which it is apparent that there was broad agreement that family reunification should cover both family formation and preservation of the family unit. Furthermore, that interpretation is consistent with Article 8 of the ECHR and Article 7 of the Charter, which do not draw any distinction based on the circumstances in and time at which a family is constituted.56 Article 6 of the Directive provides that family reunification can be denied on grounds of public policy, public security or public health. The notion of public policy is explained in paragraph 14 of the Preamble which states that the notion of public policy may cover a conviction for committing a serious crime. The Council has further strengthened the concepts of public policy and security by including in their scope cases where a third country national belongs to an association which supports terrorism, supports such an association or has extremist aspirations. The definition leaves a wide discretion for different interpretations. For instance, what procedures should be followed to establish whether a person has ‘extremist aspirations’ and what amounts to an ‘extremist’ might differ from one State to another. If these grounds for refusal are invoked by Member States when dealing with requests for re-union of a family already resident in their territory, this might lead to violation of human rights, including the human right to freedom of conscience and religion. This might be partially remedied by at least interpreting those concepts in the light of criteria well-established in EU law.57 Moreover, provisions of the Directive cannot be interpreted contrary to the objectives set in the Directive or provisions of the Charter. Therefore, measures or practices of the Member States which would be too restrictive or arbitrary could be declared as violating EU law either by the national courts or the CJEU. The case-law on different provisions of the Directive suggests that the CJEU would interpret national provisions strictly and for the benefit of family reunion. Progress achieved towards better integration of immigrants from non-EU Member States with adoption of the Directive is undeniable. The Member States have essentially agreed to harmonize national provisions, even though by agreeing at the lowest common denominator. However, the main importance of the Directive lies in the fact that it grants a directly applicable right to family reunion if the sponsor and the family meet the conditions of the Directive. As noted by the 56 Ibid., paras 62–63. 57 This has been the approach adopted by the Court in cases related to association agreements. See, for instance Case C-467/02 Inan Cetinkaya v Land Baden-Württemberg [2004] ECR I-10895, 41–48.

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CJEU the Directive “merely reflects the difficulty of harmonizing laws in a field which hitherto fell within the competence of the Member States alone. As the Parliament itself acknowledges, the Directive as a whole is important for applying the right to family reunification in a harmonized fashion”.58 Moreover, as also noted by the CJEU the common denominator should not fall below the standard adopted by international human rights organizations in different frameworks. Reports on transposition of the Directive indicate that some of the worries expressed in the doctrine are materializing, namely that the Directive might provoke those Member States that until now have had a more liberal system concerning family reunification to modify national law in the light of the derogation provisions of the Directive.59 In addition, complex and unattractive transposition rules appear in relation to fees and other bureaucratic procedures set up by the Member States. But this does not necessarily mean that all national provisions transposing the Directive do actually comply with the objectives the Directive has put forward and the provisions of the Charter of Fundamental Rights. The limited harmonisation impact in the field of family reunification and cases of incorrect transposition or misapplication of the Directive have been acknowledged by the Commission. Therefore, the proposed immigration code could be helpful to increase efficiency of the existing provisions of the Directive and further limiting discretion of the Member States. The draft is promising regarding, for instance, extended definition of family members. Article 3 of the draft code provides that the Directive shall not apply to third country nationals who are family members of Union citizens who have exercised, or are exercising, their 58 Case C-540/03 European Parliament v. Council of the European Union [2006] ECR I-5769, para 102. 59 Schneider Hildegard, Wiesbrock Anja, ‘The Council Directive on Family Reunification: Estab­ lishing Proper Rights for Third Country Nationals?’ in Schneider H. (ed.), Migration, Integration and Citizenship. A Challenge for Europe’s Future, Volume II (Forum Maastricht: the Netherlands 2005) 35–71, 39. Groenendijk Kees, Fernhout Roel, van Dam Dominique, van Oers Ricky, Strik Tineke, The Family Reunification Directive in EU Member States. The First Year of Implementation (Centre for Migration Law: Nijmegen 2007). See also ‘Report from the Commission on the Application of Directive 2003/86/EC on the Right to Family reunification’ COM (2008) 610 final, 8 October 2008. 4–5. States mentioned as examples in relation to implementation of different articles are Cyprus, Malta, Lithuania, Luxembourg, Netherlands, Germany, France. The Commis­ sion has also emphasised that the low-level binding character of the Directive leaves Member States much discretion and in some Member States the result has even been lowering the standards of the Directive. See COM (2008) 610, 14. A similar conclusion has been drawn in relation to implementation of the researchers directive – ‘Report from the Commission on the application of Directive 2005/71/EC on a specific procedure for admitting third-country nationals for the purposes of scientific research’ COM (2011) 901 final, 12 December 2011, the Commission notes improvements can be made with regard to providing clear and unambiguous definitions researchers’ rights; basic definitions need to gain a uniform understanding and the like.

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right to free movement within the Union and who enjoy rights of free movement equivalent to those of EU citizens under agreements with third countries.60 Therefore, the proposed code would not exclude family members of those EU citizens who have not moved within the EU. However, it remains unclear whether this extension would operate as a solution in cases which have been qualified as purely internal, i.e., McCarthy, Dereci and the like which were decided by the CJEU on the basis of the Treaty rather than any secondary legislation. Therefore, the final text of the code is of crucial importance. Except for the Students Directive the other sector directives also address the family reunification issue. In relation to students it has been noted in doctrine that the presence of family members could facilitate students’ integration into the life of the host State and provide them with financial and emotional support; some of the best students might be deterred from entry if they cannot bring their family members with them.61 Although this might be somewhat overstated, at the same time there are students of different ages having a family relationship and in the case of competing offers they would choose to move elsewhere which in turn might deter them from becoming a future highly qualified employee or researcher willing to return to the EU. The LTR Directive primarily addresses issues related to family re-unification in a second Member State and will be dealt with under the section below on free movement. Article 9 of the Researchers Directive provides that family members of a researcher qualify for a residence permit for the same duration as the researcher. This right is not subject to a minimum residence duration of the researcher as in the case of the Family Reunification Directive. In turn Article 15 of the HQE Directive provides for the right to family reunification under more favourable conditions than in the case of the Family Re-unification Directive. For instance, Article 15(2) states that family reunification should not depend on a Blue Card holder having reasonable prospects of obtaining the right to permanent residence and having a minimum period of residence. Moreover, Article 15(3) states that integration conditions and measures provided in Articles 4(1) and 7(2) of the Family Reunification Directive may only be applied after the persons concerned have been granted family reunification. This is indeed a positive development. Probably, the creativity of Member States using the possibility to introduce integration conditions and measures before a person appears in the EU was unpredicted and generally unwelcome by the EU.

60 Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 EJML, 33–61, 42–43, 54. 61 Peers Steve, ‘Key Legislative Developments on Migration in the European Union’ (2005) 7 EJML, 87–118, 105.

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Brinkman has noted that: Family reunification [can] be seen, on the one hand, as a humanitarian or human rights issue, and, on the other, as an immigration matter which might place a strain on the labour market and social facilities, such as housing, education and medical facilities.62

It has even been argued that to move from protection of the family unit under international human rights treaty law to recognition of a right to family reunification in the immigration field is not such a significant step to take.63 In this context, EU Member States have tried to take a half-step but the CJEU has reacted by providing sophisticated interpretation which is based on an obligation for the Member States to allow reunification and pay special attention to the rights of the child. The Charter has been an important source for the CJEU position. Considerable progress has been made in identifying cases when a right to family reunification of third country nationals exists, even if certain conditions have to be met.

62 Brinkman Gisbert, ‘Family Reunion, Third Country Nationals and the Community’s New Powers’, in Guild Elspeth, Harlow Carol (eds), Implementing Amsterdam: Immigration and Asylum Rights in EC Law (Hart: Oxford 2001) 241–266, 243 quoted by supra note 42, 271. 63 Supra note 42, 275.

Chapter Fifteen Functions of EU Immigrant Status This chapter will follow the same methodology as in previous sections on functions of citizenship. However, it will exclude diplomatic and consular protection which is non-existent in the EU context, but will focus primarily on free movement rights within the EU and access to rights traditionally limited to either national citizens or EU citizens. References to case-law on citizens of countries with which the EU has association agreements will be used as examples because the objectives of the directives on third country nationals in certain cases coincide with those agreements. 15.1. Equal Treatment: Near Equality Equal treatment is one of the cornerstones for integration of third country nationals of various categories. It is also a step towards achieving not only the political aims proclaimed in Tampere but also as stated in Article 79 TFEU, i.e., to achieve “fair treatment of third country nationals residing in the Member States” and to grant rights for third country nationals residing legally in a Member State. Equal treatment of third country nationals will be discussed by comparing them to EU citizens in the most important areas subject to EU regulation. In relation to long-term residents the most important is Article 11 of the LTR Directive on equal treatment. When introducing the status of long-term resident the drafters had several objectives in mind. For instance, the Preamble refers to the objective that “legal status of third country nationals to be approximated to that of Member States’ nationals” as well as an obligation to give effect to the Directive without discrimination.1 Georgia Papagianni notes that the Commission and the Council adopted the approach of listing certain rights instead of accepting the general principle of equality and listing the exceptions. Taking into account the various derogations and restrictions attached to the general list of rights, it becomes clear that the rights finally granted to long-term residents are considerably restricted in comparison with the Commission proposal.2 The other directives are less outspoken in relation to equal treatment. 1 See recitals 1, 2 and 5 of the Preamble. 2 Papagianni Georgia, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff Publishers: Leiden, Boston 2006) 168.

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This chapter focuses mainly on equality of access to employment and then proceeds with other spheres of equality listed in directives on third country nationals. 15.1.1. Access to Employment The general principle which applies to free movement of third country nationals in the EU is the so called Community preference principle. This is defined as follows: Member States will consider requests for admission to their territories for the purpose of employment only where vacancies in a Member State cannot be filled by national and Community manpower or by non-Community manpower resident on a permanent basis in that Member State and already forming part of that Member State’s regular labour market.3

Taking into account that most Long-term residents apply for the status because they are economically active, a particularly important provision is on equality in relation to access to employment. Although Article 11(1)(a) provides for equal treatment with nationals in access to employment and self-employed activity there are two wide exceptions. First, the same provision states that long-term residents will be allowed to work only if ‘such activities do not entail even occasional involvement in the exercise of public authority’. This would make the gap between long-term residents and EU citizens even larger because recently the CJEU has become stricter in relation to application of such exemptions in relation to EU citizens.4 Second, farther reaching derogation is included in Article 11(3)(a) which allows Member States to retain restrictions to access to employment or self-employed activities in cases “where, in accordance with existing national or EU legislation, these activities are reserved to nationals, EU or EEA citizens”. Therefore, Member States are allowed to treat long-term residents differently and to apply the so called Community preference principle whenever they see it necessary. Although it remains unclear what the term ‘existing’ entails in the sense of ratione temporis the preparatory works suggest that the provision is 3 ‘Green Paper on an EU approach to managing economic migration’ COM (2004) 0811 final, 1 November 2005, 2.2.1. The Commission has noted that ‘the main issue is whether such preference should be granted to third-country manpower already present in a Member State over newly arriving third country nationals’. It has also stated that preference might also be extended to those who have already worked for some years in the EU before returning temporarily to their own country. This could in fact encourage ‘brain circulation’, by allowing third-country workers to try to re-integrate in their own country knowing that they will receive more favourable treatment in terms of readmission if they later wish to come back to the EU to work. 4 See for instance, Case C-47, 50, 51, 53, 54, 61/08 Commission v. Belgium, France, Luxembourg, Austria, Germany and Greece [2011] ECR I-4105, on nationality condition for notaries.

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not limited in time.5 An interpretation in contrario can be offered only by the CJEU. With these broad exceptions the Article accepts inequality rather than facilitating ‘near equality’ in a sector of significant importance to long-term residents. The other directives do not refer to access to employment under Articles on equality of treatment but provide for lex specialis conditions on access to work. Access to employment is stringent in relation to highly qualified employees. Article 12(1) states that during the first two years access to the labour market is restricted to exercise of employment which meets the conditions for admission of a highly qualified employee. After two years equal access with nationals in relation to access to employment might be granted only in relation to highly qualified employees. This means that a Blue Card holder will not be granted equal access to any employment but only to employment which would remain in the same group of required highly qualified skills. Moreover, according to Article 12(2) any changes in employment during the first two years should receive authorization by the competent authorities and after that period still duly communicated. This means that Member States are reserved wide discretion whether after the first two years a Member State will grant persons equal treatment with nationals in relation to access to the labour market.6 In addition Article 12 includes exceptions which apply to highly qualified employees without limitations in time. Article 12(3) allows Member States to retain restrictions on employment entailing occasional involvement in the exercise of public authority and responsibility for safeguarding the general interest of the State or even more generally activities reserved to nationals. In all cases the Community preference principle would apply. These restrictions are only partially compensated by allowing an EU Blue Card holder to stay on the territory of a Member State without losing the residence right in case of unemployment. However, the time allocated is quite short – three consecutive months and on condition that this does not occur more than once during the period of validity of the Blue Card. Taking into account the restrictions placed on access to employment this might be too short a period for a Blue Card holder effectively to find a job and could thus lead to withdrawal of the status. Taking into account that researchers arriving should present a hosting agreement and their residence can be prolonged on the basis of an extended hosting 5 Halleskov Louise, ‘The Long-Term Residents Directive: A Fulfilment of the Tampere Objective of Near Equality?’ (2005) 7 EJML, 181–201, 191. She also argues that at least Member States who are parties to the ILO Convention C 143 would be barred from applying this Article because the ILO Convention sets a two year period during which restrictions on migrant workers’ access to employment are allowed. 6 These strict requirements are not applicable in the case of Member States that ratified ILO Convention C 143.

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agreement, there are no general clauses on equality in access to employment. Equality according to Article 12 of the Researchers Directive should apply in relation to recognition of diplomas, working conditions (including dismissal), social security, tax benefits and access to goods and services. However, according to recital 16 of the Preamble, the Directive should not confer more rights than those already provided in existing legislation in the field of social security for thirdcountry nationals. Although both the Preamble paragraph 18 and Article 17 of the Students Directive provide for general access to the labour market for students, Member States are left a discretion which can make this right illusory. Article 17(3) states that access to economic activities for the first year of residence may be restricted by rules and conditions of the host Member State. States can allow access to employment after examining the situation on the labour market. In addition Article 17(2) allows a set of a maximum number of hours weekly or days or months yearly for employment, which must not be less than 10 hours weekly. Therefore, Member States can easily justify an absolute ban on any employment or selfemployment by students.7 The Students Directive does not provide for general procedural safeguards concerning, for instance, access to employment for students.8 The Family Reunification Directive provides family members with the same entitlement to access to employment and self-employed activities as the sponsor. However, Article 14 also envisages considerable discretion for Member States to limit those rights. Thus, Article 14(2) provides that Member States can introduce conditions under which family members can exercise employed activities for a period of one year. These conditions might be related to the need to examine the situation on the labour market. Moreover Article 14(3) allows restriction of access to employment and self-employed activities to first degree relatives in the direct ascending line or adult unmarried children. Therefore, very limited access is available to employment especially during the first year of residence. A more liberal approach has been adopted in relation to family members of Blue Card holders. According to Article 15(6) of the HQE Directive, their family members are exempted from time limits in respect to access to the labour market as of 19 December 2011. To conclude, the immigration law approach to access to employment is much stronger than the definition and access to rights approach referred to in Article 79(2) TFEU. Access to employment is seen in the context of equality only in relation to long-term residents and even then it is subject to a number of exceptions 7 Peers Steve, ‘Key Legislative Developments on Migration in the European Union’ (2005) 7 EJML, 87–118, 106. 8 Ibid., 107.

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and conditions. Therefore access to employment can rather be qualified as ancillary to immigration status than forming part of equal treatment of third-country nationals in the EU. In the proposed immigration code admission for employment introduces certain harmonisation and liberalisation incentives in Articles 15 – 20 which are based on the rationale of the Directive on single residence permits.9 At the same time the proposal provides in Article 16 that the Treaty and the code should not affect the right of Member States to determine volumes of admission of third country nationals in order to seek work. Volumes of admission remain in the competence of Member States. 15.1.2. Access to Other Rights A relatively high level of equality for long-term residents is secured in relation to recognition of diplomas, certificates and qualifications as well as free access to the territory of the respective Member State, save for reasons of security. Other provisions of equality have a territorial limitation imposed by Article 11(2). According to the limitation, equality in relation to education, social protection, tax benefits, access to goods and services as well as housing and freedom of association can be limited if the registered or usual place of residence of long-term residents or family members is within the territory of another Member State. This limitation places long-term residents in a different situation in comparison to EU citizens who happen to reside in one Member State while working in another Member State.10 The possibility to restrict access to goods and services as well as freedom of association should be carefully weighed as to their compliance with fundamental rights requirements. Restrictions on tax benefits should have limited application if taxes are directly connected with residence. It can be concluded that the EU approach to long-term resident status from the equality point of view is national and territorial rather than a trans-nationally built EU status. In this context the EU does not offer any added value to the trans-national character of long-term resident status. Therefore, treatment of long-term residents remains subject to regulation of the single Member State where they are residing. Access to education, vocational training, including study grants for long term residents is limited to national law according to Article 11(1)(b). Moreover, Article 11(3)(b) states that Member States may require proof of appropriate language 9 Directive 2011/98/EU of the European Parliament and the Council on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, OJ L 343, 23 December 2011. 10 See cases discussed under section 11.2.3. of part III of this volume.

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proficiency for access to education and training. Access to university may be subject to specific educational prerequisites set at national level. The EU does not have competence to order changes in national education systems. In general reference to national law, Article 11(1)(b) leaves it wide open for Member States to stick to their national regulation in force. On one view, this formulation might be subject to abuse.11 However, the formulation of the relevant provision in the Directive does not set aside the principle of proportionality which should be taken into account in its transposition and application. Bearing this in mind it is difficult to envisage a situation when Member States could place requirements aimed at long-term residents directly or indirectly and which could contravene general principles of EU law. While equality of treatment granted to long-term residents is comparable to Blue Card holders the HQE Directive allows limited equality in relation to study and maintenance grants and loans or other loans and grants regarding secondary and higher education and vocational training, and procedures for obtaining housing. Under Article 14 (2) a Member State can impose prerequisites for access to university and post-secondary education as well as restricting equal treatment if a Blue Card holder resides outside its territory. According to Article 14(4) a Member State can limit a highly qualified employee’s right to equal treatment, except in relation to the right to association and recognition of diplomas, if a third-country national moves to another Member State before a Blue Card has been issued. Confusing as it is, Article 14(3) provides that the right to equal treatment does not affect the right of Member States to withdraw or to refuse to renew an EU Blue Card. Taking into account that provisions on equal treatment do not include provisions which could have a role in granting extra protection against withdrawal of the Blue Card, the possible role of this provision remains unclear.12 According to Article 14(1) of the Family Reunification Directive, family members have access to education and vocational training equal to the sponsor. This means that similar restrictions will apply whether they qualify as family members of long-term residents, Blue Card holders or third-country nationals in general. Similarly to education and vocational training, equal treatment of long-term residents in the sphere of social security, social assistance and social protection is limited to definitions of national law according to Article 11(1)(d). Reference to social advantages has been omitted in the adopted reading of the Directive. In addition, Article 11(4) states that Member States ‘may limit equal treatment in respect of social assistance and social protection to core benefits’. According to

11 For a strict approach see supra note 5, 195–196. 12 But see protection offered by association agreements. For instance, Case C-416/96 Nour Eddline El-Yassini v Secretary of State for Home Department [1999] ECR I-01209, paras 52–53.

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recital 13 of the Preamble this means that “with regard to social assistance, the possibility of limiting the befits for long-term residents to core benefits is to be understood in the sense that this notion covers at least minimum income support, assistance in case of illness, pregnancy, parental assistance and long term care”. The Court has interpreted these provisions in Kamberaj.13 The dispute related to different methods of calculation applied in the case of housing benefits for Union citizens and third country nationals. The CJEU noted that Article 11(1) (d) refers to national law which means that the Court should not provide an autonomous and uniform definition of entitlements under EU law. However, this does ‘not mean that the Member States may undermine the effectiveness of the Directive when applying the principle of equal treatment provided for in that provision’.14 The Court emphasised that Member States must comply with the rights and observe the principles provided in the Charter, including Article 34 which provides for combating social exclusion and poverty. Although it was a national court which had to decide whether the housing benefit in question would fall under Article 11(1)(d) the CJEU also examined Article 11(4). In doing so the Court based its ruling on three considerations. First, interpretation of Article 11(4) should be linked to recital 13 of the Preamble which gives an open ended enumeration of what should be considered ‘core benefits’. Second, since the Directive aims at integration of third-country nationals, derogations in Article 11(4) should be interpreted strictly. Finally, reference in recital 13 to national law is limited to the modalities of the grant of benefits, i.e., conditions of access, level and procedures.15 The conclusion drawn by the Court was that: Article 11(4) of Directive 2003/109 must be understood as allowing Member States to limit the equal treatment enjoyed by holders of the status conferred by Directive 2003/109, with the exception of social assistance or social protection benefits granted by the public authorities, at national, regional or local level, which enable individuals to meet their basic needs such as food, accommodation and health. In that regard, it should be recalled that, according to Article 34 of the Charter, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources.16

13 Case C-571/10 Servet Kamberaj v. Instituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES), Giunta della Provincia autonoma di Bolzano, Provincia autonoma di Bolzano, Judgment of 24 April 2012 [not yet reported]. The case concerned an Albanian national who has resided and been employed in Bolzano since 1994. He is the holder of permanent residence and received housing benefit from 1998 to 2008. In 2010 he was informed that his application for benefit for the year 2009 had been rejected on the ground that funds for third country nationals were exhausted. The applicant claimed violation of Directives 2000/433 and 2003/109. 14 Ibid., para 78. 15 Ibid., paras 83–90. 16 Ibid., paras 91–92.

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This led the Court to conclude that since the benefit under consideration follows the purpose set in the Charter, it should be considered as part of core benefits. Therefore, in a way the Court provided the national court with an exact answer, despite the earlier conclusion that the national court should make the final decision. In addition, it considerably limited discretion of Member States as to interpretation of Article 11(4). Cross-border issues related to social security have been resolved by adoption of relevant regulations. Regulation 1231/2010 provides that Regulation 883/2004 on the co-ordination of social security systems and Regulation 987/2009 laying down the procedure for implementing Regulation 883/2004 should be applied to third country nationals and their family members.17 Long-term residents can arguably be considered the least controversial group for the purposes of equal treatment due to their prolonged residence and prospects of remaining in the EU. Although the grammatical reading of the text of the Directive is a far cry from the initial proposals of the Commission which even discussed the need to give long-term residents voting rights, the interpretation given by the CJEU in the case-law places significant constraints on the implementation measures adopted by Member States.18 Indeed, ‘near equality’ might not be identical to the ‘equality’ required in cases of EU citizens. At the same time the legal force of the Charter, the objectives of the directives and the approach by the CJEU in interpreting these sources attach more meaningful substance to the rights envisaged by the directives. At the same time the wording of the directives and prospective EU immigration Code do not elaborate formulations of these provisions. Louise Halleskov is correct in surmising that the mere existence of Article 11 is regrettable from the point of view of long-term residents. While long-term residents can still at least to a certain extent benefit from the right to equal treatment and non-discrimination clauses in national law, including constitutional law, only a limited set of crossborder rights has been extended to them in the EU area as in the case of EU citizens. This is regrettable taking into account that the Directive is aimed at long-term migrants who have integrated in their host societies and could be helpful in facilitating migration flows within the EU contributing to the efficient 17 Regulation 1232/2010 entered into force on 1 January 2011. Until then third-country nationals were covered by Regulation 859/2003 which provided that Regulation 1408/71 and Regulation 574/72 should be applicable to third country nationals. Regulation 883/2004 entered into force on 1 May 2010 and replaced Regulation 1408/71. Certain provisions of the new Regulations were due to be implemented by 1 May 2012. They are not binding in the case of the UK and Denmark. 18 The proposal was dropped because there was no legal basis for inclusion of voting rights as a factor facilitating integration. ‘Proposal for a Council Directive concerning the status of third-country nationals who are long term residents’ COM (2001) 127 final, 13 March 2001, para 5.5, 21.

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functioning of the internal market. Therefore, one could expect that in terms of equal treatment long-term residents would be brought closer to EU citizens expressis verbis at the level of secondary legislation.19 Therefore, comparable standards are not available to EU citizens in Article 18 TFEU and Directives 2004/43 and 2000/78. Moreover, as shown in section 12.2.2. of part III of this volume, even the equal treatment offered to EU citizens does not necessarily entail equality with nationals of different Member States and is subject to different tests. A possible remedy might be only interpretation of restrictions introduced by the courts when applying national non-discrimination clauses and keeping in mind the Charter provision on the right to free movement and residence. The choice between long term resident status or naturalization remains an individual choice depending on conditions and benefits offered by individual Member States as well as conditions set by the country of origin for accepting multiple nationality. The CJEU through its case-law has considerably strengthened the immigrant’s status. The concept of ‘near equality’ is subject to further clarification as to what is offered to and expected from long-term residents willing to explore free movement rights in the EU while not opting for naturalization. From a legal point of view the provisions of directives transgress human rights obligations at least in several areas, while remaining unsatisfactorily ineffective in reaching the political objectives set in EU policy documents. This has been confirmed by the Commission and legal literature. Therefore, it is difficult to push EU policies further and to encourage more radical reforms in the proposed immigration regulation on the basis of legal arguments. This is especially so if one refers to the strict interpretation offered by the CJEU. At the same time EU policies can be analysed from a political point of view. In this context at least three alternatives would be available which require political choices to be made. Under the first, Member States would liberalize and con­ cretize directives or their interpretation to adjust their standards to those developed by different international organizations without Member States necessarily 19 There is a minority view in doctrine that the CJEU had the possibility to interpret Article 45 TFEU to include third-country nationals. However, the CJEU ruled out this possibility when giving its ruling in Case 238/83 Caisse d’Allocations Familiales de la Region Parisienne v. Mr.and Mrs. Richard Meade [1984] ECR 2631, para. 7. For instance, Alvaro Castro Oliveira claims that there was a possibility also to include third country nationals. Due to lack of legislation in this regard he claimed that the Court of Justice should interpret the relevant Article as applying to third-country nationals permanently residing in the EU, i.e., those having a positive right of permanent residence in one Member State, or those having resided in the Union for more than 10 consecutive years. Castro Oliveira Alvaro, ‘The Position of Resident Third-Country Nationals: Is it too early to grant them Union Citizenship?’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 185–200, 189–190, note 18.

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becoming parties to specific conventions. This is gradually introduced by the proposed immigration code. The second option would be to extend the application of EU law on non-discrimination of EU citizens to at least long-term residents. This approach would be in compliance with the EU Charter. It could be achieved by more radical amendments to the existing directives and a more pro-active role by Union institutions, including the CJEU in co-operation with national courts. The third option is to stick to present requirements as far as possible while liberalising access to EU citizenship via acquisition of nationality. In this case the EU Member States would opt for strengthening or re-introducing the ius soli principle and facilitating naturalization instead of strengthening long-term resident or other trans-EU migrant status. This is a political choice which is pre-determined by the historical background of the country as will be described in the next part of this book and limited international obligations as exemplified in the part II of this book. Moreover, these approaches are based on different discourses on policy choices rather than arguments based on the extent of international minimum standards or standards of national treatment.20 In any of these cases the standard of equal treatment should not fall below the requirements of fundamental rights stemming from documents binding on EU Member States and the EU as such, most importantly the Charter of Fundamental Rights. They should also act in accordance with the Preamble enshrined in the Treaty providing that the objective of the Union is to protect the wellbeing of the people of the EU which requires setting rules competitive with other markets. 15.2 Free Movement within the EU It has been said to be a major weakness of the directives that they link the immigration status of third-country nationals to the territory of a single Member State without offering mutual recognition of residence permits.21 Although mutual recognition of residence permits might seem to be too radical a proposal at present, the directives are even much more limited in their requirements. They include a number of provisions which not only do not facilitate free movement of thirdcountry nationals but even discourage them from even attempting to move to another Member State. The proposed immigration code deals with this problem in certain respects. It aligns requirements of different directives to those set in the HQE Directive. However, since this is only an early proposal this section will more 20 van Oers Ricky, Deserving Citizenship. Citizenship Tests in Germany, the Netherlands and the United Kingdom (Wolf Legal Publishers: the Netherlands 2013) 13–35. 21 Kocharov Anna, ‘What intra-Community mobility for third country workers?’ (2008) 33/6 ELR, 913–926, 918.

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closely examine the conditions for free movement in the EU for third country nationals on the basis of existing regulation. According to Article 14 of the LTR Directive Member States may limit free movement of long-term residents after examining the situation on their labour markets. Thus, a second Member State may refuse residence rights to long-term residents by applying the Community preference principle or by applying the ‘volume of admissions’ requirement. Article 14(3) provides: Member States may examine the situation of their labour market and apply their national procedures regarding the requirements for, respectively, filling a vacancy, or for exercising such activities. For reasons of labour market policy, Member States may give preference to Union citizens, to third-country nationals, when provided for by Community legislation, as well as to third-country nationals who reside legally and receive unemployment benefits in the Member State concerned [emphasis added].

This provision has been validly criticised in the legal literature and different interpretations have been offered. Acosta has summarized the interpretations in two camps. The first suggests that this provision means that free movement of thirdcountry nationals is possible only after they have received a job offer and work permit. The second interpretation is that the only requirements which can be applied under the Directive are those which are listed in the Directive itself, i.e., Member States are not allowed to impose national requirements on work permits which would render free movement rights meaningless.22 The first interpretation seems to be grammatically correct, while the second relies on teleological interpretation and the objectives of the Directive. However, the meaning of ‘national procedures’ mentioned in the Article remains unclear if the second interpretation is adopted. Also unclear is what procedures a Member State should follow to justify its restrictive immigration policies according to this Article if the CJEU opts for an interpretation similar to certain association agreements. Although the CJEU might adopt an interpretation which restricts the discretion of Member States, the formulation of the Article indicates the unwillingness of Member States to treat free movement of third-country nationals on equal conditions as for EU citizens. This can be explained by a multitude of factors such as that free movement of EU citizens and their equal treatment has not yet been ensured in all spheres; the migration policies of Member States are divergent; the situation on the labour market of a particular Member State might be pressing due to financial crisis which requires more active involvement of the authorities regarding access of immigrants to the labour market. The last argument might be 22 Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109 (Brill: Leiden, Boston 2011) 152–153. The second interpretation is based on the CJEU case-law on Decision No. 1/80 of the EEC Turkey Association Agreement.

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especially pressing politically in cases when EU citizens themselves place claims on their national governments to ensure the sustainability and stability of their economic well-being. At the same time this contradicts the political targets set in immigration programmes adopted over the years aiming to ensure near equality in treatment as between long-term residents and EU citizens. Although Article 14(5) provides that the provisions of the Directive are not applicable to service providers or posted workers, Member States are still allowed to introduce their national conditions for seasonal workers and cross-border workers.23 In addition to these conditions, long-term residents should prove that they have stable and regular resources, sickness insurance and appropriate accommodation. Article 15(3) states that long-term residents may be subject to integration measures. These conditions were not present in the Commission proposal which in turn provided similar guarantees to third-country nationals as EU citizens.24 There is also no provision similar to EU citizens who are residing in another Member State and seeking a job. A second Member State is allowed to refuse a residence permit on grounds of public policy and security. The decision should take into account the severity or type of offence and according to Article 17(2) the decision should not be based on economic considerations. Mention of economic considerations seems to suggest that a residence permit should be simply refused on a correct legal basis, i.e., either by invoking the labour market test or public policy and security. According to Article 18 the second Member State may refuse the right to reside if a long-term resident or their family members constitute a threat to public health. This would be applicable only in cases of diseases defined by the WHO and only if a disease has been contracted before the first residence permit was issued in the second Member State. Detailed conditions on health are at least by virtue of Article 18 (4) exempt from systematic checks on the health condition of third country nationals. As soon as a long-term resident has been granted a residence permit in a second Member State, they should enjoy equal treatment in accordance with Article 11. However, their access to employed activities other than those for which they 23 But see ‘Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment’ COM (2010) 379 final, 13 July 2010. The provisions on residence of long-term residents in other Member States have been changed in the proposed immigration code which drops the possible imposition of a quota because the code as a whole permits quotas to apply only in the circumstances set out in Article 79(5) TFEU. Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 EJML, 33–61, 57. 24 Supra note 22, 144. Acosta also mentions that the Commission had added an important Article which was not included in the Directive, i.e., it provided that a long-term resident would retain worker status in some cases when incapacitated for work as a result of illness or accident, unemployed but entitled to benefits or when embarking on vocational training.

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have been granted a residence permit might be further limited for another 12 months. Taking into account the already limited application of Article 11 described above, the right of access to employment remains nugatory. After the conditions for acquisition of long-term resident status have been met in the second Member State, long-term residents can re-register their status. According to Article 23 the same procedures would apply as in the case of the first Member State. Therefore, Member States can choose either to apply all of the conditions or none. As correctly noted by Anna Kocharov a long-term resident who wishes to move within the EU may thus have to fulfil the same set of conditions on three separate occasions: first, to receive a long-term residence permit in the first Member State; second, to be admitted to the second Member State; thirdly to acquire a long-term residence permit ex novo in the second Member State.25 These complex procedures and conditions discourage third-country nationals from using the status for mobility and are not leading to ‘near equality’ in the case of long-term residents. This can be explained by differences in Member State approaches to migration and inherent limits entailed in the concept of ‘near equality’. Lack of a common approach to immigration leads to different standards applicable in Member States. This might encourage third country nationals first to arrive in a State where access to long-term resident status is easier to obtain and thus to receive a ‘ticket’ for free travel. By adopting the current approach Member States keep their right to decide who has the right and under what conditions to enter and to reside as well as which rights that person might be entitled to. The initial idea of free movement of Blue Card holders in the EU after two years of residence in a Member State has been considerably limited in the Directive. According to Article 18 (1) a Blue Card holder is entitled to move after 18 months of legal residence in the first Member State.26 However, they might be refused the right to move because Member States are allowed to continue to apply admission volumes under Article 18(7). Although a Blue Card holder can apply before or after taking up residence in the second Member State, they might not be allowed to work until a positive decision is reached by the competent 25 Supra note 21, 919. 26 A Blue Card holder who has received the status in the first Member State before the two year term becomes unemployed for more than three months but is qualified to take a job in another Member State would not be entitled to move as a Blue Card holder but as a third-country national. This in turn has implications, for instance, for the right to move with family members and also possible return to the first Member State. The mobility rules have been amended by the proposed immigration code which removed an 18-month waiting period before a Blue Card holder could apply to move to another Member State. As noted by Peers this was pointless because it makes a Blue Card holder who applied to move to a second Member State worse off than if they had not held a Blue Card in the first Member State at all. Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 EJML, 33–61, 59.

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authorities. What makes Blue Card holders not attractive for employers is that they might be held responsible for the costs related to the return and readmission of a Blue Card holder and their family members. The Directive further does not specify when these costs will be incurred by the Blue Card holder and when by the employer. However, in the case of non-admission to the second Member State, a Blue Card holder still has the right to return to the first Member State. According to Article 18 (4)(b) this applies even if the Blue Card has expired or has been withdrawn. In this case the right to reside will continue for three months during which the Blue Card holder will be considered as unemployed under Article 13. If the Blue Card expires before the second Member State has taken a decision on admission, the Blue Card holder is entitled to a temporary residence permit in the second Member State. Implementation of these provisions will require co-operation and solidarity among Member States. Different transposition norms and interpretations might easily lead to a situation where Blue Card holders opting for mobility are left in a legal limbo, where the second Member State refuses to issue a residence permit while the first Member State withdraws the status. The prospects of lengthy court proceedings because a Blue Card holder has crossed the border make the status too unattractive to make it an efficient tool to achieve the objectives of the Europe 2020 growth strategy. It is doubtful that complex procedures will allow the EU as such to become more attractive for highly skilled workers, who are in demand worldwide already. This would only allow individual Member States with substantial resources to remain competitive markets. Moreover, other possible side-effects can have detrimental effects on the longterm migration policy of Member States. For instance, Kocharov mentions the possibility that Blue Card holders who are unemployed and risk losing residence rights would potentially engage in social dumping by accepting lower paid jobs or jobs that, while requiring adequate skills and education, do not match their qualifications. In this context, Member States with larger employment markets become more attractive with higher possibilities to find employment and retain residence rights.27 Therefore, the labour market becomes fragmented and unattractive for skilled labour. The option left for small Member States to succeed in international competition for skilled third-country nationals is to offer them fasttrack access to naturalization and thus citizenship of the EU.28 In relation to family reunification the right to movement is linked with the right to move for the sponsor. According to Article 19 of the HQE Directive, family members can follow a Blue Card holder to a second Member State if they have 27 Supra note 21, 925. 28 Ibid., 926.

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been established in the first Member State. During the transition period the second Member State can issue a temporary residence permit for family members. The other requirements for the Blue Card holder include sickness insurance, accommodation regarded as normal and which meets general health and safety standards as well as stable and regular resources. Although the conditions are optional, they are in fact the result of an application for family reunification anew which is especially problematic since standards set by Member States differ. Mobility of researchers is regulated by Article 13 of the Researchers Directive. Article 13 allows for limited mobility between Member States for a period up to three months. The only requirements set relate to sufficient resources and that the researcher is not a threat to public policy, public security or public health. In cases where the intended stay is longer a new hosting agreement must be signed in another Member State. Article 8 of the Students Directive provides for mobility of students if all the same admission conditions as in the case of first admission under Articles 6 and 7 are met. This means that a different test can be applied to ascertain whether a student has sufficient resources as well as sufficient knowledge of the language. Both directives require the Member State to process formalities in a timely manner to ensure that the study and research process is not hampered. Therefore, regulation of those groups seems to be more liberal due to the expected temporary residence period. At the same time they a priori are limited in their access to rights in other sectors other than that for which they obtain access to the EU. Family members are entitled to independent status only after receiving an autonomous residence permit. According to Article 15 of the Family Reunification Directive access to an autonomous residence permit is restricted. It can be acquired only after five years of residence. In the case of breakdown of the family relationship Member States may refuse to grant a residence permit to a spouse or unmarried partner. Member States are left wide discretion to provide an autonomous residence permit by Article 15(3) in cases of widowhood, divorce, separation or death of first-degree relatives in the direct ascending or descending line. However, States should be mindful of their obligation to “lay down provisions ensuring the granting of an autonomous residence permit in the event of particularly difficult circumstances”. This should be done by taking into account other obligations of Member States including those derived from the case law of the ECtHR.29 It can be concluded that free movement rights are subject to a number of conditions which should be decided upon by Member States. Directives hardly 29 For instance, cases of ECtHR in section 8.2.2.3. of part II and more importantly cases in sections 12.2.3.3. and 12.2.3.4. of part III.

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harmonize conditions to be acceptable to trigger free movement within the EU. The approach differs considerably from the formulation used in Article 45 TFEU regarding free movement of EU workers. The directives focus primarily on the issue of admission and definitions of status, while economic rights are only attributes of status.30 Those third-country nationals who would take courage to move might find themselves in the situation that they do not acquire the same status in the second Member State because of additional conditions and in the meantime lose their rights in the first Member State. Hypothetically, they would face withdrawal of the status and expulsion. The national approach to immigration based on past experience as well as lack of mutual solidarity between Member States rule out further harmonization and make it difficult to agree on common standards. For the time being, national identities and historical traditions rule over the need to establish a common space for third-country nationals and a set common standard for their treatment. However, taking into account that historical heritage is still felt in general trends for immigration, the national approach is understandable from the political point of view. There are countries in Europe which due to a colonial past or for other reasons (such as language, culture, occupation, commercial residence permits) attract people from third countries, while others remain unattractive for intra-EU mobility for being small countries with strict language policies and difficult immigration and naturalization procedures. There are reasons to argue that further harmonisation can be expected if the proposed immigration code, which envisages common mobility rules, is adopted. The rules proposed reflect the concerns expressed and in particular by setting a short deadline for a second Member State to decide on whether to issue a residence permit or visa.31 15.3. Expulsion and Withdrawal of Status As the analysis in previous sections shows, access by third-country nationals to different statuses is subject to different conditions. A third-country national who does not qualify for the status or no longer meets some of the conditions might 30 Supra note 21, 920. 31 Articles 12–14 of the proposed code. For outline and analysis see Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 EJML, 33–61, 47. See also Directive 2011/98/EU of the European Parliament and the Council on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, OJ L 343, 23 December 2011, 1–9.

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lose the status and be subject to expulsion procedures.32 The directives discussed in this section also include provisions applicable to withdrawal and loss of status during the residence period as well as mutual obligations of Member States for re-admission of third-country nationals who have migrated within the EU. According to Article 9 of the LTR Directive third-country nationals are no longer entitled to maintain long-term resident status if they acquired it by fraud, represent an actual and sufficiently serious threat to public policy or security according to Article 12 or have been absent from the territory of the EU for twelve consecutive months. Long-term resident status may also be withdrawn on grounds of public policy or public security without ordering expulsion. At first glance the difference between public policy and security considerations in Article 9(3) and Article 12(1)33 is unclear. However, it can be argued that Article 9(3) would be applicable if expulsion cannot be ordered after evaluation of individual factors in Article 12 (3), i.e., in cases where a person does represent an actual and sufficiently serious threat but the duration of residence, the age of the individual, possible consequences for the person and their family members as well as links with the country of residence and origin would preclude expulsion. In these cases Member States should strictly follow the criteria established inter alia by the ECtHR. Moreover, national courts should pay due respect to the requirements set by the CJEU in relation to expulsion of EU citizens and citizens of countries with which the EU has concluded association agreements.34 Although the legal formulation of norms is not identical, the objectives set in the Preamble of the Directive and past case-law leave considerable margin for an argument that expulsion of LTRs should not be considered on the basis of different criteria as in the case of EU citizens or citizens of countries with which the EU has concluded association agreements. The CJEU itself has applied tests on expulsion of third-country nationals by reference to cases of EU citizens interchangeably.35 This means that 32 In cases of illegal residents see Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, 98), and Case C-61/11 PPU Hassen El Dridi, alias Karim Soufri, Judgment of 28 April 2011 [not yet reported]. 33 Article 12 purports expulsion of long-term residents on the ground of an actual and sufficiently serious threat to public policy or public security. Member States, however, in accordance with Article 12 (3) are obliged to take into account the individual circumstances of the case such as duration of residence, age, consequences for the person and their family as well as links with the country of origin. But see omissions from the Commission proposal for the Directive which were more similar to the EU citizens’ Directive 2004/38, supra note 22, 124–125. 34 See section 8.2.2.3. of II of the volume and supra note 22, 131–136, including analysis of case-law on Turkish nationals subject to Decision 1/80 and Case C-340/97 Nazli v. Stadt Nürenberg [2000] ECR I-00957. 35 See, for instance, Case C-467/02 Inan Cetinhaya v. Land Baden-Württemberg [2004] ECR-10895 and references to Cases C-482/01, 493/01 Orfanopoulos and Oliveri v. Land Baden- Württemberg [2004] ECR I-5257. Supra note 22, 135–136.

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the standards for expulsion are identical irrespective of the formulation of the relevant provision of the Directive. The Directive leaves considerable discretion to Member States regarding qualification of periods of absence from the territory of the EU and the first Member State. For instance, according to Article 9(2) Member States may allow absence exceeding 12 consecutive months for specific or exceptional reasons. As a general rule a long-term resident will lose their status if absent from the territory of the first Member State for six years. However, according to Article 9(4) Member States may provide for specific reasons for a long-term resident to maintain the status. In both cases Member States must provide for a facilitated procedure for re-acquisition of long-term resident status. Regulation in cases of a six year period of absence is important where a longterm resident is moving between different Member States without qualifying for long-term resident status in the second and third Member States while absent from the territory of the first Member State for more than six years. Therefore, the six year rule could have been made subject to the circumstances of the case. For instance, long-term resident status could be renewed if the reason for return is failure to acquire long-term resident status in another Member State by not complying (or failing to comply) with integration conditions in accordance with Article 5(2). The provisions of Article 9(5) on a facilitated procedure cannot be considered as adequate safeguards for the risk of losing the status. One should bear in mind that even under the facilitated procedure the labour market test might apply because the Directive leaves it wholly in the competence of Member States.36 Since long-term resident status will be lost and no State will be obliged to readmit, a former long-term resident might no longer be able to meet the requirements of Article 9(7), including the requirement for stable and regular resources. The consequences of these situations remain moot because the facts of each case are subject not only to preservation of long-term resident status but also residence in case of which ECtHR standards remain applicable. The consequences of refusal of long-term resident status in the second Member State are subject to regulation by the Directive. If a long-term resident does not satisfy the conditions mentioned in Article 22(1) and has not yet obtained longterm resident status, the second Member State may refuse to renew or withdraw a residence permit and order the person to leave its territory. In these circumstances the first Member State should readmit the long-term resident and their family members. In cases where refusal by the second Member State is based on 36 For a similar view see supra note 21, 921. Kocharov observes that a third-country national who moves between Member States more often than once in five years without returning to the first Member State within the six year period will therefore lose long-term resident status and access to further mobility within the EU.

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serious grounds of public policy or public security, a long-term resident can be removed from the territory of the Union after consulting with the first Member State. Similar provisions are included in the HQE Directive. Member States may refuse to issue or renew a Blue Card during the first two years of employment by applying the labour market test. According to Article 8(2) Member States can also apply the Community preference principle or refer to admission volumes. Article 8(4) provides that an application for a Blue Card can be refused by a Member State to ensure ethical recruitment in sectors suffering from lack of qualified workers in countries of origin. Although there might be valid reasons for inclusion of this provision, it is formulated in a discretionary manner and limits on its invocation by Member States are extensive. It is unclear how lack of qualified workers in third countries will be measured and by whom. Taking into account that this provision is optional the qualification of ‘ethical recruitment’ will lead to different meanings being attached to it by different Member States. Article 9(1) of the HQE Directive lists grounds obliging Member States to withdraw or refuse renewal of a Blue Card. These include cases when a Blue Card has been acquired by fraud or when the person no longer meets the conditions for entry and residence. In addition the Article mentions cases when a Blue Card holder has not respected limitations in relation to access to the labour market. The fact that a Blue Card holder has not informed the authorities about changes in employment need not lead to withdrawal of status if the status holder acted in good faith. Article 9(3) refers to reasons which Member States may invoke to withdraw or refuse to renew a Blue Card. Optional grounds mentioned are reasons of public policy, public security or public health, lack of sufficient resources, except during a period of unemployment, application for social assistance and the fact that the Blue Card holder has not communicated their address. Therefore, grounds leading to expulsion on grounds of public policy, public security or public health are not an automatic consequence of withdrawal or refusal to renew a Blue Card. This means that the criteria usually applicable in expulsion cases, especially those applicable according to the ECtHR, would remain applicable. Article 10 of the Researchers Directive provides that Member States may withdraw or refuse to renew a residence permit when it is fraudulently acquired or wherever it appears that conditions for entry and residence are no longer met. Article 10(2) has an identical provision in relation to public policy, public security or public health grounds and in the case of Blue Card holders. No further qualifications are provided such as an obligation to take into account the individual circumstances of the case but those seem to be implied as in the case of the HQE Directive. Moreover, recital 25 of the Preamble refers to an obligation to respect fundamental rights which means that the standard of protection should not fall

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below that provided in the Charter and observed via general principles of law. An identical provision appears in Article 16 of the Students Directive. According to Article 6 of the Family Reunification Directive, Member States may reject an application for entry and residence, withdraw or refuse to renew a residence permit on grounds of public policy, public security and public health. Although Article 6(3) states that the sole ground of illness or disability cannot be a basis for refusal or withdrawal of a residence permit, application of this norm might have adverse effects on the concept of family reunion in the EU context. At the same time when dealing with cases of public policy or security Member States should take into account the severity or type of offence as well as dangers emanating from such a person. In this context both standards applicable to EU citizens as well as principles emanating from the case law of the ECtHR should serve as the guiding light in transposition and application of the Directive. Although it is possible to argue that interpretation of EU law might be more extensive than in ECtHR cases, the case law on EU citizens does not allow for such a conclusion to be drawn.37 This should be even more so when Member States decide to reject an application, to withdraw it or refuse to renew a permit and order expulsion of the sponsor and their family in accordance with Article 17. Member States are obliged when taking a decision to take into account the nature and solidity of the person’s family relationship, the duration of residence and existence of family, cultural and social ties with their country of origin. According to Article 18 third country nationals should be allowed to mount a legal challenge against such decisions. In the context of secure residence, more problematic is Article 16 of the Family Reunification Directive. Article 16(1) provides that family reunification can be refused or a permit withdrawn if the conditions of the Directive are no longer satisfied; there is no family relationship or when the sponsor or unmarried partner is in a stable long-term relationship with another person. In relation to the condition that a family should have sufficient resources Member States must take into account family contributions to the household. Critics rightly suggest that this means that States may refuse to renew a family member’s residence permit where the conditions in Article 7 are no longer met according to Article 16(1). For instance, the sponsor loses his job or accommodation is no longer considered cases ‘normal’.38 Article 16 (2) further provides grounds for refusing or withdrawing a residence permit. These include false information and fraud, as well as

37 See section 12.2.3.4. of part III of this volume. 38 John Arturo, ‘Family Reunification for Migrants and Refugees: A Forgotten Human Right?’, available at access ed 26 July 2010, 51–52.

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marriage or partnership of convenience. Checks and inspections are specifically allowed by Article 16(4). The family will also lose a permit if the sponsor no longer qualifies for a permit. It can be argued that even in these cases the guarantees envisaged in Articles 17 and 18 of the Directive remain applicable. Due to the conditionality of residence and movement many different situations are possible when a third-country national loses respective immigrant status in the EU. However, withdrawal of the status should lead to expulsion in limited cases. When taking an expulsion decision States should respect human rights and fundamental freedoms including Charter rights. They are allowed to expel third country nationals only in cases of a serious and present threat to public order or to national security and safety.39 Third country nationals coming from countries with which the EU has concluded treaties would be subject to an even more specialized regime in cases of expulsion.40

39 See Article 3 Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals, OJ L 149/39 2 June 2001. According to the same Article expulsion is allowed in cases of existence of serious grounds for believing that a third country national has committed serious criminal offences or the existence of solid evidence of an intention to commit such offences within the territory of a Member State. This provision is beyond the requirements allowing expulsion in the case of EU citizens. 40 See, for instance Case C-416/96 Nour Eddline El-Yassini v Secretary of State for Home Department [1999] ECR I-1209, especially paras 58 and 64–65, C-340/97 Őmer Nazli, Caglar Nazli and Melike Nazli v. Stadt Nűrnberg [2000] ECR I-957, Case C-256/11 Dereci, Heimi, Kokollari, Maduike, Stevic v. Bundesministerium für Inneres, Judgment of 15 November 2011 [not yet reported]. See supra note 22.

Chapter Sixteen Integration Requirements As noted in the introduction integration has become part of EU immigration policy and references to integration requirements appear in different documents adopted by the EU. Starting from 2000 the EU has emphasized the need for better integration of immigrants in order to guarantee high levels of employment and productivity.1 By 2002 integration had already become a prominent theme in the discourse of both the EU and Member States.2 The 2003 Thessaloniki Council reemphasized the task identified in Tampere, i.e., to efficiently manage integration of migrants. The role of Member States has been acknowledged while stressing the need for an EU framework and common basic principles.3 The Commission’s reaction was its ‘Communication on Immigration, Integration and Employment’ where integration as a two way process was put on top of the agenda.4 It can be argued that 2003 marked a shift from over-focus on terrorist activities, illegal immigration, trafficking, smuggling, and border controls to legal immigration and integration.5 1 Communication from the Commission ‘Community Immigration Policy’ COM (2000) 757 final, 22 November 2000, Communication from the Commission ‘On an open method of co-ordination for Community Immigration Policy’ COM (2001) 387 final, 12 July 2001, Communication from the Commission ‘Choosing to grow: Knowledge, innovation and jobs in a cohesive society. Report to the Spring European Council, 21 March 2003 on the Lisbon strategy of economic, social and environmental renewal’ COM (2003) 5 final, Communication from the Commission ‘European values in the globalised world. Contribution of the Commission to the October Meeting of Heads of State and Government’ COM (2005) 525 final, 20 October 2005. 2 Kostakopoulou Dora, ‘Introduction’ in van Oers Ricky, Ersbøl Eva, Koustakopoulou Dora (eds) A Re-definition of Belonging? Language and Integration Tests in Europe (Martinus Nijhoff Publishers : Leiden, Boston 2010) 1–24, 13. 3 Thessaloniki European Council, Conclusions of Presidency (19–20 June 2003) accessed 8 February 2012, paras 28–35. 4 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions ‘Immigration, Integration and Employment’ COM (2003) 336, 3 June 2003. Dora Kostakopoulou has rightly observed that the Communication reflected the liberal-multiculturalist paradigm of equality and the Tampere discourse on fair treatment of TCNs on the basis of a ‘holistic approach’ to integration. Supra note 2, 13. 5  Starting from 2004 the European Commission was invited to present an Annual Report on Migration and Integration. Communication from the Commission ‘First Annual Report on

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The policy objectives aiming at general mainstreaming of immigrant integration, housing, economic integration and integration governance were preserved in the Hague Programme adopted by the Council in November 2004.6 Hague Programme targets were further advanced by the Commission and the JHA Council.7 On the basis of policy documents the Handbook on Integration for policy makers and practitioners was drafted and updated.8 However, over the years the concept of integration in the EU law context has acquired a normative aspect for a number of different reasons, for instance, its inclusion in legal texts, interpretation by Member States when transposing EU law as well as interpretation by scholars when analysing these processes. Although references to integration were included in the Treaty and directives and have attracted considerable debate, the role of the EU itself in streamlining national approaches remains marginal. The Lisbon Treaty in Article 79 (4) of the TFEU refers to integration expressis verbis: The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country Migration and Integration’ COM (2004) 508 final, 16 July 2004. See also Commission Staff working Document ‘Second Annual Report on Migration and Integration’ SEC (2006) 892, 30 June 2006, Communication from the Commission ‘Third Annual Report on Migration and Integration’ COM (2007) 512 final, 11 September 2007. 6 Brussels European Council (4–5 November 2004), Presidency Conclusions (8 December 2004), Annex I, The Hague Programme ‘Strengthening Freedom, Security and Justice in the European Union, available at accessed 8 February 2012. See also Council and Commission ‘Action Plan implementing the Hague Programme on Strengthening Freedom, Security and Justice in the European Union’ (12 August 2005) OJ C 198. Communication from the Commission ‘Report on the Implementation of the Hague programme for 2005’ COM (2006) 333 final, 28 June 2006, 3 and 5; Communication from the Commission ‘Report on the implementation of the Hague programme for 2006’ COM (2007) 373 final, 3 July 2007; Communication from the Commission ‘Justice, Freedom and Security in Europe since 2005: An evaluation of the Hague Programme and Action Plan’ COM (2009) 263 final, 10 June 2009. 7 Council of the European Union, Justice and Home Affairs Council Meeting 2618th, ‘Immigrant Integration Policy in the European Union’ (annex ‘Common Basic Principles for Immigrant Integration Policy in the EU’) (19 November 2004, Brussels) No. 14615/04 (CBPs). Communication from the Commission ‘The Hague Programme: Ten priorities for the next five years – the Partnership for European renewal in the field of Freedom, Security and Justice’ COM (2005) 184 final, 10 May 2005. Communication from the Commission ‘Policy Plan on Legal Migration’ COM (2005) 669 final, 21 December 2005. ‘Green Paper on an EU Approach to Managing Economic Migration’ COM (2004) 811 final, 11 January 2005. 8 Handbook on Integration for Policy-Makers and Practitioners. 2nd ed. (European Communi­ ties  2007) available at accessed 8 February 2012.

Integration Requirements  301 nationals residing legally in their territories, excluding any harmonization of the laws and regulations of the Member States [emphasis added].

The main directives containing integration clauses are the LTR Directive and the Family Reunification Directive. A few references are also included in the Students Directive. From a legal point of view it can be argued that a tension exists between nationalism and Europeanisation in the approach to integration of third country nationals. Carrera and Wiesbrock also admit that EU approaches to integration have altered. Traditionally integration was measured by security of residence, family reunification, access to the economic and societal spheres, equal participation, fair treatment and non-discrimination. This was also a part of the Commission proposal. However, current trends suggest that integration is seen as an immigration rule in the hands of Member States.9 Kostakoupoulou, Carrera and Jesse state that “there has been a shift from equal treatment to conditioned membership as national conceptions of integration, and neo-national narratives seeking to preserve social cohesion and national values have been uploaded at the European level.”10 Commentators argue that this leads to integration becoming a mechanism of social exclusion and insecurity which raises tensions between integration of third-country nationals and general principles seeking to guarantee the rule of law and fundamental rights.11 This leads to a State requirement for 9 Carrera Sergio, Wiesbrock Anja, ‘Civic Integration of Third-Country Nationals. Nationalism versus Europeanisation in the Common EU Immigration Policy’ (CEPS, October 2009), available at accessed 10 February 2011, 6. In relation to civic integration as the EU norm see also Mulcahy Suzanne, ‘The Europeanisation of Immigrant Integration Policies: Why do Member States Continue to go their Own Way?’ in Zapata-Barrero Richard (ed.), Citizenship policies in the age of diversity. Europe at the crossroads (Universitat Pompeu Fabra: Barcelona 2009) 117–136, 118. The initial proposals of the Commission revealed emphasis on integration as a measure which should ensure security of residence and more rights (or more equality in access to rights). Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109 (Brill: Leiden, Boston 2011) 86. 10 Kostakopoulou Dora, Carrera Sergio, Jesse Moritz, ‘Doing and Deserving: Competing Frames of Integration in the EU in Guild Elspeth, Groenendijk Kees, Carrera Sergio (eds), Illiberal Liberal States: Immigration, Citizenship and Integration in the EU (Aldershot: Ashgate 2009) 167–186. 11 Carrera Sergio, Wiesbrock Anja, ‘Civic Integration of Third-Country Nationals. Nationalism versus Europeanisation in the Common EU Immigration Policy’ (CEPS, October 2009), available at  accessed 10 February 2011, 2. Others have noted that there are two centres of gravity in relation to integration: socio-economic and socio-cultural. The first focuses on calculations and on the assumption that family migrants are low- or un-skilled and they would create more costs than benefits. The second debate concerns ‘the problem’ that migrants tend to marry a partner from their parents’ country of origin rather than a partner who already lives in the receiving country. Integration is therefore seen as an effective obstacle for

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third-country nationals to disappear into the homogenous national wholeness and another way for the State to promote national identity and nationalism within and beyond its territorial borders. In this sense, civic integration and respect for diversity become opposing concepts.12 Inclusion of integration measures and conditions in present terms in the directives has been severely criticized by scholars calling it in general an elusive concept whose meaning is difficult to determine.13 Similar tests have been applicable only in naturalization cases which have distinct objectives and consequences. It has been argued that those who pass tests for long-term residence would not have greater life chances or sense of belonging than long-term residents before. Moreover, those who fail to pass the test would be worse off as well as those who are less educated or less well-off.14 These comments, however, underestimate the fact that integration requirements, even if they entail integration courses and exams, can be useful if applied in a balanced manner. The crucial point is whether the EU can offer sustainable EU solutions for national problems. The political objective agreed upon by the Member States is to request immigrants to respect the core values of the EU and in return offer them rights comparable to those of EU citizens. Disproportion on either side will not allow achievement of the objective set. Reports on the drafting process of the directives reveal that requirements for integration have been lobbied by some Member States which are also among those who have introduced complicated schemes for integration programmes, tests and courses.15 However, reactions differ among Member States. Certain TCNs to qualify for social inclusion and equalization. See Michalowski Ines, Walter Anne, ‘Family Reunification between EC Law and National Integration Policy’ in Böcker Anita, Havinga Tetty, Minderhoud Paul, van de Put Hannie, de Groot-van Leeuwen, de Hart Betty, Jettinghoff Alex, Zwaan Karin (eds), Migration Law and Sociology of Law, (Wolf Legal Publishers: Nijmegen 2008) 103–120, 111–112. 12 Supra note 11, 4. 13 Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109 (Brill: Leiden, Boston 2011) 85. On three possible perspectives on the relationship between law and integration (tool for integration, remuneration for integration or lack of integration as grounds to deny the right to reside) see Groenendijk Kees, ‘Legal Concepts of Integration in EU Migration Law’ (2004) 6 EJML, 111–126, 113. 14  Huddleston Thomas, ‘Promoting citizenship: The choices for immigrants, advocates, and European cooperation’ in Zapata-Barrero Richard (ed.), Citizenship policies in the age of diversity. Europe at the crossroads (Barcelona: Universitat Pompeu Fabra 2009) 157–172, 169. 15 It has been noted that integration conditions in the LTR Directive, for instance, have a precise antecedent in the citizenship legislations of some Member States – the example which has been followed by other Member States, for instance, the Netherlands, Austria, Germany and lately France. It has been noted that initially not only the Commission but also France along with Sweden, Italy and Belgium opposed introduction of the integration conditions. Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of

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Member States have adopted tests, with the rationale that third country nationals will be encouraged to improve their language skills and knowledge of everyday life, the political system, the constitution, society, history, culture, values and so on. This knowledge is supposed to help them participate more actively in public life and feel a greater sense of belonging or settlement. Yet other Member States have removed or simplified these very same tests, with the view that they are disincentives to apply for third-country national statuses and tests serve other policy goals than integration.16 The possible success or failure of national integration policies cannot be assessed on the basis of legal criteria within the scope of this study.17 This section rather attempts to focus on the EU role in co-ordinating or managing normative understanding of integration as far as its competences allow. It will look at the limits set by EU law on application of integration measures and conditions. Implementation and application of directives are subject to CJEU review and might entail legal consequences for national integration policies. This does not exclude the question whether integration requirements fit well in the EU legal system. In order to provide answers the directives will be analyzed from the perspective of the proportionality test from the EU standpoint, i.e., third-country nationals’ statuses are created by the EU but national identities of Member States Directive 2003/109 (Brill: Leiden, Boston 2011) 87, 157 and 164. This applies also to Article 15 on the possibility to require integration measures in the second Member State. 16 van Oers Ricky, Deserving Citizenship. Citizenship Tests in Germany, the Netherlands and the United Kingdom (Wolf Legal Publishers: the Netherlands 2013) 168 and Mulcahy Suzanne, ‘The Europeanisation of Immigrant Integration Policies: Why do Member States Continue to go their Own Way?’ in Zapata-Barrero Richard (ed.), Citizenship policies in the age of diversity. Europe at the crossroads (Barcelona: Universitat Pompeu Fabra 2009) 117–136, 122. 17 Thus far, the standards and effects of tests remain unclear and controversial within government and academic circles, across Member States and between policymakers and immigrant communities. van Oers Ricky, Deserving Citizenship. Citizenship Tests in Germany, the Netherlands and the United Kingdom (Wolf Legal Publishers: the Netherlands 2013) 169. Certain attempts, however, have already been made by the Commission itself (COM (2008) 610, 8 October 2008, COM (2011) 585, 29 September 2011, COM (2011) 587, 29 September 2011, COM (2011) 901, December 2011), scholars (see Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109 (Brill: Leiden, Boston 2011) on, inter alia, Italy, Spain, Sweden and Latvia, Groenendijk Kees, Fernhout Roel, van Dam Dominique, van Oers Ricky, Strik Tineke, The Family Reunification Directive in EU Member States. The First Year of Implementation (Centre for Migration Law: Nijmegen 2007) and van Oers Ricky, Deserving Citizenship. Citizenship Tests in Germany, the Netherlands and the United Kingdom (Wolf Legal Publishers: the Netherlands 2013) on the Netherlands, Germany and the UK) and other research projects (Strik Tineke, Böcker Anita, Luiten Maaike, van Oers Ricky, The INTEC Project: Synthesis Report, Integration and Naturalisation Tests: The New Way to European Citizenship, in Pascouau Yves, Strik Tineke (eds), Which Integration Policies for Migrants? Interaction between the EU and its Member States (Wolf Legal Publishers: the Netherlands 2012) 285–409) to name a few).

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including integration are left primarily with the Member States. Proportionality requires evaluation of suitability, necessity and proportionality stricto sensu.18 The relevance of the test has been confirmed by the European Commission in its Report on the application of the Family Reunification Directive, stating that: The admissibility of integration measures under the Directive depends on whether they respect the principle of proportionality. Their admissibility can be questioned on the basis of the accessibility of such courses or tests, how they are designed and/ or organized (test materials, fees, venue etc.), whether such measures or their impact serve purposes other than integration (e.g. high fees excluding low-income families). The procedural safeguards to ensure the right to mount a legal challenge should also be respected.19

Although that particular statement is addressed to Member States in procedures to adopt particular forms of integration measures and conditions, the question remains whether the current format fits well in the EU. In order to apply the proportionality test the Preambles to the directives are important in establishing legitimate aims pursued by relevant provisions. In the context of instruments to be discussed integration aims to foster application for the status instead of serving as a disincentive to acquire a particular status in the EU. The evaluation is also affected by the fact that implementation of directives should comply with general principles of EU law. The addition to the Commission’s proposal on integration conditions was initiated by the Council by introducing Article 5(2).20 Article 5 of the LTR Direc­ tive contains an option that Member States may require third-country nationals to comply with integration conditions, in accordance with national law. Therefore, any integration requirements in terms of tests, exams or courses remain primarily at the discretion of Member States. Under Article 15 (3) LTR Directive the second Member State may require third country nationals to comply with integration measures as provided in national law. Only those long-term residents should be exempted from the requirement who have complied with integration condi­ tions  in the first Member State. They might, however, be required to attend a ­language course. 18 The test is borrowed from German administrative law, which has also been referred to by the ECtHR. See, for instance, Frowein Jochen Abraham, Peukert Wolfgang, Europäische Menschen­ rechtskonvention. Kommentar, 2 Aufl. (Engel: Kehl 1996) 336. 19 Report from the Commission ‘Application of Directive 2003/86/EC on the Right to Family Reunification’ COM (2008) 610 final, 8 October 2008. 20 Supra note 13, 85. It should be recalled that the text initially proposed by the European Commission was much more liberal because it was adopted before the events of September 11 in the USA, i.e., in March. The European Parliament gave its opinion after these events – 20 November 2001. See also ‘Report on the proposal for a Council Directive concerning the status of third-country nationals who are long term residents (COM(2001) 127 – C5-0250/2001 – 2001/0074

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Two terms are used in different Articles, i.e., integration measures and integration conditions. At first sight the difference is not apparent. However, as explained by Kees Groenendijk it derives from negotiations and different meanings attached to those terms by Member States. By reference to negotiations on the LTR Directive he notes that the concept ‘integration conditions’ allows for fartherreaching obligations than integration measures. While integration conditions would include passing a test, the concept of measures allows the State to require that the immigrant make a certain effort, for instance, participation in a course.21 This interpretation is correct when texts of different directives in the immigration sector are compared.22 According to the Preamble to the LTR Directive integration as a concept is primarily linked with economic and social cohesion and should apply without discrimination inter alia on the basis of language, religion, political or other opinions. Therefore, the diversity cherished by the EU is not automatically lost by introducing integration conditions. Integration means that long-term residents should enjoy more equality of treatment with citizens of Member States in economic and social matters and they acquire reinforced protection against expulsion. Taking into account that the ultimate objective is to reach near-equality of treatment between long-term residents and EU citizens, the integration conditions as such might be regarded as suitable for fostering integration. The Member States are encouraged to offer integration measures and conditions which can foster better integration of applicants for long term residence in the host society. Member States which impose over-demanding integration requirements and at the same time limit equality of treatment of long term residents would not be acting in compliance with the objective of suitability of integration conditions and measures. Different groups of third country nationals reside in the EU and some of them are second or even third generation migrants. Until adoption of the LTR Directive their free movement and status in the EU was not harmonized and less secure. They were subject to national immigration laws with possibly limited access to schooling, education and employment. Those who would have been willing to apply for permanent status or citizenship were limited by national legislation of (CNS))’ Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, Rapporteur: Baroness Sarah Ludford, A5-0436/2001, 30 November 2001, 6. 21 Groenendijk Kees, ‘Family Reunification as a Right under Community Law’ (2006) 8 EJML, 215– 230, 224. 22 See Article 33 (1) of Directive 2004/83/EC and Article 15(3) of Directive 2003/109/EC. Brinkman Gisbert, ‘The Transposition of the Family Reunification Directive in Germany’ in Böcker Anita, Havinga Tetty, Minderhoud Paul, van de Put Hannie, de Groot-van Leeuwen, de Hart Betty, Jettinghoff Alex, Zwaan Karin (eds), Migration Law and Sociology of Law (Wolf Legal Publishers: Nijmegen 2008) 35–42, 40.

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the host State or State of nationality. Their rights of free movement and guarantees against expulsion depended on bilateral agreements between the EU and Member States of nationality or the ECtHR. Therefore, the risk of becoming marginalized or subject to discrimination was higher. In this context integration tests are suitable to ensure that by acquiring long-term resident status a person can become better protected and enjoy more rights in the EU. In turn, Member States can assure themselves that persons residing in their territory for a long period are well equipped to understand the society they have chosen to reside in. Regarding the question of necessity, the results of applying integration tests and measures do not in themselves serve as a guarantee that a long-term resident status holder has integrated into the host society. However, they are necessary as a tool for giving long-term residents skills which play an important role in the everyday life of individuals. For instance, learning the language could be helpful in both daily life and at work, while knowledge about basic values and structures could benefit long-term residents to stand for their rights. More generally, integration conditions and other measures are necessary to ensure that long-term residents learn about the values which the Member States share by building the EU for the benefit of the people who are residing there. This also contributes to construction of a trans-national society. The question whether integration measures and conditions should be implemented in the form of tests remains at the discretion of Member States depending on national circumstances and the particular needs of the society. Member States should be responsible for the wellbeing of long-term residents who are contributing to their economies and forming part of society. The Member States themselves should be interested in making those people involved in social processes. Integration measures and conditions can serve as useful tools in this context. Finally, proportionality stricto sensu is an essential criterion which requires individual analysis by taking into account specific requirements introduced: tests, fees, accessibility of material, positive actions by Member States, as well as differentiation between integration conditions and measures. The suitability and necessity of tests can easily be destroyed by disproportionate requirements which could lead to negative results from the EU immigration law perspective. For instance, high requirements for knowledge of the national language or detailed questions on history for low skilled immigrants at their own cost might be considered disproportionate to the objectives of the Directive. At the same time a requirement for a basic knowledge of language to be acquired by attending a State financed course for immigrants and passing a test might only facilitate achievement of the objectives of the Directive. Situations can be country-specific. For instance, a language test for third-country nationals coming from China to Latvia might be easier to justify than a test for an immigrant of Moroccan origin in France residing for the second generation. Moreover, the multitude of national

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demographic situations should allow a certain discretion to Member States at the stage when the EU has not outreached but rather expresses its respect for national identities. Thus, the important issue is the individual situation of the immigrant, the contents of integration measures and conditions and the discretion of the authorities who supervise the process. Taking into account national differences, identical solutions across the EU are hardly possible. But the role of the EU is not thus nullified. Oversimplification of integration – that it will happen by itself over the years – seems to ignore current realities with possible marginalization of long term immigrants, radicalization of national policies and alienation processes. At the same time the task for the EU, within the scope of its limited competences, is to prevent Member States from abusing their discretion and thus make long-term resident status less attractive. Otherwise a political decision should be made that long-term resident status is not further strengthened but either naturalization encouraged or the rule of non-discrimination on the basis of nationality acquires extra guarantees for individuals who are not holding particular status in the Member States. If one takes a more general approach to proportionality stricto sensu, at least three problem areas for further consideration can be mentioned. The first relates to differentiation between integration conditions and integration measures. For the purposes of proportionality it can be argued that integration measures would allow achievement of the legitimate aim sought by the directives. Instead, mandatory integration conditions are strict and, as argued by scholars, impose additional conditions for a person to acquire the status. The differentiation between the two is still unclear. This leads to the second problem which concerns the consequences of failure by third country nationals to take or to comply with integration conditions. This might result not only in denial of the status but also in weaker protection from expulsion. This in turn might raise fundamental rights issues, i.e., if a person has severed links with their country of origin for generations and has become established in the country of residence and at the same time no cross-border activity has taken place. The prospects of a person to preserve residence rights according to the ECHR are unclear and would depend on the circumstances of the case. The same applies in relation to possibilities to invoke EU law, either by reference to a bilateral Treaty between the EU and their country of origin or the EU Charter. The third problem is related to the more general political aim of near-equality between EU citizens and third country nationals. EU citizens are not subject to mandatory integration conditions and measures when they move within the EU. Although there are significant differences e.g. in terms of language, legislation and identity among the EU Member States, directives on free movement of EU citizens do not contain specific provisions on ­integration. Although such differentiation between EU citizens and potential long-term residents is not prohibited it might bring under question the possibility

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of reaching the objective of near-equality aimed at by the EU. The ideal of near equality would mean acceptance by EU Member States that any numbers of longterm residents are granted status by other Member States and they are allowed to travel freely in the EU. At the same time Member States could invoke the EU preference principle by limiting arrivals of long term residents from other Member States. Therefore, integration conditions and measures seem to be of only secondary importance while the primary problem for creating an EU common area for long-term residents is related to the market rather than integration requirements. The EU solution to the problem is limited to evaluation of proportionality stricto sensu, i.e., whether particular requirements set by Member States do not exceed what is required for long-term residents to integrate into the society and whether substantial burdens are not placed on the resident. Issues related to integration in the Family Reunification Directive appear more complicated from the proportionality perspective. Different articles show that integration is prioritized at the EU level.23 Possibly this can be explained by the fact that family members applying for re-unification while outside the EU represent a majority of cases when third country nationals arrive in the EU legally. Therefore, Member States are attempting to limit benefits for third-country nationals arriving on the basis of family reunification by imposing on them extra obligations in the field of integration. For the purposes of this analysis two different groups subject to integration conditions or measures can be identified: first, those who are family members in general and, second, those who are children over the age of 12. According to Article 7(2) Member States may require third country nationals to comply with integration measures in accordance with national law. By reference to the CJEU ruling in Chakroun it can be concluded that a number of limitations affect Member States’ discretion. First, integration measures cannot differentiate between families applying for reunification on the territory of the Member State or outside it.24 Second, Member States are under obligation to take into account limitations stemming from the overall objective of the Directive to foster family reunification and Article 17 to take into account the individual circumstances of the case. Above all Member States remain bound by Article 8 ECHR and the interpretation attached to it by the ECtHR. This is especially important when cases concern third-country nationals who are either poor, with large 23 See for instance, recitals 12, 15 of the Preamble as well as paras 1 and 5 of Article 4, para 2 of Article 7, para 1 of Article 12. 24 Kees Groenendijk has argued that this provision does not allow for the requirement that family members should pass an integration test before being allowed to join their family if a Member State does not provide for adequate language or integration courses in the country where the application for reunification is brought. Groenendijk Kees, ‘Family Reunification as a Right under Community Law’ (2006) 8 EJML, 215–230, 244.

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families, or who lack the necessary resources and knowledge to comply with integration measures. The question remains whether this test will be sufficient in practice, i.e., whether national courts will attach adequate importance to the obligation to allow family reunification or it will be left to applicants approaching the ECtHR. In these cases the mechanisms for division of competences between the two courts after EU accession to the ECHR might turn out to be important. More general reference to integration is made in relation to the minimum age limit for spouses entitled to reunification. Article 4(5) states that “in order to ensure better integration and to prevent forced marriages” Member States may require the sponsor and the spouse to be of a minimum age, and a maximum 21 years, before the spouse is able to join him. This requirement might be linked to the practice of forced marriages or issues related to different age limits for marriage in different cultures which might not be compatible with the values shared by the EU Member States. However, it has been doubted whether this provision is adequate, at least in combating forced marriages, and that there is no reason to presume that third-country nationals are more likely to enter such marriages than third country nationals. This is the reason, argued by Peers, why the proposed immigration code suggests instead that a Member State may apply its minimum age of consent to marriages rather than a minimum age of up to 21 years.25 When the Directive was adopted the most controversial requirement in the context of the proportionality test appeared in Article 4(1) of the Family Reunification Directive, i.e., while third country nationals in general can be subject to integration measures, children over 12 could be required to meet a condition for integration. Article 4 provides that: By way of derogation, where a child is aged over 12 years and arrives independently from the rest of his/her family, the Member State may, before authorizing entry and residence under this Directive, verify whether he or she meets a condition for integration provided for by its existing legislation on the date of implementation of this Directive.

Apart from the general requirement to comply with integration conditions, the age limit chosen had been criticized by scholars.26 The CJEU has attempted to solve the problem by interpreting the Directive as a whole. It has taken the position that Article 4(1) of the Directive imposes on Member States precise positive obligations, with corresponding clearly defined individual rights. Since it requires 25 Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 EJML, 33–61, 52. 26 This requirement was introduced by Germany without having sufficient data to justify the age chosen. This seemed to contradict the objectives of the Directive. There are no grounds to claim that the age of 12 is crucial to differentiate children in relation to capability to integrate into society. Arturo John is of the opinion that this provision might be contrary to Article 8 of the ECHR

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Member States, in cases determined by the Directive, to authorise family reunification of certain members of the sponsor’s family, without being left a margin of appreciation, the requirement becomes mandatory.27 Moreover, the CJEU has emphasized the importance of Article 5(5) of the Directive requesting Member States to weigh interests with due regard to the best interests of minor children as well as Article 17.28 By reference to the provisions of the Directive stating that legislation limiting family reunification of children over 12 should be adopted on the date of implementation of the Directive, the Court stresses that: The fact that the concept of integration is not defined cannot be interpreted as authorizing the Member States to employ that concept in a manner contrary to general principles of Community law, in particular to fundamental rights.29

In practice, however, the provision turned out not to be problematic. Due to a standstill clause this provision was not transposed by the Member States, except Germany. Cyprus did so after the transposition deadline which is invalid. Furthermore, this provision is dropped in the proposed immigration code. According to Peers, it is not necessary to retain this derogation, because Member States have a general power to require sponsors and their family members to comply with integration conditions according to Article 7(2) of the Directive.30 A few general remarks can be made. First, integration measures in the form included in the Directive should be interpreted in the context of achieving the general objective of facilitating family reunification. The reference to fundamental rights has to be kept in mind at the moment of transposition. This could have been emphasised more specifically in the text of the Directive to avoid any misunderstanding in finding correct interpretation at the moment of transposition and application. Second, requirements for integration remain problematic in because it does not set an obligation to take into consideration the difficulty of returning. Moreover, he refers to empirical studies suggesting that those emigrating at the age of 12 or more deal better on average with the challenges faced than those emigrating at age 7 to 11. John Arturo, ‘Family Reunification for Migrants and Refugees: A Forgotten Human Right?’ available at accessed 26 July 2010, 46. In turn, according to the Advocate General the final paragraph of Article 4(1) of the Directive is justified and proportionate – to ensure that children join their family in the host State at as early an age as possible in order to enhance their chance of integration. Case C-540/03 European Parliament v. Council of the European Union [2006] ECR I-5769, Opinion of Advocate General Kokott, paras 110–113. 27 Case C-540/03 European Parliament v. Council of the European Union [2006] ECR I-5769, para 60. 28 Ibid., paras 62–64. 29 Ibid., para 70. 30 Supra note 25, 51–52 and COM (2008) 610, 5.

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cases of family re-unification if one takes into account the limited period the family has resided in the Member State and the uncertainty of future residence. Moreover, two years of residence by the sponsor does not oblige the sponsor to be subject to particular integration mechanisms. Family members are, subject to different restrictions, entitled to an autonomous residence permit only after a minimum of five years of residence. Thus, integration measures and conditions in cases of family reunification should be applied with caution by keeping in mind the general objective of the relevant Directive and Charter provisions, especially in cases of children. The Directive would have benefited from a provision requiring Member States to offer facilities for availability of access to integration courses and monitoring their effectiveness.31 Third, the provisions of the proposed immigration code should be welcomed since they would abolish some of the provisions which contained standstill clauses but were applied by few States. In addition Member States have had additional guidance from the CJEU as to the methodology for examining national provisions in order not to deprive directives of their effet utile. The Students Directive is more specific. In relation to students the requirement in Article 7 is that students should provide evidence of sufficient knowledge of the language of the course to be followed. Whether this requirement is applied depends on Member States. Although the form of evidence is unclear, the overall requirement cannot be considered as disproportionate. Moreover, the evidence required should be suitable to achieve the aim of the Directive set in Paragraph 6 of the Preamble, i.e., promoting the mobility of third-country nationals to the EU for the purposes of study. Articles 10 and 11 of the Students Directive differentiate requirements for unremunerated trainees and volunteers. Article 10(c) states that Member States may require unremunerated trainees to receive basic language training needed for their placement. At the same time volunteers, according to Article 11(d), may be required to receive a basic introduction to the language, history and political and social structures of the Member State. The need for making such distinctions remains unclear and the requirements for volunteers seem to be excessive. When requiring measures indicated in Articles 10 and 11 Member States should bear in mind that a residence permit for these categories of persons according to Articles 14 and 15 is for a maximum of one year and can be renewed only in exceptional cases. The above analysis shows that the desire of Member States to keep control over the immigration sphere is strongly present. While the CJEU has signalled 31 See for instance, European Commission against Racism and Intolerance, Third report on the Netherlands (29 June 2007), available at accessed 8 February 2012.

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that it is ready to intervene and outlaw integration measures which would run against the idea of a specific Directive, this might not suffice. The latitude left to the Member States to set the contents of integration measures and conditions limits the EU overall objective to achieve ‘near equality’. At the same time the facts should not be over-dramatised. As argued by Suzanne Mulcahy, quite a few Member States have disregarded or even departed from civic integration conditions. Although she agrees that the original idea behind civic integration, which has emphasized equal access to rights and duties for immigrants, has been lost in the assimilatory tone of the more coercive forms of civic integration, convergence towards this version of civic integration is not a foregone conclusion.32 The differential reactions in the EU leave a degree of optimism. This again raises the question whether integration has become a normative concept in the EU legal order subject to legal evaluation and what exactly the EU’s role in integration could be. Carrera and Wiesbrock advocate that a common EU immigration policy should not legitimize continuance of critical national practices and restrictive immigration policies by adding a ‘European identity’ dimension to civic programmes or tests. This would be even more applicable in the context of other articles of the directives providing for access quotas, applications for work permits, limitations for job-seekers and the like. In general, the EU’s approach should continue fostering more traditional approaches to integration, which considered integration of third-country nationals a process of social inclusion leading to equality and membership of all individuals in Europe.33 Immigration is no longer solely in the interests of individual States but is step by step being reshaped by the perspective of the EU.34 At the same time regulation of Member State integration measures and conditions should be revisited depending on the group of immigrants to which they are applied and taking into account the proportionality of the form and requirements. Although EU competence in immigration is limited by Treaty provisions, the EU should explore its competence to the extent of ensuring that national approaches to integration do not compromise achievement of EU objectives set in the directives. This does not mean that the EU should attempt to harmonize 32 Mulcahy Suzanne, ‘The Europeanisation of Immigrant Integration Policies: Why do Member States Continue to go their Own Way?’ in Zapata-Barrero Richard (ed.), Citizenship policies in the age of diversity. Europe at the crossroads (Barcelona: Universitat Pompeu Fabra 2009) 117–136, 132. 33 Supra note 9, 40. 34 Michalowski Ines, Walter Anne, ‘Family Reunification between EC Law and National Integration Policy’ in Böcker Anita, Havinga Tetty, Minderhoud Paul, van de Put Hannie, de Groot-van Leeuwen, de Hart Betty, Jettinghoff Alex, Zwaan Karin (eds), Migration Law and Sociology of Law, (Wolf Legal Publishers: Nijmegen 2008) 103–120, 118.

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national immigration measures and conditions. However, assistance to Member States allowed by the Treaty provisions should be explored to ensure that no disproportionate measures are introduced. At the same time integration in the context of immigration is a highly complex issue which requires regular review and evaluation of best practices. This would allow one to find the right balance between EU political objectives to ensure competitiveness and Member State interest in preserving their identity and an integrated society.

Chapter Seventeen Summary The profile of immigrants and reasons for their arrival differ significantly between EU Member States. Also different are Member State approaches to immigration policy. Moreover, the citizenship policies of individual EU Member States also differ. By shaping naturalization procedures, Member States can shift the numbers of immigrants and citizens residing in their territories. This in turn might have implications for policy choices to strengthen EU immigrant statuses or instead facilitate their naturalization. Against this complicated background the EU became involved in migration issues in 1985. Since then, the EU has increased its competence by adopting policy documents and legal provisions. According to the Treaty the Union aims to develop a common immigration policy and to achieve ‘near equality’ between EU citizens and third-country nationals. In addition the Charter guarantees freedom of movement and residence for third-country nationals. For the time being no concept exists of legal EU resident status and the rights attached. Different groups are specified on the basis of secondary legislation. This resembles the situation of EU citizens before EU citizenship status was created. This section has concentrated on a number of sector directives which will be subject to further consolidation in the immigration code. The conclusion is that a national approach to immigration still dominates which might be explained by the different needs and political setups of the Member States. Researchers argue that there is a resurrection or dominance of an ethno-historical approach to national identity. For instance, Acosta when summarizing the writings of scholars, comes to two arguments which illustrate two fundamental flaws in this line of thinking: (1) it disregards the cultural interaction that has been the norm in construction of every country in Europe and (2) it creates a worrying problem for the future as national identities are seen as immutable, thus complicating integration of new Europeans with an immigrant background.1 The immigration directives adopted have also had an impact on both immi­ gration laws of Member States as well as their nationality legislation. This has led to the conclusion that throughout Europe the politics of immigration have 1 Acosta Arcarazo Diego, The Long-Term Residence Status and a Subsidiary Form of EU Citizenship. An Analysis of Directive 2003/109 (Brill: Leiden, Boston 2011) 188–201, 194.

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become the politics of nationality.2 In this context the EU with its own approach to immigration and treatment of third-country nationals becomes particularly important.3 The directives discussed in this chapter have been criticized for making migration law complicated and creating new partitions.4 The directives are predominantly concentrated on conditions for immigration. Divergent implementation and application of the directives might lead to problems in ensuring the principle of rule of law at the EU level. Therefore, the effects of introducing new immigrant statuses and attaching to them certain rights at the EU level might remain nominal. Politically this means that programmatic aspirations in the Tampere, Hague and Stockholm programmes are mere lip-service to growing demographic and economic hardships in Europe. The ongoing hurdles with the debt crisis in and outside of the Eurozone and growing unemployment facilitate an attitude of dislike towards further harmonization of immigration policies at the national level. At the same time the extended competence of the CJEU on immigration and its approach in interpreting directives in the light of their objectives and provisions of the Charter lead to more optimistic conclusions. Four conclusions can be drawn. The first criteria for obtaining status are framed broadly. There are no specific requirements for fees and accommodation or a requirement to have stable and regular resources. Certain definitions and mechanisms are cumbersome for their implementation, for instance, in the case of highly qualified employees. Moreover, the labour market test, if not abolished or clarified, can remain as an obstacle to facilitating free movement of third country nationals. However, the CJEU has clarified that effet utile in relation to objectives of the directives and the proportionality test would apply when considering access criteria to a particular immigrant status.5 Second, a general non-discrimination clause does not exist and equal treatment is not applicable in a number of sectors, save in cases when the CJEU applies analogy or strict interpretation of the discretion of Member States. Third, standards for expulsion and withdrawal of status are comparatively lower than in cases for EU citizens. At the same time ECHR standards and new standards to be developed according to the Charter 2 Hansen Randall, Weil Patrick, ‘Introduction: Citizenship, Immigration and Nationality: Towards a Convergence in Europe?’ in Hansen Randall, Weil Patrick (eds), Towards a European Nationality. Citizenship Immigration and Nationality in the EU (Houndsmills: Palgrave Macmillan 2001) 1–23, 1. 3 See, for instance section 11.2.3. of part III of this volume on treatment of dual nationals as well as Case C-356–357/11 O. and S. v. Maahanmuuttovirasto and Maahanmuuttovirasto v L, Judgment of 6 December 2012 [not yet reported]. 4 Papagianni Georgia, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff Publishers: Leiden, Boston 2006) 305. 5 See also supra note 1, 211–213.

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would apply. Fourthly, those third-country nationals who would take courage to move might find themselves in the situation that they do not acquire the same status in the second Member State because of additional conditions and in the meantime lose their rights in the first Member State. Even if a third-country national might be protected against automatic expulsion, intra-EU movement remains unattractive. A second Member State can require compliance by thirdcountry nationals with additional requirements and there is no mutual recognition of residence permits, i.e., the fact that the third-country national already holds status in one Member State does not lead to automatic entitlement to reside in another Member State on the same conditions as in the case of EU citizens, for instance, in the status of job-seeker. Therefore, the immigration law of the EU is gradually developing but there is still a long way to go to achieve the political objective of near-equality between EU citizens and legal immigrants of various groups. Integration has become part of EU immigration law. The EU approach to integration has altered. Understanding integration as residence rights, access to rights, participation, and non-discrimination has become an immigration rule resembling naturalization exams. In this context integration becomes an additional condition for a third-country national to enter the State rather than a tool for integration into society. The critical comments made in the literature, however, underestimate the fact that a balanced approach to integration measures might be helpful for immigrants. Moreover, integration is a much more complex issue if one aims to achieve the political objectives because it might involve not only legal requirements to pass language and knowledge tests, but more profound harmonization of policies in social, educational and scientific fields.6 This means that instead of criticising individual Member States for possibly breaching directives, research should focus on advocating extension of EU competences in areas requiring further harmonisation of national policies to achieve the political objectives set. This is not an easy task taking into account national divergences. The crucial point is whether the EU can offer sustainable EU solutions for national problems in cases when an ethnic approach dominates over the objective of integration as a two way process. The political objective agreed upon by the Member States is to require immigrants to respect the core values of the EU and in return offer them rights comparable to those of EU citizens. Disproportion on either side will not allow achievement of the objective set. Similarly to implementation of other provisions of directives, the principles of proportionality and effet utile should be taken as guidance. Moreover, the EU Member States cannot 6 For profound analysis of integration problems in the current situation see Muller Jerry Z., ‘Capitalism and Inequality. What the Right and Left Get Wrong’ (2013) March/April, Foreign Affairs, 30–52.

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disregard their human rights obligations as confirmed by the CJEU including the rights enshrined in the Charter. This is particularly important in cases of family re-unification, cases which concern children and dual nationals. In this context EU law can develop its own approach which provides better treatment to third country nationals compared to the ECHR and offers a solution to the problem of reverse discrimination in the EU.7 Taking into account the complexities outlined it might be difficult for the EU to reach the targets set in the Europe growth strategy 2020. Immigrants already residing in Member States might not have the necessary incentives, resources or skills to use the rights mentioned in the directives. Highly qualified workers and researchers when reading the directives could hardly be persuaded that they are indeed welcome. Highly qualified workers consider that immigration policies per se are not their concern but rather the quality of the opportunity offered, i.e., high salary, career, the possibility to work with leaders in the field.8 The limited scope of equal treatment clauses coupled with difficulties imposed on a person exploring free movement rights in the EU do not adequately address the wishes of a highly qualified workforce. The greatest achievement of the directives is that issues related to third-country nationals are no longer in the exclusive domain of Member States. The positive effects of these developments can be seen most evidently by reading CJEU rulings. Keeping in mind the objectives of the directives and interpreting them in the light of general principles of law as well as proportionality can mitigate the consequences of a purely grammatical reading of the texts. At the same time not all gaps in the directives can be remedied by interpretation. In this context the immigration code offers solutions to several problems. Assuming political commitment to strengthening the status and rights of immigrants, at least three directives would need profound change. First, movement and residence in the EU after acquiring long-term resident or Blue Card holder status should be made as equal as possible to free movement of EU citizens. Any possibility of losing the status because a person has moved to another Member State should be excluded. Similarly, the rights of family members to autonomous residence should be made more accessible. Second, the approach to equality of treatment should be changed and harmonized with regulation applicable to EU citizens. Different treatment of long-term residents is disproportionate if length of residence and ties to the EU are taken into account. Alternatively, long-term 7 See, section 11.2.3. of part III of this volume on Case C-7, 9/10 Staatssecretaris van Justitie v. Tayfun Kahveci, Osman Inan, Judgment of 29 March 2010 [not yet reported]. 8 Collett Elizabeth, ‘The Proposed European Blue Card System: Arming for the Global War for Talent?’ (Migration Information Source 7 January 2008), available at accessed 6 March 2013.

Summary  319

residents should be encouraged to acquire the nationality of Member States. Third, integration conditions should be replaced by integration measures and the burden placed on Member States to provide facilities for integration rather than on third-country nationals. Potential exists for further development of the regime for third-country nationals. This is connected with the objectives of Article 79 TFEU aiming to establish a common immigration policy and a relatively simple decision-making procedure. EU competence is more limited in relation to integration. However, this can be at least partially remedied by granting necessary assistance to Member States, monitoring the results of integration measures applied as well as encouragement to share best practices. The reports of the Commission on implementation practices of existing directives serve as useful material for future developments. As noted by Peers in his analysis of the proposed immigration code, there have been significant developments since the Maastricht era to facilitate harmonisation of national law. But now, in the light of the intention to develop a ‘common immigration policy’, the EU should move further in the near future to adoption of a code of rules on legal migration law, which could potentially raise standards in this area, as well as to ensure the clarity and cohesiveness of the relevant rules.9 Progress is significant as is room for further developments. Pragmatically one cannot expect too much too soon. The previous part on EU citizenship illustrated incremental development of the rights attached to the status. The same path of developments can be expected in relation to immigrants. This is difficult to estimate on the basis of legal analysis. The following study of the Latvian case will serve as an example of success and failure of integration of a particular group of immigrants as well as the importance of the historical and national contexts in further development of the status of legal immigrant.

9 Peers Steve, ‘An EU Immigration Code: Towards a Common Immigration Policy’ (2012) 14 EJML, 33–61, 61.

Part Five Case Study on Nationality Regulation in Latvia

322  Part F ive 

The aim of this part is to apply the international and EU law standards discussed in previous parts to the case of Latvia. This should also serve as a case-example for the EU in developing its EU citizenship and immigrant policies in the longer perspective. The part takes a historical perspective outlining changes in citizenship regulations as well as regulations related to non-citizens. This will outline the complexity of national situations which could either directly or indirectly shape relevant EU concepts. In addition the chapter will discuss how rights and guarantees granted to non-citizens have evolved and what treatment is offered to noncitizens in the EU. In this context specific attention will be devoted to case law on non-citizen status. Cases on non-citizens represent about one quarter of immigration related cases reviewed in different instances by administrative courts during the period 2004–2008.1 Currently Latvian citizenship policy is subject to political debate which might lead to substantial amendments. The main changes would concern three areas of regulation. First, the amendments will modify the provisions on the access of children to citizenship. Second, regulation of dual nationality will be liberalised and allowed in cases of several groups of States. Third, the law intends to strengthen the ethnic approach to citizenship and to place safeguards in situations when persons who might be suspected of not being loyal to Latvia could be refused naturalization. At the time of writing the amendments have been adopted but they should be approved by the President and can be subsequently challenged at the Constitutional Court.2 Therefore, the proposed changes will be 1 After regaining independence Latvia lacked legislation for the administrative process and there were no administrative courts. This was a consequence of the Soviet legal system when persons were not entitled to bring claims against institutions for violating their rights. Cases usually decided by administrative courts were dealt with by civil courts. The courts were badly equipped and thus many judgments were hand-written. Therefore they are hardly accessible and researched. The main group of cases during the 1990s concerned refusal by the Citizenship and Migration Department (later called the Office of Citizenship and Migration Affairs, OCMA) to grant the status of non-citizen. Taking into account the large number of Soviet-era settlers who tried to abuse Latvian legislation, including former Soviet military personnel, the immigration authorities applied the law strictly. This led to hundreds of court cases, some of which attracted active intervention by both the OSCE Commissioner and the CBSS Commissioner as well as adjudication in the ECtHR. See Muižnieks Nils, ‘Government Policy and the Russian Minority’ in Muižnieks N. (ed.) Latvian-Russian Relations: Domestic and International Dimensions (LU Apgāds: Rīga 2006) 11–21, 16. Administrative courts were established only on 1 February 2004. 2 The draft amendments have been accepted by the Saeima on 9 May 2013. See accessed 10 may 2013. On the history of amendments see Kruma Kristine, ‘Latvia: comprehensive citizenship reform on the agenda in Parliament and in a referendum campaign’, available at  accessed 27 March 2013.

Chapter Eighteen Concept of Latvian Citizenship The concept of Latvian citizenship is embedded in the historical context but adjusted to deal with post-occupation consequences. After regaining independence Latvia had to take into account the political situation and requirements stemming from human rights law by adopting certain political compromises. Currently Latvian citizenship regulation is subject to further changes caused by extensive emigration of Latvian citizens and slow numbers in terms of naturalization. The present political dominance of ethnocentric parties in the parliament has an impact on strengthening the ethnic orientation of citizenship. 18.1. State Continuity Principle On 18 November 1918 Latvia proclaimed its independence. The Citizenship law was adopted on 23 August 1919 and amended in 1927. This law was not repealed subsequent to the occupation of Latvia by the Soviet Union in 1940 which continued after the Second World War. During the occupation, Latvian nationals became nationals of the USSR by way of automatic imposition of the latter’s nationality.1 Upon restoration of independence in 1990, decision-makers were faced with the dilemma of the two main options for reconstituting statehood which had direct repercussions on citizenship policy. Under the first option it was argued that the original State had disintegrated or disappeared and that a new State had been founded. This meant that Latvia should withdraw from the USSR on the basis of the 1978 Constitution of the Latvian SSR. The newly-founded State could then determine its nationals on the basis of its territory – a ‘zero option’, i.e., Latvia would accept that there was no illegal occupation and define its people anew by adopting a new citizenship law. Therefore, Latvia would be guided by

1 There were different views regarding the status of Baltic nationals after the Second World War. For details see Hough William H.J. III, ‘The Annexation of the Baltic States and Its Effect on the Development of Law Prohibiting Forcible Seizure of Territory’ (1985) 6/2 N.Y.L.Sch.J.Int’L and Comp. L, 391–447.

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obligations under the principles of State succession.2 This would create a more active role for human rights.3 However, adherence to the principle of State continuity was preferred. State continuity describes the continuity or identity of States as legal persons in international law, subject to relevant claims and recognition of those claims determined, in principle, in accordance with the applicable international law rules or procedures when statehood is at issue.4 This principle was incorporated in the Declaration of Independence adopted by the Supreme Council on 4 May 1990.5 The Declaration renewed the main articles of the Satversme (Latvian Constitution) and established a transitional period until full recovery of independence. Latvia claimed that Soviet occupation had been illegal and that Latvia had never been part of the USSR de jure.6 The Latvian claim was generally recognized by the international community.7 Accordingly, the principle of State continuity has been reflected in the citizenship policies of Latvia which followed the ex iniuria ius non oritur principle, meaning that illegal Soviet occupation could not lead to loss of statehood and nationality.8 Therefore, those who were Latvian citizens and their descendants could restore their citizens’ rights de facto. Following this approach, the Latvian Supreme Council adopted its Resolution on Renewal of the Republic of Latvia’s 2  Krūma Kristīne, ‘Country Report: Latvia’ (EUDO Citizenship Observatory European University Institute, Florence, Robert Schuman Centre for Advanced Studies 2013), available at accessed 28 March 2013. 3  Ziemele Ineta, State Continuity and Nationality: The Baltic States and Russia. Past, Present and Future as Defined by International Law (Martinus Nijhoff Publishers: Leiden 2005) 8. 4  This was in line with the truism that some kind of ‘identity’ or ‘sameness’ in the physical elements of the State (such as territory or population) existed to support the continuity or identity claim. Supra note 3, 118, 129. 5  On different aspects of the Declaration, including debates on different claims to be prioritised, see Jundzis Tālavs (red.), 4. maijs. Rakstu, atmiņu un dokumentu krājums par Neatkarības deklarāciju [4th of May. Collection of articles, memories and documents on the Declaration of Independence] (Fonds Latvijas Vēsture: Rīga 2000). 6  On the legal qualification of the Soviet occupation see judgment of the Constitutional Court No. 2007-10-0102, 29 November 2007, paras 22–27. 7  See collection of documents of recognition in Latvijas arhīvistu biedrība, Latvijas Republikas Ārlietu ministrija, Latvijas Valsts vēstures arhīvs, Dokumenti par Latvijas valsts starptautisko atzīšanu, neatkarības atjaunošanu un diplomātiskajiem sakariem, 1918–1998, [Documents on international recognition of the independence of Latvia, restoration of independence and diplomatic relations, 1918–1998] (NORDIK: Rīga 1999). Judgment of the Constitutional Court in cases No. 2007-10-0102, 29 November 2007, para 34. 8   Kalvaitis Ruta M., ‘Citizenship and national identity in the Baltic States’ (1998) 16 Boston University International Law Journal, 231–271, 231. Ziemele Ineta, ‘State Continuity, Human Rights and Nationality in the Baltic States’ in Jundzis Tālavs (ed.), The Baltic States at Historical Crossroads (Academy of Sciences of Latvia: Riga 2001) 224–248, 233.

Concept of Latvian Citizenship  327

Citizens’ Rights and Fundamental Principles of Naturalization on 15 October 1991. According to this resolution Latvian citizenship was re-established according to the 1919 Law on Citizenship.9 This was in line with the humanitarian law rules enshrined in the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949) which inter alia prohibits imposition of the citizenship of an occupying country upon nationals of the occupied country. Imposition of Soviet nationality on Latvian citizens was declared null and void ab initio by Section 1 of the Resolution on Renewal of the Republic of Latvia Citizens’ Rights and Fundamental Principles of Naturalization. This conforms to general principles of international law which do not oblige recognition of status granted by an illegal regime. Under the Resolution, nationality was restored to nationals before occupation and their descendants while acquisition of nationality was made almost automatic for those who had been permanent residents in Latvia at the time of occupation. Others who did not qualify for nationality could apply for naturalization under the 1919 Law and the Resolution. Since the requirements for naturalization were high, including inter alia sixteen years of residence, naturalization based on the Resolution never occurred.10 The process of renewal of rights of citizens was necessary to finalize the restoration of independence, i.e., it was argued that only a restored body of citizens would be entitled to elect a Saeima which would then be entrusted to adopt laws, including a new citizenship law. By the beginning of the 1990s the titular nation had almost become a minority, i.e. only 52 per cent of the population, with Russians and other non-Latvian nationalities comprising 48 per cent of the population.11 By comparison, in 1935 Latvians had comprised 75.5 per cent of the total population. This made Latvians feel insecure about their State and identity. 9 Another resolution regulating renewal of citizenship rights was adopted by the Supreme Council on 27 November 1991 entitled ‘On application of Supreme Council decision ‘On Renewal of the Republic of Latvia’s Citizens’ Rights and Fundamental Principles of Naturalization’ in relation to citizens of the Republic of Latvia residing abroad’. The decision provided that citizens residing abroad are entitled to keep the other nationality upon registration. 10 Ziemele Ineta, ‘State continuity and nationality in the Baltic States: international and constitutional law issues’ (DPhil thesis, Wolfson College, University of Cambridge 1998) 208 and Kalvaitis Ruta M., ‘Citizenship and national identity in the Baltic States’ (1998) 16 Boston University International Law Journal, 231–271, 255. 11 Other sources suggest that the number of Latvians declined from 77% to 52%, while Eastern Slavs increased from 12% to 42%. See Report for the Parliamentary Assembly by Ole Espersen ‘On the Application by Latvia for Membership of the Council of Europe’ (Doc 7169, 6 October 1994), available at  accessed 9 February 2012.

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Adoption of adherence to the State continuity principle thus resulted in 673.398 people, or 28.2 per cent of the total population left in a legal limbo.12 A possible solution could have been to conclude an agreement with Russia. However, that was not politically possible. Moreover, a Russian army was still present on Latvian territory. In the early 1990s the Citizenship Law was the main topic of political discussion especially during the parliamentary election campaign in 1993.13 Drafting of a new citizenship law was advocated by international experts from the OSCE and the Council of Europe. Society was divided not only into citizens and persons who had not obtained permanent status but also among citizens themselves. So called Citizens’ Committees, which were politically influential, advocated against the new citizenship law, which would liberalise naturalization requirements. The ruling centre parties did not represent a unified position. Their membership was diverse and included Latvians from exile as well as former members of the Communist party. A numerically small group of left wing parties insisted on the ‘zero option’. Altogether five drafts of the law were submitted to the Saeima and the main debate was on eligibility and procedure for naturalisation.14 The political process was difficult taking into account that there was little experience of independence. The political compromise supported by the majority was to preserve the principle of continuity in the Citizenship Law and allow for only gradual naturalization based on the age of the applicant. There were three main reasons behind this approach. First, the mandate to MPs was given by voters who were Latvian nationals on the basis of the 1919 Law. Second, there was an assumption that a considerable number of Soviet-era settlers would opt for citizenship thus hampering a smooth naturalization process. Third, Latvians still felt insecure about their independence. Russification policies, deportations and humiliation suffered under the dominance of the USSR made the commitment to irreversibility of independence even stronger. Other arguments related to the demographic situation where immigrants dominated and their birth rate was higher as well as widespread use of Russian.15 12 See section 20 of this part below. 13 Rozenvalds Juris, ‘The Soviet Heritage and Integration Policy Development since the Restoration of Independence’ in Muižnieks Nils (ed.), How Integrated Is Latvian Society? An Audit of Achievements, Failures and Challenges (University of Latvia Press: Riga 2010) 33–60, 43. 14 On detailed description of debates in the parliament and options discussed see Krūma Kristīne, ‘Country Report: Latvia’ (The Intec project: Integration and Naturalisation tests: the new way to European Citizenship, European Integration Fund (Centre of Migration Law, Radboud University Nijmegen: The Netherlands, November, 2010) available via accessed 28 March 2013. 15 Debates on 25 November 1993, 9 June and 21 June 1994, Report for the Parliamentary Assembly by Ole Espersen ‘On the Application by Latvia for Membership of the Council of Europe’

Concept of Latvian Citizenship  329

18.2. Immigrants from ex-USSR After restoration of independence Latvia hosted a large group of immigrants from former Soviet republics who arrived with the encouragement of the Soviet central authorities to meet the local demands of Soviet industrialisation and ethnic policies. As a result of the collapse of the Soviet Union and the independence of Latvia, persons residing in Latvia realised that they were nationals of a State which no longer existed. Thus, the most affected were Russians and other Eastern Slav groups. The historical minorities of Slav origin living in Latvia before the occupation were treated differently. Since some of them had resided in Latvia for decades and were even born there, they opted to stay in Latvia after restoration of independence.16 Therefore, after restoration of independence Latvia was facing a complex political and legal issue, i.e., to determine the status of Soviet era immigrants and subsequently develop an integration policy. Taking into account the length of occupation it was admitted that expulsion of the immigrant population and thus reversion to the status quo ante was politically impossible. However, the Baltic independence movements argued that mass immigration of Soviet settlers violated international law on the transfer of civilian population to occupied territory.17 At the same time international human rights law places limitations on the powers of the post transition regime to expel settlers, requiring it to take account of factual developments, regardless of their original illegality. Indeed, in the Baltic States, including Latvia, expulsion of settlers was taken off the table at an early (Doc 7169, 6 October 1994), available at accessed 9 February 2012. 16 Kruma Kristine, ‘Latvian Integration Policy: Lost in Translation’ in van Oers Ricky, Ersbǿll Eva, Kostakopoulou Dora (eds), A Re-definition of Belonging? Language and Integration Tests in Europe (Martinus Nijhoff Pubilshers: Leiden, Boston 2010) 241–270, 246. On the numbers and conditions of withdrawal of Russian military personnel, including those who retired see Muižnieks Nils, ‘Government Policy and the Russian Minority’ in Muižnieks Nils (ed.), Latvian-Russian Relations: Domestic and International Dimensions (LU Apgāds: Riga 2006) 11–21, 15. 17 Ronen Yaël, ‘Status of Settlers Implanted by Illegal Territorial Regimes’ (2009) 79/1 BYIL, 194–263, 211–212 and 230–231. See also Article 49 of the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949). The article prohibits the occupying power from deporting or transferring parts of its own civilian population into the territory it occupies. Articles 85 (4)(a) and 85 of Additional Protocol I and Article 8(2)(b)(viii) of the ICC statute designate the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies as a war crime. According to Ronen the precise scope of prohibition is debated, in particular with regard to forcible and permissive transfers. However, Article 49 of the Geneva Convention prohibits any transfer of settlers. Again according to Ronen, if the settler population has in the meantime been deprived of the nationality of the occupying power through measures in violation of international law, the occupying power must restore its nationality and allow that population entry, although until it does so, technically that population might not be repatriated.

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stage.18 The reasons were primarily political. This was backed by the unwillingness of Russia and the Western allies to open the debate and technical difficulties associated with possible expulsion. Therefore, Latvia was encouraged to come up with an extraordinary legal solution for immigrants who decided to stay in Latvia by inventing non-citizen status. As the table above shows, Latvian society is ethnically diverse. The most sizeable ethnic groups in Latvia are Russians, Byelorussians, Ukrainians and Poles. Although the number of non-citizens and persons with no status has decreased over the years, integration of society is an issue for which no panacea has been found. The central problem of integration in Latvia has been to combine the idea of a liberal and republican democracy. Latvians want a unitary, national State Table 1. Population of Latvia as of 1 January 2013.

Latvians Russians Byelorussians Ukrainians Poles Lithuanians Roma German Armenian Tatar Estonians Other (incl. undeclared or unknown) TOTAL

Citizens

Non-citizens

Foreigners, refugees or stateless individuals19

TOTAL

1 308 580 362 046 30 760 18 542 38 065 18 195 7 916 2 203 1 177 825 1 379 47 686

877 195 734 40 411 28 785 10 158 7 733 430 1 154 1 004 1 375 439 9 799

1 089 36 989 4 683 6 045 1 352 2 585 55 1 441 502 446 471 10 444

1 310 546 594 769 75 854 53 372 49 575 28 513 8 401 4 798 2 683 2 646 2 289 67 929

1 837 374

297 899

66 102

2 201 375

Source: Office of Citizenship and Migration Affairs accessed on 2 April 2013. 18 Ronen Yaël, ‘Status of Settlers Implanted by Illegal Territorial Regimes’ (2009) 79/1 BYIL, 194–263, 259–260. 19 Refugees, persons with alternative status and under temporary protection are not mentioned in a separate column because their numbers are insignificant. For instance, the total number of persons holding alternative status are 52, stateless persons registered in Latvia – 25, refugees 30 and no persons are granted temporary protection in Latvia.

Concept of Latvian Citizenship  331

with one State language. A demographically and linguistically weak majority is not well placed to live with a big post-imperial minority which is politically supported by a non-democratic neighbouring State. Researcher Nils Muižnieks has concluded that since 2001 Latvia has not moved anywhere further in relation to achieving its integration objectives.20 The next factor which complicates Latvian citizenship studies is a strong external player in the shape of Russia, which has negatively influenced the success of newly introduced citizenship and integration policies. The link between the settlers and their State of origin raises concern, especially if formalized. The presence of a diaspora can be explored to exert political and economic pressure in their country of residence.21 As early as 1992, the Russian Federation, as legal heir to the USSR, began a policy of championing the rights of Russian-speakers.22 The policy was further elaborated with adoption of the Federal Law on State Policy Regarding Compatriots Abroad on 24 May 1999. The Law aimed at clarifying the relationship between Russia and various groups of individuals for whom the State claimed a certain responsibility.23 Compatriots were defined in Article 1(2) of the Law. They included inter alia former nationals of the USSR residing in the territory of the former USSR who are either citizens of another State or stateless. In order to receive the status they had to apply for it in embassies of the Russian Federation. On 14 July 2010 the Law was amended and now provides that in order to receive the status of compatriot a person should demonstrate special spiritual or cultural ties with Russia. The basic principles are self-identification and membership in compatriots’ organizations in the country of residence. The amendments aimed at strengthening and consolidating Russians residing outside Russia. Article 5 confirms that the compatriots’ policy is part of both internal and foreign policy and Article 8 provides that Russia will assist compatriots in the exercise of human rights, including the right to nationality. In practice Russia has used three major tools to reinforce its compatriots’ policies: international organizations, NGOs and Kremlin controlled mass media. The policy orientation is best illustrated by the Russian Foreign Policy Concept.

20 Muižnieks Nils (ed.), Latvian-Russian Relations: Domestic and International Dimensions (LU, Baltijas Sociālo Zinātņu institūts: Riga 2006) 5. See also Krūma Kristīne, Indāns Ivars, ‘Enacting non-citizenship in Latvia: challenges to national and European frameworks’ (FP7-SSH-2007 -1-217504, ENACT, Enacting European Citizenship 2008), available via accessed on 2 April 2013. 21 Supra note 18, 253. 22 Lerhis Ainārs, Kudors Andis, Indāns Ivars, Outside influence on the ethnic integration process in Latvia, 2nd ed. (Centre for East European Political Studies: Riga 2008), 65. 23 Supra note 3, 183–185.

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This deals with strengthening ties with compatriots in a chapter entitled ‘International Humanitarian Cooperation and Human Rights’. It highlights the Russian approach to de-facilitating integration of former citizens of the USSR in their countries of residence.24 For instance, it states: d) protecting rights and legitimate interests of compatriots living abroad on the basis of international law and treaties concluded by the Russian Federation while considering the numerous Russian diaspora as a partner, including in expanding and strengthening the space of the Russian language and culture; e) supporting consolidation of organizations of compatriots to enable them to effectively uphold their rights in the countries of residence while preserving the cultural and ethnic identity of the Russian diaspora and its ties with the historical homeland, and provide conditions for facilitating voluntary relocation to the Russian Federation of compatriots willing to do so [emphasis added].

This approach explains not only Russian interest in promoting Russian language and culture as well as legally unclear rights of compatriots’ organizations and legitimate interests of compatriots. As Nils Muižnieks notes, Russia has incessantly attempted to bring issues involving compatriots on the agendas of all the major regional and international organizations.25 An express illustration of 24 Concept of the Foreign Policy of the Russian Federation (Unofficial translation), 12 February 2013, 303-18-02-2013, available at the site of the Ministry of Foreign Affairs of the Russian Federation accessed 2 April 2013. 25 Muižnieks Nils, ‘Russian Foreign Policy Towards “Compatriots” in Latvia’ in Muižnieks Nils (ed.) Latvian-Russian Relations: Domestic and International Dimensions (LU Apgāds: Riga 2006) 119–130, 123. In 1992 Russia pressured the UN Secretary General to send a fact finding mission to Latvia to “investigate alleged discriminatory practises against minorities”. The mission’s report noted “anxiety” among minorities “about their future status”, “rather than any gross violation of human rights”. Subsequently, the Russian Federation raised the issue of treatment of Russians in various UN bodies virtually every year through letters, notes verbales, draft resolutions and speeches. Russia has been active at the CSCE/OSCE drawing attention to compatriots in Latvia. Russia was increasingly critical in 2000 and especially in 2001. The Council of Europe and its Parliamentary assembly has been an important forum for Russia to attack Latvia. Russia regularly joins politically sensitive cases against Latvia in the European Court of Human Rights as a third party. In 1999 the Russian Foreign Ministry appealed to the European Council to reconsider Latvia’s invitation to negotiate EU membership (This includes not only an initiative to pass different resolutions on Latvia, but also constant intervention in cases against Latvia in the European Court of Human Rights. See, for instance, documents of the Parliamentary Assembly of the Council of Europe: Motion for and order ‘Rights of national minorities in Latvia’, Doc. 8375, 14 April 1999, Motion for a resolution ‘Violation by the Latvian authorities of universally recognised human rights’, Doc. 8039, 16 March 1998, Written Declaration No. 257 ‘Civil rights situation of non-titular communities in Latvia’, Doc 7855, 26 June 1997. Written Question No. 404 to the Committee of Ministers Rights for Russians living in Latvia by Gennady Churkin, Doc. 9335 revised, 18 February 2002. Motion for a recommendation ‘Freedom of movement for the residents of Latvia and Estonia’, Doc. 8647, 4 February 2000.

Concept of Latvian Citizenship  333

this policy is cases where Russia is intervening in proceedings before the ECtHR concerning expulsion and the right to reside as well as numerous resolutions submitted to the Parliamentary Assembly of the Council of Europe, UN bodies and other organizations and political forums. This is institutionally strengthened by the semi-autonomous Federal Agency for the CIS, Compatriots Living Abroad and International Humanitarian Cooperation, Russkiy Mir as well as the Government Commission for the Affairs of Compatriots Abroad.26 18.3. Role of International Organizations After regaining independence Latvia defined its foreign policy priorities: to join the Western democratic community and to become a member of international organizations, most importantly the EU and NATO. Membership in international organizations was seen as a guarantee of irreversibility of independence as well as a factor facilitating transition to democracy. Citizenship and status of immigrants was one of the main issues addressed before Latvia was admitted to various international organizations. The influence on national politics exerted by different international organizations varied depending on standards applicable and requirements to candidate States. In this way international organizations became players in shaping domestic citizenship policy. After restoration of independence and when drafting its Citizenship Law, Latvia had to take into account international law norms and principles binding on States either as customary international law or as treaty provisions to which the State accedes. These rules and principles were limited as exemplified in part II of this volume. At the same time the particular case of Latvia hosting large number of persons with undetermined status and security concerns provoked international attention. Although the international community recognized the Latvian claim to State continuity, they invited Latvia to pass a citizenship law on the basis of which naturalization would be facilitated. At the time of adoption of the Citizenship Law, Latvia was under close international scrutiny by the Council of Europe and the OSCE. While the OSCE sought to ensure security in the region,

26 Targeted federal programme, Russian Language (2011–2015) has been started and is increasingly being strengthened. Another programme of work was adopted for 2012–2014. It brings new ideas and initiatives to facilitate preservation of the ethnic and cultural identity of compatriots and strengthening the position of the Russian language. See, speech by Russian Foreign Minister Sergey Lavrov at the World Thematic Conference of Compatriots on the Status of the Russian Language in Foreign Countries (Moscow 17 October 2011), available at accessed 14 December 2011.

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the Council of Europe was aiming to ensure that international law and specifically human rights were observed.27 The OSCE High Commissioner for the Protection of National Minorities was closely involved not only during adoption of the Citizenship Law but also its implementation and elaboration. He regularly visited Latvia and corresponded with Latvian officials arguing for the need to adopt a new citizenship law, replacing the 1919 Law, and also providing detailed recommendations on the content of the law, especially a quota system and naturalisation exams.28 By reference to the need to address the status of a large number of Soviet era settlers he invoked not only strictly legal obligations of Latvia but also produced recommendations based on soft law or even political considerations to avoid possible conflicts and divisions in society. Thus, he advised not to consider mass expulsion of immigrants, to provide feasible possibilities to acquire citizenship and referred inter alia to the CSCE Copenhagen Document stressing the importance of democracy. He further advocated liberalization of the Citizenship Law when the figures showed that naturalization was not progressing.29 Letters and statements by the OSCE Commissioner were referred to during parliamentary debate before adopting amendments which lifted the quota system and allowed children born to non-citizen parents to register as Latvian citizens. A number of conditions were adopted by the Council of Europe for Latvia to become a member. It was only when Latvia passed its new Citizenship Law that the Parliamentary Assembly adopted an Opinion admitting Latvia as a member. It stated:

27 Kruma Kristine, ‘Stocktaking of EU Pre-Accession Monitoring Process, Citizenship Issues and Non-citizens in Estonia and Latvia: a Litmus Test for European Union Human Rights Policy’ (2004) 4 Baltic YIL, 33–53 and supra note 14. Additionally the UN and CBSS were involved in human rights monitoring. In the context of the UN those were not only Treaty bodies but also special procedures. Resolutions on Latvia were adopted by the UN Human Rights Commission. Latvia was even cited three times under the UN 1503 procedure concerning gross and persistent violations of Human Rights (in 1995, 1997 and 2000). However, both organizations had much less impact upon changes in citizenship regulation in Latvia. 28 Letter from the OSCE Commissioner to Minister for Foreign Affairs of Latvia Georgs Andrejevs ( 6 April 1993, Reverence 238/93/L/Rev.), svailable at accessed 4 April 2013. Concerning different citizenship policy strategies and the most preferable from the OSCE point of view see letter from the Commissioner to the Minister (10 December 1993) available at accessed 4 April 2013. 29  See section 19.2. on naturalization in this part below. See also Letter from the OSCE High Commissioner on National Minorities to the Minister for Foreign Affairs Valdis Birkavs (23 May 1997, 376/97/L), available at accessed 4 April 2013. For parliamentary debate see supra note 14.

Concept of Latvian Citizenship  335 Through the law on citizenship adopted by the Saeima (Latvian Parliament) on 22 July 1994, a major pre-condition for accession to the Council of Europe was fulfilled. Such was the conclusion of the rapporteurs following meetings in Riga from 3 to 5 August 1994. The law was approved by the President of the Republic of Latvia on 8 August 1994. A commitment has now been made by the Latvian Government (exchange of letters with the Secretary General, September 1994) “… to continue its consultations and co-operation with the Council of Europe” in implementing the law on citizenship and in drawing up a law on the rights and status of “non-citizens”: all laws and regulations, including notably those on the use of languages, must be applied without unacceptable pressures on individuals or unduly prolonged procedures.30

After admission Latvia was subject to a Council of Europe monitoring procedure which ended only in 2001. Therefore, Latvia remained under close scrutiny of the organization. Even when monitoring was closed, the Parliamentary Assembly recommended further encouraging non-citizens to apply for citizenship.31 The other organizations applying political monitoring and so called human rights conditionality were the EU and NATO. Both organizations opted for the quiet diplomacy approach, especially NATO.32 Therefore, their contribution to citizenship regulation is much less visible in public reports and documents. The EU approach was marked essentially by political orientation to enlargement strategy. The formulations of the Association Agreement were based on evaluations by the OSCE and the Council of Europe rather than representing 30 Parliamentary Assembly, ‘Opinion No. 183 (1995) on the application by Latvia for Membership of the Council of Europe’ (31 January 1995), available at accessed 3 April 2013. The assembly debate took place and the text was adopted on 31 January 1995 (2nd Sitting) (see Doc. 7169, report of the Political Affairs Committee, rapporteur: Mr Espersen; Doc. 7193, opinion of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Vogel; and Doc. 7190, opinion of the Committee on Relations with European Non-Member Countries, rapporteur: Mr Toshev). 31 Parliamentary Assembly, ‘Resolution 1236 (2001) Honouring of obligations and commitments by Latvia’ (23 January 2001). In 2002 there was an attempt to re-open the monitoring procedure. See, motion for a resolution ‘Reopening of monitoring procedure in respect to Latvia’, Doc. 9501, 27 June 2002. Presented by Mr. Rogozin and others. 32 In 1991 Latvia became a member of the North Atlantic Cooperation Council. After that Latvia advocated for NATO membership. In 1993 the idea of NATO enlargement was further strengthened, for instance, by establishing the Partnership for Peace in 1994. It was only in 1999 when the Baltic States were indirectly noted as candidates for NATO membership. Since 1999 there was an annual Membership Action Plan which inter alia addressed issues related to naturalization, integration and the relationship with Russia and Belarus. See, for instance, , , , accessed 15 February 2011. They refer to integration and naturalization issues in general.

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the EU’s own approach. This is understandable because the EU had to balance its position on nationality issues in candidate countries with its scope of competence. The Association Agreement included human rights and suspension clauses, as did the Accession Partnership based on the so-called Copenhagen criteria adopted by the European Council in 1993.33 Three accession criteria were set for candidate countries. The first Copenhagen criterion requested States to inter alia ensure respect for human rights and protection of minorities.34 The criteria were further developed by the Essen European Council conclusions in 1994 and the Luxembourg European Council in 1998. The key instrument of the strategy was an Accession Partnership which aimed to identify priorities for each applicant during adoption of the Union acquis as well as exploring pre-accession aid. Contents of Accession Partnerships were quite vague and it was only in 1997 when the Commission came up with its so called ‘Agenda 2000’, which contained the Commission’s opinions on membership applications.35 Therefore, as correctly noted by G.Pentassuglia, international instruments appeared as material sources for an overall, pragmatic assessment rather than parameters for a strictly legal analysis.36 During the accession process the European Commission drafted annual Regular Reports. It regularly took a close look at non-discrimination issues in relation to non-citizens.37 However, the methodology was unclear, as were the standards in relation to which Latvia was assessed. It can be argued that the role of the EU should be seen in the political and foreign policy context rather than proper monitoring on the basis of clear legal standards. NATO and the EU played a mainly political role. While NATO was predominantly focused on issues related to security, the EU relied on findings of other international organizations. Therefore, as soon as close monitoring by the OSCE and the Council of Europe ceased, NATO and the EU had a more relaxed and solely political role in overseeing processes in Latvia. To conclude on the context of Latvian nationality regulation it should be noted that three determinants were interconnected. First, Latvia approached the 33 For detailed discussion, see supra note 27, 33–53. 34 Bulletin of the EC, 6/1993, 1.13 and Annex II, available at accessed 9 February 2012. 35 Smith Karen E., ‘The Evolution and Application of EU Membership Conditionality’ in Cremona Marise (ed.), The Enlargement of the European Union (Oxford University Press: Oxford 2003) 105–140, 115. 36 Pentassuglia Gaetano, ‘The EU and the Protection of Minorities: The Case of Eastern Europe’ (2001) 12/1 EJIL, 3–38, 21. 37 Citizenship issues played a prominent role under the subsection on minority rights in reports on Latvia. Placing citizenship under the section of minorities is not only incorrect from the legal point of view but even dangerous. It might lead to misleading conclusions. Supra note 27, 42.

Concept of Latvian Citizenship  337

question of nationality regulation on the basis of the State continuity principle. While the 1919 Law was based on the ius soli principle, the 1994 Citizenship Law was based primarily on the ius sanguinis principle. Therefore, the national approach to citizenship has been preserved. Second, Latvia had to address issues related to the status of a large number of Soviet-era immigrants. International organizations became involved in national politics by applying human rights conditionality and requiring Latvia to alter its strict naturalization policies. The requirements had not always been purely legal taking into account the extraordinary situation of Latvia. Third, in implementing citizenship and integration policies Latvia has had to face the consequences of Russian support and policies showing special care for compatriots. In this context the Bolzano principles outlined in part II of this volume should be given much more weight in international law.

Chapter Nineteen Access to and Loss of Latvian Citizenship The first draft law adopted was extremely restrictive, introducing a minimal quota for naturalization. The State President, being under international pressure, refused to sign the law.1 On 22 July 1994 the Saeima adopted the Law without quotas but with a timetable that allowed naturalization to start with the youngest applicants for citizenship. This Law is still in force and has been amended only twice, i.e., in 1995 and 1998. More profound were the changes adopted in 1998 which abolished the age groups entitled to apply for citizenship and allowed children to register as citizens if born in Latvia after 21 August 1991 to stateless persons or non-citizens. Further changes are expected when the Saeima adopts amendments which are currently being prepared for the final reading. 19.1. Recognition of Latvian Citizenship According to Article 2 of the Citizenship Law, nationals of Latvia are: (1)  persons who were nationals on the date of occupation and their descendants, unless they had acquired the nationality of another state after Latvia proclaimed its independence on 4 May 1990; (2) Latvians and Livs who permanently reside in Latvia, do not hold the nationality of another state or have received an expatriation permit; (3) women who permanently reside in Latvia and had lost their nationality according to the Law on Citizenship of 1919 as well as their descendants unless they had acquired the nationality of another state after 4 May 1990; (4) naturalised persons; (5) children who are found in the territory of Latvia whose parents are unknown; (6) orphans living in an orphanage or a boarding school in Latvia; (7) children born of parents both of whom were nationals of Latvia at the time of such birth, irrespective of the place of birth of such children;

1 See below section 19.2.

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(8) persons who permanently reside in Latvia and are duly registered and who have completed a full educational course in general education schools in which Latvian was the language of instruction, or in mixed language schools, if they are not nationals of another state or have received an expatriation permit.2 This Article asserts that Latvia adheres to the principle of State continuity and claims to be a nation State. Those who were nationals before occupation and their descendants retain ratione temporis an unlimited right to register as Latvian citizens. According to Transition provisions the only requirement was to renounce a nationality acquired in the meantime, if they had not registered by 1 July 1995.3 In order to follow the State continuity principle Latvia is predominantly guided by the ius sanguinis principle. This is confirmed not only by the provisions already mentioned but also by the fact that a child is recognized as a citizen if born abroad to parents who are Latvian. The exception to general ius sanguinis concerns only those children who are foundlings or who have no parents. These provisions are in line with rules developed in international law.4 The same applies to the provision concerning the nationality of women who might have lost Latvian citizenship because of marriage to a foreign national. From the provisions of Article 2 quoted above no conclusion can be drawn that it has been applied on the basis of ethnicity, because the 1919 Law on the basis of which nationals of Latvia had been registered was based on the ius soli principle irrespective of national origin. Therefore, citizens re-acquired their rights on the 2 Grounds 2, 3, and 8 included in 1995. 3  Detailed discussion on application of respective transition provision on dual citizenship, see Constitutional Court Judgment No. 2009-94-01, 13 May 2010, paras 15–16. Ziemele Ineta, State continuity and nationality in the Baltic States: international and constitutional law issues (DPhil thesis, Wolfson College, University of Cambridge 1998) 247. According to the Decision of the Supreme Council and Transition provisions of the Citizenship Law those who were Latvian citizens on 17 June 1940 and their descendants could keep the other citizenship if they registered by 1 July 1995. Otherwise, dual nationality is, in principle, not permitted in Latvia. However, the Citizenship Law is ambiguous in this regard. Article 9 provides that a person who acquires Latvian citizenship cannot be a dual national. Article 9(2) states that where a person is considered to be a national of another State, in their relations with Latvia the person is considered only to be a citizen of Latvia. Only citizens of the pre-occupation period and their descendants who registered by 1 July 1995 are allowed to preserve dual nationality. But see Judgment of the Civil Cases Court Chamber of the Supreme Court in case No. C04318208, PAC-0118-12, 16 February 2012 (not final) where the Court allowed dual nationality in case of Latvian citizen who had acquired Swedish nationality. Reasoning was based on his merits as scientist, link with Latvia as well as general interest of Latvia. The reasoning of the Court was clearly contra legem and will be reviewed by the Senate of the Supreme Court. 4 See sections 7.2. of part II of this volume.

Access to and Loss of Latvian Citizenship  341

basis not of their ethnic origin but possession of nationality at the time of occupation. It should also be emphasised that Latvian laws were not ethnically defined and did not apply to ethnic Balts alone. Everyone holding nationality before 1940 was entitled to register as a national regardless of ethnicity. The provision concerning persons who had graduated from schools where the language of instruction was Latvian was meant to include those persons who are sufficiently integrated into the Latvian citizenry. At the time when the Law was adopted Russian was still widely spoken. As noted by Latvian political scientist Juris Rozenvalds “in the final decades of Soviet rule, a situation developed in which two numerically similar groups had formed – a Latvian language group and Russian speakers – which differed in their sources of information, their attitudes towards the situation in Latvia and their value orientations”.5 Knowledge of Latvian was seen as crucial for a person to acquire citizenship. A person who had attended a school where Latvian was the language of instruction was considered as sufficiently loyal to the State and integrated in society to be granted citizenship. However, rights of children of these persons have been limited because they are granted citizenship only if they have not reached the age of fifteen. Otherwise they have to apply for citizenship according to the naturalization procedure. Therefore, the Latvian approach to nationality is based on ius sanguinis and nation-State principles. The proposed amendments will not alter the general approach of the present Law in force. However, they place greater emphasis on the ethnic aspect of citizenship by stating explicitly that only Latvians and Livs belong to a ‘State-Nation’.6 Article 2, defining persons who belong to Latvian citizenship, no longer includes persons who have naturalized or acquired education in Latvian. The approach chosen is bizzare taking into account that Latvia has historically been a multi-ethnic country. It also seems orthodox in the context of the present day reality of mixed marriages and diverse identities. Moreover, it 5 Rozenvalds Juris, ‘The Soviet Heritage and Integration Policy Development since the Restoration of Independence’ in Muižnieks Nils (ed.), How Integrated Is Latvian Society? An Audit of Achievements, Failures and Challenges (University of Latvia Press: Riga 2010) 33–60, 34. 6 Latvians and Livs will be required to prove that their predecessors were living in Latvia in 1881 or later and that they have a command of Latvian. They would also be required to submit documentary evidence that at least one of their predecessors belonged to the ‘State-Nation’. ‘State-Nation’ is a new term which had been used in doctrine. It is stronger than the English term ‘nation-State’ and places emphasis on an ethnic (ethno-cultural) rather than a political nation. It is related to ‘people’ who have exercised the right to self-determination. The French translation could be ‘la nation ethnique’ or ‘la nation principale d’ Etat’. On statistics from 1935 see accessed 10 May 2013. See also and Eglīte Pārsla, ‘Padomju okupācijas demogrāfiskās, sociālās un morālās sekas Latvijā’ [The demographic, social and moral consequences of Soviet occupation in Latvia] (2011) 3/4 Latvijas Zinātņu akadēmijas vēstis, 86–106, 88, available at , accessed 10 May 2013.

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facilitates compartments in between citizens of Latvia not only ethnically but also by mode of acquisition of nationality. 19.2. Naturalization In accordance with Article 4 of the Citizenship Law all Latvian nationals are equal irrespective of the way nationality has been acquired. This is a constitutional principle confirmed by the Constitution in Article 91 stating that all are equal before the law and human rights must be respected without discrimination. Naturalization is the mode of acquisition of citizenship which has experienced major changes during the period of adoption of the Law until the last amendments in 1998. In addition, requirements for the naturalization procedure have changed over the years by adoption of different Cabinet of Ministers Regulations and amendments to these. The approach to naturalization has shifted from representing a significant obstacle to being a cumbersome formality. The main discussions during adoption of the 1994 Law were in relation to the naturalization quota system.7 In order to reach the widest possible compromise the first draft adopted was restrictive, allowing a minimal quota for naturalization. The President refused to sign the law.8 On 22 July 1994, 58 MPs out of 100 supported the Law without quotas but with a timetable – the so called ‘agewindow system’ that allows naturalization to start with the youngest applicants for citizenship, denying this right to the most motivated group of middle-aged persons.9 The Law provided that persons would be naturalized in stages starting in 1996 and ending in 2003. After 2003 all persons would have the right to apply.10 It can be argued that under the political circumstances of that time no other outcome was possible. The main factors were that the sizeable group of Soviet era immigrants, the presence of a Russian army as well as insecurity about independence combined to make decision-makers especially cautious. The zero option 7 Krūma Kristīne, ‘Country Report: Latvia’ (The Intec project: Integration and Naturalisation tests: the new way to European Citizenship, European Integration Fund (Centre of Migration Law, Radboud University Nijmegen: The Netherlands, November, 2010) available via accessed 28 March 2013. 8 According to the model adopted by the Saeima, the first applications for naturalisation would have been accepted in 2000 and then only at a rate of 0.1 per cent of the previous year’s total number of nationals. This would have resulted in approximately a thousand new nationals annually. 9 Supra note 5, 43. 10 E.g., a person who was 45 and born in Latvia could apply for naturalization in 2000, while a person who was 20 could apply in 1996. See, Krūma Kristīne, ‘Country Report: Latvia’ (EUDO Citizenship Observatory European University Institute, Florence, Robert Schuman Centre for Advanced Studies 2013), available at accessed 28 March 2013.

Access to and Loss of Latvian Citizenship  343

was not supported by the majority of parties elected and it would also have been contrary to the State continuity principle. Moreover, compromises had to be found with supporters of an even stricter approach than initially proposed because there was a minority government. Indeed, many voters would have preferred an even stricter approach. Taking into account that Latvia had a short period of independence and it had just started to build up a renewed republic, political support of a wide spectrum of right-wing parties was necessary. Therefore, no other solutions were feasible due to political representation in the 5th Saeima. The difficult political situation is evident when reading letters from the OSCE High Commissioner. For instance, in his letter to the Minister for Foreign Affairs he diplomatically argues that he is fully aware of the “long years Latvia suffered under Soviet occupation” and “bitterness caused by what is perceived as a deliberate policy of Russification”. However, he warns that: [A]lthough every Government has the right to remove from its territory persons whose continued presence could be damaging to vital interests of the state, it is also obvious that expulsions on a massive scale would be contrary to generally accepted international humanitarian principles and would, moreover, probably have very serious international repercussions.11

This shows the difficult starting position when some of the right-wing parties having considerable support among the electorate demanded not a quota but expulsion of Soviet-era settlers en masse. They referred to Article 49 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949). It also illustrates the difficult, though important, role of international organizations. They advocated waiving the claim to restitution and expulsion of settlers by seeking a compromise solution. After adoption of the Law, the number of applications for naturalization turned out to be much lower than expected.12 Many Soviet immigrants chose either to opt for Russian or other citizenship or to apply for non-citizen status. Under these circumstances international organizations advocated further liberalization of the Citizenship Law. The main obstacle was seen in the age-window system, initially 11 Letter from the OSCE Commissioner to the Minister for Foreign Affairs of the Republic of Latvia (6 April 1993, No. 238/93/L/Rev.), available at accessed on 8 February 2012. See also letter from the OSCE Commissioner to the Minister for Foreign Affairs of the Republic of Latvia (10 December 1993, No. 1463/93/L), available at accessed 8 February 2012. 12 According to data of the Naturalisation Board during 1995–1998 only 15,853 people applied for naturalization and the number of successful applicants was 11,431. The reasons for low interest were (1) lack of knowledge of the Latvian language; (2) unwillingness to enter into military service; (3) easier requirements for obtaining a Russian visa; (4) no necessity for additional rights given by citizenship; (5) political mistrust and disappointment at not having been granted nationality automatically and (6) identity crisis after collapse of the USSR.

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adopted by the same international organizations, and ensuring the rights of children to acquire citizenship. The OSCE Commissioner argued for abolition of the window system by claiming that: [A]ccording to the publication on naturalization in Latvia published in 1997 by the Naturalization Board, no less than 469,053 non-citizens have to wait until after 2000 before they have the right to apply’.13 The Council of Europe emphasized that it is ‘crucial to create an integrated and harmonious society in Latvia and thus to foster the overall stability of the country.14

Therefore, in relation to the age-window system this was not a legal claim, but rather a ‘common sense’ claim to achieve the long-term objective of having an integrated society to facilitate naturalization of non-citizens. It can also be argued that if access to nationality is not hampered by the State, non-citizens or longterm residents have fewer arguments to claim rights to family reunification or social benefits.15 Therefore, although there is no legal obligation to grant effective access to citizenship and the possibility to regularize status, States themselves might be interested in providing for these possibilities. As a result of heated debates in the Saeima, amendments to the Citizenship Law were adopted in 1998. The main arguments used during parliamentary debates for amendments were deterioration of the relationship with Russia and the requirements set by the OSCE, especially the High Commissioner.16 Moreover, adoption of amendments was crucial to continue the process of integration into the EU and NATO. Liberalization of the Law in 1998 was politically difficult because Latvia was in the process of adopting new Language and Education Laws. There was also ongoing debate on the need to amend the Constitution, i.e., to include an article that Latvian is the official language. The amendments inter alia abolished the age window groups entitled to apply for citizenship. The amendments to the Citizenship Law were to be confirmed by referendum.17 As a result the Council of Europe encouraged non-citizens to

13 Letter from the OSCE Commissioner to the Minister for Foreign Affairs of the Republic of Latvia (23 May 1997, No. 376/97/L.), available at accessed 8 February 2012. He also exemplified the very few application numbers during 1997 out of those allowed to apply. 14 Parliamentary Assembly, ‘Report on Honouring of obligations and commitments by Latvia’ (10 January 2001) Council of Europe Doc. 8924, para 28. 15 See section 8.2.2.2. of part II of this volume. 16 Debate on 23 April 1998, 20 May 1998 and 22 June 1998. See specifically intervention by I.Bērziņš, during 2nd reading, 4 June 1998. See accessed 9 February 2012. 17 The margin was slight – only 53% of the electorate voted for adoption of the amendments. The amendments became effective in November 1998.

Access to and Loss of Latvian Citizenship  345

apply for Latvian citizenship.18 Although noting that the rate of naturalization had continued to be slow the European Commission also welcomed the reform in its Regular Report.19 According to current regulation individuals who have registered with the Residents’ Register are considered to reside lawfully in Latvia and are entitled to acquire nationality through naturalization if they have received a permanent residence permit. The naturalization requirements are the following: (1) permanent residence in Latvia for five years from 4 May 1990; (2) knowledge of the Latvian language, the Satversme,20 the anthem and the history of Latvia; (3) a loyalty oath to the Republic of Latvia; and (4) a legal source of income. According to Article 6(3) of the European Convention on Nationality residence pre-dating naturalization should not exceed 10 years. In general Latvia complies with the requirement. According to Article 24(4) of the Immigration Law permanent residence can be acquired after five years of residence in Latvia with a temporary residence permit. This means that, as a rule, a person must reside five years in Latvia in order to obtain permanent residence and a further five years with permanent residence to acquire the right to apply for citizenship. However, the Latvian case is specific because most people wishing to naturalize de facto have lived on Latvian territory for much longer, while the period of residence could be counted from 1991 at the earliest.21 Thus, even if Latvian legislation formally complies with the requirements of the European Convention on Nationality, it might be too demanding in individual cases, especially taking into account the transition period until registers and statuses have been invented and properly implemented.

18 See Parliamentary Assembly, ‘Resolution 1236 (2001) Honouring of obligations and commitments by Latvia’ (23 January 2001), point 6. 19 Regular Report from the Commission on Latvia’s progress towards accession (1998), avail­able at  accessed 9 February 2012, 11. 20 The Law states that a person must know the basic principles of the Constitution of the Republic of Latvia and the Constitutional Law Rights and Obligations of a Citizen and a Person. However, this law lost its force on 6 November 1998 when the Constitution was supplemented with a chapter on human rights. 21 However, exceptions are provided in the article pertinent to specific historical events and dates. Exceptional cases provide for a shorter residence requirement as permanent residence permits can be issued in certain cases immediately after arrival (for instance, family reunification, former citizens and non-citizens and the like). The OSCE High commissioner argued that the five year period should be counted from the date when the person came to Latvia or was born there. Letter from the OSCE Commissioner to the Minister for Foreign Affairs of the Republic of Latvia (6 April 1993, No. 238/93/L/Rev.), available at accessed on 8 February 2012.

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Upon application, a person must declare that he or she does not hold any other nationality and that none of the restrictions apply as specified in Article 11 of the Citizenship Law. Article 11 establishes restrictions for naturalization, if a person: • has acted against the independence of Latvia and its powers which has been established by the courts; • propagated totalitarian ideals or ethnic or racial hatred which has been established by the courts; • served in the institutions of another state, including the armed forces; • served in the Soviet army and was called-up from outside Latvia; • has been employed by the KGB, the security or intelligence or a similar service of another state; • has been sentenced in Latvia or another state for a crime, which is a crime in Latvia at the time of adoption of the Citizenship Law; • has, after 13 January 1991, worked against Latvia in several organizations.22

This Article seems to follow a rather exclusionary approach. For instance, if a person has been convicted of any crime (even if imprisonment was only for a year) he or she can never apply for Latvian nationality.23 Additionally, the restrictions in relation to affiliation with the KGB could be challenged as to their proportionality after a certain period has passed since there are nationals who had that affiliation but who were recognized as nationals on the basis of ius sanguinis.24 The provisions of this Article will largely remain in the amended law. It is envisaged to even strengthen some of the restrictions related to threats to 22 These include the Communist Party of the Soviet Union, the Latvian Communist Party, the Working People’s International Front of the Latvian SSR, the United Council of Labour Collectives, the Organisation of War and Labour Veterans, the All Latvia Salvation of Society Committee or their regional Committees or the Union of Communists of Latvia. Concerning the legality of similar limitations for running for public office, see Ždanoka v. Latvia (App no 58278/00) ECHR 16 March 2006, especially paras 119 and 120. 23 The OSCE High Commissioner suggested that ‘the fact that an applicant has been called to criminal responsibility but not yet brought to trial and convicted, would not be a reason for refusing citizenship, but for deferring the decision until the court has made its ruling’. See Letter from the OSCE Commissioner to the Minister for Foreign Affairs of the Republic of Latvia (10 December 1993, No. 1463/93/L), available at accessed 8 February 2012. 24 Ziemele Ineta, State Continuity and Nationality: The Baltic States and Russia. Past, Present and Future as Defined by International Law (Martinus Nijhoff Publishers: Leiden 2005). This provision, however, might change soon. Article 17 of the Law on Preservation of Documents of former KGB, their Use and Establishment of the Fact of Co-operation between a Person and the KGB provides that the fact of co-operation of a person with the KGB can be established in the procedure prescribed by law within 20 years after the Law has entered into force. The Law entered into force on 3 May 1994, but the duration of the procedure has been extended from 10 to 20 years. See also several cases of the Constitutional Court where it did not reflect on the Citizenship Law specifically but more generally on the legitimacy of the prohibition on exercising different

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public security, independence and territorial integrity and to lift the requirement that these threats should be confirmed by the courts. Language requirements and knowledge of the Satversme and history have been subject to detailed supervision by international experts. For instance, just before the Citizenship Law was submitted to the Saeima, the OSCE Commissioner suggested: If the new citizenship law would include a requirement that basic elements of the Constitution should be known, the requirement should be formulated in such a way that different interpretations are not possible. Generally speaking, the requirement that basic elements of the Constitution should be known should not be a major obstacle to the acquisition of citizenship. Whatever language requirements are chosen, they should not exceed the level of ‘conversational knowledge’ which was required by the Supreme Council Resolution of 15 October 1991. The Government, administrative authorities and courts should be lenient in the application of this requirement as far as citizenship is concerned. A clause exempting elderly persons (60 years and over) and disabled persons from language requirements when they apply for citizenship should be introduced.25

This, indeed, could serve as guidance for the EU Member States when adopting integration conditions for third country nationals applying solely to long-term resident or other status. The requirement for the level of knowledge of language is controversial. This, however, is related to the general vision of naturalization in the context of integration, i.e., whether naturalization is seen as part of integration or as a reward for integration. In cases when naturalization is seen as part of integration the claim for ‘conversational knowledge’ is adequate and this should inevitably lead to a better position on the labour market which has a better chance of ensuring integration of a person rather than leaving them without citizenship and thus excluding them from exercise of different rights attached to citizens only. This approach to the role of knowledge of language has also been supported in legal doctrine.26 At present Latvian regulation on exams sets minimum requirements. The Citizenship Law includes general provisions on naturalization exams which have been liberalized by the 1998 amendments. Detailed regulation is delegated to the Cabinet of Ministers. Articles 19–21 of the Law primarily focus on the language rights for persons who were related to the KGB without any time limit. The Court has explicitly stated that these limitations should be regularly revisited and reconsidered by taking into account the political maturity of the country. See case No. 2000-03-01, 30 August 2000 and case No. 2005-13-0106, 15 June 2006. 25 Supra note 11. Concerning different citizenship policy strategies and the most preferable from the OSCE point of view see supra note 23. 26 See, for instance, debate on the need to have a language exam between proponents and opponents in Brasington Charles E., ‘After Alyosha: Baltic Citizenship Requirements Twenty Years After the Fall of Soviet Communism’ (2011) 20 TLCP, 197–238, 215. .

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exam. For instance, Article 20 defines what is meant by the requirement that a candidate should have knowledge of Latvian, i.e., s/he can fully understand official and daily information in Latvian; freely conduct conversation and answer questions on everyday topics; read fluently and understand instructions; write an essay on an everyday topic. It should be noted that knowledge of Latvian was supported by those who were both in favour of and against the age-window quota. Thus, naturalization exams were supported by an absolute majority of political parties, except one left wing party. The naturalization procedure is relatively easy and takes approximately up to six months from the date of application. However, this can be seen as a result of constant advocacy by the OSCE Commissioner and the Council of Europe and decreasing numbers of applicants. In 1996 the OSCE Commissioner noted in his letter that barriers which applicants have to overcome are numerous: Especially for persons from lower income groups, this constitutes a considerable burden. The same applies for the application fee to be paid on acquiring citizenship: 30 lats (55 US dollars). In addition, the applicant has to see to it that, in the course of the naturalization process, he produces no less than 25 documents (some of which require notarization).27

And added: A change is desirable in the procedure for the language test. At present applicants must score sufficient marks both for the written (writing and reading) section and the oral section of the language test. In conformity with the opinion of the experts on the subject I would recommend that the total score for the written and the oral sections of the test ought to determine whether a candidate has passed the test. A change is also desirable in the history and constitutional tests. Several of the questions which could potentially be asked in this field require a detailed knowledge of the history and constitution of Latvia. I would recommend a reduction of these requirements to the basic facts of Latvian history and the main elements of the constitutional system.28

As a result of these claims not only have the procedure for submission and the list of documents decreased but also the fee for naturalization has been lowered several times despite economic developments in the country.29 Since 2003 it has been set at 20 Lats (approx. 30 Euros) and at 3 Lats (4 Euros) for certain 27 Letter from the OSCE Commissioner to the Minister for Foreign Affairs of the Republic of Latvia (14 March 1996, No. 516//96L) accessed 9 February 20012. See supra note 13 and 14, section 5(ii). 28 Ibid. 29 Regulations No. 234 on the State Duty Payable for Submission of a Naturalisation Application (Record No. 26, para. 43) 5 June 2001 as amended until 2 December 2008. The fees were changed in 1997, 2001 and 2002.

Access to and Loss of Latvian Citizenship  349

vulnerable groups of applicants.30 Although the Commissioner did not refer to the proportionality principle, the approach resembles that adopted by the CJEU in Commission v. Netherlands on fees adopted by the Netherlands in cases of access to residence permits.31 Therefore, his arguments might be a useful guideline if not for the European Commission and Fundamental Rights Agency then for the CJEU when further developing its case-law on access to EU citizenship and immigrant statuses. Applying a proportionality test in relation to naturalization requirements is certainly not lege lata and it is also context-specific. More detailed provisions on naturalization exams are included in the Cabinet of Ministers Regulations.32 The regulations on examinations provide that knowledge of the language, of the Satversme (Constitution), the anthem and history are to be tested by an examination commission established by the Office of Citizen­ ship and Migration Affairs (OCMA). According to Article 21 of the Citizenship law and Regulations No. 522 persons exempt from tests are those who: (1) have acquired primary, secondary or higher education in educational institutions with Latvian as the language of instruction, (2) have disabilities.33 Persons over the age of 65 should pass only the oral part of the Latvian language test.34

30 It should be noted that fees in 1997 were 43 EUR and 21 EUR respectively, and some persons had been exempted at that time as well. Currently regular fees are paid by 47% of applicants, 52% pay a decreased fee, and 1% are exempted from the fee according to data of the Naturalization Board. See Kruma Kristine, ‘Naturalisation Procedures for Immigrants. Latvia’ (EUDO Citizenship Observatory, Migration Policy Group, Robert Schuman Centre for Advanced Studies, RCAS/EUDO-CIT-NP 2013/20, February 2013), available at accessed 12 April 2013, 14. 31 Case C-508/10 Commission v. Netherlands, Judgment of 26 April 2012 [not yet reported] discussed in section 14.1. of part IV of this volume. 32 Regulations No. 521 on the Procedure for Acceptance and Review of Naturalization Applications., adopted on 5 July 2011; Regulations No. 522 on the Examination of Proficiency in the Latvian Language and the Examination of Knowledge of the Basic Principles of the Constitution, the Text of the National Anthem and the History of Latvia in accordance with the Citizenship Law, adopted on 5 July 2011. A special procedure is provided by Regulations No. 520 on the Procedure for Submission and Review of Application for Recognition of a Child being a Citizen of Latvia adopted on 5 July 2011. For detailed outline see supra note 30. Naturalization tests take place in the regional branches of the Office of Citizenship and Migration Affairs of the Ministry of the Interior which since 1 March 2010 took over the functions of the Naturalization Board originally placed under supervision of the Ministry of Justice. 33 See Section 10 and Section 31–36 of Regulations No. 522, supra note 32. See also recommendation mentioned in letter of the OSCE Commissioner, supra note 23. 34 These exceptions were introduced in 1998. The OSCE High Commissioner argued that persons over 60 should be exempted from language requirements. Supra note 11. See also letter requesting that persons over the age of 65 be exempted from at least the written part of the language test. Supra note 13.

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Naturalization tests of both language and history introduced after adoption of the Citizenship Law have been simplified over the years. Similarly to the naturalization procedure in general the contents of the exam were closely examined by experts from international organizations who made specific suggestions on simplification of the exams.35 This allows the argument that naturalization is no longer seen as a reward for integration but rather as a tool for integration. At the same time the level of language knowledge required, i.e., B1, is insufficient for a person to follow the political process in Latvian or to become familiar with laws and regulations affecting them. Moreover, Russian is still widely practiced on a daily basis and access to information in Russian discourages using and upgrading knowledge of Latvian after passing the naturalization exam. The statistics on pass rates of persons who have taken naturalization exams show considerable fluctuations. They would require detailed analysis in the context of the changing number of applicants, gradual legislative changes simplifying requirements, including the groups exempted from exams, as well as decreasing availability of courses offered free of charge. For the purposes of illustration, statistics for three years of reference are chosen: 1999 – the year after liberalization of the Citizenship Law, 2005 – the year after EU accession, and 2011.36 Table 2. Pass rates of naturalization exams. Type of exam

Pass

Did not pass

Exempted

History (1999) History (2005) History (2011) Language (1999) Language (2005) Language (2011)

13 273 19 269 2 341 12 938 17 198 1 775

37 987 569 115 3 292 1 253

26 43 45 495 2 216 400

Source: OCMA data, see accessed on 8 October 2012. 35 For instance, the history test initially included 300 questions which over the years has been decreased to 90. Supra notes 13 and 18. The OSCE High Commissioner noted “I wonder whether it is really necessary for candidates for citizenship to know what Swedish educational policy was like in Vidzeme in the seventeenth century, or which religion was supported in Latgale during the period of Polish reign, or which state officials hold the most merits for achieving diplomatic recognition of Latvia at the beginning of the twentieth century”. See also Letter from the OSCE Commissioner to the Minister for Foreign Affairs of the Republic of Latvia (14 March 1996, No. 516//96L) available at < http://www.cilevics.eu/minelres/count/latvia/960314r.htm> accessed 9 February 20012. 36 See Kruma Kristine, ‘Naturalisation Procedures for Immigrants. Latvia’ (EUDO Citizenship Observatory, Migration Policy Group, Robert Schuman Centre for Advanced Studies, RCAS/ EUDO-CIT-NP 2013/20, February 2013), available at accessed 12 April 2013.

Access to and Loss of Latvian Citizenship  351

For the time being it remains unclear whether the Cabinet of Ministers can refuse to take a decision not to grant citizenship to a person who is otherwise qualified for naturalization in cases when the Cabinet has doubts about loyalty of a candidate. For instance, the Petropavlovskis case is currently pending at the ECtHR.37 The Cabinet of Ministers refused his application for citizenship based on the argument that he is not loyal to the state. This was a precedent confirmed by the Administrative Court Senate, which stated that the Cabinet of Ministers has wide discretion in granting citizenship and that the decision is predominantly political. Moreover, in the view of the court, compliance with the requirements of the Citizenship Law does not establish a subjective right to Latvian nationality. The outcome of the case might have repercussions on Latvian ratification of the ECN which it signed already on 31 March 2001. Even if the circumstances of the case were specific and this remains the only precedent so far, there are no guarantees against repetition unless it is clearly stated in the law. This might become part of the law if the amendments are adopted in the present wording which expressis verbis provides that the Cabinet of Ministers can decide to refuse naturalization if the personal conduct of a person poses a threat to public security, public order, democratic constitutional order, independence and the territorial integrity of the State. The decision is without appeal. Thus, Latvia could ratify the ECN only after submitting a reservation. 19.3. Rights of the Child The general rule in Article 2 (5) provides that children of Latvian citizens are citizens irrespective of their place of residence. According to Article 3 of the Citizenship law a child born to parents of whom only one has Latvian citizenship

37 He is a non-citizen and was a member of the radical group Headquarters for the Protection of Russian Schools, which organised various protests against an education reform requiring more subjects to be taught in Latvian. He declared that he would run as a candidate in local government elections after being naturalised. According to various media sources, he publicly advocated the use of violence, bloodshed and terrorism and threatened to act on these after his naturalisation. There were several publications concerning these allegations, such as, ‘Staba bridinajumus par sadursmem uzskata par provokaciju’ [Warnings from Stab about clashes with police considered as provocation], Diena [daily newspaper], 14 August 2004. This publication refers to an earlier article where Petropavlovskis listed 160 combatants under his command (21 February 2004). See also the interview with Petropavlovskis: Murniece I., ‘Intervija ar Juriju Petropavlovski: “Mums vajadzigs starptautisks skandals!”’ [Interview with J.Petropavlovskis: ‘We need International Scandal’], Latvijas Avize [daily newspaper], 20 December 2004. Russian sources can be found at: 2004.novayagazeta.ru. Judgment of the Administrative Cases Department of the Supreme Court’s Senate case No. SKA 221, 11 April 2006.

352  Chapter Nineteen

is recognized as a citizen if born in Latvia or if one of the parents has permanent residence in Latvia at the time of birth. In cases when both parents live permanently outside Latvia, they can agree on the citizenship of the child. The child will be recognized as a Latvian citizen if one of parents is a Latvian citizen but the other is either stateless or unknown. In these cases the place of birth is irrelevant. The proposed amendments will further simplify the procedure if only one parent is a Latvian citizen, i.e., the child will be considered a Latvian citizen and can retain another nationality in accordance with further provisions of the Law. The 1998 amendments provided for nationality for children born in Latvia after 21 August 1991 to stateless persons or non-citizens. Thus, a conditional ius soli acquisition of nationality was created. According to Article 31 in order to apply for nationality in the case of statelessness, a child should be: (1) a permanent resident; (2) having no criminal record indicating more than five years of imprisonment in Latvia or elsewhere; (3) stateless or a non-citizen ‘for the entire time’ of its life prior to application; (4) fluent in Latvian as verified by a document from an educational establishment or by the Commission of the Naturalization Board; and (5) below the age of fifteen. Until the child reaches the age of fifteen, the application can be submitted only jointly by both parents. An application can be submitted by the mother only if there is no indication of the father on the birth certificate or the record is made at the request of the mother. Either parent is entitled to register a child separately if the other parent has died. An adopted child can be registered by a single parent. The requirement that both parents should submit an application is excessive. Taking into account that many parents divorce, live apart in different States or otherwise cannot agree on Latvian citizenship, leaving a child with the status of non-citizen until reaching 15 years of age is unacceptable. It should be noted that a certificate of language proficiency should be submitted by those minors who apply for registration when they have reached the age of fifteen. According to Article 31(5) after they have reached the age of eighteen general naturalization requirements apply. The OSCE Commissioner argued for the right of children to acquire Latvian citizenship from 1993 if they are born in Latvia and who would otherwise be stateless. His view was that this is a requirement of Article 24 (3) of the ICCPR and Article 7 (1) of the Convention on the Reduction of Statelessness.38 The OSCE Commissioner also stated that the argument that those children would be entitled to citizenship of the Russian Federation is not valid for three main reasons. First, he referred to Article 7 of the Convention on the Rights of the Child according to which a child cannot be made dependent upon the possible exercise of an option available to a parent. Secondly, the availability to a parent of an option 38 Letter from the OSCE Commissioner, supra note 11. See also letters supra notes 13 and 23.

Access to and Loss of Latvian Citizenship  353

cannot be considered to confer a duty to make use of it, otherwise there would no longer be any ‘right’ to nationality. Finally, Article 3 of the Convention on the Rights of the Child requires that ‘in all actions concerning children the best interests of the child shall be a primary consideration’.39 Moreover, Article 6 (2) of the European Convention on Nationality prescribes an obligation of States parties to provide nationality to children born on their territory who do not acquire another nationality at birth. This leads to the ius soli principle applying in the case of stateless children. According to the Convention that nationality should be granted at birth ex lege or subsequently to children who remain stateless upon application by or on behalf of the child concerned. An application can be conditional upon lawful and habitual residence on the territory of the State for a period not exceeding five years.40 In relation to children of non-citizens it would be clearly disproportionate to deny them the right to acquire Latvian citizenship at birth. This would increase the number of stateless persons or alternatively persons holding the status of non-citizen, a status which was never intended to be permanent. A child who is entitled to another citizenship does not acquire the right to be registered in Latvia on a ius soli basis. Although the Latvian Citizenship Law currently corresponds to the requirements of the CRC, there is room for further development. The Committee on the Rights of the Child noted that acquisition of citizenship for children should be facilitated by providing more information and support.41 It can be disputed whether the requirement of the Citizenship Law that only both parents or only a mother under certain circumstances can apply for citizenship on behalf of a child is proportionate. This hinders access of children to citizenship at birth ex lege which would be the most efficient solution. Moreover, the conditions added make the provision incompatible with the requirements of the Convention on Nationality. For instance, a divorced mother of a non-citizen child cannot apply for citizenship on behalf of her child if the father’s whereabouts are unclear or he refuses to register the child as a Latvian citizen. The same holds true in cases where a parent is absent from Latvia. These problems had been noted by politicians and one of the primary aims of ‘opening’ the Citizenship Law for amendments was to remedy this problem. According to the amendments a single parent can register a child as a citizen at birth. However, both parents should be stateless or non-citizens. In addition the parents will be required to confirm that they will help the child to learn Latvian and will raise the child to respect and be loyal to Latvia. It remains to be seen how this provision, if accepted, will be implemented 39 Supra note 13. 40 See section 7.2. of part II of this volume. 41 UN Committee on the Rights of the Child, ‘Concluding Observations: Latvia’ (28 June 2006) UN Doc CRC/C/LVA/CO/2.

354  Chapter Nineteen

and monitored. If the parents have not registered a child as a citizen, the child can do that when reaching age of 15. In those cases restrictions would be applicable as in cases of naturalization. In addition to Article 31 the Citizenship Law contains other provisions related to children. Children up to the age of fifteen acquire nationality together with a naturalized parent without being subject to the naturalization process as set out in Article 15. However, there are reports on the so-called ‘forgotten children’, i.e., those whose parents when naturalizing forget to mention their children in the application form. Amendments to these provisions have been advocated by NGOs for years. In order to serve the best interests of the child the procedure should be made well-known and reminded or even made compulsory except in cases where this has been explicitly refused by the applicant or a child. This would be in line with the provisions which state that nationality is granted to a minor from fourteen to eighteen years of age only with their written consent according to Article 16. A minor whose nationality has changed and their consent has not been obtained can, within a year of coming of age, renew Latvian nationality irrespective of the period of residence in Latvia according to Article 16 (2). If the nationality of a child has changed as a result of the marriage of (one of) its parents, the naturalization procedure will not be applicable if the child wishes to renew Latvian nationality. Children can benefit from more liberal regulation of multiple nationalities acquired at birth. National courts have dealt with cases of dual citizenship on a number of occasions. The major problem in the case of children is caused by lack of adequate information on procedures for registering children as Latvian citizens without renunciation of existing citizenship.42 For instance, the Consti­ tutional Court dealt with a case where a dual citizen of Israel and Latvia wished to register his daughter – a citizen of Israel – as a Latvian citizen after arriving in Latvia. However, when entering Latvia he had indicated that his daughter was a citizen of Israel. Subsequently the OCMA refused to register her as a Latvian citizen. According to the facts of the case the father was informed that he could register his daughter as a Latvian citizen when arriving in Latvia. The Court ruled that multiple nationalities can arise at birth and are prohibited only in cases of naturalization. A child cannot be refused multiple nationality on the basis of formal requirements, i.e., correct understanding of the form to be filled in.43 42 See Judgment of the Department of Administrative Cases, Senate of the Supreme Court in case No. SKA – 678/2008 (A42545307) 6 November 2008 and Judgment of the Department of Administra­ tive Cases, Senate of the Supreme Court in case No. SKA – 417/2008 (A42572706) 23 September 2008. 43 Krūma Kristīne, ‘Country Report: Latvia’ (EUDO Citizenship Observatory European University Institute, Florence, Robert Schuman Centre for Advanced Studies 2013), available at accessed 28 March 2013. Decision of the Constitutional Court No. 2007-07-01, 21 August 2007.

Access to and Loss of Latvian Citizenship  355

However, the question whether children must renounce their other citizenships when they come of age remains unclear. The proposed amendments contain several articles in which a detailed approach to cases involving multiple nationalities is described. This will also concern children.44 However, specific provisions concern those children born after adoption of the amendments and who will acquire Latvian citizenship by descent, or because their parents are unknown or because they are orphans. They will be allowed to retain the other nationality. In addition the amendments provide that a child who has acquired multiple nationalities and who opts to preserve the other nationality after becoming of full age and until reaching 25 years of age can apply to renounce Latvian citizenship. This requirement does not apply in cases when dual nationality is allowed by the Citizenship Law. 19.4. Loss of Citizenship Latvian nationality is lost in cases of renunciation or revocation. According to Article 23, renunciation can take place if a person has been guaranteed the nationality of another State except if he or she has unfulfilled obligations towards the State or has not fulfilled mandatory military service. The clause on fulfilment of obligations towards the State is unclear, i.e., whether it involves fiscal or other obligations. Such a broad formulation may make it possible to arbitrarily deny the right to change nationality.45 In addition the provision on military service is outdated because since 2004 Latvia has a professional army and mandatory military service has been abolished. Article 24 provides for three cases when citizenship can be revoked by a decision of a regional court, namely, if a person (1) has acquired the nationality of another State without renouncing Latvian citizenship; (2) continues to serve in foreign armed forces or similar institutions without permission from the Cabinet of Ministers; or (3) has acquired nationality by fraud. Most often citizenship is revoked when citizen has acquired another nationality or has acquired nationality by fraud.46 One might question the proportionality or even the legitimacy of the requirement concerning service in foreign armed forces. First, since Latvia has become a member of NATO and the EU is strengthening its competence in common defence policy, service in foreign military forces in a Member State of one of those 44 See next section. 45 Ziemele Ineta, State continuity and nationality in the Baltic States: international and constitutional law issues (DPhil thesis, Wolfson College, University of Cambridge 1998) 248. 46 In 2010 – 82 claims were brought and 40 rulings adopted; in 2011 – 66 claims brought and 84 rulings adopted; in 2012 – 59 claims were brought and 54 rulings adopted.

356  Chapter Nineteen

organizations does not seem sufficient ground for losing Latvian citizenship. Second, there are dual nationals among Latvian citizens who have served in foreign military forces but they are still Latvian citizens. Third, in addition to military forces the provision also lists the security service, police or institutions belonging to the judicial branch. The list is too wide if taking into account differences in the organization of police or judicial branches in Europe. More complicated cases might arise when Latvian citizenship is acquired or lost in a context not related to naturalization. For instance, the Department of Civil Law Cases of the Senate of the Supreme Court has dealt with a case of deprivation of citizenship where a descendant of a Latvian citizen was accused of fraud.47 The facts of the case are contradictory and not finally proven. In contrast to Rottman the person in the main proceedings – N.K. – did not naturalise but acquired citizenship on the basis of Article 2(1) of the Citizenship Law, i.e., she was a descendant of a person holding citizenship on 17 June 1940. The question arose whether she could qualify for Latvian citizenship because she acquired citizenship of the Russian Federation after 4 May 1990. This according to Article 2(1) disqualifies her for Latvian citizenship under the Article referred to. The applicant was registered as a Latvian citizen in 1996 on the basis of the fact that her mother was a Latvian citizen. At that time she did not inform the authorities of her Russian citizenship. Upon registration she submitted a passport of the USSR and noted that her permanent residence was in the Russian Federation.48 The revocation of Latvian citizenship was based on the fact that she did not inform the authorities that she had citizenship of the Russian Federation. At the same time she was entitled to Latvian citizenship because she was a descendant of a Latvian citizen, irrespective of the fact that she was a citizen of another State in the meantime. The lower courts differed in their argumentation and decisions.

47 Judgment of the Civil Law Department of the Senate of the Supreme Court in case No. SKC215/2011, 22 June 2011. Final ruling adopted by the Civil Cases Court Chamber of the Supreme Court No. C03058707, PAC-0220/2013, 18 February 2013. 48 The applicant (N.K.) acquired Russian citizenship under Article 13 of the Citizenship Law of the Russian Federation, 28 November 1991. This provided that Russian citizens are all former USSR citizens who are permanent residents of the Russian Federation upon entry into force of the law, if within a one year term they do not declare their unwillingness to be citizens of the Russian Federation. The Latvian authorities found out that in 1993 N.K. received a Russian citizen’s passport. The applicant herself confirmed that she had been a citizen of the Russian Federation. According to the facts the applicant was a Russian citizen until December 1995. She travelled to Latvia as a citizen of Russia in 1995 and only then applied for renunciation of Russian citizenship. At the same time the Russian Consulate stated that the applicant was a permanent resident of Latvia and was not a Russian citizen.

Access to and Loss of Latvian Citizenship  357

The Senate established criteria to be applicable in such cases and returned the case to the lower courts for reconsideration.49 A number of questions were validly raised. First, the applicant argued that Russian citizenship was imposed on her because the Russian citizenship law entered into force in 1991 while the Latvian citizenship law was adopted in 1994. Thus, being resident in Russia she had no other option to regularize her status than to become a Russian citizen. This argument could be subject to doubt except if one takes into account the confusing situation at administrative level in both Russia and Latvia at that time.50 Second, the applicant had been residing in Russia since 1989 and was not allowed to enter Latvia with a USSR passport after 1992. Therefore, she applied for a foreign Russian passport to visit her mother during 1993–1995. This is again linked with practical difficulties, including the fact that access to a Latvian visa was limited due to limited consular representation. Third, after 1996 she applied for a Latvian visa as a stateless person but indicated a foreign passport as a travel document testifying her belonging to the USSR. The Senate, not being the court of appeal, did not deal with the issue whether the applicant was entitled to register as a citizen under Article 2(1) of the Citizen­ ship Law. The Senate concluded that the lower court had not properly established a case of fraud, i.e., the fact that the person was a Russian citizen was hidden by intention.51 In applying Article 24(1) of the Citizenship Law the courts should bear in mind that a person cannot be deprived of nationality thus becoming stateless. The Senate emphasised that the principle of proportionality is applicable.52 Therefore, similarly to Rottman the Senate noted that the proportionality test should be applied in cases of deprivation of citizenship. Thus, the length of time 49 The case had been reviewed by the Civil Cases Court Chamber of the Supreme Court. Although it acknowledged that N.K. had acquired Latvian citizenship by fraud, it further argued that her profession (sales-women) and contents of the application form do not lead to the conclusion that N.K. did not submit information about her Russian citizenship intentionally. Therefore, Latvian citizenship should be preserved. Case Nr.C03058707, PAC-0330/2013, 4 March 2013. 50 Russian citizenship was imposed on all persons who were former USSR citizens and resided in the Russian Federation on the date of adoption of the Citizenship Law on 28 November 1991. Persons could opt out within a one year term. The applicant was allowed to renounce Russian citizenship on 15 December 1995. This led the Chamber to conclude that she had accepted Russian citizenship rather than that the status had been imposed. 51 The Senate noted that the law does not require indicating acquisition of another citizenship under Article 24 (3) of the Citizenship Law. All data necessary are registered and the fact that no extra information is provided is by itself not sufficient to constitute fraud. The main obligation to find out the truth lies with the authorities not with the individual. An individual cannot be punished for not giving information which is not requested. In 1996 the applicant arrived in Latvia with a Russian stateless person’s passport. This was subsequently also confirmed by Chamber judgment. 52 The case was dealt with in 2007, which is more than 11 years after citizenship was granted.

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between grant and revocation of citizenship has to be taken into account. More­ over, the purpose of providing imprecise information by the applicant is important. The Senate also noted that formal requirements of application forms in relation to information submitted as such are insufficient proof to disentitle a person of nationality. Sometimes it is indeed difficult for persons to understand the consequences of filling in forms in one or another way. Moreover, international rules or principles are to be taken into account in addition to national legislation. The Senate referred to the Convention on the Reduction of Statelessness and the ECN (not even ratified by Latvia) which should be given due consideration. The Senate ruling shows that Latvian courts are well equipped to deal with controversial cases on citizenship. At the same time possible abuse of unclear regulation existing during the transition regime should be given detailed examination.53 However, no arguments were raised that the case would require a special approach because a person was at risk of becoming stateless and thus losing EU citizenship. In regular cases of revocation or renunciation a person can reacquire citizenship by naturalization after five years of permanent residence in Latvia at the earliest. These grounds comply with those identified in the Convention on the Reduction of Statelessness. However, a strict and grammatical application of the provisions might entail problems in the EU law context, according to the CJEU ruling in Rottman.54 Article 24 and especially 24(1) and 24 (3) should be applied according to the proportionality test and by co-ordinating with the EU Member State concerned. Significant changes are envisaged regarding dual nationality by adopting draft amendments to the Citizenship Law. First, they provide that persons who were Latvian citizens at the time of occupation and their descendants who left Latvia or had been deported retain the right to register as Latvian citizens. They are allowed to retain the other citizenship when registering Latvian citizenship. Second, multiple nationality is allowed to Latvian citizens who acquire citizenship of the EU, EFTA, NATO Member States, Australia, Brazil and New Zealand as well as a State with which Latvia has concluded an agreement on recognition of 53 In the case discussed above a number of facts would require more detailed examination, i.e., the fact of acquisition of Russian citizenship despite entitlement to Latvian citizenship as well as prolonged inaction by national authorities. 54 See section 11.2.3. of part III of this volume. At the same time the courts should not rule contra legem by allowing dual nationality even if this would be desirable. See Civil Cases Court Chamber of the Supreme Court in case No. C04318208, PAC-0118/12, 16 February 2012. The Court not only adopted wrong interpretation of the Law but also Judgment of the Constitutional Court in case No. 2009-94-01, 13 May 2010.

Access to and Loss of Latvian Citizenship  359

multiple nationality. Third, the Cabinet of Ministers will be allowed to permit dual nationality in other cases if that is important for State interests. Fourth, dual nationality will be allowed if a person has acquired another nationality as a result of marriage (ex lege) or adoption. Fifth, some groups of persons can retain another nationality if they are registered as Latvian nationals or are born after the amendments are adopted. A special regime is envisaged for Latvians and Livs. Introduction of multiple nationalities has been another main reason along with liberalization of the regime for acquisition of citizenship in cases of stateless children. The provisions on multiple nationalities have changed during the drafting process and it remains to be seen what the final version will be, especially in relation to the organizations and countries listed. However, even if those proposals were adopted, cases might still occur when a Latvian citizen acquires Russian citizenship, thus losing EU citizenship rights. A person who has resided in Latvia from birth, has integrated in society but acquired Russian citizenship for travel or business reasons could invoke the Rottman case and claim that loss of Latvian citizenship involves loss of EU citizenship which is arguably not proportional. At the same time regulation of multiple nationalities is in the competence of EU Member States and it would be difficult for the CJEU to intervene even if EU citizenship is a fundamental status within the EU. The Latvian case is important in several aspects. First, national courts do apply general principles including proportionality in cases where citizenship is lost. Therefore, courts not only apply law grammatically but also pay due regard to the facts of the case and possible consequences to avoid cases of statelessness. Second, migration within the EU over the years has motivated politicians to liberalize regulation of multiple nationalities. This is a welcome trend to facilitate free movement of EU citizens. Third, the amendments aim to deal with cases when citizens who had left Latvia due to or during the occupation have not registered as Latvian citizens within the deadline set by Law. The provision in force which set a deadline for renewal of citizenship rights de facto while retaining other nationalities has been reviewed by the Saeima and the Constitutional Court.55 The Court invited the legislature to re-consider its strict approach to dual nationality. Therefore, liberalization of dual nationality would solve the issue and allow Latvian nationals to register as citizens without losing their other nationality.

55 See Judgment of the Constitutional Court in Case No. 2009-94-01, 13 May 2010, 17.

Chapter Twenty Concept of Non-Citizen Statelessness may occur from conflicts of nationality laws.1 Statelessness may also arise either from State succession, or, as with Latvia, from State continuity. Latvia represents a specific case because a group of people became of undetermined status because they did not qualify for Latvian citizenship on the basis of the State continuity principle and they also did not opt for citizenship of the Russian Federation or other CIS States.2 Lack of coordination of domestic legislation between Russia, the various newly-independent CIS States, and the Baltic States presented an acute problem.3 Moreover, Russian military personnel (50,000– 80,000 military personnel with more than 22,000 retired Soviet military officers) remained in Latvia pending an inter-State withdrawal agreement of whom some resorted to fictitious marriages and forged documents in an attempt to regularize their status in Latvia.4 Initially the residence rights of non-citizens were regulated by the Law on the Entry and Residence of Foreigners and Stateless Persons which entered into force on 2 July 1992. This determined procedures for applying and receiving residence permits. As noted by Ziemele, the formulations of the Law were unclear about the status of long-term residents in Latvia, opening ways for arbitrary decisions by relevant authorities. The status of individuals who entered Latvia between 4 May and 2 July 1992 was even more uncertain. The government had issued instructions in 1990 whereby permanent registration of persons arriving at that time was prohibited unless some special circumstances could be advanced. Practice varied 1 See part II of this volume. 2 They could register as Russian citizens under the Citizenship Law of the Russian Federation, 28 November 1991. According to Article 13 (1) all former USSR citizens could register as Russian citizens if they permanently resided in Russia, except if they explicitly refused acquisition of citizenship. Thus, Russia did not take over the whole responsibility as being successor to the occupying power but limited its responsibility to permanent residents only referring to them as compatriots. 3 Ronen Yaël, ‘Status of Settlers Implanted by Illegal Territorial Regimes’ (2009) 79/1 BYIL, 194–263, 228. 4 Latvia hosted the Soviet Army’s Baltic region headquarters. Muižnieks Nils, ‘Government Policy and the Russian Minority’ in Muižnieks Nils (ed.) Latvian-Russian Relations: Domestic and International Dimensions (LU Apgāds: Rīga 2006), 11–21, 15; and Muižnieks Nils, ‘Russian Foreign Policy Towards “Compatriots” in Latvia’ 119–130, 120 in the same volume.

362  Chapter Twenty

from one administrative district to another and the 1992 Law was applied retroactively.5 In an attempt to strike a balance between the State continuity principle and the obligation to avoid statelessness, Latvia introduced the special status of ‘non-citizen’ in 1995 by adopting the Law on the Status of Former Soviet Citizens who are not Citizens of Latvia or any Other State (Former USSR Citizens Law). The Law aimed to secure the rights of Soviet-era settlers and to avoid criticism for creating stateless people. Initially, this status was seen as temporary because it was assumed that non-citizens would naturalize or eventually apply for citizenship of another State. The process of granting non-citizen status was not easy. The period between renewal of independence and adoption of the new Citizenship Law and Former USSR Citizens Law was considerable. Up until adoption of the Citizenship Law, there were expectations that Latvian citizenship would be granted to Soviet era immigrants. In addition, the ‘propiska’ system overburdened migration in the territory of the former USSR which led to the situation where families were divided and it was difficult to prove residence in or links with Latvia.6 Third, there were no administrative courts and information was lacking on procedures for and consequences of applying for the new status. People were confused about whether to apply for a new status. This is confirmed by the fact that the Latvian government repeatedly had to extend the deadline for validity of USSR passports set for March 2000. Despite the deadline, the OCMA continued exchanging passports into 2001 with 300 new passports issued almost every month.7 In 2002, 19 000 people were still using old USSR Passports. Since Latvia’s accession to the European Union there has been little or no pressure from international organizations regarding Latvia’s citizenship policy and the issue of non-citizens. Moreover, Latvian courts have only recently given an authoritative interpretation of the status of non-citizens, the most important of which is the ruling of the Constitutional Court.8 The Constitutional Court has 5 Ziemele Ineta, State Continuity and Nationality: The Baltic States and Russia. Past, Present and Future as Defined by International Law (Martinus Nijhoff Publishers: Leiden 2005) 160–161. 6 There were no free movement rights in the USSR but persons had to apply to the central authorities for residence in a specific territory. Migration was monitored and organised. Therefore, for instance, if a person went to study or work in the territory of Russia and got a ‘propiska’ there his or her residence rights in Latvia were no longer registered and it was difficult to prove the right to enter and reside in Latvia after the collapse of the USSR. 7 Supra note 5, 163. It should be noted that even in its annual report for 2011 OCMA noted that it had informed non-citizens who are Latvians by nationality that they are entitled to register as citizens. Therefore the number of persons registering as Latvian citizens has increased. See, Annual Report of OCMA (2011), available at accessed 8 April 2013, 14. 8 See Judgment of the Constitutional Court Case No. 2004-15-0106, 7 March 2005.

Concept of Non-Citizen  363

analyzed adoption of the Former USSR Citizens Act in the historical and political context and concluded that the opinion that Latvia had a duty to grant nationality automatically to those individuals and their descendants who had never been Latvian nationals and arrived during the occupation is unfounded.9 The Court acknowledged that introduction of the status of non-citizen was a complicated political compromise as a result of which a category unknown in international law has been created. In its judgment the Court defined the status of non-citizen in the following way: The status of non-citizens is not and cannot be considered as a mode of Latvian nationality. However, the rights given to non-citizens and the international obligations which Latvia has undertaken in relation to these persons, signify that the legal link of non-citizens to Latvia is recognized to a certain extent and based on it mutual obligations and rights have emerged.10

The Constitutional Court therefore confirmed that non-citizens have a legal link with Latvia which entails mutual rights and obligations. Those are, however, different from the rights and obligations of nationals. Latvia has consistently defended its position that non-citizens cannot be qualified as stateless persons and this view has been accepted by international human rights monitoring bodies.11 For instance, the Human Rights Committee and the Committee on the Elimination of Racial Discrimination have accepted that noncitizens are not stateless persons. At the same time, they have emphasised the need to encourage the naturalization and integration of those persons. Therefore, they have indirectly suggested that non-citizen status cannot become permanent by appealing to the fact that those people have been residing in Latvia for many years, if not their whole lives.12 The EU Network of Independent Experts on Fundamental Rights has also acknowledged that non-citizens are neither citizens

9 Ibid., para 13. 10 Ibid., para 17. 11 Ziemele Ineta, Krūma Kristīne, ‘Eiropas Savienības pilsonība un Latvijas nepilsoņi’ [European Union citizenship and Latvian non-citizens] (2003) 33 Latvijas Vēstnesis, Jurista Vārds [Weekly Supplement to Official Gazette Lawyer’s Word]. See, for instance, UN Human Rights Committee, ‘Concluding Observations on Latvia’ (3 October 1995), UN Doc CCPR/C/79/Add.53, which refers to non-citizens as ‘permanent residents’. UN Committee on the Elimination of Racial Discrimination, ‘Concluding observations. Latvia’ (12 April 2001), UN Doc CERD/304/Add.79 in paras 14 and 23 refers to ‘non-citizens’. 12 See UN Committee on the Elimination of Racial Discrimination, ‘Concluding observations. Latvia’ (12 April 2001), UN Doc CERD/304/Add.79, paras 12–14, and UN Committee on Elimination of Racial Discrimination, ‘Concluding Observations on Latvia’ (10 December 2003), UN Doc CERD/C/63/CO/7, paras 12–13. UN Human Rights Committee, ‘Consideration of Reports Submitted by States Parties under Article 40 of the Covenant’ (1 December 2003), 79th Session, UN Doc CCPR/CO/79/LVA, paras 16–18.

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nor aliens. They are also not stateless persons. According to experts they belong to a category of persons unknown in international law.13 However, the UN High Commissioner for Refugees qualifies non-citizens as stateless persons.14 Over the years the status of non-citizen in Latvia has been strengthened and is no longer treated as temporary. There are sporadic initiatives to grant Latvian citizenship automatically or to grant non-citizens political rights.15 Upon accession to the EU, the question of granting EU citizenship to non-citizens was raised by left-wing political parties. However, it was never seriously debated in ruling right-centre government coalitions. Two important considerations may explain the coalitions’ position: firstly, the discussion would inevitably lead to rejection of EU membership in a referendum on joining the EU. Secondly, EU citizenship for non-citizens would significantly reduce interest in naturalization. Therefore, in the EU context non-citizens would be subject to immigration directives, most importantly the LTR Status Directive. In the context of the LTR Status Directive, legal doctrine introduced two concepts: denizenship and quasi citizenship. The term denizen was already used in early 18th century legislation to describe a status somewhere halfway between a citizen and an alien, a status that could be obtained by a foreigner on the basis of residence in a country. The Swedish political scientist Thomas Hammar first used the term denizen to describe the status of migrant workers who came to Western and Northern Europe in the 1960s and 1970s for temporary employment or in order to find protection, but ten or twenty years later were still resident in their country of immigration. In turn quasi citizenship is used to identify groups of aliens being even more similar to citizens than the denizen. Quasi-citizenship is a label for aliens who are treated almost as citizens, having full protection against

13 Synthesis Report: Conclusions and Recommendations on the Situation of Fundamental Rights in the European Union and its Member States in 2003, 4 February 2004, available at accessed on 4 April 2013, 90. 14 See, for instance, accessed 6 June 2011. For the position of the Council of Europe see Report by Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to Latvia, 5 – 8 October 2003, CommDH (2004)3, 12 February 2004, para 30, available at accessed 4 April 2013. 15 On the last initiative to grant Latvian citizenship to non-citizens automatically and allow them to renounce it within a reasonable time see Kruma Kristine, ‘Latvia: comprehensive citizenship reform on the agenda in Parliament and in a referendum campaign’, 2 September 2012, available at  accessed 8 April 2013. The Central Election Commission refused to register an initiative for a referendum and its decision was appealed to the Supreme Court Senate which in turn referred the questions to the Constitutional Court. The case is pending (Case No. 2013-06-01).

Concept of Non-Citizen  365

expulsion and some political rights, but who for some reason are not granted all citizenship rights by the country of residence.16 The status of non-citizen suggests that there might be specific categories of residents which do not fit into traditional qualifications recognised in international law and are adjusted for the purposes of EU regulation. Although introduction of the definitions of denizenship and quasi citizenship might be helpful, they do not by themselves set a minimum entitlement to rights beyond human rights in international law as does the status of national or stateless person. Latvian non-citizen status can be considered as sui generis temporary status. Latvia has been encouraged by international monitoring bodies to facilitate naturalization and integration of non-citizens. However, the exact scope of obligations beyond reasonable requirements for naturalization and the right of a child to be registered as a citizen remains unclear. Further sections will focus on legal regulation of access and loss of non-citizen status and rights attached. This analysis will help to provide an answer whether strengthening the status has led to better integration and what effects it has had on naturalization of non-citizens.

16 Groenendijk Kees, ‘The Legal Integration of Potential Citizens: Denizens in the EU in the last years before the implementation of the 2003 Directive on long-term resident third country nationals’ in NATAC: Acquisition and Loss of Nationality (2010), available at accessed 29 December 2011, 3.

Chapter Twenty-One Access to and Loss of Status of Non-Citizen When the Law on Former USSR Citizens was adopted it provided a narrow definition of persons entitled to non-citizen status. This was connected with the transition from the ‘propiska’ system to a common immigration system. The Law initially provided that only those who had an ‘unlimited propiska’ in their passports could register as non-citizens. In 1998 the Law was amended to normalize the situation of those persons who resided in Latvia on 1 July 1992.1 At the same time it excluded those who acquired an ‘unlimited propiska’ in the CIS after the date mentioned. This provision was in force until 2005. Upon transposition of Directive 2003/109 the Saeima decided to extend this regulation to persons who have acquired long-term resident Status in another EU Member State. However, the Constitutional Court ruled that this is contrary to the Satversme.2 21.1. Access to Status of Non-Citizen The Former USSR Citizens Law in Article 1 states: The persons governed by this Act – ‘’non-citizens‘’ – shall be those citizens of the former USSR who reside in the Republic of Latvia as well as who are in temporary absence, and their children, who simultaneously comply with the following conditions: 1. on 1 July 1992 they were registered as being resident within the territory of Latvia, regardless of the status of their residence; or their last registered place of residence by 1 July 1992 was in the Republic of Latvia; or a court has established that before the above mentioned date they had been resident within the territory of Latvia for not less than ten years; 2. they do not hold Latvian citizenship; 3. they are not and have not been nationals of any other state. 1 Ziemele Ineta, State Continuity and Nationality: The Baltic States and Russia. Past, Present and Future as Defined by International Law (Martinus Nijhoff Publishers: Leiden 2005), 162. 2 See Judgment of the Constitutional Court Case No. 2004-1501-0106, 7 March 2005, and section 22.2.1. below. In the context of the ruling, the question arises whether the provision adopted in 1998 was valid. The provisions of the Constitution on the basis of which the ruling was adopted have been in force since 6 November 1998.

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Persons excluded from the scope of the law are those who have been affiliated with the Soviet military and their family members if they arrived in Latvia in connection with service as a Soviet military officer, as well as persons who were reimbursed for departure or registered residence in the CIS after 1 July 1992. Therefore, Latvia took responsibility over persons who arrived in Latvia irrespective of the purpose of arrival, except for military obligations. Although during the first years after regaining independence and after adoption of the Former USSR Citizens Law many uncertainties arose in relation to the status of residents, lately the number of cases on access to the status is insignificant. This is because the Status Law has been in force for about 13 years and a majority of those who were entitled to the status registered during the 1990s. Most cases concern persons who were not living in Latvia permanently in 1992, as required by law, or had acquired and lost another citizenship in the meantime. This category of people arrived in Latvia later and applied for non-citizen status.3 For instance, Mr. V was born in Latvia but from 1983–1994 lived in Estonia. He arrived in Latvia and claimed the status of non-citizen. The Court emphasized that the legislator, when inventing the status of non-citizen, aimed to regularize the status of persons who lived in Latvia permanently.4 Therefore, the status was not granted to Mr. V. One of the most controversial cases is the case of Ms. B. She was denied the right to acquire the status of non-citizen because it was established that she had served in the military of the Russian Federation. According to Russian legislation, only Russian citizens are allowed to serve in the Russian armed forces. However, Ms. B insisted that she never accepted Russian citizenship. The Court noted that according to international law the wish of a person to become a national of a particular State is important. The Court referred to the principle that nationality cannot be imposed on a person. Since there was no conclusive evidence that Ms. B. applied for Russian citizenship herself, she could not be refused the status of non-citizen. Therefore, the national courts are cautious in withholding noncitizen status and unless there is conclusive evidence that a person has acquired citizenship of another State, the status of non-citizen will be preserved. A number of applications on regularization of status have been made to international judicial bodies. For instance the Kaftailova case in the ECtHR concerned an applicant who was born in Georgia and lived in Latvia from 1984.5 The ECtHR 3 Judgment of the Regional Court of Administrative Cases in case No. C27225803 (AA 261-05/01), 15 April 2005, Judgment of the Regional Court of administrative cases in case No. C27188903 (AA484-05/5), 23 September 2005, Judgment of the Regional Court of administrative cases in case No. A 688-04/8 (AA 398-05/3), 21 November 2005. 4 Judgment of the Department of Administrative Cases, Senate of the Supreme Court in case No. SKA – 9 (C27202402), 11 January 2005. 5 Kaftailova v. Latvia (App no 59643/00) ECHR 22 June 2006, 7 December 2007. She was a Soviet national until 1991 and had not acquired any other nationality since then. She was married to a

Access to and Loss of Status of Non-Citizen  369

observed that the applicant was originally a citizen of the Soviet Union, a State which ceased to exist in 1991, and had at no time been a Latvian citizen. She could not legally claim Latvian citizenship and she was not arbitrarily denied the right to apply for it. The applicant’s case was dealt in the context of the right to ‘private life’.6 The Court noted that it is not enough for the host State to refrain from deporting the person concerned; it must also, by means of positive measures if necessary, afford the opportunity to exercise residence rights without interference. Taking into account the prolonged residence of Ms. Kaftailova, the fact that she had no other citizenship or genuine or stable ties to other countries, the elevenyear instability period and legal uncertainty, the Court concluded that there had been a violation of Article 8. Thus the prolonged refusal by the Latvian authorities to grant the applicant the right to reside in Latvia on a legal and permanent basis had amounted to interference with her ‘private life’ within the meaning of Article 8 of the Convention. When the case was reported to the Grand Chamber the applicant was offered regularization arrangements.7 The Court stated that the Convention cannot be construed as guaranteeing, as such, the right to a particular type of residence permit. Although expulsion of stateless persons could have led to serious issues under Article 8 of the Convention, the fact that the applicant remained in Latvia considerably reduced the extent of redress. Therefore, the ECtHR tolerated the confusing situation in Latvia, at the same time taking into account the specific circumstances of the applicant. Residence rights had never been interrupted although the status of Kaftailova remained uncertain. It can be argued that the main reason why Kaftailova had not been granted immigrant status was either the particular circumstances or unwillingness on the part of the applicant to admit the changes in her status in 1991. Therefore, both individual behaviour as well as options offered by the State are person working for the USSR Ministry of the Interior. She cancelled her registration of residence in Russia in 1990 but her husband registered her without her knowledge and consent as a resident in Riga in 1990. Ms. Kaftailova objected and as a result she was removed from the register of residents of Latvia. Her daughter remained registered at the address of the father in Latvia. After Latvia regained independence the applicant became stateless and since she did not have legal residence she was refused registration in the register of residents as a non-citizen. Mrs. Kaftailova was issued a deportation order in 1995 when she asked to be registered in accordance with the Former USSR Citizens Act. After national proceedings the case was referred to the ECtHR. 6 The Court took into account that her daughter was 22 when the case was reviewed; she had been legally resident in Latvia since 2001 and had had Latvian citizenship since 2003. 7 Supra note 6. Therefore, the Court concluded that the applicant did not face a real and imminent risk of being deported and she could apply for a permanent residence permit according to instructions from the Cabinet of Ministers to the Minister of the Interior. The argument that the applicant could not submit all documents to obtain a permanent residence permit because this would require first registering as stateless was not accepted by the Court.

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important. The mere fact that an individual is unwilling to use the rights offered by the State is insufficient to establish violation of the Convention. This is especially so if the possibilities granted by the State are not overly insurmountable or not established by law. 21.2. Access of Children to Non-Citizen Status According to the Citizenship Law a child can be registered as a Latvian citizen only if both parents are stateless or non-citizens. However, for a number of years there was no regulation on the status of children born to a non-citizen and a foreign citizen. Therefore, the administrative courts had to take a position by interpreting the status of non-citizen. The courts interpreted access to the status according to the same principles as in cases of access to the status of citizen. Cases concerned situations where one or even both parents were foreign citizens, but the parents agreed to register their child as a non-citizen of Latvia.8 S.Z.&I.S. can be mentioned as an example.9 The applicant, Mr. S.Z., was refused a request to register his daughter as a non-citizen. The OCMA turned the request down because S.Z. was a citizen of Russia, while the mother of Y.Z. – I.S. – was a non-citizen of Latvia. The court found that a case like this is not regulated by the Former USSR Citizens Law or other legislative enactments. It pointed out that only the Law on the Population Register provides that if at the time of birth of a child one parent is a non-citizen of Latvia but the other a foreign national, the information on what citizenship the child holds is included in the register based on mutual agreement between the child’s parents. The court referred to the Law on Protection of the Rights of the Child, the Convention on the Rights of the Child and to the International Covenant on Civil and Political Rights. In this context, the court considered it necessary to assess whether the interests of the child were violated if the parents wanted to register her not as a Russian citizen, but as a 8 Judgment of the Regional Court of administrative cases in case No.A42151204 (AA890-05/8), 5 May 2005, Judgment of the District Court of administrative cases in case No.A42244804 (A147605/13), 19 May 2005, Judgment of the Regional Court of administrative cases in case No. A42173504 (AA 629-05/4), 9 June 2005, Judgment of the Department of Administrative Cases, Senate of the Supreme Court in case No. SKA – 136 (A42173104), 13 April 2005, Judgment of the Regional Court of administrative cases in case No. A42399505 (AA 1944-06/6), 3 October 2006, Judgment of the Regional Court of administrative cases in case No.A42348705 (AA 934-06/10) 15 May 2006, Judgment of the District Court of administrative cases in case No. A42051204 (A63-0457) 20 June 2005. Judgment of the Regional Court of administrative cases in case No. A42399505 (AA43-183207/15) 21 June 2007. 9 Judgment of the Department of Administrative Cases, Senate of the Supreme Court in case No. SKA – 136 (A42173104) 13 April 2005.

Access to and Loss of Status of Non-Citizen  371

Latvian non-citizen. The court concluded that a Latvian non-citizen is not the same as a stateless person and noted: [T]hat the Republic of Latvia has recognized its jurisdiction over non-citizens and that a non-citizen of Latvia is approximated to the status of a citizen in the terms of his or her rights. Also, it is recognized that the link of a non-citizen with the Republic of Latvia is closer than that of a stateless person or a foreign national. As the child’s parents have chosen Latvia as their place of residence, it should be concluded that when the child acquires the status of a non-citizen, his human rights will not be violated in Latvia.

According to the judgment, if the parents reach mutual agreement, a child can be registered as a non-citizen of Latvia, even if entitled to the citizenship of another State. Agreement of the parents is important and if this has not been reached a child would be denied the status.10 As a result of the decisions of administrative courts, the law was amended in 2007 and now provides in Article 8(2) that if one of the parents is a non-citizen but the other is a citizen of another State they can register their child as a Latvian non-citizen. Therefore, even though the status of non-citizen was intended to be temporary the legislator has provided for cases when non-citizen status can be granted to children born to parents where one of them is a non-citizen but the other is a foreign citizen. This provision as well as the practice of the administrative courts should be treated with caution. Policy-wise the practice of the administrative courts and the legislator does not correspond to the initial intent that the status of non-citizen should be temporary. This is despite the fact that a child of a non-citizen can subsequently acquire Latvian citizenship if the parent applies for naturalization. Even if the status of non-citizen is stable and offers access to many important rights in Latvia it cannot be made equal to citizenship, even if that means citizenship of a State other than Latvia. This approach continues to strengthen the status of non-citizen rather than to facilitate integration and further naturalization based on prolonged residence. Another case to be mentioned in greater detail is I.S.& A.V.11 The case concerned a family – parents and two children – whose non-citizen status was revoked by the OCMA.12 The first instance Court agreed with the OCMA that the 10 Judgment of the Regional Court of administrative cases in case No.A42348705 (AA 934-06/10) 15 May 2006. 11 Judgment of the District Court of administrative cases in case No. A42051204 (A63-0457) 20 June 2005. 12 They arrived in Latvia in 1977 and left Latvia in 1988 for Armenia where they stayed until 1994. Upon return they were issued visas. In their application for visas the parents indicated that they were citizens of Armenia. However, they registered in Latvia in 1994–1995 and were granted the status of non-citizens.

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parents had lied to the authorities and thus should be deprived of the status of non-citizen. The case of the children had to be treated differently because the parents submitted false information on their behalf. The Court noted that they had resided in Latvia for 11 years, graduated school, integrated in society and had command of the Latvian language. They did not feel any affiliation with Armenia. The Court referred to the judgments of the ECtHR against Latvia concerning violations of the right to private life and ruled that the children should preserve the status of non-citizens. The appellate court disagreed and did not differentiate between the children and the parents. The Senate of the Supreme Court, therefore, decided that the case should be re-adjudicated in relation to the children of the applicants.13 Upon re-adjudication the Court decided that it had not been proven that the children – daughter V.S. and son V.S. – were citizens of Armenia.14 At the same time they, the same as their parents, had not been registered residents according to the requirements of the Former USSR Citizens Act. Therefore, the authorities could revoke the status of non-citizen on the basis of the law. However, the Court by reference to Senate case law stated that: [A]lthough there is no time limit for revocation of the status of non-citizen, it would not be fair to consider that the term for revocation is unlimited. In this case general principles of law should be applied.

The Court referred to the principle of legal certainty. Since at the time of acquisition of the status of non-citizen the registration was performed by their parents, the applicants could have legal expectations that they were entitled to the status of non-citizen. The Court took into account the fact that the children had resided in Latvia for 14 years, had studied in Latvia, were integrated in Latvian society, had mastered the Latvian language and were willing to naturalize. The outcome of this case resembles the possible outcome of Zambrano in national proceedings, i.e., parents residing with their children illegally but prolonged residence allowed them to remain in Latvia to accompany their children who were potential citizens of Latvia. At the same time it should be noted that in the case of Latvia the administrative courts referred to the standards established by the ECHR rather than to the fact that children of the family should enjoy extra protection as potential EU citizens.15 The fact that they were not yet naturalized might serve as an argument for differentiation as well as the fact that the case was dealt before the CJEU ruling in Zambrano. 13 Judgment of the Department of Administrative Cases, Senate of the Supreme Court in case No. SKA-24/2008 (A42051204) 14 February 2008. 14 Judgment of the Regional Court of administrative cases in case No. A42051204 (AA43-1868-07/9) 28 April 2008. 15 See for comparison discussion on Zambrano in section 12.2.3. of part III of this volume.

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Therefore, the administrative courts do not apply the law grammatically, but pay due regard to the individual situation in each case and by applying general principles of law to arrive at the optimal result in each case. 21.3. Revocation of Status There is a general obligation to renounce non-citizen status within 30 days after acquiring nationality. This also entails the right to renounce the status of noncitizen upon acquiring citizenship and receiving a travel document according to Article 6 of the Former USSR Citizens Law. Revocation of the status of non-citizen is regulated by Article 7 of the Former USSR Citizens Law. Proceedings on revocation are subject to contestation with the Head of the OCMA and the Court. According to Article 7(1) the status of noncitizen can be revoked if a person: 1) does not comply with any of the conditions for qualification as subject of this Law; 2) belongs to any category of persons mentioned in Article 1 who are exempted from application of the Law (former military personnel and their family members and others); 3) has acquired the citizenship of another State; 4) serves in the armed forces, internal security force, security service, police or judicial institutions of another State without permission of the Cabinet; 5) has knowingly provided false information. Cases of revocation of the status of non-citizen represent the largest part of the cases dealt with by the administrative courts. Most cases concern situations when persons have acquired another citizenship but did not inform the Latvian authorities16 or provided false information in order to acquire the status of non-citizen.17 16 Judgment of the District Court of administrative cases in case No. C27270301 (A684-06/18), 15 May 2006, Judgment of the Regional Court of administrative cases in case No. C27137903 (AA 452-06/12), 22 June 2006, Judgment of the District Court of administrative cases in case No. C27144702 (A475-04/7), 1 December 2004, Judgment of the District Court of administrative cases in case No. A42377606 (A1960-07/9), 30 November 2007, Judgment of the Regional Court of administrative cases in case No. A42415906 (AA43-1059-07/6) 28 December 2007, Judgment of the Regional Court of administrative cases in case No. A42416006 (AA43-0133-08/4), 29 January 2008, Judgment of the Regional Court of administrative cases in case No. C-27189303 (AA 26604/6), 30 September 2004, Judgment of the Department of Administrative Cases, Senate of the Supreme Court in case No. SKA – 10 (C27162801), 9 March 2004, Judgment of the Regional Court of administrative cases in case No. C27188903 (AA484-05/5), 23 September 2005. 17 Judgment of the District Court of administrative cases in case No. C27270301 (A684-06/18), 15 May 2006.

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The courts have been cautious when confirming the decisions of authorities concerning deprivation of the status of non-citizen.18 For example, in G.S. the applicant had his registered place of residence in Armenia, but it was unclear if he was a citizen of that country. The Department of Administrative Cases of the Senate of the Latvian Supreme Court concluded: The connection of a non-citizen with the Republic of Latvia is closer than that of a stateless person or a foreign national. Therefore, withdrawal of the status of noncitizen is an important infringement of personal rights and cannot be based on external causes and facts that have not been fully established.19

Accordingly, the mere fact that Mr. G.S. had a permanent registered place of residence in Armenia was insufficient to deprive him of the status of non-citizen if there was no additional evidence of his acquisition of Armenian citizenship.20 If Mr. G.S. failed to acquire Armenian citizenship, then he would become a stateless person. This means: if it is not certain that an individual will acquire the citizenship of another country, then the status of non-citizen cannot be withdrawn. Therefore, the Latvian courts would apply a strict approach and require definite proof that a person will not become stateless. The question remains on the Court’s approach where the status has been acquired by fraud. The judgment does not provide for any guidance in this regard. In N.K. the OCMA refused to recognize the applicant as a non-citizen.21 The Office considered that Mrs. N.K. arrived in Latvia in connection with her spouse’s service in the armed forces of the USSR, and at the time when their marriage was celebrated her registered place of residence was in Russia. Mrs. N.K. denied this as unjustified because she had arrived in Latvia before her marriage was celebrated and had her place of residence registered. Referring to the judgment in G.S., the Administrative Regional Court concluded that, taking into account the meaning and purpose of the Former USSR Citizens Law, the main criterion is not the formal registered place of residence, but the permanent place of residence of 18 Judgment of the Regional Court of administrative cases in case No. A 688-04/8 (AA 398-05/3), 21 November 2005, Judgment of the Department of Administrative Cases, Senate of the Supreme Court in case No. SKA – 89 (C27261801), 24 August 2004, Judgment of the Regional Court of administrative cases in case No. A42005904 (A 59-04/9, AA 369-05/2), 9 August 2005, Judgment of the Department of Administrative Cases, Senate of the Supreme Court in case No. SKA – 35 (A42005904), 7 February 2006, Judgment of the District Court of administrative cases in case No. C27086604 (A1062-04/7), 15 November 2004. 19 Judgment of the Department of Administrative Cases, Senate of the Supreme Court in case No. SKA – 89 (C27261801) 24 August 2004. 20 Ibid. 21 Judgment of the Regional Court of administrative cases in case No. C-27-441-04/1 (AA 150-04/3), 8 November 2004.

Access to and Loss of Status of Non-Citizen  375

the individual. It should also be ascertained whether a person denied the status of non-citizen will become a stateless person, which is inadmissible. Another group of revocation cases concerns persons who tried to abuse the system established by Latvia, Russia and the USA, i.e. under a special programme persons residing in Latvia were granted financial assistance and housing in Russia. By becoming members of the programme they lost non-citizen status under Article 1(3) of the Former USSR Citizens Law. The right to reside in Latvia could subsequently be acquired only on a temporary basis and if the financial assistance had been returned. However, some of these persons returned and applied for a permanent residence permit or claimed that they still should be considered as non-citizens since they had refused a flat offered in Russia. The cases were complicated because most often there was insufficient information in the case file because the Russian authorities only introduced a proper registration system of ownership in 1998 and could not provide any documentary evidence.22 The courts interpret all doubt in favour of the applicant. For instance, in V.N.23 there was evidence that the applicant had applied for financial assistance and been granted a flat in Volgograd. Therefore, his status of non-citizen was revoked. At the same time the Russian embassy stated that the applicant was not a Russian citizen and had refused the flat as he was not happy about its location. Documents in the case indicated that the applicant was owner of the flat but the transfer of ownership to the new owner was unclear. Therefore, the Court decided that the fact that the applicant had received financial assistance to leave Latvia had not been proved and that he had the right to the status of non-citizen. In A.S. & T.S. the applicant was granted living space in Novgorod.24 However, he applied for a residence permit in Latvia by arguing that his wife and children were residing in Latvia as non-citizens. He also argued that he never participated in the financial assistance programme. The Court refused to accept that his right to private life had been violated. There was sufficient evidence that he had participated in the programme and he did not return the funding received. There is also a small group of cases where persons apply for renunciation of non-citizen status. For instance in V.K. the applicant was facing extradition from 22 Judgment of the District Court of administrative cases in case No. A42603207, 24 April 2008, Judgment of the Regional Court of administrative cases in case No. C27212003 (AA 508-05/2), 19 August 2005. See also in a different context the Judgment of the Regional Court of administrative cases in case No. C27232303 (AA 372-04/7), 22 December 2004. 23 Judgment of the Regional Court of administrative cases in case No. C27212003 (AA 508-05/2) 19 August 2005. 24 Judgment of the District Court of administrative cases in case No. A42603207, 24 April 2008.

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Germany to Latvia.25 He submitted three applications – to acquire citizenship, to be declared stateless, and to acquire the status of non-citizen. Finally, he decided that he wanted to be stateless because otherwise he would not be entitled to live with his family in Germany. Moreover, he had integrated in Germany and acquired education there. The Court established that he resided in Latvia on 1 July 1992 as required by the Former USSR Citizens Law and his father was a noncitizen. The applicant subsequently left for Germany at the age of 6. The Court also verified whether he complied with other requirements of the Former USSR Citizens Law. Since no restrictions were established the Court concluded that he was a non-citizen. The Court emphasized that Latvia is bound by an obligation to reduce cases of statelessness and thus could not grant him stateless person status. Similarly in M. the applicant wished to be registered as stateless.26 The Court established that the applicant complied with the requirements of the Former USSR Citizens Law because inter alia he had resided in Latvia until 1 July 1992 and had no other nationality. The Court quoted extensively the interpretation provided by the Constitutional Court on the status of non-citizen and disagreed with the arguments of the applicant that a person can choose between the status of stateless person or non-citizen status. The Court also declined the argument that non-citizens are discriminated against while the status of stateless person gives more rights. Lastly, the argument that the applicant had resided for 8.5 years outside Latvia and did not speak Latvian could not be sufficient reason to relinquish the decision of the OCMA to grant the applicant the status of non-citizen. It can be concluded that the case law of the administrative courts is well equipped to deal with cases of non-citizens. The courts consistently reinforce the status of non-citizens indicating that non-citizens are not stateless persons because they have a special connection with the State of Latvia. Besides, revocation of the status of non-citizen is a material infringement of personal rights. Therefore, the courts treat non-citizen status on the basis of similar principles as citizenship status. In cases of revocation of the status the courts invoke length of residence which raises legitimate expectations on preservation of the status. However, the current problem lies in the fact that the status of non-citizen was envisaged as temporary but the number of non-citizens remains considerable.

25 Judgment of the District Court of administrative cases in case No. A42488705 (A1118-07/11), 30 March 2007, Judgment of the Regional Court of administrative cases in case No. A42488705 (AA43-0593-08/17), 2 April 2008. 26 Judgment of the District Court of administrative cases in case No. A42305006 (A 1293-07/21), 16 April 2007.

Chapter Twenty-Two Function of Non-Citizens This section will look at areas important for functions of nationality to establish whether they resemble a similar level of protection of non-citizen compared to cases of citizens. This will allow to establish whether granting additional rights per se facilitates integration of society or rather naturalization and subsequent grant of rights is a better mechanism to achieve consolidation of society and agreement on common values for a ‘procedural State’.1 22.1. Diplomatic Protection Non-citizens are given a special passport. The passport – of a citizen or noncitizen – testifies that a person belongs to Latvia and has a constitutional right to return. Article 98 of the Satversme provides that: Everyone has the right to freely depart from Latvia. Everyone having a Latvian passport shall be protected by the State when abroad and has the right to freely return to Latvia. A citizen of Latvia may not be extradited to a foreign country, except in the cases provided for in international agreements ratified by the Saeima if by the extradition the basic human rights specified in the Constitution are not violated.

The Constitutional Court has also confirmed that a special legal link between non-citizens and Latvia can be derived from Article 98 of the Satversme.2 The Court stated: Article 98 of the Satversme establishes that everyone having a Latvian passport shall be protected by the State. This means that Latvia puts into effect diplomatic protection of persons, who have a Latvian passport. Diplomatic protection does not belong to fundamental rights but can be regarded as a mechanism of implementation of human rights and it may manifest itself in such a way that access to consular institutions is ensured to the person. And the State in its activities is free to put diplomatic protection with regard to the individual into effect or not. However, the State may have the duty to put diplomatic protection into effect, if ius cogens norms with regard to the individual have been violated.3 1 See section 2.2. of part I of this volume. 2 Judgment of the Constitutional Court in Case No. 2004-15-0106, 7 March 2005, para 17. 3 Ibid., para 19.

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After stating this, the Court analyzed to what extent diplomatic protection can be exercised on behalf of non-citizens. By reference to Nottebohm and Reports of the ILC the Court noted that opinions diverge. However, the Satversme provides for such protection. It can be argued that Latvia would have legal arguments in cases where a claim for diplomatic protection would be made on behalf of a noncitizen. First, there is no other State which could offer diplomatic protection on behalf of non-citizens. Second, the status of non-citizen as a person belonging to Latvia has been acknowledged by different international institutions. Third, noncitizens have a genuine link to Latvia on the basis of long-term residence preceding acquisition of the status. Article 2 of the Law on the Diplomatic and Consular Service includes a list of tasks which inter alia provides in indent 1 that diplomatic and consular services should ensure protection of the interests of citizens, non-citizens, stateless persons having permanent residence in Latvia as well as legal persons registered in Latvia abroad. There have been cases when Latvia offered extensive consular assistance, even by organizing consular visits to the site of detention. Most recently arrests in the Arctic Sea case can be mentioned.4 A Latvian citizen and non-citizen were detained in Russia. Consular officials visited them in detention. Another case reported concerned evacuation in the case of military conflict, i.e., during the war between Lebanon and Israel in July 2006. The consular department searched for Latvian passport holders located in Lebanon.5 In terms of the number of persons evacuated this has been considered as the largest operation in the history of the Latvian consular service. Altogether 55 persons were identified, of whom 25 citizens and 6 family members asked for help. Two of them were citizens of Lebanon, but 4 were children of a Latvian non-citizen and a citizen of Lebanon who were not registered as citizens of any country. Thus, consular assistance is offered to non-citizens and citizens without distinction. 4 The Arctic Sea case concerned piracy and seizure of a Finnish vessel operated by a Russian crew. Among the pirates were one Latvian citizen and one Latvian non-citizen. The Latvian authorities when intervening did not differentiate on the basis of their status. See, Riekstiņš aicina Krieviju nevilcināties ar informēšanu ‘Arctic Sea’ lietā [Foreign Minister Riekstins requests Russia to speed up information in Arctic Sea’ case] News portal Delfi, 20 August 2009. The same when a tanker was taken over by pirates from Nigeria, the only information national authorities had was that there was a person who was ‘belonging to Latvia’ without specifying whether the person was a citizen or non-citizen. They intervened to see how they could help. See, Pirātu nolaupiītā tankkuģu apkalpē Latvijas valstspiederīgais [Person from Latvia among crew members of tanker seized by pirates] weekly magazine IR, 12 October 2011. 5 See Informatīvais ziņojums “Par līdzekļu piešķiršanu no Finanšu ministrijas pamatbudžeta apakšprogrammas 41.02 “Līdzekļi neparedzētiem gadījumiem” 2006.gada 9 mēnešos” [Informative report “On granting means for the Ministry of Finance for programme 41.02 “Resources for unexpected cases” during 9 months in 2006”] FMZino_051006, 4 October 2006.

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Article 98 of the Satversme does not mention that non-citizens cannot be extradited because it expressis verbis refers only to citizens. However, when ratifying international conventions Latvia as a rule submits a declaration requesting equal treatment of citizens and non-citizens. For instance, upon ratification of the European Convention on Extradition and its Protocols in 1997 Latvia stated that it will apply to both citizens and non-citizens. The sentence on extradition in Article 98 of the Satversme has been inserted to comply with the European Arrest Warrant. It can be assumed that in cases of extradition of citizens and noncitizens the approach would be the same despite the narrow formulation in the Satversme. Taking into account that the status of non-citizens was meant to be temporary, the reference to non-citizens in the Satversme might not be appropriate. 22.2. Right to Reside Regarding the right to reside there are two different aspects to be dealt with within the context of this section. First, the issue related to the right to retain the status even in cases of prolonged absence from Latvia. This aspect is important since international law accepts that even citizenship can be withdrawn if persons reside permanently outside their country of citizenship. Second, the rights stemming from respect for private life. Introduction of the status of non-citizen led to complicated legal relationships in the context of the private life of a person who did not qualify for the status and their family members who did qualify for the status. 22.2.1. Right to Leave and to Enter As noted above non-citizens are qualified as long-term residents under Directive 2003/109/EC. However, in order to acquire the status in Latvia they have to comply with the provisions of the Law which requires proof that a person has sufficient resources and knowledge of Latvian. The Law on Long Term Residents was returned by the President for second review; however, the Saeima did not accept the amendments.6 6 The Law was adopted on 22 May 2006 (OG No.107 7 July 2006). The law was signed by the Chair of the Saeima acting for the President on 7 July 2006. However, the President refused to sign the law because non-citizens were not singled out as a specific group. See letter from the President No. 216 dated 30 May 2006. She objected to a regulation stating that non-citizens have to prove continuous residence and knowledge of Latvian. The Saeima reviewed the law repeatedly but did not accept proposals made by the President and left-wing parties. See Saeima nemaina likumu par

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When exercising their free movement rights in the EU as long-term resident status holders, non-citizens have a guaranteed right of return. This follows from the ruling of the Constitutional Court where it stated: The rights which Latvia has determined for its non-citizens may influence immigration policy of other states with regard to the above persons; as other states take into consideration the fact that Latvia undertakes certain liabilities with regard to them, for example, guarantees diplomatic protection of persons abroad, as well as guarantees the right to return to Latvia.7

Therefore, it can be argued that the Court has taken into account possible repercussions on obligations under EU law and took ‘due regard of Community law’. What is far-reaching in this context is the fact that Latvia has attached this obligation not only to citizens of Latvia stricto sensu but to non-citizens as well. In this sense the Latvian example could lead to re-interpretation of the LTR Directive on loss of long-term resident status by introducing an obligation to re-admit a long-term residence status holder after exercise of free-movement rights within the EU. When dealing specifically with the right to depart and to enter Latvia, the Constitutional Court took as a basis the ICCPR standard as set in Article 12(4). Thus, the Court concluded: Article 98 of the Satversme determines the right of everyone to freely depart from Latvia. This right includes several aspects. The right to depart from the territory of the state may not be restricted by asking for the reason why the person wants to depart from the state. In the same way the above right cannot be limited by determining for how long a period the individual may remain outside of state territory. Article 98 of the Satversme also determines the right of everyone having a Latvian passport to freely return to Latvia. The range of persons who have a constitutionally established right to freely return to Latvia shall be determined in the context of the law on documents certifying the identity of the person. Article 4 of this Law envisages what passports shall be issued in Latvia. In conformity with this Article a Latvian passport is granted not only to citizens, but also to non-citizens. Thus, the right to freely return to Latvia is attributed also to non-citizens of Latvia.8

Therefore, in essence the Constitutional Court has concluded that non-citizen status is sufficiently stable and guarantees the right to leave and to enter Latvia without time limit. In this context, application of long-term resident status will Eiropas Kopienas pastāvīgā iedzīvotāja statusu Latvijā [Parliament does not change the Law on EC long-term resident status in Latvia] www.apollo.lv, 22 June 2006. See Prezidente liek pārskatīt EK pastāvīgā iedzīvotāja statusa likumu [President requests review of EC long-term resident status law] www.apollo.lv, 31 May 2006. 7 See Judgment of the Constitutional Court in Case No. 2004-15-0106, 7 March 2005, paras 1, 17 and 23. 8 Ibid., para 19.

Function of Non-Citizens  381

differ in the case of non-citizens because they will never lose the right to reside in the EU. Latvia will always guarantee the right of a person to return and there is no other State outside the EU to which a person could be expelled. Moreover, in accordance with Article 2 of the Former USSR Citizens Act, non-citizens of Latvia cannot be expelled, which is not the case with third-country nationals. The non-citizen passport has been recognized by the EU as valid for visa-free travel under Regulation 539/2001 listing the third countries whose nationals must be in possession of visas when crossing external borders and those whose nationals are exempt from that requirement as amended by Regulation 1932/2006. Amendments in Article 1(2) provide that those who should be exempt from the visa requirement include inter alia “persons who do not hold the nationality of any country who reside in a Member State and are holders of a travel document issued by that Member State”. Since 1 January 2011 Regulation 1231/2010 provides that Regulations 883/2004 and 987/2009 on the application of social security schemes to employed persons and their families moving within the Community apply equally to third country nationals. Thus, Latvian non-citizens are subject to Regulation 1231/2010. Moreover, Russia has decided to provide holders of the non-citizen passport with visa-free travel to Russia. The decree, signed by President Dmitry Medvedev on 18 June 2008, grants these persons visa-free travel to Russia provided they have a valid travel document – a non-citizen passport in the case of Latvia. Minors must present either a valid travel document or a birth certificate if they are listed in the passport of an accompanying guardian.9 This policy runs against the recommendations made by the Council of Europe, which has called “on the authorities of the Russian Federation to reduce the fees for visas for Latvian citizens to the same level as the fees for non-citizens, and also calls on Russian and other neighbouring States’ authorities to encourage non-citizens in Latvia to apply for Latvian citizenship”.10 The Latvian Ministry of Foreign Affairs has protested this decision as it may bring the naturalization of non-citizens to a halt.11 However, the protest had no success. Thus, in the exercise of free movement rights in the EU non-citizens enjoy the same treatment as nationals. They can travel visa-free, obtain the long term status 9 ‘Visa waiving for Latvia’s ‘‘non-citizens’’ jeopardizes Russia-EU talks’, Ria Novosti [Russian national news agency] 18 June 2008. 10 Parliamentary Assembly, ‘Resolution 1236 (2001) Honouring of obligations and commitments by Latvia’ (23 January 2001). 11 Ārlietu ministrijas paziņojums par Krievijas Federācijas lēmumu atcelt vīzu režīmu daļai Latvijas iedzīvotāju [Announcement of the Ministry of Foreign Affairs concerning the decision of the Russian Federation to lift the visa regime for a group of Latvian inhabitants]’, press release, Latvian Ministry of Foreign Affairs, 18 June 2008.

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in Latvia or elsewhere and have a guaranteed right to return and residence in Latvia. Moreover, they can go to Russia on better conditions than Latvian citizens. They are also guaranteed certain social protection when exercising free movement rights in the EU. However, their treatment in the other EU Member States might differ and their rights might be limited on the basis of long term resident status if compared to the rights of EU citizens proper. Therefore, the incentive to naturalize is not made meaningless. In this context, willingness to move within the EU might serve as a factor facilitating naturalization. At the same time extensive equalisation of non-citizen rights with rights of citizens serves as a disincentive to naturalize. Naturalization of all resident long-term immigrants is a matter of the policy of each Member State. However, non-citizens are not third country nationals but persons holding a sui generis status which limits them in exercising all rights belonging to citizens in the country of nationality. 22.2.2. Right to Private Life Issues related to family life have arisen in the context of non-citizens due to different categories of persons who have been excluded from application of the status. There have been cases involving families having non-citizens, citizens and persons not entitled to reside in Latvia. The most difficult cases arise in the context of ex-Soviet citizens who do not qualify for the status of non-citizen but claim residence on a family life and private life basis. This includes the group of persons who are former military personnel or otherwise subject to inter-State agreements between Latvia and Russia.12 In this context the courts should remain mindful of the specific circumstances of the cases from a historical and legal point of view. Two cases of the ECtHR should be discussed in this regard – Slivenko13 and Sisojeva. Slivenko concerned the family of former Soviet military personnel who had to leave Latvia on the basis of the Latvian-Russian agreement on withdrawal of Soviet troops.14 The applicant Mrs. Tatjana Slivenko was born in Estonia and moved to Latvia at the age of one month with her mother and father who was a

12 One can also mention the Estrikh case. However, the facts of the case were different from the cases to be discussed in the context of this chapter. Estrikh, while being former military personnel, left Latvia and after returning resided on a temporary residence permit or illegally. He was accused on criminal charges and the case concerned the lawfulness of his expulsion. Estrikh v. Latvia (App no 73819/01) ECHR 18 January 2007. 13 Case of Slivenko v. Latvia (App no 48321/99) ECHR 9 October 2003. 14 The Treaty between Latvia and Russia on the conditions and schedule for the complete withdrawal of Russian Federation military troops from the territory of the Republic of Latvia and their status pending withdrawal (OG 10 December 1994). It was in force from 27 February 1995.

Function of Non-Citizens  383

military officer in the Soviet army. The other applicant – her daughter Ms. Karina Slivenko – was born in 1981 in her marriage with a Soviet military officer. In 1993 both applicants were registered as non-citizens.15 Nikolay Slivenko became a Russian citizen in early 1990 and was discharged from the army in 1994.16 In 1994 the applicants’ entry in the register was annulled on the ground of Mr. Slivenko’s military status. After lengthy proceedings in national institutions and courts Mrs. Slivenko and her daughter were expelled. The applicants claimed violation of Article 8 of the ECHR. The Court agreed to the extent that there had been interference in their ‘private life’ and their ‘home’. The applicants left Latvia against their will and they had resided in Latvia for most of their lives. The Court agreed that removal of the applicants from Latvia was ordered on the basis of law, i.e., the Latvian-Russian bilateral treaty. It also accepted that the treaty had a legitimate aim, i.e., to protect the interest of the country’s national security. The ECtHR stated that expulsion measures were taken as a result of dissolution of the State to which Latvia and Russia formerly belonged. This was not the case. The Latvian case was not based on the dissolution of the USSR but on the case where a State after decades of occupation regained its independence. Therefore, instead of rules applicable in cases of break-up of federations the rules on continuity had to be applied. This was emphasised by dissenting judges who referred to “the specific historical context and purpose” for which the LatvianRussian treaty was signed, “namely the elimination of the consequences of the Soviet rule of Latvia”.17 This perspective should have led to a different assessment of the margin of appreciation in the particular case. When examining the criterion ‘necessary in a democratic society’ the Court disregarded the possible consequences of the case and decided that Latvia had overstepped its margin of appreciation in relation to the applicants. The Court relied on the difference between retired and active service-people, i.e., a different standard is applicable in cases of removal of active servicemen and specific cases of retired military officers and their families. In the latter case the interests of national security will carry less weight. The Court also noted the exceptions made

15 There was a dispute whether registration was legal because the Government argued that Mrs. Slivenko did not mention that her husband was a Soviet army officer. Therefore, status was acquired by fraud. The applicants argued that it had not been proven by any court and the documents presented to the court were falsified. The Court essentially agreed with the applicants. See supra note 13, para 103. 16 There was a dispute as to when Mr. Slivenko was discharged from the army as it could be relevant for his entitlement to a residence permit. 17 Supra note 13, see Joint Dissenting Opinion of Judges Wildhaber, Ress, Sir Nicolas Bratza, Cabral Barreto, Greve and Maruste.

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by Latvia in relation to several individuals associated with the Soviet army. It remains unclear whether the Court accepted the controversial facts of the case as to whether Mr. Slivenko had to be considered as a military officer falling within the scope of the bilateral treaty. The reference of the Court to 900 cases where persons were able to legalize their stay in Latvia, notwithstanding their status as relatives of Russian military officers, was misinterpreted. By this statement the Court itself acknowledged that Latvia was taking a case-by-case approach even when applying the Latvian-Russian bilateral treaty. As exemplified in the dissenting opinion, all of those cases concerned either Latvian citizens or close relatives of Latvian citizens. Indeed, if they had been ordered expulsion, it would have led to violation of Article 3 of Protocol No. 4 of the Convention. When applying the proportionality test the ECtHR adhered to two main arguments. First, that Latvia did not examine whether each person concerned presented a specific danger to national security or public order but perceived it in abstract terms.18 Therefore, the Court argued that the individual circumstances of the case had to be taken into account. This, however, contradicts the Court’s earlier conclusion that individual evaluation was performed and related not only to Latvian citizens. It also does not fit the Court’s general statement that there is no general right of an alien to reside in a particular country.19 Second, the family members had developed personal, social and economic ties in Latvia unrelated to their status as relatives of Soviet military officers. The Court did not regard as important the level of knowledge of Latvian and the fact that they had acquired Russian citizenship subsequent to removal.20 Therefore, the level of integration was established on the basis of prolonged residence and the habits of family members to live in certain surroundings. It should be noted that in other cases the Court would rather have given weight to the argument whether family life was impossible in the country of origin of the father – the closest family member of the applicants.21 In this case, the fact that a member of the core family – the husband of Mrs. Slivenko – resided in Russia was not decisive. Moreover, as suggested by the dissenters to the judgment the condition of actual danger to territorial security will hardly ever be satisfied in relation to family members. Instead,

18 Supra note 13, paras 121–122. 19 Supra note 13, paras 115 and 120. 20 The fact of interference in private life was also noted on the basis of the fact that the applicants had lived most of their life in Latvia and completed their education in Latvia. This was found a valid argument even though education at that time could be completed solely in Russian. Moreover, the court noted that the applicants lost the flat in which they had lived in Riga although that flat was never owned by them or rented properly. It was a flat belonging to the Ministry of Defence. 21 See section 8.2.2.3. of part II of this volume.

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the proportionality of limiting their residence rights had to be determined by reference to the father’s/husband’s status rather than the status of the applicants’ parents or the fact of prolonged residence in Latvia. It should also be noted that the interpretation of integration by the ECtHR differed significantly from what is understood by integration in the national context. This was unconvincing argumentation on the part of the Strasbourg Court. In her comment on Slivenko Ineta Ziemele raises several valid questions. For instance, she questions whether the ECtHR approach suggests that the Convention altogether represents a kind of jus cogens and thus is hierarchically above any bilateral or multilateral treaties binding on States Parties.22 Apart from the issue of the relationship between the treaties there is also a more general question on the position of the Court regarding the relationship of Article 8 and the erga omnes character of withdrawal of foreign armed forces stationed without consent of the State concerned.23 It cannot be denied that long-term residents should be more protected against expulsion in comparison with short term residents. Human rights law does not go so far as to outlaw expulsion under any circumstances.24 However, if the Court was willing to advance an argument that the rights of individuals prevail over all other principles in international law it should have been more specific by positioning the requirements of the ECtHR in relation to general international law. The other case – Sisojeva25 – concerned a married couple Svetlana Sisojeva and Arkady Sisojev and their daughter Aksana Sisojeva.26 Mr. Sisojev arrived in Latvia as a member of the Soviet armed forces in the late 1960s. Father and daughter 22 For instance, there might be cases when Schengen Information System regulation would apply in the EU context. This does not exclude application of the ECHR, but those treaties should be seen in a relationship rather than in a hierarchy. On the relationship between human rights law and the Schengen regime see Brouwer Evelin, Digital Borders and Real Rights. Effective Remedies for Third-Country Nationals in the Schengen Information System (Martinus Nijhoff Publishers: Leiden, Boston 2008). 23 Ziemele Ineta, ‘Case-law of the European Court of Human Rights and Integrity of International Law’ in Huesa Vinaixa, Karel Wallens (dir), L’Influence des Sources Sur L’ Unité et law Fragmentation du Droit International (Bruylant: Bruxelles 2006) 187–210, especially 203–207. 24 See, Üner v. the Netherlands (App no 46410/99) ECHR 18 October 2006. No violation was found in the case of expulsion of a Turkish national from the Netherlands where he with his family joined his father. He arrived when he was 10. Notwithstanding various convictions he managed to attend courses to qualify as a sports instructor. He was deported to Turkey at the age of 35 while his family was left behind. The Court gave detailed criteria – in paras 57–58 reproduced in section 8.2.2.3. of part II of this volume. 25 Sisojeva and others v. Latvia (App no 60654/00) ECHR 15 January 2007. See also Chamber judgment of 16 June 2005. 26 The case of the elder daughter Tatjana Vizule was declared inadmissible because she had been married to a Latvian national and was mother of two minor children of Latvian nationality.

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were Russian nationals while Svetlana Sisojeva had no nationality. The father retired from military service in 1989. In 1993 the family were issued temporary residence permits. The decision was appealed because the family wanted to acquire permanent resident status and the appeal was accepted. However, in 1992, the Sisojev couple had also registered in Russia despite residence in Latvia. Upon discovery, criminal proceedings were instituted against them in 1995 which ended with an administrative penalty for using false identity papers. The decision was appealed. In 1996 Mr. Sisojev and his daughter were granted Russian citizenship but Ms. Sisojeva remained stateless. The Joint Committee for the implementation of the bilateral Latvian-Russian Treaty on social welfare arrangements for retired members of the Russian armed forces and their family members residing in Latvia had requested issue to the applicants of permanent residence permits. However, the national courts refused to accept the request because the treaty concerned only pension rights, not residence rights. It was only in 2000 when the OCMA explained that if Mrs. Sisojeva applied for the status of stateless person and was registered, family members would be granted a permanent residence permit. The Chamber of the Supreme Court found that “the prolonged refusal of the Latvian authorities to grant the applicants the right to reside in Latvia on a permanent basis constitutes an interference with the exercise of their right to respect for their private life” and that the fact that regularisation of Mr. Sisojev and his daughter was made subject to the status of Ms. Sisojeva led to the situation when due to a long period of insecurity and legal uncertainty Latvia had overstepped its margin of appreciation. The Grand Chamber agreed that from 1996 until 2000 the members of the Sisojev family experienced a period of insecurity and legal uncertainty. At the same time the Court noted that: However, it does not consider that their situation was substantially more uncertain than that of the applicants in most similar cases (see, in particular, the decisions in Pančenko, Mikheyeva and Fjodorova and Others). Firstly, the Court notes that, in 1992 and 1995, the applicants in the present case obtained two passports each and registered their residence in both Russia and Latvia without informing the relevant Latvian authorities. In the Court’s view, this demonstrates that returning to Russia one day was an option they were prepared to consider. What is more, the applicants were undoubtedly aware that their conduct – for which, moreover, they were subsequently ordered to pay a fine – was in breach of the Latvian legislation of the time. Accordingly, it cannot but be said that the problems they experienced following the withdrawal of their initial residence permits stemmed to a large extent from their own actions.27

The Court concluded that the case in essence had been resolved by offering Mrs. Sisojeva to regularize her status and obtaining an identity document for 27 Supra note 25, para 94.

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stateless persons. She would thus be able to remain in Latvia on a legal and permanent basis.28 The Court by 16 votes to one struck the application out of its list of cases. It can be argued that the case differed significantly from Slivenko in the sense that persons could regularize their status, despite the fact of the period of legal uncertainty. The Court was mindful of the difficulties and uncertainty dominating in the 1990s when Soviet era settlers had to decide whether to stay in Latvia and on what basis. The Grand Chamber did not qualify the relatively long period of uncertainty as a violation of Article 8 ECHR. The possibility of regularization also excluded the need to discuss the integration argument which was important in Slivenko. The approach of the ECtHR has also been followed by national courts when dealing with long-term resident cases. Two cases can be mentioned as examples. For instance, V.K. concerned a mother and two children under full age who were born in Latvia.29 Since none of them had legal status in Latvia they were issued an expulsion order to any other State. It was assumed that the applicant would leave to Belarus where she had a registered place of residence from 1991–2001 and which is the State of citizenship of her husband. A number of witnesses were questioned. They all confirmed that the applicant had resided permanently in Latvia. It was also confirmed that the applicant had a registered place of residence in Latvia from 1991–1995 and then in 2001. Her mother was a Latvian citizen and residence in Minsk (Belarus) was cancelled in 2001. The court disagreed with the argument by the OCMA that it was not obliged to establish the factual residence of the applicant and a relationship with another State. It argued that this is a formal approach and in cases when human rights of a person might be breached the institution is under obligation to verify all facts. The national court also referred to ECtHR judgments, including Slivenko, which provide that expulsion of longterm residents is an unjustified interference in the private life of an individual and decided that the expulsion order was ineffective. The reference to Slivenko, however, seems to be unjustified rather than a thorough examination of the case law of the ECtHR. This is especially so because V.K. did not concern a Soviet army officer. For instance, references to both Sisojeva and Fjodorova30 would have been 28 Ibid., para 94. 29 Judgment of the Regional Court of administrative cases in case No. C27232303 (AA 372-04/7) 22 December 2004. 30  Jeļena Fjodorova et autres c. la Lettonie (requite no. 69405/01) decision 6 avril 2006. Ms Fjodorova, a stateless person of Russian origin, and her parents, holding non-citizen status lived in Riga. Ms. Fjodorova left Latvia in 1991 to Ukraine where she married and gave birth to a daughter. She returned to Latvia with her daughter in 1994. She divorced in 1995 and her registration in Ukraine was annulled. She was refused a residence permit in Latvia and in 1998 she was issued a deportation order. She appealed the decision. Upon adoption of the Law on Stateless Persons in 2004 she was offered the status of stateless person and issued a temporary travel document.

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more appropriate. Moreover, the particular circumstances of Mrs. V.K. should further have been noted. She could not be treated on the basis of the same principles as long-term residents and non-citizens. She did not have legal status in Latvia. However, the final answer in this case would depend on whether her registered residence in Belarus was valid and her links with other family members residing there. An outcome similar to Sisojeva could be envisaged. A.K. concerned Mr. A.K., a Russian citizen, who was included in the blacklist by the Minister of the Interior and ordered expulsion.31 The minister stated that his decision was based on a report of the Security Police which considered that residence of Mr. A.K. in Latvia constituted a threat to public security and public policy. Mr. A.K. applied to the Senate of the Supreme Court.32 The Court had to analyze possible violation of the right to private life of Mr. A.K. He submitted that he was born in Latvia and had resided there for many years. The Court noted that the right to private life can be limited if prescribed by law and necessary to protect the rights of others, democracy, public security, welfare and morals. When applying the proportionality test, the Court referred to Slivenko and stated that the minister had to verify whether Mr. A.K. still had substantial personal, economic or social ties with Latvia. The minister also had to consider whether Mr. A.K. had links with Russia and whether there were serious obstacles for his mother, residing in Latvia, to visit him in Russia. The Court did not establish that these matters had been considered before the decision was taken. Therefore, the decision of the minister was declared ineffective. Therefore, the Supreme Court decision as such did not grant the rights applied for by Mr. A.K. but required more detailed examination before reaching a final decision. Although there are still questions on the position of the ECtHR in relation to the principles and rules of general international law regarding rights of long-term residents, it can be concluded that Latvian practice in most cases has gone further than international law obligations stricto sensu would require. If a family member has acquired the status of non-citizen, their family member can rely on the right to private life. National courts by reference to Slivenko interpret the right to In 2005 her application for permanent residence was accepted. Since the situation had been resolved the applicants could no longer claim to be victims. Since a solution to her residence rights had been found, the case was struck out of the list. 31 Judgment of the Department of Administrative Cases, Senate of the Supreme Court in case No. SA – 4, 24 February 2006. 32 The Constitutional Court in Judgment No. 2004-14-01, on 6 December 2006, ruled that a provision of the Immigration Law not allowing appeal against decisions taken by the Minister of the Interior to include a person in the Blacklist in the court violated Article 92 of the Satversme, i.e., the right to a fair trial. However, decisions of the Minister for Foreign Affairs are without appeal. Mr. A.K. was subsequently expelled on the basis of a decision of the Minister for Foreign Affairs to avoid further court proceedings.

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private life broadly. Access to particular status at national level was not the ratio of the majority in Slivenko. Moreover, the right to private life is not a right which is unconditionally respected in cases of long-term residents from the human rights law perspective. For instance, according to the Human Rights Committee’s jurisprudence, attachment to a territory by long-term residence does not suffice to protect a person from expulsion. What is required is a formal link to the State such as nationality, or special circumstances that otherwise outweigh absence of that formal link.33 The situation would differ in cases where the facts would allow EU regulation on family reunification to be invoked. However, treatment should also be context specific depending on the status of the family member, who might be former Soviet military personnel. The analysis above shows that different standards apply under different conventions and instruments. The overall conclusion is that, notwithstanding divergent practices there are common trends in strengthening residence rights of long-term residents. Those, however, have not yet reached the possibilities of regularization which are becoming more apparent at the EU level where family reunification is an expressly provided right. 22.3. Equality of Treatment 22.3.1. General Principles Under Article 2(1) of the Former USSR Citizens Act, a non-citizen has all human rights and duties as defined in the Satversme. In addition under Article 2(2) they have the right: • to preserve his or her native language and culture as well as traditions which are not in conflict with the laws of Latvia • not to be expelled from Latvia, except if this is done in accordance with the procedure set by law and with the consent of the foreign state. Moreover, if a person is persecuted on the ground of race, religion or ethnic origin, collective expulsion is also not permitted. 33 As noted by the Human Rights Committee in Stewart only those who have been unfairly denied the possibility of naturalization would be entitled to the protection of Article 12 (4) ICCPR. Communication No 538/1993, Charles E. Stewart v. Canada, Human Rights Committee, 16 December 1996. See also Communication no. 1011/2001 Francesco and Anna Madafferi and their children v. Australia, Human Rights Committee 26 August 2004. UN Human Rights Committee, ‘ICCPR General Comment 27: Art.12 (Freedom of movement), (2 November 1999)’ in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (12 May 2004) UN Doc CHRI/GEN/Rev.7, para 20.

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The current reading was inserted in 2000. Before the amendments the article listed rights which non-citizens enjoy. As noted by the members of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe: At the end of March 2000, the Saeima adopted progressive amendments to the “Law on the Status of the Former USSR Citizens who are not citizens of Latvia or any other State” which governs the legal status of Latvia’s stateless non-citizens. The amendments explicitly state that non-citizens enjoy all human rights enshrined in the Constitution and they have the right “to preserve their native language, culture and traditions within the framework of national cultural autonomy”. The Co-rapporteurs were told by human rights NGOs that while the practical impact of the law was likely to be minimal for the time being, the move weakened the position of those who wished to limit the application of minority rights to citizens alone.34

Taking into account that Latvia is a State Party to major human rights treaties and its Constitution contains a chapter on fundamental human rights, non-citizens enjoy the same human rights as any other resident or citizen in Latvia. However, there are ongoing debates concerning several groups of rights in the realm of both public and private sectors.35 Those can be grouped under three categories, i.e., (1) rights which belong to persons who can claim as belonging to national minorities; (2) political rights and rights to serve in public service; (3) rights to exercise certain professions in the private sector. Rights of non-citizens to preserve language, culture and traditions are different from rights of persons belonging to minorities. When Latvia ratified the Framework Convention for the Protection of National Minorities in 2005 it submitted a declaration stating: [Declares] that the notion “national minorities” which has not been defined in the Framework Convention for the Protection of National Minorities, shall, in the meaning of the Framework Convention, apply to citizens of Latvia who differ from Latvians in terms of their culture, religion or language, who have traditionally lived in Latvia for generations and consider themselves to belong to the State and society of Latvia, who wish to preserve and develop their culture, religion or language. Persons who are not citizens of Latvia or another State but who permanently and legally reside in the Republic of Latvia, who do not belong to a national minority within the meaning of the Framework Convention for the Protection of National Minorities as defined in this declaration, but who identify themselves with a national minority that meets the definition contained in this declaration, shall enjoy the 34 Parliamentary Assembly, ‘Report on Honouring of obligations and commitments by Latvia’ (10 January 2001) Council of Europe Doc. 8924, para 27. 35 For detailed enumeration of limitations see website of NGO Human Rights Committee available at accessed 11 April 2013. For legal analysis of validity of limitations see letter of Ombudsman available at accessed 11 April 2013.

Function of Non-Citizens  391 rights prescribed in the Framework Convention, unless specific exceptions are prescribed by law [emphasis added].

The definition included in the declarations suggests that Latvia will recognize the existence of a minority if persons are Latvian citizens who have resided in Latvia for generations. This definition excludes non-citizens as a group but at the same time admits that non-citizens who identify themselves as belonging to a minority can enjoy minority rights according to the law.36 The main remaining differences between citizens and non-citizens are in the sphere of political rights and the right to take public posts. Various international bodies have invited Latvia to consider allowing non-citizens to vote in local elections as part of their integration process.37 It has been emphasised that limitations in the case of national elections or referenda are understandable. However, local elections are unconnected with the exercise of national sovereignty and this restriction places non-citizens in a disadvantageous situation compared to EU citizens. However, since there are no legal obligations to grant voting rights to non-citizens, there have been no political initiatives from the ruling parties. Public service positions which are restricted to nationals include civil service jobs, the judiciary, public prosecutors and State security institutions. Other professions are considered as belonging to the private sector but these include important functions provided by the State, for instance, sworn land surveyor, sworn auditor, notary, sworn advocate and the like. There are also certain limitations on working as a guard. Other restrictions have been gradually removed.38 These differences seem to be in line with Directive 2003/109 and are proportionate. But granting voting rights in local elections should be seen from the perspective of a targeted integration programme to be discussed in the next section. The other differences relate to possession of land and calculation of pensions between citizens and non-citizens. The question of possible discrimination 36 For detailed legal analysis on minority rights in Latvia see Ziemele Ineta, ‘114. pants. Personām, kuras pieder pie mazākumtautībām, ir tiesības saglabāt un attīstīt savu valodu, etnisko un kultūras savdabību’, Balodis Ringolds (ed.), Latvijas Republikas Satversmes komentāri. VIII nodaļa. Cilvēka pamattiesības (Latvijas Vēstnesis: Rīga 2011) 695–715. 37  See, for instance, UN Human Rights Committee, ‘Concluding observations on Latvia’ (6 November 2003) UN Doc CCPR/CO/79/LVA.UN Committee on the Elimination of Racial Discrimination, ‘Concluding observations: Latvia’ (10 December 2003) UN Doc CERD/C/63/ CO/7. Report by Alvaro Gil-Robles, Commissioner for Human Rights of the Council of Europe, on his visit to Latvia (12 February 2004) Doc CommDH(2004)3. 38 Supra note 34, para 26. For instance restrictions on working as fire-fighters, airline staff, pharmacists and veterinary pharmacists have been abolished. This has been facilitated by recommendations of international organizations. See, for instance, UN Committee on the Elimination of Racial Discrimination, ‘Concluding observations. Latvia’ (12 April 2001) UN Doc CERD/304/ Add.79.

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concerning calculation of pensions was brought to the Constitutional Court. The applicants claimed that non-citizens and citizens should be subject to the same principles of calculation of pensions for periods of employment preceding 1 January 1991 and performed outside the territory of Latvia.39 After that date periods of employment were subject to the same scheme irrespective of the status of the individual and based on payments of social tax. However, for periods of employment before 1 January 1991 foreigners and stateless persons were entitled to a social welfare pension or were granted a pension on the basis of an international agreement. The Court referred to the difficult transition from the Soviet based pension system to the new contributory system. It also acknowledged international obligations, practice of the ECtHR and bilateral agreements already concluded regarding pensions. As a result it ruled that the Latvian pension system is not discriminatory towards foreigners and stateless persons, except that the legislator should include non-citizens expressis verbis among that group of persons. This was implemented by adopting amendments to the Pension Law in 2008 which provided that periods spent for studies to acquire higher education, doctoral studies or serving a sentence as a political detainee is taken into account for calculating the pension of non-citizens. The Constitutional Court examined whether the new provision corresponds to the requirements of the Satversme and the ECHR and ruled that differentiation between citizens and non-citizens when calculating pensions is proportionate.40 22.3.2. ECHR Regime Differences in treatment in the social sphere have been subject to judicial review. The recent ruling of the Grand Chamber of the ECtHR in Andrejeva by sixteen votes to one established that Latvia had discriminated against non-citizens concerning calculation of their pensions according to Article 14 taken in conjunction 39 Judgment of the Constitutional Court in Case No. 2001-02-0106, 26 June 2001. Entitlement to a State pension was granted to all persons residing in Latvia whose place of residence at the time of entry into force of the State Pension Act was Latvia (1 January 1991). The Act provided for the right to social cover in old age: employment pension and social welfare pension. Stateless persons who had arrived in Latvia from another country and had not been employed in Latvia received their pension in accordance with an agreement signed with the State concerned but in the case of absence of such an agreement they were granted a social welfare pension. Therefore, employment periods in other parts of the USSR were not taken into consideration when calculating pension except for periods of education, qualification periods and periods related to political repression including imprisonment. 40 Judgment of the Constitutional Court in Case No. 2010-20-0106, 17 February 2011. See also following section 22.3.2.

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with Article 1 of Protocol No. 1.41 This in a way was contrary to the ruling of the Constitutional Court discussed above. The Pension Law provided that pensions of foreign nationals or stateless persons who had been resident in Latvia on 1 January 1991 should be based on periods of employment in Latvia only. The Latvian authorities proceeded accordingly in the case of Natalija Andrejeva. She worked for seventeen years in Russian and Ukrainian enterprises having their branches in Latvia and her pension contributions were collected by trade unions of respective central offices of enterprises. The Court refused to accept the Government’s argument that the case did not fall within its jurisdiction because Latvia was not a successor State to the USSR. The Court considered that this is not decisive because the measure complained about was taken by Latvia. The Government further contended that Latvia had not inherited the rights and obligations of the former Soviet Union as regards welfare benefits and explained in great detail the differences in the pension system during the Soviet period and when independence was re-established. Moreover, the Court included a lengthy quote from the ruling of Latvian Constitutional Court case No. 2001-02-0106, where it is argued that the Soviet solidarity based pension system did not guarantee an identifiable share of the fund for individuals and it cannot trigger rights under Article 1 of Protocol 1. However, the ECtHR disregarded these arguments and noted that where a State decides of its own accord to pay pensions to individuals in respect of periods of employment outside its territory, the presumed entitlement falls within the ambit of Article 1 of Protocol 1. The Court was not persuaded by the Government’s argument that if Ms. Andrejeva became naturalized she would qualify for a pension on the same footing as nationals. In the view of the ECtHR the Government could not absolve itself from the obligation to treat everyone within its jurisdiction equally. Since Andrejeva is a non-citizen Latvia is the only State that can assume responsibility for her in terms of social security. As noted by dissenting judge Ziemele the Court disregarded the fact that Latvia took entire responsibility for Latvian citizens irrespective of their place of work as well as foreign nationals and stateless persons who worked on the territory of the former Latvian SSR. Moreover, the applicant was granted a minimum State-guaranteed pension.42 Latvia decided to guarantee a minimum pension to everyone living in the country, irrespective of citizenship and additionally to compensate for losses incurred as a result of the demise of the 41 Andrejeva v. Latvia (App no 55707/00) ECHR 18 February 2009. 42 In the context of discrimination it should be noted that all individuals were entitled to a flat rate pension of 15 LVL (21.34 EUR). Four years later even if citizens in principle had to be compensated for their years of work during the Soviet period, the standard pension received by the majority of the population amounted to 22 LVL (31 EUR).

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USSR on the basis of the criteria for citizenship and territory.43 Therefore, Latvia has granted minimum support to everyone, while adding slightly to citizens and those who worked in Latvia. If this approach is placed in a legally correct context, there is nothing to suggest that the distinction made was arbitrary or discriminatory. The approach of the ECtHR is suitable in cases of long-term immigrants who migrated to the country under regular immigration procedures. The case of Latvia is context-specific involving not only rights derived from the Convention but also general international law and related to obligations towards residents who worked in another State. The ECtHR considered it disproportionate to disregard employment periods of non-citizens in Russian or Ukrainian enterprises before 1991 in pension calculations. Notwithstanding that the pension of Andrejeva was recalculated soon after conclusion of the Latvian-Ukrainian agreement on mutual recognition of periods of employment, the Court dismissed the Latvian government’s argument that such pension claims are subject to international agreements on social security. The dissenting opinion to this ruling of the Latvian judge suggests that the ECtHR methodology resulted in erroneous conclusions. Judge Ziemele argues that by “saying or implying that Latvia has some automatic obligations stemming from the Soviet period would defy the fact that the occupation and annexation of Latvia were illegal in international law and it would raise a question as to the Court’s compliance with the general principle of ex injuria non jus oritur and the obligation of non-recognition in international law”. Therefore, the Court erred by equalising citizens with non-citizens when relying on the fact that in the past they were all Soviet citizens irrespective of the place of work. Alternatively it can be argued that the Court knowingly refused to take into account the context of the case thus narrowing the margin of appreciation available to Member States under the Convention. This would imply that the Court would accept the argument that after renewal of independence Latvia was not obliged to pay pensions to anyone because it had no resources. At the same time, if Latvia chose to do so, then according to the Convention it had to provide equal sums to everyone. This approach inevitably leads to fragmentation of international law because the Court would refuse to look at the general international law context as well as bilateral treaties which have equal legal standing to multilateral treaties. Moreover, this might undermine the role of the ECtHR which it has tried to achieve. The Court should take into account that different social systems were established after changes in statehood. These might differ depending on whether the State regained its independence, or separated on basis of State succession. Moreover, the ECtHR is not entrusted to harmonize national legislations of the 43 Supra note 41, dissenting opinion of judge Ziemele, para 6–7.

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States Parties to the Convention, but to ensure that the provisions of the Convention are observed. This means that the margin of appreciation of Member States and the national context should be appreciated.44 There is an example which allows the argument that Andrejeva is an exception. For instance, the methodology of the Court in Andrejeva differs sharply from the approach it took in Ždanoka.45 The Court’s practice seems to be inconsistent depending on whether the judges are willing to take the historical and legal situation into account or rather to remain indifferent by applying the convention in a vacuum. If the ECtHR wishes to advance a new argument that human rights are in a way superior to general international law (and certain of them indeed are), or to disregard the consequences of illegal occupation and the principle of State continuity, a more nuanced argumentation should have been made.46 In the context of Andrejeva, the ECtHR not only disregarded the State continuity argument, but also humanitarian law, principles of State responsibility as well as freedom of States to conclude bilateral agreements on social issues. It can be argued that Andrejeva similarly to Slivenko raises many questions and the cases are to the detriment of the rule of law in international law to the extent that the Court’s position on general international law issues is unclear, if not ultra vires. From a policy point of view the Court’s ruling in Andrejeva extended the scope of rights which should be granted to non-citizens. By taking this position the Court further discouraged non-citizens from applying for citizenship, which has been one of the main concerns of international organizations themselves. At the same time the case of Andrejeva can be viewed as a special case taking into account that she was resident in Latvia while working for branches of enterprises established elsewhere. This was the reading of the Constitutional Court in the above case on the Law of State Pensions.47 The Court confirmed that the basic principle for calculation of pension is based on employment periods in Latvia. It referred to Andrejeva by noting that the ECtHR had dealt with the specific 44 See Lord Hoffmann, The Universality of Human Rights (Judicial Studies Board Annual Lecture, 19 March 2009), available at accessed 25 May 2011. 45 In this case the historical legal context played a major role. The case concerned Mrs. Ždanoka, who complained that she could not stand for local and national elections because she had been an active participant in the Communist Party of Latvia after 13 January 1991. She could, however, stand for elections to the European Parliament. The Court’s Grand Chamber analyzed Latvian history in great detail and against the historical background ruled that the rights of Mrs. Ždanoka were not violated and it was legitimate to exclude her from the candidates list. Ždanoka v. Latvia (App no 58278/00) ECHR 16 March 2006, paras 119–120. 46 See, for instance, Crawford James, ‘Multilateral Rights and Obligations in International Law’ (2007) Haague Academie voor Internationaal Recht: Recueil des Cours (Académie de Droit International de La Haye), 325–482. 47 Supra note 40.

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circumstances of the case rather than the general principles of the Latvian pension system.48 The Court also referred to the wide margin of appreciation granted by the ECtHR in questions of economic or social strategy.49 It also noted the importance the ECtHR has devoted to questions of continuity and succession of States.50 Therefore, taking into account the margin of appreciation in social issues as well as the principle of State continuity the Court noted that Latvia is not bound by decisions and obligations established by an illegal regime, which are not transferable to a State which has regained its independence. The Court also noted that absolute prohibition of discrimination in the social sphere might lead to serious financial consequences. The fact that a person is not allowed to benefit from specific social rights does not lead to human rights violations.51 The Court emphasised that the situation of non-citizens cannot be treated as identical to cases of long-term immigrants who arrived according to procedures of legal migration nowadays. Moreover, non-citizens are entitled to acquire Latvian citizenship, but Latvia should continue the process of concluding international treaties, including treaties with ex-Soviet republics, on mutual recognition of periods of employment – as indeed it has been doing already. Taking into account that Andrejeva was a specific case since she resided in Latvia while working in foreign enterprises, it remains to be seen whether the approach of the ECtHR or the Constitutional Court will be followed in the future. The approach chosen will indicate whether the status and historical context of the State or claims by an individual to equal treatment will prevail. 22.3.3. EU Regime In the EU non-citizens are entitled to apply for long-term resident or other immigrant status under relevant directives.52 EU accession negotiations avoided issues related to the status and rights of non-citizens. The Commission of the European 48 Ibid., para 9. 49 Ibid., para 10 quoting inter alia ECtHR judgments in Jankovič v. Croatia (App. no. 43440/98) 12 October 2000, Hadžič v. Croatia (App. no. 48788/99) 13 September 2001, Carson and Others v. the United Kingdom (App. no. 42184/05) 4 November 2008, Zubczewski v. Sweden (App. no. 16149/08) 12 January 2010. 50 Supra note 40, para 11 quoting inter alia ECtHR judgments in Jasinskij and Other v. Lithuania (App. no. 38985/97) 9 September 1998, Kuna v. Germany (App. no. 52449/99) 10 April 2001, Kovačič and Others v. Slovenia (App. no. 44574/98, 45133/98, 48316/99) 3 October 2008. 51 See also in this regard Bossuyt Marc, ‘Should the Strasbourg Court Exercise More Self-Restraint? On the extension of the jurisdiction of the European Court of Human Rights to social security regulations’ (2007) 28/9–12 HRLJ, 321- 332, 325 and 329. 52 Letter from the Directorate-General Justice and Home Affairs, European Commission to the Permanent Delegation of Latvia in the EU institutions, 23 June 2003. See also section 22.2.1 of this part.

Function of Non-Citizens  397

Union, when interpreting the scope of application of the LTR Directive, stated that “the expression ‘third country national’ covers all persons who are not citizens of the Union in the sense of Article 20(1) of the TFEU, that is to say those who do not have the nationality of an EU Member State”. This indicated that persons with ‘undetermined citizenship’ fall within the scope of the Directive. The requirements for non-citizens to qualify as long-term residents or for highly qualified employees in Latvia are set in the Law on the Status of Long-term Residents of the European Community in the Republic of Latvia. According to Article 3 of the Long-term Residents Law, everyone applying for status should prove continuous and legal residence in Latvia, sufficient legal income to sustain themselves and their family, and pass the language test. Calculation of continuous residence has been made more detailed with transposition of the HQE Directive.53 In turn possession of sufficient legal income is calculated in accordance with Cabinet of Ministers Regulations which include detailed provisions for calculating income depending on the purpose of residence.54 In general the average salary in Latvia is taken as a basis. In order to qualify for long-term resident status, an applicant must demonstrate proficiency in Latvian corresponding to level A2.55 If a person has passed a centralized exam when graduating school and got at least E, the results of the test will be taken into account. Persons exempted from the test are: • t hose who have graduated from schools where the language of instruction is Latvian; • those who have attended minority schools but have passed a centralized exam in Latvian; • those who have health problems mentioned in Annex 3 to the Regulations.56 State fees to be paid for the examination are LVL 10 (EUR 14). Unsuccessful candidates can appeal the result and within ten days will receive the decision of the appellate commission. The exams take place in accordance with a schedule 53 Amendments were adopted 8 July 2011 (OG 117 (4515) 28 July 2011). 54 Regulations of the Cabinet of Ministers No, 550 on the required amount of financial resources for foreigners and procedures for establishing the presence of financial resources, 29 June 2011. 55 Language tests are conducted according to Cabinet of Ministers Regulations No. 733 on the level of knowledge of official language and procedure for examination of official language proficiency for performance of professional and official obligations, for permanent residence permit and for obtaining the status of EU long term resident and fee for State language exam, 14 July 2009. 56 Annex 3 contains a table on 12 pages which includes different diagnosis, indicated seriousness of condition and notes whether a person with the respective diagnosis should be exempted from the exam or only from a part of the exam. For instance, a person who has been diagnosed with eye muscle functional disorder at a moderate or high level is exempted from the reading part of the exam.

398  Chapter Twenty-Two

which is published on the internet and takes place in the biggest cities in Latvia. The exam consists of two parts – written and oral.57 The OCMA in its annual report concludes that the status is not attractive and more persons apply for permanent residence rather than long-term resident status.58 The majority of foreigners apply for national permanent residence permits on the basis of family reunification. According to OCMA data, during 2011 status was granted to 45 persons. In total during 2011, 303 persons were holding longterm resident status – 74 non-citizens and 228 citizens of other States. Most of them – 117 – were Russian citizens.59 Therefore, in Latvia the introduction of long-term resident status has had no significant effect. The status as such remains unattractive either for Latvian non-citizens or for other groups of third country nationals. This resembles generally low figures of third country nationals applying for the status in EU Member States.60 However, differences between the countries in numbers of applicants allow the argument that this status might be attractive but deficiencies in transposition serve as a disincentive for potential status-holders to apply; for instance, fees, exams and other conditions for acquisition of the status as well as limited rights attached to the status. In the case of Latvia the status has little added value compared to permanent resident status or, even more, non-citizen status. In addition the status is not well known and has not been explained to people. The access to additional rights which would guarantee extra equality of treatment has not been inserted in other laws in order to transpose the potential benefits offered by the directive. Therefore, other third-country nationals also remain uninterested in applying for the new status. The language exam poses another difficulty for non-citizens. It is different for those who are applying for a permanent residence permit because they are also required to pass a language exam. Therefore, in the Latvian case non-citizens would be better off by applying for citizenship rather than long-term resident status. At the same time those non-citizens who do not intend to move elsewhere are demotivated to apply for the status as not granting more rights than they already possess. 57 For detailed analysis of the exam see On detailed description of debates in the parliament and options discussed see Krūma Kristīne, ‘Country Report: Latvia’ (The Intec project: Integration and Naturalisation tests: the new way to European Citizenship, European Integration Fund (Centre of Migration Law, Radboud University Nijmegen: The Netherlands, November, 2010) available via accessed 28 March 2013. 58  OCMA, Report (2009), available at accessed 9 February 2012, 18. 59 Report of OCMA (2011), available at accessed 12 April 2013. 60 The overall figure of long-term residents was approximately half a million. Most of them were residing in Estonia (187 411), Austria (166 607), Czech Republic (49 207) and Italy (45 207). Only 16 were resident in Finland. See Eurostat data of 31 December 2009 available at accessed 12 April 2013.

Chapter Twenty-Three Integration of Non-Citizens The Latvian study is specific compared to other EU Member States. In ‘old’ EU Member States the integration debate concentrates on the need to integrate immigrants or refugees who were either invited or otherwise accepted by Member States themselves. In Latvia their number is insignificant. In many of the ‘new’ EU Member States the integration policy discourse has not been focused on new arrivals, but on indigenous minorities including the Roma population.1 In turn integration policy in Latvia is primarily addressed to Soviet era immigrants whose influx was beyond Latvian control. This makes the context more specific and particularly sensitive on the Latvian side. Integration became part of a policy to explain to persons that the Soviet occupation which lasted for 50 years and the Russification policy were illegal. At the same time integration policy did not acknowledge that society had been traumatised as a whole at the time of regaining independence. Not only Soviet settlers had to come to terms with the new regime, but also Latvian citizens had to learn to be in control of ongoing processes and to get over feelings of victimization.2 The integration process aimed to consolidate civil society, founded on shared basic values. However, this political objective was trivialized by ignoring the gap between different groups in society. Moreover, Latvia had to react to inflammatory Russian defence of Russianspeakers and to respect policy recommendations of international organizations aiming to decrease the number of non-citizens and otherwise improving the political situation.3 Questions related to integration appeared on the Latvian agenda soon after regaining independence. As argued in the previous chapters language proficiency 1 Muižnieks Nils, ‘Introduction’ in Muižnieks N. (ed.), How Integrated Is Latvian Society? An Audit of Achievements, Failures and Challenges (University of Latvia Press: Riga 2010) 7–15, 10. 2 As noted by Ivars Ījabs Latvians appealed to have their nation State based on the Latvian language and shared social memory, including cultural identity. He agrees that it is legitimate for Latvians to claim that people should learn Latvian language and history, but the approach to integration has been wrongly positioned if it wanted to attract Soviet era settlers. See Ījabs Ivars, Neirotiskā integrācija [Neurotic integration] (Public Policy portal, 26 October 2011), available at accessed 8 February 2012. 3 Brasington Charles E., ‘After Alyosha: Baltic Citizenship Requirements Twenty Years After the Fall of Soviet Communism’ (2011) 20 TLCP, 197–238, 237.

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was seen as a cornerstone of integration. The language requirement became the most important requirement for naturalization. Even children after reaching age of 15 if they naturalize together with a parent are required to prove their knowledge of Latvian, which is also a requirement for acquiring a long-term residence permit and long-term resident status. Moreover, according to the Language Law individuals are required to prove their knowledge of the Latvian language to practise certain professions. In addition persons who naturalize are required to pass a knowledge exam consisting of questions on history, the Constitution and anthem. In order to meet the political recommendations of different international actors Latvia not only drafted the most sensitive laws in accordance with Western expert advice but also embarked on a number of measures that are comprised in the National “Integration of Society in Latvia” programme adopted in 2001 (the Programme). In order to ensure effective implementation of the Programme the Saeima established the Foundation for Integration of Society in 2001.4 The main concern was preservation of the Latvian language, combating the myth that either all non-citizens will be entitled to automatic citizenship or that they will be assimilated. The Programme emphasised the need to overcome the consequences of a totalitarian past and develop a democratic civic society. The ‘red line’ throughout the Programme is securing the irreversibility of independence. The Programme stressed that integration does not jeopardize Latvian identity. It was also stated that “life in Latvia requires additional effort from minorities. They should not only know the national language and participate in the life of the State and society, but also master their own native language.”5 The Programme placed Latvian language, history and naturalization at the centre of integration policy. Therefore, naturalization rather than strengthening of alternative statuses has been the political objective. However, implementation of the Programme had little success and it became a document of rhetoric instead of being a master plan with clear targets and constant monitoring. The Integration Fund established was not guided by the Programme because it had no coherent strategy or criteria for funding different projects.6 Council of Europe rapporteurs stated: The Co-rapporteurs consider the implementation of the social integration programme to be outstandingly important for Latvia’s future development. That is why 4 The fund allocates money for projects submitted by NGOs, minorities, schools, media and the like. 5 National Programme „Sabiedrības integrācija Latvijā” [The Integration of Society in Latvia]. Riga (2001) via accessed 23 February 2011, 8–11. 6 Kunda Ilona, ‘Measuring the impact of ethnic integration projects in Latvia: supply driven funding model’ (Conference on integration policy in Central and Eastern Europe, 17 November 2009), available at accessed 8 February 2012.

Integration of Non-Citizens  401 they were disappointed to be told by Latvian NGOs that progress in the implementation of the programme had been “frustratingly slow”. They look forward to major efforts being made to implement this programme.7

Since joining the EU and NATO, no further criteria have to be fulfilled and Latvian policy-makers are relaxed in their attitude towards integration. The possible negative effects of lack of monitoring mechanisms after enlargement have been mentioned by international human rights experts.8 The feeling of self-sufficiency of being a Member State of major organizations has made local decision-makers play integration as a low-profile issue. However, the need for an effective and constantly ongoing integration policy is still present. Education and language reforms by themselves are not a sufficient guarantee that integration will be effective. It is rather about searching for a common definition of society which everyone belongs to. At present the naturalization process has almost stopped. According to a survey by the OCMA carried out in 2011, only 35% of non-citizens are planning to apply for citizenship within one year.9 Several reasons are mentioned by noncitizens why they do not want to apply for citizenship. According to a survey by the OCMA in 2012, about 24.8% of non-citizens do not apply for naturalization because they are convinced that citizenship should be granted automatically (in 2011 – 24%), but 21.3% mention that they will not be able to pass the naturalization exams (in 2011 – 27%).10 17.2% of non-citizens are waiting for liberalization of naturalization (in 2011 – 7%), but 13.5% do not want to naturalize because of easier travel to the CIS countries with a non-citizen passport (in 2011 – 14%). The remaining 9% of respondents answered that they do not have time to apply for naturalization (in 2011 – 8%), but 8.2% said that they are satisfied with the status of non-citizen.11 7 Parliamentary Assembly, ‘Report on Honouring of obligations and commitments by Latvia’ (10 January 2001) Council of Europe Doc. 8924, para 44. 8 Packer, John, ‘Report from the EU Human Rights Forum’ 30 November – 1 December 1999, Heidbreder, Eva G., Carrasco Laura, ‘Assessing the Assessment. A Review on the Application Criterion Minority Protection by the European Commission’ (Working Paper No. 2003/W/4, Maastricht, European Institute of Public Administration, 2003) available at accessed 8 February 2012, 23. 9 See accessed on 8 October 2012. 10 It is interesting to note that in the 2011 survey such a position is taken by respondents who consider their language knowledge as very good (7%) and respondents who say that they can speak Latvian without any difficulty, except for writing (17%). The number of persons who admit the difficulty of exams is higher in the age group over 60 (36%), but younger persons are more self –confident. 11 There were 1500 respondents of which 750 had applied for citizenship. The OCMA noted that there had been a 10% decrease in applications. The press release on the survey is available at accessed on 8 October 2012.

402  Chapter Twenty-Three

Table 3. Number of persons who have naturalized (1995–2012).12 Year

Number of applications

Number of naturalized

1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 Total

4 543 2 627 3 075 5 608 15 183 10 692 8 672 8 370 11 268 21 297 19 807 10 581 3 308 2 601 3 470 3 182 2 771 2 121 139 176

984 3 016 2 992 4 439 12 427 14 900 10 637 9 844 10 049 16 064 19 169 16 439 6 826 3 004 2 080 2 336 2 467 2 213 139 886

Source: Office of Citizenship and Migration Affairs, accessed 12 April 2013.

Looking at the integration process from the point of view of numbers of persons naturalized it can be argued that it has had limited success.13 Naturalization figures peaked at the time when the age-window system was abolished (1998) and at the time when it became clear that Latvia would become a member of the EU 12 The numbers include 14 171 minor children who naturalized with their parents. Data available on 31 December 2012. For a more detailed analysis on statistics divided by applicants by age and gender see Krūma Kristīne, ‘Naturalisation Procedures for Immigrants. Latvia’ (EUDO Citizenship Observatory February 2013), available at accessed 4 April 2013, 4–5. 13 It should be noted that the number of cases of acquisition of citizenship in Latvia is also one of the lowest in the EU. European Migration Network, Annual Report on Migration and International Protection Statistics 2009 (June 2012), available at accessed 12 April 2013, 28.

Integration of Non-Citizens  403

(2004). Simplification of naturalization exams has also had limited success. During the first years when naturalization exams were complex, people were de-motivated to apply because they could easily fail the exam. When the exams were simplified over the years the pass rates even decreased because of lack of language courses offered by the State free of charge.14 The Social Cohesion Committee of the Saeima has initiated a debate on the need to promote naturalization. The working group, consisting of MPs who work in this Commission, has drafted a report containing a number of very specific suggestions.15 For instance, the group suggests that the home page of the OCMA makes information on naturalization more visible in Russian and English. They also suggest that information by phone should be provided not only in Latvian and English, but also Russian; information materials should be more motivating and the premises more comfortable. The report of the group concludes that access to courses should be facilitated by compensating course-fees upon naturalization and providing on-line tests. Among other suggestions they also ask whether there is a need to re-introduce naturalization ceremonies which would make the naturalization process more solemn and ceremonial. The deadline for public debate was set as 1 December 2012 but no further follow-up has taken place at this stage. It can be argued that over the years the group of non-citizens has been excluded from social processes and lost interest in obtaining citizenship. Instead they identify themselves as a group different from the rest of society. They constitute a group which is ‘stuck’ in between two countries but they do not feel a belonging to either of them. Nils Muižnieks has argued that, since 2001, Latvia has not moved any closer to achieving the objectives of the Programme, i.e. consolidation of personal values and promoting a sense of belonging to Latvia.16 While Latvians portray themselves as a threatened nation which has endured much suffering, Russians stress insult and discrimination.17 Ivars Ījabs agrees with the views 14 See Kruma Kristine, ‘Naturalisation Procedures for Immigrants. Latvia’ (EUDO Citizenship Observatory, Migration Policy Group, Robert Schuman Centre for Advanced Studies, RCAS/ EUDO-CIT-NP 2013/20, February 2013), available at accessed 12 April 2013. 15 For the full text of the report see accessed 8 October 2012; for news report see accessed 8 October 2012. 16 Muižnieks Nils, ‘Introduction’ in Muižnieks Nils (ed.) Latvian-Russian Relations: Domestic and International Dimensions (LU Apgāds: Rīga 2006) 5–8, 5. 17 Golubeva Marija, Rožukalne Anda, Kažoka Iveta, Curika Linda, Ārnesta Ilze, Herca Marta, Bueva Teiksma, Jermaks Marks, Merdaņa Ļiza, ‘Izaicinājumi pilsoniskajai līdzdalībai. 2008. gada gala ziņojums’ [Challenges to civic participation. Report for 2008] (Providus Public Policy

404  Chapter Twenty-Three

expressed and says that integration is based on the concept of the ethnic nationState and minorities which have certain rights but which respect the dominant role of the ethnic nation-State. This position, in his view, complicates the integration process.18 Therefore it is even more regrettable that a similar approach has been adopted by accepting a new programme for integration. Without acknowledging the reasons for failures of the previous programme, the Cabinet of Ministers endorsed Benchmarks of National Identity, Civic Society and Integration Policy.19 This does not offer any radical changes in approach to integration compared to the previous programme, except that it is more focused on civic and national integration and less outspoken on how integration differs from assimilation. The programme does not follow the same principles as suggested by EU Common Basic Principles on integration, most notably, integration as a two-way process which inter alia requires the ability of the host society to adjust to diversity.20 Moreover, the programme has been drafted by the Ministry of Culture but responsibility for its implementation might be entrusted to the Ministry of Education and Science. The political ping pong of responsibility in between ministries does not benefit the process of integration and brings confusion on the centre of gravity of the policy to be implemented. This might lead to the conclusion that integration is not an internal necessity but has been something imposed from outside. Unfortunately, the new amendments to the Citizenship Law strengthen this approach even further by emphasising that only Latvians and Livs are those who belong to the State-nation in an ethnic interpretation. This further provokes initiatives such as the referendum on Russian as a State (official) language or non-citizens to be accorded Latvian citizenship automatically.21 Although not supported by a majority, as initiatives and with a relatively considerable number of supporters they illustrate the failure of the integration policy because at least some of the supporters of the referenda command the Latvian language. Center, Open Society Institute, 2008), available at accessed 8 February 2012. 18 Supra note 2. 19  Ministru kabinets, ‘Nacionālās identitātes, pilsoniskās sabiedrības un integācijas politikas pamatnostādnes (2012–2018)’ [Benchmarks of National Identity, Civic Society and Integration Policy] (Resolution No. 542, 20 October 2011), available at accessed 8 February 2012. 20 Available at accessed 12 February 2012. 21 Kruma Kristine, ‘Latvia: comprehensive citizenship reform on the agenda in Parliament and in a referendum campaign’, 2 September 2012, available at accessed 8 April 2013.

Integration of Non-Citizens  405

It can also be argued that in general the concept of ‘integration’ fits ill in legal analysis. It is difficult to come up with a legal definition and measurement whether a particular condition is proportional to ensure that a naturalized person will fit in an integrated society at any given time or in any situation. Moreover, Member States differ significantly in their needs and possibilities to build up integrated societies. A common future vision of EU society is also lacking. However, EU Common Basic Principles should become more prominent in everyday policies of EU Member States. The Latvian case shows that State policies, nondiscrimination and the role of education are crucial to facilitating integration. The EU’s role in assisting Member States in their efforts to implement the Common Basic Principles should increase. In the case of Latvia strengthened long-term resident status coupled with strengthened EU citizen status could become attractive for building up an identity which could facilitate further integration of society. Alternatively, there should be instruments to apply so-called political conditionality, which would allow evaluation of policies of integration from a wider perspective. Conditionality could become a tool for moving from nationalism to constitutional patriotism and building a common political culture which would be equally attractive for all nationals.

Chapter Twenty-Four Summary Latvian citizenship policy is based on the principle of State continuity which was de facto interrupted by fifty years of occupation. Citizenship policy also reflects adherence to the principle of continuity. However, during the Soviet period large numbers of immigrants were transferred from other Soviet republics to Latvia. This makes it very specific for case study. According to international law, at the time of renewal of independence Latvia had the right to claim restitution, i.e., return of Soviet era settlers to the territories of their respective republics. However, Latvia did not expressly voice such a claim as it was politically infeasible and Russia herself did not offer any solutions, except for offering citizenship. Moreover, the transition from the propiska system to a regular immigration system created complications. No agreements were reached and the international community was hesitant to insist on any. Therefore, many Soviet era settlers became of undetermined status because they did not qualify for Latvian citizenship and did not apply for Russian or any other citizenship. Taking into account international law obligations requiring avoidance of statelessness and prohibition on expelling aliens en masse Latvia became trapped in a situation without clear-cut legal solutions. For these reasons Latvia created a special category of non-citizens in 1995. This can be considered as the date when Latvia waived its right to claim restitution and transfer of Soviet era immigrants. Taking into account the difficult national context the role of international organizations has been crucial. They have managed, by referring to both international law as well as political human rights conditionality, to influence the citizenship policy of Latvia and creation of non-citizen status considerably. This holds true especially in relation to naturalization requirements and rights of the child to nationality. Language proficiency as well as knowledge of history stand at the core of admitting persons to Latvian citizenship as well as integration policy. It has been observed that the Latvian Citizenship law currently complies with treaty obligations binding on Latvia.1 At the same time the presence of different missions of international organizations and constant monitoring by their experts of 1 Brasington Charles E., ‘After Alyosha: Baltic Citizenship Requirements Twenty Years After the Fall of Soviet Communism’ (2011) 20 TLCP, 197–238, 219.

408  Chapter Twenty-Four

the situation in Latvia has left a feeling that integration is a process imposed from the outside. Therefore, the need for an efficient integration policy and possible re-definition of a nation has not been addressed by taking into account present day realities according to legal compromises made. Rather, integration was embedded in the illusion that return to independence is possible under the same circumstances as at the moment it was lost de facto and that Soviet-era settlers should accept this without the State’s pro-active integration policies. This means that new conditions of co-habitation had to be sought rather than imposing support for a regime which was alien to non-citizens generally supporting an independent Latvia. Simplification of naturalization procedures according to international requirements to foster naturalization has not achieved the results expected. The status of non-citizen which was created as temporary has become a permanent status. The current problem lies in the fact that the number of noncitizens is considerable and is not decreasing fast enough. It has become a hereditary status. There is a lack of incentive for non-citizens to apply for citizenship for different reasons. Although much has been done to simplify naturalization procedures, there are only few initiatives to facilitate persons to apply by offering language courses or otherwise showing an interest in increasing naturalization numbers. In addition, children born in Latvia to non-citizens and stateless persons should be granted citizenship automatically. This might be solved by some of the amendments suggested in the Citizenship Law. The status of non-citizen has been strengthened over the years. The specific obligations undertaken by Latvia in relation to non-citizens treating them almost the same as citizens can be seen as a matter of grace.2 They are granted more rights and guarantees than, for example, permanent residents. However, noncitizens are not nationals of Latvia. It can be argued that non-citizens have been granted many of the rights of nationals except for political rights and the right to hold certain positions but they cannot be defined as nationals.3 Articles 12 (4) ICCPR, Article 3(1) of Protocol 4 of the ECHR and Directive 2003/109 protect them from expulsion. The evolutionary strengthening of non-citizen status has led to the situation where they are de-motivated to apply either for citizenship or long-term resident status in the EU. This is especially so because their status is supported by Russia granting additional visa-free travel rights. Therefore, non-citizens lack incentive in both cases, i.e., when citizenship requirements are inappropriately high as was

2 Ibid., 236. 3 Kruma Kristine, ‘Checks and balances in Latvian nationality policies: National agendas and international frameworks’ in Bauböck Rainer, Perchinig Bernhard, Sievers Wiebke (eds) Citizenship Policies in the New Europe (Amsterdam University Press: Amsterdam 2009) 67–96, 72.

Summary  409

the case at the beginning of the 1990s, and now when naturalization requirements are low and the rights of non-citizens are strengthened. The Latvian case illustrates the difficulties States are facing when addressing different issues related to status and rights of immigrants, including integration. The Latvian problem was that the integration agenda was imposed from the outside and most projects were top-down. Non-citizens were frightened by relatively complex naturalization procedures and were thus limited in learning democratic political culture through participation. Latvia has to come to terms with present day realities regarding integration. Even naturalization is not the end or reward for integration. Integration is rather a social process than a legal term or test to be measured by an exam. The Latvian case also shows the importance of the national context in which solutions should be found. There might not be one scenario which suits all. As has been exemplified naturalization or long-term resident status as such do not lead to integration of the individual. While knowledge of history and language are important factors for an individual to become part of society, there is something more to be offered. This can also be derived from the Common Basic Principles of the common EU framework for integration. Some authors have argued for greater access to group identity.4 Others have called for a change of balance of values where judicial and political values take over cultural and historical. The question remains what could be the EU role in these processes. This will be addressed in the conclusions.

4 Supra note 1, 237.

Part Six Conclusions

412  Part Six

Although States enjoy considerable discretion in nationality regulation, there is a growing body of international rules and principles which States should respect in different contexts. These rules not only apply between individuals and their States of nationality but also grant nationals rights beyond the borders of their State of nationality. In this context the concept of EU citizenship is of special importance. The EU aims to offer citizens an area of freedom, security and justice without internal frontiers and to facilitate free movement of persons in an internal market. Therefore, EU citizenship offers a uniform set of rights which EU citizens can claim in respect of all EU Member States. In this sense EU citizenship offers a belonging beyond the State. EU citizenship is primarily about additional rights for EU citizens as derived from rights granted by an international organisation. The task for lawyers is to explain the meaning of this belonging and whether it can eventually outreach the rights-based status derived from a specific international regime. Debates on the EU citizenship concept and contents have mushroomed with developments taking place in the EU and its Member States over the years. The number of identities keep rising due to different ongoing processes, e.g., closer integration within the EU, the enlargement process of the EU as well as international migration are just a few to mention against the global background of globalization processes in a multitude of spheres. Thus, new aspects to approaches to external migration arose after the Amsterdam Treaty when the EU was granted additional competence in the sphere of migration policy. Considerable numbers of long-term resident immigrant communities have raised the question of the need to grant them either EU citizenship or another status which would allow them to travel freely in the EU. At the same time these processes do not diminish the role of the fact that EU citizenship is still very much dependent on national decisions and political priorities. However, both the EU and national decisions should respect general international law. In order to address these issues, several questions related to EU citizenship, immigrant statuses and a Latvian case study were identified in the introduction. These can be summarised as follows: • What is the EU citizenship concept and does it have an independent definition? How does EU citizenship regulation differ from regulation of nationality at international and national level? How does the EU affect Member State discretion in nationality issues and what are the dynamics of its further development? • What is the present standard of treatment of immigrants at the supra-national level? Are the rights granted to them comparable to those of EU citizens? Is this acceptable and what should be reconsidered? What are the present contents of integration measures and conditions and should they be re-considered?

Conclusions  413

• What are the rules on acquisition of Latvian nationality? What is the status of non-citizen and how does it differ from nationality? Is there an effective link between ‘near-equality’, facilitation of naturalization, and integration? These questions were addressed by analysing nationality in different contexts: international, EU and Latvian. The outline of regulation of nationality in international law served as a background for further analysis of EU regulation of both citizenship and immigration. The chapter on Latvian citizenship concentrated on analysis of the interrelationship between different regimes at the national level. The current section aims to summarise the main conclusions on different statuses, their role, and rights which can be derived by holding a certain status.

Chapter Twenty-Five International Concept of Nationality and Concept of EU Citizenship 25.1. Concept of Nationality Regulation of nationality has traditionally been regarded as a State prerogative because it is directly linked with sovereignty and State discretion to accept loyal nationals. Although State prerogatives remain important, a number of rules have developed internationally which affect State discretion. Some rules are introduced as part of human rights law. Still other rules are developed as a reaction to international developments such as migration, mixed marriages, children born abroad, and the like. Taking into account that the international body of rules on nationality issues is increasing, the question arises whether it is possible to advance an argument that a concept of nationality is emerging in international law, i.e., whether nationality is gradually becoming a concept detached from sovereignty and sufficiently regulated by international law. An affirmative answer would fundamentally change the traditional understanding of nationality as a State based status. This would also have implications for the EU. The chapter on nationality in international law discussed the rules and limits set by international law regarding acquisition of nationality as well as conflicts of nationality laws. The conclusions, however, do not allow one to suggest that nationality has been detached from national sovereignty. This book has argued that whilst human rights have a place as a component of nationality, attempts to present human rights as a theoretical basis for nationality are conceptually incoherent. Three main reasons can be mentioned to sustain this argument. First, the consent of the individual remains important. Nationality is acquired on the basis of individual will to become a member of a particular community. Nationality can also be acquired on a hereditary basis, i.e., ius sanguinis. In these cases consent is presumed as expressed by parents on behalf of a child. It is also linked with the interest of a State to preserve links with its nationals through generations. Second, the State has an interest in accepting as its nationals persons who have an effective link to (its) particular territory. National citizenship originated with the development of the nation-State, which provided citizens with identity and political power regarding a single State. This entails affiliation with a State for certain purposes – sharing of common values,

416  Chapter Twenty-Five

belongingness, common social memory.1 Third, the legal status of the State and territory remains important in order to assess whether a person is entitled to a particular nationality. For instance, in cases of State succession, rules have been developed which allow a conclusion as to whether a person is entitled to nationality. In general, international monitoring bodies would keep in mind the competence of States to set naturalisation requirements and to pay due regard to the national context. Therefore, there is no general right to nationality under international law. At the same time, an increasing number of rules affect State discretion in international law. These include certain rules on acquisition and loss of nationality, treatment of nationals as well as rules on treatment of long term residents. In relation to nationality, primarily these are negative obligations requiring States to refrain from certain actions, rather than positive obligations requiring States to take proactive steps.2 In a way, these developments give rise to claims that a rudimentary concept of nationality exists in international law. For instance, it has been argued that attribution to an individual of the right to a nationality under human rights law (1) contributes to the development of an international law concept of nationality and (2) opens up new avenues for the development of international rules in this field.3 Attempts in Europe have been made to set minimum requirements as to when access to nationality should be granted. For instance, the ECN refers to the obligation to confer nationality on long-term residents after a certain period of residence. This can be considered as a principle of international law, if additional requirements set by national legislation are met. These may concern criminal record, passing naturalisation tests, renouncing previous nationality, and the like. In addition, international rules have been adopted in relation to several groups of persons. The main rules have been analysed in this volume and concern situations of statelessness and the right to nationality for children. In order to establish the nationality of individuals in complex cases of State succession, the ILC has identified relevant rules. Therefore, in certain cases States can claim individuals to be considered as nationals of the State in situations of territorial change.4 Moreover, according to the rule of law prevalent in a democratic society, nobody can arbitrarily be deprived of nationality. According to the ECtHR, there is no right to retain a particular nationality. However, arbitrary denial of access to 1 See also Brasington Charles E., ‘After Alyosha: Baltic Citizenship Requirements Twenty Years After the Fall of Soviet Communism’ (2011) 20 TLCP, 197–238, 207–208. 2 Ibid., 207–220. 3 Ziemele Ineta, State Continuity and Nationality: The Baltic States and Russia. Past, Present and Future as Defined by International Law (Martinus Nijhoff Publishers 2005: Leiden) 389. 4 Ibid.

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citizenship in cases of State succession might lead to violation of Article 8 of the Convention.5 With these developments, States are also limited by the rule of nondiscrimination as to whether they grant nationality at birth or subsequently under naturalisation procedures. Strengthening the rule of non-discrimination has also facilitated introduction of the rule that the nationality of women should no longer be dependent on the nationality of their husband. Rules of international law are also changing as a reaction to global developments caused by inter alia global migration when belongingness to more than a single State might exist. Therefore, the individual belonging to the State is no longer territorially limited in their identity. This relates, for instance, to the increasing rise in toleration of multiple nationalities. Dual nationality is no longer seen as an evil, at least in Europe. This has been confirmed by the provisions of the ECN, leaving regulation of multiple nationalities to State discretion. It can be argued that migration has facilitated these changes. In addition to internal migration, Europe is one of the regions which has become most affected by external migration. These processes reduce the role of effective link and single loyalty as criteria providing access to, or preserving, nationality. The ECtHR has concluded that consensus even exists in practice across Council of Europe member States on the eligibility of multiple nationals for election to national Parliaments. Although loyalty as well as special historical context can serve as grounds which satisfy the criterion of legitimate aim,6 the overall tendency is towards liberalising regulation of multiple nationalities. It can be concluded that the debate on nationality as a concept of international law is different nowadays compared to the debate taking place decades ago. Rules applicable in the field of regulation of nationality have significantly developed. But, even if rudimentary elements of the concept of nationality are identifiable in international law, these are insufficient to make a conclusive argument that a uniform and coherent understanding exists of the concept and its limits. International courts remain cautious when dealing with cases related to definition of membership in a particular community. The situation is different regarding functional aspects of nationality, which will be discussed in the next section. 25.2. Concept of EU Citizenship Article 20 TFEU establishes EU citizenship. Upon introduction its exact contents were unknown, except rights envisaged in the Treaty and secondary legislation in 5 Kurič and others v. Slovenia (App no 26828/06) ECHR [GC] 26 June 2012. 6 Tănase v Moldova (App no 7/08) ECHR 27 April 2010.

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force at that time. Those were interpreted as limited to economically active citizens. However, over the years the political and judicial institutions of the EU have incrementally facilitated the process of upgrading the EU citizenship concept which is now qualified as a fundamental status in the EU. This book has analysed the meaning and scope of the EU citizenship concept. In this context growing limitations to Member State discretion in questions related to access to and loss of nationality have also been discussed. EU citizenship has been looked upon with caution by the Member States who continuously and repeatedly emphasise that it does not replace national citizenship. This could have been caused by fear from the title resembling national citizenship. As Dumbledore tells Harry Potter: “Fear of a name increases fear of the thing itself”.7 However, by now it is clear that EU citizenship is an additional status to Member State nationality. There is no need to introduce a hierarchy between national and EU citizenships. EU citizenship also cannot be equated to nationality or replacement of nationality. They co-exist and their regulation is interlinked by complementing each other. The primary competence of the Member States in determining nationality remains strong. This is also confirmed by previous caselaw such as Michelettti and Kaur where the Court respected national laws on acquisition of EU citizenship. Therefore, no independent EU citizenship concept as such exists. At the same time, the integration of the EU bestows it with competences which differ from those which States owe to international law, so that EU citizenship should be looked upon in a different context. While international law attempts to impose rules on domestic regulation, EU law is primarily, but not exclusively, concerned with situations where nationals reside outside their country of nationality. EU citizenship can be qualified as institutional or functional while national citizenship is a substantive concept. It is functional and independent in the sense that it allows differentiation among EU citizens and other persons residing in EU territory, i.e., it allows privileged treatment without causing problems with non-discrimination provisions under either the ECHR or CERD.8 Therefore, it can be argued that a form of trans-national citizenship rather than supra-national status is being constructed. It is primarily a rights based

7 ‘Amsterdam, Nice, Lisbon….’, The Economist, April 27-May 3 2013, 26. 8 See specifically Handbook on European non-discrimination law, European Union Agency for Fundamental Rights, Council of Europe (Publications Office of the EU 2011) 109. See also, for instance, Moustaquim (App no 12313/86) quoted in part II of this volume which states that the difference in treatment between third-country nationals and nationals of other EU Member States was justifiable because the EU had created a special legal order as well as EU citizenship. See also UN Committee on the Elimination of Racial Discrimination ‘General Recommendation XXIV: Reporting of persons belonging to different races, national/ethnic groups or indigenous peoples (Art. 1)’ (27 August 1999) UN Doc CERD/A/54/18, annex V, para 3.

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status and aims to promote the identity of the EU political community. In general three legal systems – national, international and the EU – are interacting. International law remains important in the EU context because it serves as a basis for recognition of national citizenship at the EU level. General developments in international law are binding in EU law because no special regime can be fully isolated from general international law.9 The EU owes its validity to international law because its founding treaties were concluded in accordance with international treaty law. The role of international law in relation to nationality will further be strengthened once all EU Member States ratify the ECN. Additionally, general developments in international law will affect the EU’ approach to cases related to nationality as will decisions of other international courts. The role of international law is even more important in cases where EU competences are limited but rights of EU citizens are violated. This has been illustrated by Matthews.10 International law might be influenced by developments in EU law. For instance, the analysis highlighted that several provisions of the ECN on acquisition and loss of nationality might become redundant or modified when applied within the EU context. Several cases of loss of nationality might a priori be not proportional in the EU context. For instance, cases where a person has been absent from the territory of the State, has served in a foreign military force, or has acquired another nationality. Other principles in international law might have a different meaning in EU law. For instance, the principle of effective link has a different content in EU law than in international law. As illustrated by this analysis, dual nationals are better placed to invoke EU citizens’ rights.11 In general, no examination of effective or dominant nationality is applied by the CJEU when dealing with cases involving access to and loss of nationality. The Court treats the EU as a common area where the link to a particular territory in the case of citizens’ rights has no decisive effect. In Micheletti the CJEU said that rights of EU citizens qua citizens should be recognised on the basis of the decision of one Member State to grant its nationality to a person without having an effective link to the territory, i.e., residing in a third country. This signalled that the overriding principle is that citizenship laws of different Member States should be respected if nationality 9 See section 2.3. of part I. 10 For the time being, the ECHR is a binding source for the EU in the form of general principles of law until its ratification is finalised according to the Lisbon Treaty. 11 See section 11.2.3. of part III of this volume. For instance, the application of rules or principles of international law might also differ in cases when entitlement to EU citizens’ rights is invoked, cases related to dual nationals, children or persons seeking to acquire or being deprived of citizenship. See in general part III of this volume.

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has been granted in accordance with international law. The same approach was applied in Chen. At the same time EU citizenship allows rules to develop which are additional to the requirements for regulation of nationality in national and international law. Although the articles on EU citizenship have not been significantly changed since their introduction, EU citizen status has been strengthened by the Court’s interpretation of Article 20 TFEU. This exemplifies incremental development of the EU citizenship concept along with EU integration processes. The CJEU has attempted to place limits on the discretion of Member States by introducing the test of ‘due regard to Community law’ when ‘substance of rights’ might be violated and in cases when situations ‘by reason of their nature and consequences’ fall within the ambit of EU law. EU law is obliging Member States to take due regard to Community law when adopting rules or taking decisions on nationality. This book has addressed potential problems which might arise in cases of naturalisation en masse, discriminatory naturalization requirements, and unequal treatment of nationals depending on their place of residence.12 The analysis led to the conclusion that there is a further need to clarify the scope of the principle especially by taking into account the limited competence of the EU. The obligation to take ‘due regard to Community law’ stems from the principle of sincere cooperation enshrined in Article 4 TEU. It indicates that by introducing EU citizenship Member States have entered into a complex web of relationships where the interests of other States should be respected and looked after at the same time. For the time being, the national courts remain the final decision-makers in cases of acquisition and loss of citizenship. They should apply the proportionality test to ensure that the principle of ‘due regard to EU law’ is respected. The possible repercussions of introducing the principle of ‘due regard to Community law’ might lead to partial harmonisation of nationality laws, including acceptance of reacquisition of a previous nationality while losing another: for instance, a regulation which would either not permit a State to deprive a national of citizenship or oblige it to re-impose that individual’s former citizenship as exemplified in Rottman.13 It has been introduced by the CJEU on the basis of the ‘substance of rights’ (or substantive core rights) test. This provides that in cases where the very substance of the enjoyment of rights of EU citizen is endangered, EU law should 12 See sections 11.2.1. and 11.2.2. of part III of this volume. 13 However, since the CJEU accepted that it is permissible to deprive a person of EU citizenship after examining compliance with the proportionality principle, the German court declined the claim by Mr. Rottman and deprived him of German nationality. See Kirsch Andrea, ‘The Loss of Citizenship by Revocation of Naturalization or ex lege: Overview of German Case Law and Legislative Changes of 2009’ (2011) 12(08) German Law Journal, 1659–1680, 1675.

International Concept 0f Nationality and Concept of EU Citizenship  421

be applicable in order to disallow disproportionate decisions of national authorities. This principle permits application of EU law in a situation that does not satisfy the cross-border test but ‘by reason of its nature and consequences’ cannot be ‘purely’ or ‘wholly’ considered as an internal situation. This approach resembles the approach to free movement of goods which cannot be hampered if it directly or indirectly, actually or potentially affects trade between Member States. The avenue for the Court to address internal situations on the basis of Article 20 TFEU stems from the wording of the relevant article, i.e., while Directive 2004/38 requires a cross-border element to be present, Article 20 TFEU contains no such reference. Therefore, in cases when enjoyment of EU citizens’ rights might potentially be made less attractive on the basis of the test noted, primary EU law should be applied. New tests introduced have already been applied and strengthened the status of the EU citizenship concept. In Rottman, Zambrano and Avello the CJEU relied on Article 20 TFEU (ex 17 TEC) when ruling in an arguably internal situation. The CJEU has been criticized for delivering open-ended judgments which impede legal certainty and do not provide sufficient guidance for national courts. It is doubtful, however, whether more certainty could have been possible in the context of cases reviewed by the Court regarding ‘substance of rights’ and ‘by reason of its nature and consequences’. At the same time cases like Avello, Rottman and Zambrano discussed in the book demonstrate the limited scope of the ‘substance of rights’ test. This is confirmed by further rulings of the CJEU in McCarthy and Dereci where the Court did not refer to the ‘substance of rights’ doctrine in internal situations.14 The conclusion is that Article 20 TFEU and the ‘substance of rights’ test can be invoked in cases involving an imminent, permanent and irreversible threat to possible enjoyment of EU citizens’ status and rights. In those cases ‘by reason of their nature and consequences’ the Court would intervene even if the facts are limited to a single Member State: for instance, in cases where a person risked losing EU citizen status or children would be deprived of effective exercise of their rights in the future. The ‘substance of rights’ test fits well into incremental development of the concept of EU citizenship under Article 20 TFEU. If the CJEU were to interpret Article 20 TFEU narrowly and apply a cross-border test in all cases, effective attainment of the EU objective of a common area would not be achieved. Therefore, application of the tests and principles mentioned is in line with the idea of EU citizenship as a fundamental status.

14 While in McCarthy the CJEU stated that Article 21 TFEU is not applicable, in Dereci it made a general statement on non-applicability of EU law, except for the family of a Turkish citizen. See section 12.2.3.4. of part III in this volume.

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The cases dealt with by the CJEU so far do not represent an exhaustive list of situations in which the ‘substance of rights’ test can be invoked. At the same time this does not allow the argument that the CJEU will potentially become a court of appeal in nationality cases. However, the EU law element should become more important irrespective of the cross-border test. Although provocative in certain respects, the ‘substance of rights’ test does not fall out of the general line of reasoning of the latest citizenship-related jurisprudence. The question remains whether the Court has found the right method to approach these issues. This book discussed the method suggested by Advocate General Sharpston suggesting that EU fundamental rights should apply to all situations which fall within ‘the scope of Union law’ irrespective of whether those rights have been exercised.15 In doctrine other proposals have been made. For instance, that violation of a fundamental right by a Member State, even in purely internal situations, can be considered an infringement of the substance of Union citizenship. Scholars have advised that in order to preserve constitutional pluralism embedded in Article 4(2) TEU a ‘reverse’ Solange doctrine should be introduced, i.e.,: [B]eyond the scope of Article 51(1) [Charter of Fundamental Rights] Member States remain autonomous in fundamental rights protection as long as it can be presumed that they ensure the essence of fundamental rights in Article 2 TEU. However, should it come to the extreme constellation that a violation is to be seen as systemic, this presumption is rebutted. In such a case, individuals can rely on their status as Union citizens to seek redress before national courts [..] [O]utside the Charter’s scope of application, a Union citizen cannot rely on EU fundamental rights as long as it can be presumed that their respective essence is safeguarded in the Member State concerned. However, should this presumption be rebutted, the ‘substance’ of Union citizenship – within the meaning of Ruiz Zambrano – comes into play.16

Although one could agree with the proposition that even when acting autonomously Member States have to observe common values of Article 2 TEU, including respect for human rights, this book has proven that in relation to access to and loss of nationality there are limited fundamental rights. In addition mixing nationality issues with fundamental rights is conceptually incoherent. Moreover, the Charter itself in only a few Articles refers exclusively to EU citizens’ rights or to rights which do not relate to functional aspects of EU citizenship.17 Therefore, Sharpston’s suggestion looks more suitable. 15 See section 12.2.2.1. of part III of this volume. 16 von Bogdandy Armin, Kottmann Mathias, Antpöhler Carlino, Dickschen Johanna, Hentrei Simon, Smrkolj Maja, ‘Reverse Solange – Protecting the Essence of Fundamental Rights Against EU Member States’ (2012) 49 CMLR 489–520, 491, 496, 508. 17 This is in a way also accepted by von Bogdandy et al by saying that in principle the ‘substance’ of Union citizenship does not lead to fundamental rights protection by the Union. It is only a

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EU citizenship has become a fundamental status on the basis of which EU citizens acquire fundamental rights granted by the EU as an organization. The Union is no longer focused on market integration but is becoming more an open-ended polity the final outcome of which remains undetermined. At the same time the EU has limited or no competence in granting or withholding national citizenship. The EU has managed to develop principles which have been strengthened over the years. The doctrinal debate and CJEU case-law suggest that as yet not all the potential of EU citizenship has been explored. All in all, EU citizenship can be considered as a concept which is different from nationality in international law because it advances belongingness to a particular community compared to rules on nationality in international law which aim at granting protection for individuals in general. It differs from national citizenship because it extends and enriches the status of the individual beyond national borders. Moreover, it offers directly applicable rights, including political rights protected by a supranational judicial authority. It also adds an additional layer of obligations to which national courts should give due consideration. Increasing competence is more evident at the functional level of EU citizenship.

domestic fundamental rights violation which falls under Union law and the ‘substance’ of it amounts to emptying Union citizenship of its practical meaning. Ibid., 507

Chapter Twenty-Six Functions of Nationality in International and EU Law 26.1. International Law This book has attempted to identify standards applicable under international law on diplomatic protection as well as residence rights, including family reunification. Developments in international law, especially human rights law, have influenced our understanding about nationality. These developments have facilitated a departure from the traditional viewpoint that individual rights are acquired solely on the basis of citizenship. International human rights law has advanced certain rights of resident non-nationals to a level equal to those of nationals. Therefore, functionally nationality has no decisive meaning in many respects while resident status has been significantly strengthened. 26.1.1. Diplomatic Protection In relation to diplomatic protection it can be concluded that human rights have reached the level of protection which makes diplomatic protection by the State marginal. Nevertheless, it has not been abolished as a right of the State. The La Grand judgment by the ICJ supports this conclusion. Regarding the standard of treatment to be offered for all residents, developments seem to be going along the lines suggested by F.V. Garcia–Amador. He favoured both standards – the standard of national treatment and the international minimum standard – which should not be regarded as antagonistic and irreconcilable. Those standards should be fused in favour of human rights. The standard of national treatment could be taken as a basis and require ‘objective and reasonable justification’ for differentiation, which should be based on law, pursue ‘a legitimate aim’ and be ‘necessary in a democratic society’. Indeed, current regulation already offers the possibility to extend some sort of diplomatic protection under human rights treaties, such as the ICCPR, ICERD, CAT, ECHR, ACHR, and ACHPR. This is also allowed by customary international law.1 1 See section 8.1.2. of part II of this volume quoting Dugard John, ‘Fifth report on diplomatic protection’ (4 March 2004) UN Doc. A/CN.4/538 19.

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Problematic cases of statelessness and multiple nationalities have been effectively tackled in the context of diplomatic protection. According to the ILC Articles on Diplomatic Protection, the right to diplomatic protection has been extended to stateless persons and refugees as lege ferenda. Therefore, we are moving closer to Lauterpacht’s vision and understanding of diplomatic protection. He argued that the State merely represents the individual at the international level because the individual does not have access to international tribunals. Since forums available directly to individuals are increasing and are generally effective, the need to strengthen diplomatic protection is decreasing, save in specific bilateral contexts. Regarding multiple nationals, Article 6 of the ILC Articles provides that any State of a dual or multiple national can exercise diplomatic protection against a third State. The Article does not require a genuine or effective link between the national and the State. Although effective link was proclaimed as fundamental in Nottebohm, its role has been diminished by LaGrand where the applicants could not claim an effective link with Germany.2 Therefore, it is the fact of nationality rather than effective link which is important nowadays for the purposes of diplomatic protection. Moreover, analysis of the practice of tribunals shows that in certain cases it is possible to exercise diplomatic protection of multiple nationals against the country of their nationality. In these cases tribunals have introduced the concept of dominant nationality, which has been accepted by the ILC. This makes the traditional approach to inter-State claims more advanced and nuanced. 26.1.2. Free Movement International law is concerned with the duty of admission in two aspects. Firstly, to what extent the State has a duty to admit its nationals and a prohibition on expelling them. Secondly, in which cases the State is obliged to allow entry of aliens and is not allowed to expel them. Different human rights instruments provide for diverging obligations of States parties. The ICCPR provides that no one shall be arbitrarily deprived of the right to enter their own country and no one should be expelled arbitrarily. It also provides for free movement and residence within a State. Articles on movement and residence are related to legal residents. Therefore a distinction is made on the basis of legality of residence rather than nationality. This is further strengthened by a requirement to allow entry to one’s ‘own country’. According to the Human Rights Committee, this should apply to individuals who may not be nationals in a 2 It should be noted though that the citizenship of Nottebohm was not recognised as valid in international law, while the German nationality of LaGrand was not disputed.

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formal sense but they cannot be considered as aliens either, i.e., long term immigrants. However, an additional condition is related to the naturalisation policy of the host State. The Committee will assess whether there are unreasonable impediments to naturalisation and where access to nationality has been facilitated by the host State a resident is not entitled to refer to the State as his ‘own country’. Thus, the Committee favours an approach facilitating naturalisation rather than granting extra rights on the basis of residence. At the same time it also encourages States not to apply strict naturalisation requirements which would hamper long term immigrants in naturalising. A similar approach has been adopted by the Committee on the Elimination of Racial Discrimination. According to the ECHR only nationals have an unconditional right to enter and to reside in their State of nationality. They are also protected against expulsion. Cases on residence of aliens are dealt with on the basis of Article 8 ECHR on private and family life. The cases concern foreign parents seeking to join their children, foreign adults who are long-term residents and foreign children applying to join their parents. Therefore, the Court has had to deal with claims for admission, residence and non-expulsion. Concerning residence, the Court takes into account the effective link of a person to a particular territory, i.e., length of residence, job relations, family ties and the like. Length of residence is also an important factor in expulsion cases although the interest of the expelling State in ensuring public order and security will be carefully weighed. The Court has developed a list of criteria related to offences, family ties, nationality and the like which should be evaluated cumulatively.3 It is also important whether a person has any links other than nationality with their State of nationality. The Court does not analyse, unlike the Human Rights Committee, whether a person had used the opportunity to naturalise. The duty to admit aliens, including relatives of settled immigrants, will differ according to the particular circumstances of those involved. It has been argued in this book that the Court initially applied the Convention strictly. The Court has emphasised that Article 8 of the Convention cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory. However, the practice of the ECtHR is not coherent. Later, the Court liberalised its practice by giving greater respect to the principle of the ‘best interests of the child’. Particular emphasis was placed on the situation of children affected by family separation, i.e., their age, situation in the country of origin and the extent to which they are dependent on their parents. The Court will allow family reunification in cases when it is requested by parents who have resided in the host State 3 See section 8.2.2.3. of part II of this volume.

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for a long time and have acquired nationality. Moreover, the Court will establish whether family life can be better developed in the host State. Therefore, the duty of admission and expulsion is no longer limited to nationals but also applies to aliens under certain circumstances. 26.2. EU Law The part on functions of EU citizenship includes analyses of both internal and external functionality of EU citizenship. Externally, the EU aims to ensure diplomatic and consular protection for its citizens. Internally, the EU is building a common area for travel and residence where EU citizens should be treated without discrimination on the basis of nationality. 26.2.1. Diplomatic Protection Inter-governmental and national differences led to a situation in which cooperation in the diplomatic and consular field was limited. However, experience after cases of natural disasters and wars has possibly facilitated an acknowledgment that the opportunities offered by the EU should be explored more actively. This is even more so taking into account that in only three non-EU countries do all the EU Member States maintain diplomatic representation. As has been argued in this book, the Lisbon Treaty has brought significant changes. Not only has EU competence in foreign affairs increased, but also Article 46 of the Charter has become a binding instrument and Article 23 TFEU introduced. This allows the Council to adopt directives establishing coordination and cooperation measures necessary to facilitate consular protection. Member States are invited to start the international negotiations required to secure this protection. Indeed, this is a very important aspect to ensure successful implementation of the tasks envisaged in Article 23 TFEU. The Vienna Convention on Consular Relations provided that there should be agreement of the receiving State, allowing the sending State to exercise consular functions on behalf of a third State. Taking into account the complexity of the issue, the most appropriate way to ensure consent might be to include a consent clause in mixed agreements concluded by the EU with third countries. So far the EU has adopted several decisions granting EU citizens the right to consular assistance, including access to emergency travel documents. Apart from that there are various guidelines. One of the most important includes the so called Lead State concept providing for co-ordinated organisation of assistance to EU citizens in case of need. Exchange of practices is taking place in a working group. By means of directives these processes can be placed in a particular framework and strengthened.

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The European Commission has released a proposal for a Council Directive on consular protection for Union citizens abroad which is based on Articles 20 and 23 TFEU as well as Article 46 of the Charter. Adoption of the Directive would not only increase EU involvement in consular protection but would also clarify ambiguities in consular services available to EU citizens. It would also bring Member States in closer co-operation to secure efficient assistance, especially during crisis situations and when EU citizens would need financial assistance. However, it had been suggested that further action is necessary to strengthen the European External Action Service, raise awareness among EU citizens of their consular rights and consider possibilities to establish common diplomatic representations. Although Articles on consular protection refer to diplomatic protection, analysis has concluded that it is premature to advance the argument that diplomatic protection proper could be exercised by the EU on behalf of its citizens. This argument also does not purport any substantive benefits for EU citizens. It would rather facilitate changes in our perception of the EU as an international organisation and its relations with the outside world. Notwithstanding that the ILC has suggested that States may offer diplomatic protection on behalf of stateless persons and refugees as a progressive development of international law, it did not dwell on the question whether international organisations could offer such protection on behalf of ‘their’ citizens. It can be argued that the focus should rather be on policies which could benefit individuals. In this context, harmonisation of consular assistance will definitely help to raise the visibility of EU citizenship for citizens themselves and internationally. 26.2.2. Free Movement and Non-Discrimination For most Europeans the benefits of integration are clearest when they travel. Crossing most borders, whether for work or pleasure, no longer requires in most cases changing currencies or presenting a passport.4 Therefore, free movement and non-discrimination rights derived from Articles 18 and 21 TFEU are of importance as well as secondary legislation specifying the contents of general Treaty rights. Since the introduction of the Schengen area, checks on persons at internal borders have been lifted. Therefore, immigration rules have been displaced by rules applicable to the EU as an area without internal borders. Although there is a general requirement that a person should possess a valid identity card or passport, the CJEU has repeatedly emphasised that this is a pure administrative formality. Not

4 The Economist, April 30 2011, 30. This is not an absolute statement taking into account that not all EU Member States are yet part of the Schengen or euro areas.

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only should other documents be accepted as proof of a person’s identity, but also the consequences of lack of proof should not lead to expulsion or criminal charges. This was confirmed by Directive 2004/38 and the CJEU in Oulane. Therefore, in general EU citizens’ right to enter the territory of another EU Member State has become fundamental irrespective of more formal cross-border requirements. Although Article 21 TFEU has been in the Treaty ever since introduction of EU citizenship, it was only in Baumbast when the Court acknowledged that the Article is directly effective. EU citizens have the right to move and reside in the EU irrespective of whether they are engaged in any economic activity. There is an obligation to broadly interpret residence as a fundamental right according to Article 21 TFEU. Each citizen qua citizen enjoys the right of free movement and residence. However, the actual exercise of that right is still subject to limitations and conditions brought by secondary legislation. These should be applied in a manner that does not affect the existence of the right as such. Therefore, it can be concluded that the EU aims to become an area where free movement of EU citizens is compatible with Article 2 of Protocol No. 4 of the ECHR. Directive 2004/38 provides for three different regimes to be applicable depending on the length of residence of an EU citizen in another Member State. Special safeguards for residence apply in cases of permanent residents who have been residing in a Member State for at least five years. In Lassal the Court established that residence periods before transposition of the Directive do count for calculating the total term of residence. The period which remains conditioned with most requirements is the period from three months to five years. However, even in those cases any attempt to expel a person should be weighed on the basis of the principles of proportionality and non-discrimination. The conditions for residence attached to each resident group, depending on their length of residence and statuses, remains one of the most controversial. This holds true especially in relation to the requirement of possession of sufficient resources. More clarity has been brought by both Directive 2004/38 and the CJEU. Directive 2004/38 precludes Member States from setting a fixed amount to be qualified as sufficient. In all cases this amount should not be higher than the threshold below which nationals of the host Member States become eligible for social assistance. Actual sources of income are irrelevant. Moreover, according to the CJEU, even recourse to social funds is not a sufficient reason for expulsion. Expulsion is allowed only if a person constitutes an ‘unreasonable burden’ and the assistance required would go beyond the obligation of the Member States to minimum financial solidarity, which has no settled limits stricto sensu.5 In these 5 See sections 12.2.1.2. and 12.2.2. of part III, especially in relation to Grzelczyk and Bidar.

Functions of Nationality in International and EU Law  431

cases, duration of residence, personal circumstances and the amount of aid requested should be considered especially in cases of family situations. This has been a significant development introduced by the CJEU. In a way critics are correct when they argue that each individual case will always satisfy the criterion of ‘unreasonable burden’ because a single individual will not be able to create a significant burden on a country’s social system. However, as a matter of principle, temporary recourse to certain social funds should not undermine the fundamental nature of free movement and residence rights of EU citizens. In part III of the book it has been noted that Chapter IV of the Charter of Fundamental Rights is disappointing for EU citizens and that it is understandable that Member States are not interested in further strengthening the concept of financial solidarity, to avoid ‘benefit shopping’.6 However, the case-law discussed in Chapter IV on immigrant status and especially the case of Kamberaj led to the conclusion that the Charter has potential for the Court to adopt interpretation of entitlement to social benefits and assistance in the context of the objectives of the Treaties or secondary legislation to satisfy the basic needs of migrating EU citizens.7 In the context of solidarity, the guarantee included in Article 18 TFEU prohibiting discrimination on the basis of nationality is crucial. The CJEU applies a three step test when dealing with possible discrimination cases. First, it considers whether the measure falls within the scope of the EU Treaties. Second, it enquires whether the applicant has been lawfully resident in the host Member State for a certain time. Third, it examines whether the difference in treatment is discriminatory. Since the introduction of EU citizenship, the first criterion has been significantly extended and the criteria invoked differ depending on the factual circumstances of the case.8 Article 18 TFEU has become a tool for the CJEU to bring within the scope of its review the most sensitive laws of the Member States. The cases of Grzelczyk, Bidar, and Ioannidis were used as examples. However, the Court is not always consistent methodologically. Most often the CJEU has referred to Article 21 TFEU rather than Article 18 TFEU. The difference between the two is that Article 18 TFEU applies to non-discrimination situations, while Article 21 TFEU primarily applies to situations where free movement and residence are burdened or otherwise hampered. In certain cases of non-discrimination, a link to the territory is important. In the cases of Sala and Bidar length of residence and integration in society were decisive for the CJEU to find a violation of EU law, while in Collins on the basis of the length of residence requirement no violation was found. The residence

6 See section 12.2.2.3. of part III of this volume. 7 See section 15.1.2. of part IV of this volume. 8 See section 12.2.2.3. of part III of this volume.

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requirement might differ by taking into account the field of application of EU law and the rights claimed. The requirement of a link with a particular Member State and integration there would be higher in cases of social assistance and lower in cases of, for instance, service recipients. The exact requirements in relation to integration and link with the host State remain moot and left for national courts to establish. Formulation by the Court is open-ended since no specific evaluation tests are applied but rather subjective considerations invoked.9 What matters is the normal place of residence and permanent centre of interests which should be established by all factual circumstances to be taken into account.10 Criteria invoked differ depending on the status of the individual in the host Member State and length of residence. The overall tendency is towards strengthening the position of EU citizens residing outside their country of nationality irrespective of the methodological approach in each particular case. Article 18 TFEU is applicable after the cross-border test is satisfied. However, this does not allow a solution for the growing phenomenon of reverse discrimination.11 Two possibilities are available to solve this. The first possible solution is to encourage national courts to address the problem according to their national non-discrimination provisions. The second option would be for the CJEU to reinterpret Article 18 TFEU and to apply it to internal situations. Advocate General Sharpston in Zambrano offered a test with cumulative conditions allowing application of Article 18 TFEU to internal situations where fundamental rights protected under EU law are violated, leaving the rest either to national constitutions or the ECHR. Alternatively this can be done by invoking Article 21 and interpreting the right to reside as a right independent of free movement. Both suggestions are lege ferenda and the CJEU can at a certain point in time agree with Advocate General Sharpston’s proposal. This would strengthen its approach to EU citizenship as a fundamental status. However, at present national courts are better placed to address the problem. At the same time this does not guarantee uniform application of EU law throughout the Union and non-discrimination of EU citizens residing in their country of nationality. The change of approach to the right of EU citizens to social assistance has also modified application of EU law in expulsion cases. An EU citizen can be deported only when recourse to the social assistance system is an excessive burden or they represent a threat to public policy, security or health. This approach is further 9 Garot Marie-Jose, ‘A New Basis for European Citizenship: Residence?’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 229–250, 246. 10 Case C-297/89 Rigsadvokaten v Nicolai Christian Ryborg [1991] ECR I-1943 and Case C-452/93 Pedro Magdalena Fernandez [1994] ECR I-4295. 11 See sections 12.2.2.1. and 12.2.3.4. of part III of this volume.

Functions of Nationality in International and EU Law  433

strengthened by two factors related to the length of residence of the person concerned in the Member State and the regime applicable to the specific Member State. The longer the period of residence of the EU citizen, the stronger the protection afforded. Directive 2004/38/EC codifies the main findings of CJEU rulings in other expulsion cases and criteria to be applicable. In all cases the proportionality test should be applied. The CJEU has stated that previous criminal convictions in themselves cannot serve as grounds for expulsion. According to the CJEU and the Directive, in order to expel an EU citizen, a person should present a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Automatic expulsion as a penalty for a crime is not allowed. Indeed, cases of expulsion should be brought to a minimum because the EU is aiming at becoming one single area for residence of all EU citizens. It also aims to facilitate free movement within the EU, which would be impossible if EU citizens did not feel secure about their residence elsewhere in the Union.12 Therefore, free movement and non-discrimination provisions might be subject to further reconsideration in the context of further developments in EU law. Those, however, remain dependent on further integration and acceptance of the Member States. It can be argued that the CJEU and the EU in general should find its approach to interpretation of Article 21 TFEU and to de-couple residence and movement rights.13 In conjunction with Article 18 TFEU, EU law should be applied to internal situations to ensure that no reverse discrimination occurs. Equality should be ensured for all EU citizens irrespective of whether they have exercised free movement rights. This is especially in cases where fundamental rights of EU citizens are involved. As has been argued national courts are better placed to resolve reverse discrimination according to their constitutional law as well as general human rights law. However, if the reverse Solange method or the approach suggested by Advocate General Sharpston is chosen, the CJEU could build upon its own case-law. The methodology to be chosen would depend on the factual circumstances of the case. 26.2.3. Right to Family Reunification The EU’s approach to family reunification is different from the human rights approach. This might be explained by the different methodology of human rights courts and the CJEU. Human rights depart from the general principle that there is no obligation for a State to admit, or prohibition on a State expelling, non-nationals 12 See section 12.2.1.3. of part III of this volume. 13 See section 12.2.3. of part III of this volume.

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residing on its territory. The right to private and family life serves as an exception to this principle. The EU law approach takes as a basis the fundamental status of EU citizenship giving a right to family reunification and subsequent guarantees for family members on the basis of not only CJEU case-law but also Directive 2004/38.14 The right to family reunification expressis verbis has been acknowledged in EU law at the level of secondary law. It has been further strengthened by the EU Charter of Fundamental Rights in Articles 7 (respect for private and family life) and 9 (right to marry and the right to found a family). EU law offers these rights even to non-EU nationals who are family members of EU citizens. Therefore, rights in the EU context go beyond obligations under human rights treaties. Rights of family members who are non-EU nationals have been confirmed regarding requirements for travel documents in Mrax and the right to entry in general in Acrich. The CJEU has consistently favoured the possibility of regularisation because formalities of immigration laws cannot outweigh the right to family reunification. According to Acrich and Commission v. Spain, reference to previous convictions or appearance on the SIS alert list is insufficient to refuse entry. These and other cases lead to the conclusion that at least in certain cases of non-EU nationals the standard applicable in the EU in relation to family reunification is higher than according to the ECHR, especially in the context of regularization. The right to enter and to join family can arise if a marriage is concluded after arrival and if the spouse has not exercised free movement rights. However, a cross border element should be present. As can be concluded from Carpenter, it might be sufficient if only one family member has exercised free movement rights. This has been further confirmed by Metock. Therefore application of EU law in general and the Directive in particular has been extended to non-EU nationals who are not required to exercise movement in the EU if they join EU citizens who have done so. One can agree with Advocate General Sharpston that these cases show significant drawbacks and inconsistency in outlawing reverse discrimination in other cases. In this context AG Sharpston has invited the Court to deal with the issue of reverse discrimination openly. This might mean that since in cases like Avello the CJEU could invoke Article 18 TFEU irrespective of actual cross-border movement, Dereci would also have been resolved by the CJEU itself rather than by suggested appeal to the ECtHR. At present an EU citizen’s family is required to travel only several miles to another country to become entitled to the protection of EU law. The substance of rights test cannot be invoked in such cases because, according to the Court in Dereci, this criterion refers to situations in which the Union citizen has been compelled, in fact, to leave the territory of the EU as a 14 See section 12.2.3. of part III of the volume.

Functions of Nationality in International and EU Law  435

whole. Therefore, only in cases when EU citizens would be deprived of or hampered in exercise of their right to free movement or exercise of other fundamental or EU citizens rights, might the CJEU intervene in ‘purely internal’ cases. This does not seem to be adequate protection offered by EU law to preserve family residence in the EU Member State. Problems are also present in cases of same-sex partners moving to Member States which do not recognise such partnerships in their national legislation. Article 9 of the EU Charter does not provide for any substantive progress in this regard because it is limited to provisions of national laws. This is an area of EU law which should be reconsidered. Free movement rights and the right to family reunification should not be dependent on national family law because it hampers and makes less attractive free movement to EU citizens. This remains a lege ferenda proposal for secondary law or Charter interpretation. The recent interpretation of the ECHR by the ECtHR should also be taken into account.15 The right to join family and to reside in the territory of the host State is particularly protected in the case of children. According to Chen and Zambrano, children who are EU citizens can give rise to a claim of residence rights for their parents. The right of a child to reside once having become enrolled in an educational establishment can also guarantee the residence right of a parent as occurred in R., Texeira and Ibrahim. Therefore, children have an independent right of residence which can be extended to their parents. Otherwise there are limited possibilities for family members to acquire autonomous residence rights. It is only in cases of death or departure of an EU citizen that their family retains autonomous residence rights without additional conditions. The CJEU has already signalled that it may strengthen its approach in cases on fundamental rights.16 This might become even stricter when the EU ratifies the ECHR.17 These developments might be a good chance for the Court to revisit the test of ‘substance of rights’ and shift the approach to cases of reverse discrimination.

15 See section 12.2.3.1. of part III of this volume and cases I v. UK, Salguiero da Silva v. Portugal and Schalk and Kopf v. Austria discussed in the relevant section. 16 Case C-617/10 Åklagaren v Hans Åkerberg Fransson, Judgment of 26 February 2013 [not yet reported]. 17 On 5 April 2013 the negotiations on the draft accession agreement were finalised and the CJEU was requested to give its opinion. See Fifth Negotiation Meeting between the CDDH Ad Hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights. Final report to the CDDH, Strasbourg, 47+1(2013)008, 5 April 2013.

Chapter Twenty-Seven Status and Rights of Immigrants Member States are hosting considerable groups of immigrants who in most cases have resided in the EU for generations. The profile of immigrants and their numbers differ significantly. The policies of Member States regarding immigration issues are also divergent and linked to the history and particular needs of the national economy. For a long time, residence of immigrants has been limited to a single Member State and there was no EU dimension enabling them to move freely in the EU and enjoy comparable rights in other EU Member States. At the same time scholars have noted a growing human mobility into and within the EU labour market by non-EU nationals.1 Therefore, involvement of the EU in immigration and integration issues seems to be a timely reaction to ongoing processes. The role of the EU is not as much as to place a general obligation on Member States to admit immigrants from outside but to create the EU as a single area for free movement of immigrants to make it more attractive in global competition for human resources. It has been noted by scholars that immigration and citizenship are linked. By shaping naturalisation procedures or offering extra rights to immigrants, Member States can shift the numbers of immigrants and citizens residing in their territories. At the same time the growing number of immigrants requires a search for new forms to integrate them. While the EU has no competence in naturalisation issues, its competence in immigration issues has gradually extended since the Amsterdam Treaty. Therefore, the EU is capable of intervening and gradually building its own trans-national immigration and integration policies by setting standards and by adopting directives. As a result it also indirectly affects the nationality policies of Member States, as noted in this book.2 The perspective taken for the study derives from the political objective of ensuring near equality between EU citizens and long-term residents to facilitate their integration. While EU citizens can invoke directly effective rights derived from primary EU law, immigrants acquire rights primarily on the basis of directives. Even Article 45(2) of the Charter, although referring to Treaty provisions on free

1 See section 1.2. of part I of this volume. 2 See summary section of part IV of this volume.

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movement and residence in general, re-directs the reader to provisions of directives which specify the scope and contents of those rights. Therefore, this study has concentrated on analysis of various directives adopted in the sphere of legal migration, rulings of the CJEU as well as a draft EU immigration code. It has focused both on access to particular status and on subsequent possibilities for immigrants to move within the EU. Rights attached to particular status – long-term resident, researcher, Blue-card holder, student as well as family member – have been analysed. Analysis of various directives adopted in the field of legal migration allows the conclusion that significant differences exist in treatment of EU citizens and migrants regarding access to status, rights and intra-EU movement. Therefore, the political aim of achieving near equality in treatment of those groups has not been achieved. It is also questionable whether the directives can ensure efficient management of migration flows between the Member States. This can be explained by different pasts, welfare levels and lack of solidarity between the Member States. The directives are ineffective in several aspects. First, the criteria for obtaining different statuses in EU law are high and broadly framed. This is particularly relevant in the case of applicants for highly qualified employee status. The statuses are not granted automatically on the basis of length of residence. For instance, fees and other provisions providing for discretion of Member States remain considerable. One of the most difficult requirements is to have stable and regular resources necessary to maintain an immigrant and family members as well as sickness insurance. However, the emerging case-law of the Court on application of directives in Member States shows that it intends to apply strict interpretation. The CJEU refers to objectives set in the preambles and the Charter as sources for interpretation. In general its method of interpretation resembles the approach adopted in relation to Turkish nationals. The Court has ruled that Member States cannot dodge the residence requirement by issuing short-term residence permits which do not allow immigrants to qualify for long-term resident status. It has also outlawed disproportionate fees for obtaining the status. In cases of family reunification the Court acknowledged that the Articles of the Family Reunification Directive do not guarantee the right to enter the territory of a State and States continue to enjoy a certain margin of appreciation. However, the Directive imposes precise positive obligations, including individual rights, on Member States without being left a margin of appreciation. Third, the CJEU has placed considerable emphasis on the role of human rights instruments and principles in correct interpretation and application of the Directive. It has done so by relying not only on human rights as general principles and Article 6 TEU, but also Article 17 of the Family Reunification Directive. This article provides that individual family circumstances should be taken into account, such as: nature and

Status and Rights of Immigrants  439

solidity of family relationship, duration of residence, relationship with country of origin. The CJEU’s approach in Chakroun suggests that the standard of protection for family reunification of immigrants transcends the obligations of States in the human rights realm. The EU Charter of Fundamental Rights might further advance the CJEU approach in these cases. The Court has taken a position which would serve individual family reunification to the maximum possible extent, especially if a marriage has been long and stable. Taking into account that a number of criteria are codified and harmonised, the EU’s approach provides much more legal certainty as to in which cases family reunification will be accepted. Second, there is no general non-discrimination clause in the directives. While it is legitimate to limit long-term residents and other immigrant groups in access to certain rights available to EU citizens only, the fragmented approach of equality provisions is far from achieving the political aim set in programmes starting with the Tampere Council Conclusions. In addition, the immigration law approach to access to employment and equality is much stronger than the definition and access to rights approach referred to in Article 79(2) TFEU and should be reconsidered in the light of Charter obligations. For instance, Member States are entitled to retain a quota system in immigration and granting access to employment. This burdens and makes less attractive free movement rights of third country nationals. Moreover, a second Member State can require that immigrants comply with additional requirements. Therefore, the directives are primarily linking the immigration status of an immigrant to the territory of a single Member State. No adequate mechanism is in place for offering mutual recognition of residence permits and free movement. This is especially regrettable in cases of highly qualified employees. For instance, the highly qualified employee situation involves cumbersome procedures for communication of professions requiring highly qualified employment and an obligation on employers to cover costs of readmission. Movement and residence for long-term residents or highly qualified employees should be made as equal as possible to free movement of EU citizens. The risk of losing status because a person has moved to another Member State should be excluded. This would reflect the spirit of Article 79 (2) TFEU. In the proposed immigration code admission for employment introduces certain harmonisation and liberalisation incentives which are based on the rationale of the Directive on single residence permits. However the proposal also provides the code should not affect the right of Member States to determine volumes of admission of third country nationals in order to seek work. Third, the conditions for expulsion and withdrawal of status are considerably lower than in cases for EU citizens. Mere absence from the territory can lead to withdrawal of a specific status. Status can also be withdrawn if a person no longer meets the requirements set in a particular directive. Family reunification can be denied if a family member has ‘extremist aspirations’. This term is subject to

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broad interpretation until clarified by the CJEU or Member States by amendments to directives. However, the CJEU itself has applied tests on expulsion of third-country nationals by reference to cases of EU citizens interchangeably. This means that the standards for expulsion might be identical irrespective of the formulation of the relevant provision of the Directive. Despite the other deficiencies of the Directives discussed, most of the debate on new directives has been focused on integration conditions and measures. The approach to integration by the EU Member States when implementing EU Directives fits ill into the normative context.3 Integration has been traditionally understood as security of residence, family reunification, access to economic and social rights, equal participation and non-discrimination. In the context of the directives it has become an immigration rule requiring immigrants to pass tests on language or knowledge either before or after arrival. Thus, integration has become equated with naturalisation tests, which serve a different purpose. After passing naturalisation tests, individuals not only become part of the political community and acquire political rights to influence processes in the State but also become entitled to equal rights as citizens of the particular State, including EU citizenship rights. In contrast, immigration exams do not have comparable purposes. In order to substantiate this approach, two options are available. The first is to grant long-term residents and other immigrants subject to tests political rights to vote in municipal elections and elections of the European Parliament as well as near-equality treatment with EU citizens. The second is for the EU to require that Member States should keep the tests simple, but liberalize naturalization requirements. The EU could insist that the EU dimension in immigrant status exams should be increased and exams should be taken only after a person has been admitted to the territory. Integration policies should abide strongly by guidelines set by the Common Basic Principles for Immigrant Integration Policy in the EU.4 Thus, while the first option would put emphasis on strengthening immigrant status, the second would become focused on strengthening policies targeted towards naturalization and acquisition of EU citizenship. The will of Member States to keep control over the immigration sphere is strongly present. The CJEU has signalled that it is ready to intervene and outlaw integration measures which would run against the objectives of a specific 3 Those would rather form part of studies of social psychology, national cultures and their different typologies discussed elsewhere. They do play a role in integration of society but fall outside legal analysis. See for instance, the writings of Geert Hostfede, available at accessed 17 January 2012. 4 See part IV of this volume and Common Basic Principles, available at accessed 15 February 2012.

Status and Rights of Immigrants  441

directive.­The crucial question is who is going to be the agenda-setter for integration and what should be the approach to integration in the EU bearing in mind limited EU competences. Knowledge of language and society is one of the important factors for integration but it alone does not necessarily lead to integration in the social and political sense. Moreover, in certain cases requirements might not be proportionate if one takes into account the status achieved, i.e., long-term residents are applying for resident status, not nationality. Immigrants can learn the language and pass a knowledge test but what they get in return is limited equality of treatment but no political rights in most cases. This does not correspond to the understanding of integration from a legal point of view. Their freedom of movement to other EU Member States is also not attractive. By remaining marginalised they can still practice their own national traditions, life-style and culture, which is sometimes not acceptable according to values prevalent in Europe. This does not allow the EU to achieve any of its political objectives – to require immigrants to respect the core values of the EU while in return they are offered rights comparable to those of EU citizens. Undoubtedly, the problem requires a political solution and raises the question whether the EU can offer a sustainable solution fitting all EU Member States. For both economic and demographic reasons, a more sophisticated approach is required to ensure targets set in inter alia the Europe 2020 strategy and various other policy documents adopted in the field of immigration and integration are met. Good practices should take into account not only historical experience and national need for immigrants but also the EU dimension. Immigrants should be attracted to enter the EU market and become mobile within the EU without facing excessive administrative burdens. This is particularly relevant in cases of long-term residents and highly qualified workers. In the case of long-term residents the EU is interested in mitigating situations when individuals after prolonged residence in the EU Member States are feeling ‘stuck in between two States’, i.e., the State of origin and the host Member State, without possessing a clear identity and enjoying limited rights. In the case of highly-qualified workers the EU should keep in mind its objectives to remain competitive in global markets. In both cases family re-unification possibilities are crucial. The main achievement of the Directives is that issues related to third country nationals are no longer in the exclusive domain of Member States. At the same time the Directives have been criticized for making new partitions and complicating immigration law even further. They are excessively conditional and give the possibility for too widely differing implementation measures to be adopted by the Member States. Several problems apparent in the texts of the Directives can be remedied by their interpretation in the light of general principles of law as well as proportionality. Moreover, Charter rights should be equally

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applicable in the case of third-country nationals to the maximum possible extent. It can be expected that some problems will be solved by adopting an immigration code, clarifying and streamlining the provisions of various directives. A number of suggestions have been made for possible revision of Directives. However, most of them depend on the political choices to be made. According to general policy objectives free movement and residence rights for immigrants should be equal to EU citizens for at least long-term residents and Blue Card holders. They should also have sufficient safeguards against the possibility of losing the status or being expelled. Directives and even a proposed immigration code do not yet provide an adequate resolution of this problem. The principle of nondiscrimination should be given more general application, and exceptions preserved should be examined on the basis of the proportionality principle. This equally applies to family members who should be able to acquire more possibilities for autonomous residence rights. Finally, integration conditions should be replaced by integration measures and the Member States should be encouraged to apply the Common Basic Principles for Immigrant Integration Policy in the EU to ensure that integration becomes a two-direction process. This seems to be more feasible and accessible for EU institutions to control than to impose an obligation to liberalise or harmonize access to Member State nationality.

Chapter Twenty-Eight Latvian Citizenship and Non-Citizen Status Latvia was chosen as an example to illustrate the importance of historical experience which can explain the difficulties the EU is experiencing in building common approaches to citizenship and immigration issues. The case-study also strengthens the argument that whatever the future of EU citizenship might become, national identities will not be easily replaced or abandoned. At the same time EU citizenship or even immigrant statuses should be looked upon as a tool which might help to solve problems at national level when local policy-makers cannot offer attractive statuses for identification for nationals or residents. This is even more so after enlargement of the EU in the past decade when a large number of new Member States joined the EU during a relatively short period. Moreover, Central and East European countries represent a complex case due to their non-democratic past. Latvian nationality policy is based on the State continuity principle. At the beginning of the 1990s, Latvia restored the rights of citizens according to the law of the pre-occupation period. At that time Latvia was hosting a large group of immigrants from former Soviet republics with a relatively long record of residence. For many Soviet-era settlers it was difficult to create a sense of belonging to the restored Latvian State with which they were not familiar ever since arrival. Taking this into account the case study was illustrative of where the limits or red lines to harmonisation in relation to citizenship and immigration could be drawn at the EU level. The first version of the Law adopted in 1994 was the result of a broad compromise among different political parties and international organisations, most notably the Council of Europe and the OSCE. At that time Latvia still felt insecure about its independence. Although initially it was envisaged that large numbers of persons would apply for citizenship, the naturalisation rate turned out to be much lower than expected. This led to further amendments to the Citizenship Law in 1998, which lifted the age window system for naturalisation and simplified access to citizenship for children of non-citizens. In addition, naturalisation requirements have been eased over the years. Parallel to simplification of naturalisation, the status of so-called ‘non-citizens’ has been strengthened. This status was available to those Soviet era immigrants who did not acquire either Russian or any other citizenship. It was intended to be

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a temporary status to solve the transition problem of Soviet era settlers whose status was not determined by reaching legal settlement with Russia.1 The overall aim was to gradually integrate this group and subsequently encourage their naturalisation. Non-citizens were given a special passport and granted a constitutional right to return. Non-citizens have the right to preserve their native language, culture, traditions and they cannot be expelled. Practice of certain professions and other rights was limited, but over the years the list of professions as well as entitlements has decreased. Non-citizens have no rights to active political participation or access to the civil service and the judiciary. There are also differences as to entitlement to certain benefits. During the EU pre-accession period, the possibility of granting non-citizens EU citizenship was raised but without success because this could have discouraged naturalisation and threatened the positive outcome of the accession referendum. This approach facilitated applications by non-citizens for naturalisation. However, it had no long-lasting effects. In the EU, non-citizens can qualify for long-term resident status but not automatically. At the same time, they can travel visa free both in the EU and to Russia. A slight decrease in the number of non-citizens was witnessed only recently which can at least partially be explained by the economic crisis and people seeking possibilities to leave Latvia for work elsewhere in the EU for which EU citizenship is crucial. Therefore, it can be concluded that non-citizen status has become more or less permanent. This is confirmed by court practice at the national level. The courts consistently reinforce the status of non-citizens, indicating that non-citizens are not stateless persons because they have a special connection with Latvia. Therefore, national courts treat non-citizen status on the basis of similar principles to citizenship status. While they do recognise differences in terms of rights attached to the status, they also place safeguards regarding acquisition and loss of status on similar grounds as in nationality cases. In certain cases they even erroneously disregard the role of individual behaviour resulting in non-acquisition of the status desired. The ECtHR in the similar cases of Fjodorova, Sisojeva and Kaftailova stated that the Convention does not guarantee receiving a specific residence permit. Although the status of non-citizen has been strengthened by laws and courts, international judicial bodies have to take into account the context – the history of how the group emerged, provisions of international law applicable to the situation, as well as interpretation of similar cases in national courts. The ECtHR in certain cases has arrived at legally disputable conclusions when not considering 1 See sections 18.1., 19.2. and 20. of part V of this volume.

Latvian Citizenship and Non-Citizen Status  445

the context of Latvian citizenship and disregarded the consequences of the State continuity principle, for instance, in Slivenko and Andrejeva. Even if individuals have prolonged residence in the country, their personal choice should not be disregarded, i.e., whether someone has chosen to apply for citizenship, integrated into society or whether they have personal links outside the country. In the cases mentioned, the approach of the ECtHR reflects its rulings in the cases of longterm immigrants who have migrated to the country under regular immigration procedures. The case of Latvia is context-specific involving not only rights derived from the Convention but also general international law. At the same time since more than 20 years have passed since Latvia re-acquired its independence the national approach should be re-considered in a number of areas concerning noncitizens or limitations connected to political and ideological affiliations which limit access to citizenship and political rights of individuals. In general, Latvian citizenship provisions correspond to international law requirements. Latvia was not obliged to invent a special status for Soviet era immigrants. However, political compromises were reached on the basis of security arguments. At the same time, Latvia was obliged to grant citizenship to children born on its territory to stateless persons and non-citizens. This requirement derives from the ICPPR, the Convention on the Rights of the Child as well as the Convention on Reduction of Statelessness. In order to reduce the number of noncitizen children, the Citizenship law should be further amended to allow registration of a child as a citizen either automatically or entitle single parents to register their non-citizen children as citizens. The practice of administrative courts – which has been subsequently codified and provides that third-country nationals and Latvian non-citizens are entitled to register a child as a non-citizen – is odd. The best interests of the child would surely be to acquire nationality at birth. The amendments proposed to the Citizenship law by the Saeima would be a moderate step forward in solving the problem. The possibilities of non-citizen status to be hereditary should be minimized. This does not, however, release Latvia from the need to facilitate naturalization of non-citizens in general. The role of the family is the main setting in which children are socialized, civilized and educated, in which habits are developed that influence their subsequent fate as individuals.2 Therefore, for children to become integrated into Latvian society, it is crucial that their parents are also citizens. Latvia has not ratified the ECN, although having signed it in 2001. There are several reasons for this. First, there is political unwillingness to ratify and to make the necessary amendments to the Citizenship Law. It is difficult at present to 2 Muller Jerry Z., ‘Capitalism and Inequality. What the Rights and the Left Get Wrong’ (2013) 92/2 Foreign Affairs, 30–51, 33.

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make a conclusive argument that the amendments to the Law currently under debate in the Saeima will solve this problem. Second, it is not certain whether the ECtHR will accept the Latvian position in the Petropavlovskis case.3 According to the amendments to the Citizenship Law the role of political institutions, i.e., the Cabinet of Ministers, in deciding on naturalization would even increase. This raises uncertainty as to the extent to which Latvian practice corresponds to Article 12 of the ECN. Third, uncertainty exists over whether and how many reservations should be introduced regarding Article 6 in order to exclude application of this Article in relation to non-citizens. On the one hand, worries as to non-citizens are doubtful because it has been accepted by numerous bodies, although not uniformly, that non-citizens cannot be qualified as stateless. Therefore, references in the convention to stateless persons are not applicable in their case. On the other hand, it can be argued that non-citizens have been created as a temporary group subject to regularisation. While the obligation to integrate stateless persons cannot be invoked, a claim to avoid statelessness at least in certain circumstances is grounded. After all, naturalization as an option is still available to most non-citizens, which serves as an argument at least in the ICCPR context. It has been argued that citizenship and integration policies are linked. Latvian integration policy was primarily addressed to Soviet era immigrants who did not have the experience of living in an independent Latvia. Moreover, Latvian citizens themselves had to learn how to manage the restored State. Integration policy was initially imposed from outside by international organizations and it was predominantly based on a one-way process, i.e., the State expecting immigrants to make an effort to integrate without providing for adequate facilities for their integration within a vision of a newly integrated society. The Integration programme adopted in 2001 was broad. Latvia has placed knowledge of Latvian language, Latvian history and naturalization at the centre of its integration policy. The irreversibility of independence was seen to be achievable on the basis of these ‘centres of gravity’. At the same time the integration process aimed to consolidate civil society, founded on shared basic values. Naturalization tests were given an important role to play in this regard. They were simplified over the years to encourage naturalization. However, integration policy was otherwise not focused and since joining the EU and NATO Latvian policymakers have become relaxed in implementing it. Naturalisation tests at present have become a tool for integration rather than a reward for it. The role of a language test in acquiring LTR status is marginal since the number of applications is very low. Regarding access to nationality, especially 3 See section 19.2. of part V of this volume.

Latvian Citizenship and Non-Citizen Status  447

since reform of the Citizenship Law in 1998, the Latvian case shows that noncitizens­are at the level of legislation stimulated to acquire nationality. Moreover, according to statistics external factors have facilitated increase of naturalization figures, i.e., accession of Latvia to the EU. At the same time the level of language knowledge required for naturalisation is low, which might further complicate effective participation of citizens in political and social processes. At present the naturalization process has almost stopped and proactive integration measures are not being adopted in order to facilitate social inclusion and effective participation. From the point of view of non-citizens there is a general lack of interest in applying for Latvian citizenship because differences in treatment between citizens and non-citizens have been minimized. By being excluded from social and political processes non-citizens have lost interest in obtaining citizenship. Moreover, the most recent document on integration, Benchmarks of National Identity. Civic Society and Integration Policy, adopted in 2011, does not offer any changes in the approach to integration compared to the previous programme. Latvia has also drafted a re-emigration plan which intends to foster return of persons who have used their rights to migrate in the EU.4 Indeed, work on re-integration policy should be encouraged but it should be streamlined with integration policy at home. Several considerations should be taken into account when addressing integration policy in Latvia. First, naturalisation exams, either strong or weak, by themselves bear no direct relevance for establishing whether a person has integrated. The Latvian case illustrates the difficulties States are facing when addressing issues related to rights and integration of immigrants that might differ in times, needs and contexts. Second, a distinction should be drawn between different groups in society and the rights they are granted. For instance, the rights of noncitizens to preserve their native language, culture, and traditions have been granted despite the fact that they cannot be considered as a minority group en masse. The fact that they have been granted certain rights usually granted only to minorities has hampered their integration process in Latvia. Instead, knowledge of Latvian and language learning should have been facilitated by the State more actively to ensure a two way process of integration. The State should have shown more interest on a permanent basis and care for everyone to be able to become an integrated member of society. According to the Latvian experience, integration becomes even more difficult if it requires changes in value perceptions, adaptation to processes of global communication, the mass media and 4 See information on reintegration policy, which, inter alia, suggests information on vacancies, offers language learning, special policies to attract highly qualified workers, support for children returning and the like. Available at website of the Ministry of Economics, accessed 22 April 2013.

448  Chapter Twenty-Eight

propaganda from non-democratic regimes. Third, from the legal point of view integration should primarily focus on non-discrimination and social inclusion. In the case of a more inclusive legal framework, the possibilities to achieve personal participation and integration in other sectors would increase. The general conclusion is that an effective and permanent national integration policy is required. This should be adjusted to address the needs of society at a specific time. Undoubtedly, the fact that a person is a national can facilitate integration. The most complicated task for Latvia is to solve the problem of individuals who are ‘stuck’ in between two States – the ex-USSR and the independent State of Latvia. Taking into account that naturalization requirements are easy and non-citizens enjoy ‘near-equal’ rights to citizens, integration remains the most important issue to be solved in Latvia. The current process should be revisited and a two-way process of integration should be established. Developments in the EU might be helpful in this regard. Different suggestions have been made in doctrine ranging from the need for greater access to group identity to the need for a change of balance of values where judicial and political values take over from cultural and historical. On the basis of conclusions drawn so far, and especially taking the group of non-citizens as representing a group which is more than permanent residents but still less than citizens, the role of the EU will be addressed in nationality and immigration contexts.

Chapter Twenty-Nine EU Citizenship, Nationality and Immigration: Outlook This book has highlighted that international and EU law is undergoing significant developments in nationality issues. The old notion of one-man, one-State citizenship is outdated: more than 200 million people now live and work outside the countries in which they were born – but still wish to travel home, or marry or invest there. Loyalty to political entities need not be exclusive and it may often overlap.1 Against this background major challenges are posed by globalisation processes which outreach national contexts. However, it has also been acknowledged that national contexts remain important because they determine power relations and represent different puzzles for international contexts. Some communities might easily adjust to conditions of residence while other communities either for historical or other reasons might have difficulties in integrating. The solutions to different problems which might arise in national contexts are not based on a proposal to repeal national citizenship but rather to find a different approach to satisfy the need for identity on an everyday basis for individuals residing outside their country of origin while preserving their national identity. The EU and the concepts it has developed is seen as a possible solution to these challenges. A few projections will be drawn on the direction of further developments. The EU has tried to find the right responses to globalisation in order to keep its role in the world market and to foster prosperity of EU citizens by raising its competitiveness as a market. The decline of Member State autonomy in the EU began with removal of customs barriers. It went on to include giving up national authority over exchange rates, opening financial markets and adopting product standards, competition policies and numerous regulations that permit free movement of peoples, goods and services.2 The EU has also invented EU citizenship and could not remain unaware of the challenges posed by international migration, crime and foreign policy issues. The role of the EU citizenship concept depends on the success of the European Union as a new form of societal organization in general. Currently different 1 ‘In praise of a second (or third) passport’, The Economist, January 7 2012, 11. 2 Schachter Oscar, ‘The Decline of the Nation-State and its Implications for International Law’ (1998) 36 (7) A. Colum. J. Transnat’L., 7–23, 11.

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important processes are ongoing which are relevant for EU development. The question remains how to handle them and how to find the right strategy for the benefit of the EU, its Member States, and people living in the EU. The EU has done much to strengthen the status of EU citizen and upgraded it from pure market status to fundamental status in EU law although predominantly limited to functional aspects of citizenship and within the ambit of the competencies vested in the EU. It has also introduced a number of immigrant statuses. EU citizenship and immigrant statuses are not monolithic and they are subject to exceptions, reservations, transition provisions and the like which are influenced by national differences between the EU Member States. Therefore, a multitude of relationships co-exist in the EU which requires that claims by the individual, the group and the State must coexist in some reasonable balance. This can be resolved through networks of interdependence which engage globally or regionally in policy-making and operations, pursuing values, interests and specialised capabilities of their members and in relation to other networks.3 This allows one to find commonalities and identities which transcend the territorial State. In this context, EU citizenship represents a concept which is about belonging beyond the State, i.e., it is not a belonging which affects national identity but a belonging which helps adjust the position of people living outside their country of origin. It has been argued that the EU is moving in a federalist direction and that one day EU citizenship will replace Member State nationality. Moderate proposals have been made for the EU to establish certain uniform rules on acquisition and loss of Member State nationality and strengthening jus soli. Both of these scenarios seem too far-fetched at least for the time being. Many issues which still affect the daily life of EU citizens remain outside EU competence (for instance, health care, tax on property, social insurance, residential rentals, opening a bank account). Those differences among countries make free movement complicated. The proposed Latvian re-immigration plan illuminates that there might be more complex problems at the more practical level not only to move to, but even to return to, a Member State. Therefore, the European Commission initiative to reinforce EU citizens’ rights with a series of actions to tackle obstacles that citizens still face in their everyday life should be welcomed. The 2013 EU Citizenship Report sets out 12 concrete ways to help Europeans make better use of their EU rights. Key proposals include making it easier for people to work and do training in another EU country; reducing excessive paperwork for EU citizens living and travelling in the EU; and eliminating barriers to cross-border shopping. VicePresident Viviane Reding has rightly stated: 3 Franck Thomas M., The Empowered Self. Law and Society in the Age of Individualism (Oxford: Oxford University Press 1999) 88 and 282.

EU Citizenship, Nationality and Immigration: Outlook  451 Ever since it was first included in the Treaties in 1993, EU citizenship has been evolving – but it is not yet mature: people still face obstacles exercising their rights in everyday life. We receive over 1 million enquiries every year from citizens on issues that relate to their rights. That is why today we are taking action to reinforce citizens’ rights in everyday situations, like looking for a job, shopping online or taking part in European decision-making.4

At the same time, strengthening EU citizenship affects national citizenship and the way we think about it. EU citizenship is important because it invalidates ethnicity as the main component of nationality. EU citizenship has configured nationality from the ethnic and cultural to the political process of participatory enactment. Further integration might encourage at least a certain level of harmonisation of nationality laws in relation to acquisition and loss of nationality as well as tolerance for dual nationality. With each Treaty amendment Member States transfer an increasing number of competencies to the EU. Thus, the number of rights based on residence is expanding and EU law is becoming applicable in spheres traditionally guarded by the sovereignty of States. This is a welcome development in bringing certain issues gradually on the EU agenda. These developments do not diminish the need for nationality at the level of Member States. The right of the State to determine who are its nationals is valid and the EU should respect that right if nationality is granted in accordance with international law and by paying due regard to EU law. At the same time EU intervention should be respected in cases where the fundamental rights of EU citizens or EU core objectives are endangered. Therefore, the current choice for Europe should not be focused on abandoning national citizenship but rather on building its own concept of belongingness. The process is slow and incremental, which is understandable taking into account the role of history, experience and traditions in nationality issues in Europe. After all, no parallels could or should be drawn between national and EU citizenships. Two directions for development can be envisaged. First, Member State nationals acting in different capacities become subject to EU regulation. EU law is expanding and is becoming applicable to purely internal situations involving substantive EU rights. This would facilitate citizens in identifying themselves with the EU as a trans-national entity which in turn would lead to acknowledgment of the EU as an equally important identity alongside national identity. Second, Member States remain the main players in nationality issues and only those nationals who opt to go to another Member State would be affected by EU law. This would mean that EU citizenship would remain at its present stage of 4 European Commission, Press Release ‘EU Citizenship: Commission proposes 12 new actions to boost citizens’ rights’, Brussels, 8 May 2013. For relevant documents see accessed 13 May 2013.

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development and no significant changes could be expected. The EU institutions would tolerate national policies on diversity and integration rather than seeking to upgrade common trans-national statuses, including EU citizenship in internal situations. Both directions are feasible but it remains to be seen which is more acceptable for individuals and which approaches are chosen by the Member States, especially taking into account the increasing growth of immigration and economic hurdles of the EU. The question is whether the EU is seeing itself as an single area or rather prefers to preserve national compartments, i.e., whether migration in the EU should be facilitated or rather States see it as endangering their identity. The growing numbers of immigrants cannot be cut out when projecting the future of the EU. Latvia in this context serves as a specific example where history rather than the future takes over in constructing an integrated society. Legal doctrine has advocated extension of EU citizenship to immigrants automatically or harmonisation and liberalization of nationality rules. With adoption of the directives on different third-country national statuses it seems that for the time being no consensus exists on the idea of granting EU citizenship to long-term residents outside naturalization procedures. This would require a significant change of the mindset towards and treatment of long-term immigrants which has been prevalent for decades. The Latvian case shows that this might be politically unacceptable because of the historical framework. It can be concluded that allowing immigrants to apply for EU citizenship without naturalisation would have advantages and disadvantages. One advantage is that this would allow establishing a more direct link between the EU and immigrants. Moreover, immigrants would not have to make the difficult choice of renouncing their original nationality. It would also make it easier to offer them the rights attached to EU citizenship. At the same time several difficulties can be envisaged. For instance, certain provisions related to EU citizens would be difficult to apply or would require additional clarification. Examples that spring to mind are access to work in the public service, cases of expulsion – especially regarding the Schengen black-list – and applying the principle of minimum financial solidarity between Member States. Moreover, Member States might be not willing to open their labour market to immigrants, as indeed occurred even upon EU enlargement in 2004 regarding EU citizens from Central and Eastern Europe. Another issue which would raise discussion is the right to political participation in local elections and elections to the European Parliament as well as entitlement to work with EU institutions. Therefore, the realistic end result would be that EU citizens would be differentiated on the basis of being ‘pure’ EU citizens holding both national and EU citizenship and ‘second-class’ citizens holding only EU citizenship. This would also not facilitate the integration process in communities where immigrants would be residing.

EU Citizenship, Nationality and Immigration: Outlook  453

It is up to the Member States to consider whether naturalisation of immigrants should be facilitated rather than the status of immigrants upgraded at the EU level. Treatment of immigrants has already created situations where the extent of toleration for difference had become contested. Various European leaders have called for the ‘end of multiculturalism’. Although several EU Member States have adopted demanding integration conditions for immigrants to receive even residence rights in the EU, others reveal a readiness for further openness to reconsider the relationship between long term residence, nationality and EU citizenship status. These debates suggest that EU Member States are coming to terms with the failures of their earlier approaches. As argued by George Friedman for the Europeans, multiculturalism was not the liberal and humane respect for other cultures that it pretended to be. The offer of multiculturalism was a grand bargain meant to lock in migrant loyalty in exchange for allowing them to keep their culture – and to protect European culture from foreign influences.5 Thus, immigrants became permanently alienated in their host countries while remaining loyal to their home countries. The European approach to multiculturalism was profoundly divisive and based on nationality.6 This book has argued not only for strengthening EU citizenship but also looking at long term immigrants as if they were potential citizens – equally dependent on society for protection of their rights and development of their persons – rather than relegate some residents indefinitely to a specific function or set of purposes. This implies equal treatment with nationals. Whether immigrants actually start to conceive of their country of residence as the relevant framework in which to measure their status of political equality will partly depend on their own selfperception and conditions for naturalization.7 In this context, the role of the EU might increase because its potential enables building an identity above common history and traditions as the main value for society at the European level. The EU is based on distinct values which are not linked to ethnicity and national culture or respects them while remaining indifferent.8 Integration at EU level should be forward looking. Non-discrimination should facilitate integration by searching for commonalities which various groups

5 Friedman George, ‘Germany and the Failure of Multiculturalism’ (STRATFOR 19 October 2010), available at accessed 8 February 2011. 6 Sparrow Andrew, ‘Cameron attacks ‘state multiculturalism’ (26 February 2008) Guardian, available at accessed 14 February 2012. 7 Marín Rut R., ‘Equal Citizenship and Difference that Residence Makes’ in La Torre Massimo (ed.), European Citizenship: An Institutional Challenge (Kluwer Law International: the Hague, London, Boston 1998) 201–227, 209. 8 See, for instance Lautsi and others v. Italy (App no30814/06) ECHR 18 March 2011.

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can agree upon. Moreover, the right to otherness and its scope should be carefully examined in each particular case, i.e., whether it applies to a national, a migrant citizen, a person belonging to a minority, or an immigrant. Therefore, the EU should strive to make the role of non-discrimination stronger at the same time bearing in mind different statuses of persons, i.e., the EU institutions should also remain mindful of the historical and specific circumstances of each group of persons in national contexts. In general the dynamics of the EU suggest that nationalism could be gradually replaced by so called constitutional patriotism as suggested by Habermas. This entails facilitation of solidarity between strangers. It should set in balance values rooted in culture and history on the one hand and judicial and political values on the other. The procedural order in the EU should remain neutral to national identity and morality. Habermas rightly considers that a European constitutional patriotism could grow out of the constitutional principles and traditions coming from the European level. He asserts that the human rights component of citizenship should be intensified and strengthened through the supranational rights component of citizenship.9 Currently we are witnessing only the seeds of this process and a general consensus of EU Member States on the future is not forthcoming. As argued by the Economist column: Some Europeans would like to put up carefully designed fences around the EU’s still vast wealthy market. Others, including a growing number of populist politicians, want to turn their nations inward and shut out not just the world but also the elites’ project of European integration. And a few – from among those same elites, mostly – argue that the only means of paying for Europe’s distinctive way of life is not to evade globalisation but to embrace it wholeheartedly.10

As noted by Oscar Schachter, the critical fact is that so far States alone have provided the structures of authority needed to cope with the claims of competing societal groups and to provide public justice essential to social order and responsibility.11 In general there is a deficit of common institutions which can ensure equal protection of law above the national level. Therefore, multi issue transnational regulation is an inevitable need in the globalised world. The answer to the questions indicated at the beginning of this section would thus be that we are gradually moving towards a trans-national community in    9 Habermas Jürgen, ‘Citizenship and National Identity: Some Reflections on the Future of Europe’ in R.Beiner (ed.), Theorising Citizenship (SUNY, New York 1995) 255–281, as quoted by Guild Elspeth, The Legal Elements of European Identity. EU Citizenship and Migration Law (Kluwer Law International: the Hague 2004) 69. 10 ‘Starting into the abyss’, The Economist, November 12–18 2011, 3.  11 Schachter Oscar, ‘The Decline of the Nation-State and its Implications for International Law’ (1998) 36 (7) A. Colum. J. Transnat’L., 7–23, 22–23.

EU Citizenship, Nationality and Immigration: Outlook  455

Europe. It will be different from those existing within the confines of individual Member States. At the same time it will affect the way Member States deal with nationality and immigration issues. For the EU to remain competitive it should consolidate EU citizens by making their status stronger irrespective of whether they have used their free movement rights. The EU should also become more attractive for immigrants. Long term immigrants should be looked at as potential citizens. Above all the potential of the EU Fundamental Rights Charter should be acknowledged by offering effective protection for all residents in the EU.

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UN Treaty Bodies Communication No 538/1993 Chalres E. Stewart v. Canada, Human Rights Committee, 16 December 1996. Communication No. 558/1993 Canepa v. Canada, Human Rights Committee, 20 June 1997. Communication No. 10/1997 Ziad Ben Ahmed Habassi v. Denmark, Committee on the Elimination of Racial Discrimination, 6 April 1999. Communication No. 675/1995 Toala v. New Zealand, Human Rights Committee, 22 November 2000. Communication No. 930/2000 Winata v. Australia, Human Rights Committee, 26 July 2001. Communication no. 1011/2001 Francesco and Anna Madafferi and their children v. Australia, Human Rights Committee 26 August 2004. Communication No. 1136/2002 Borzov v. Estonia, Human Rights Committee, 26 July 2004.

Bibliography  465 Communication No. 1222/2003 Johny Rubin Byahuranga v. Denmark, Human Rights Committee, 9 December 2004. Communication No. 1223/2003 Vjatseslav Tsarjov v. Estonia, Human Rights Committee, 26 October 2007.

European Court of Human Rights Abdulaziz, Cabales and Balkandali v. UK (App no 9214/80, 9473/91, 9474/81) 28 May 1985. Berrehab v. Netherlands (App no 10730/84) ECHR 28 May 1988. Moustaquim v. Belgium (App no 12313/86) ECHR 18 February 1991. Cruz Varas v. Sweden (App no 15576/89) ECHR 20 March 1991. Beldjoudi v. France (App no 12083/86) ECHR 26 March 1992. Nasri v. France (App no 19465/92) ECHR 13 July 1995. Gül v. Switzerland (App no 23218/94) ECHR 22 January 1996. Boughanemi v. France (App no 22070/93) ECHR 24 April 1996. C. v. Belgium (App no 21794/93) ECHR 7 August 1996. Gaygusuz v. Austria (App no 17371/90) ECHR 16 September 1996. Ahmut v. the Netherlands (App no 21702/93) ECHR 28 November 1996. Bouchelkia v. France (App no 23078/93) ECHR 29 January 1997. Boujlifa v. France (App no 25404/94) ECHR 21 October 1997. Jasinskij and Other v. Lithuania (App. no. 38985/97) 9 September 1998. Matthews v. the United Kingdom (App no 24833/94) ECHR 18 February 1999. Salgueiro Da Silva Mouta v Portugal (App no 33290/96) ECHR 21 December 1999. Ciliz v. the Netherlands (App no 29192/95) ECHR 11 July 2000. Jankovič v. Croatia (App. no. 43440/98) 12 October 2000. Kudla v. Poland (App no 30210/96) ECHR 26 October 2000. Kuna v. Germany (App. no. 52449/99) 10 April 2001. Boultif v. Switzerland (App no 54273/00) ECHR 2 August 2001. Hadžič v. Croatia (App. no. 48788/99) 13 September 2001. Sen v. the Netherlands (App no 31465/96) ECHR 21 December 2001. Amrollahi v. Denmark (App no. 56811/00) ECHR 11 July 2002. I v. UK (App no 25680/94) ECHR 11 July 2002. Jakupovic v. Austria (App no 36757/97) ECHR 6 February 2003. Koua Poirrez v. France (App no 40892/98) ECHR 30 September 2003. Yildiz v. Austria (App no 37295/97) ECHR 31 October 2002. Slivenko v. Latvia (App no 48321/99) ECHR 9 October 2003. Mata Estevez v. Spain [decision] (App no. 56501/00) ECHR 10 May 2005. Tuquabo-Tekle and others v. the Netherlands (App no 60665/00) ECHR 1 December 2005. Rodrigues da Silva and Hoogkamer v. the Netherlands (App no 50435/99) ECHR 31 January 2006. Ždanoka v. Latvia (App no 58278/00) ECHR 16 March 2006. Jeļena Fjodorova et autres c. la Lettonie (requite no. 69405/01) decision 6 avril 2006. Stec and other v. the United Kingdom (App no 65731/01 and 65900/01) ECHR 12 April 2006. Üner v. the Netherlands (App no 46410/99) ECHR 18 October 2006. Sisojeva and others v. Latvia (App no 60654/00) ECHR 15 January 2007. Estrikh v. Latvia (App no 73819/01) ECHR 18 January 2007. Kaftailova v. Latvia (App no 59643/00) ECHR 22 June 2006, [GC] 7 December 2007. Maslov v. Austria (App no 1638/03) ECHR 23 June 2008. Darren Omoregie and Others v. Norway (App. No. 265/07) ECHR 31 July 2008. Kovačič and Others v. Slovenia (App. no. 44574/98, 45133/98, 48316/99) 3 October 2008. Carson and Others v. the United Kingdom (App. no. 42184/05) 4 November 2008. Andrejeva v. Latvia (App no 55707/00) ECHR 18 February 2009. Zubczewski v. Sweden (App. no. 16149/08) 12 January 2010. Gheorghe Dalea v. France (Requéte 964/07) Décision sur la recevabilité, 2 février 2010. Mutlag v. Germany (App no. 12083/86) ECHR15 March 2010. Tănase v Moldova (App no 7/08) ECHR [GC] 27 April 2010.

466  Bibliography Schalk and Kopf v. Austria (App no 30141/04) ECHR 24 June 2010. Kurič and others v. Slovenia (App no 26828/06) ECHR 13 July 2010, [GC] 26 June 2012. J.M. v. United Kingdom (App no 37060/06) ECHR 28 September 2010. Gezginci v. Switzerland (App no 16327/05) ECHR 9 December 2010 . Lautsi and others v. Italy (App no30814/06) ECHR 18 March 2011. Nunez v. Norway (App no 555977/09) ECHR 28 June 2011. A.A. v. the United Kingdom (App no 8000/08) ECHR 20 September 2011. Hirsi Jamaa and Others v. Italy (App no 27765/09) ECHR 23 February 2012.

European Court of Justice/Court of Justice of the European Union Case 152/73 Giovanni Maria Sotgiu v Deutsche Bundespost [1974] ECR 153. Case C- 8/74 Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 837. Case 21/74 Jeanne Airola v. Commission of the European Communities [1975] ECR 221. Case 37/74 Chantal van den Broeck v. Commission of the European Communities [1975] ECR 235. Case 41/74 Yvonne van Duyn v Home Office [1974] ECR 1337. Case 67/74 Carmelo Angelo Bonsignore v Oberstadtdirektor der Stadt Köln [1975] ECR 297. Case 36/75 Rutili v. Minister of Interior [1975] ECR 1219. Case 48/75 Jean Noël Royer v. Tribunal de première instance de Liège - Belgium [1976] ECR 497. Case 118/75 Lynne Watson and Alessandro Belmann [1976] ECR 1185. Case 8/77 Concetta Sagulo, Gennaro Brenca and Addelmadjid Bakhouche [1977] ECR 1495. Case 30/77 Régina v Pierre Bouchereau [1977] ECR 1999. C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649. Case 136/78 Criminal proceedings against Vincent Auer [1979] ECR 437. Case 257/78 Evelyn Devred, née Kenny-Levick, v Commission of the European Communities [1979] ECR 3767. Case 149/79 Commission of the European Communities v Kingdom of Belgium [1980] 3881, [1982] 1845. Case 53/81 D.M.Levin v. Staatssecretaris van Justitie [1982] ECR 1035. Joined Cases 115–116/81 Rezguia Adoui v Belgian State and City of Liège; Dominique Cornuaille v Belgian State [1982] ECR 1665. Joined cases 35–36/82 Elestina Esselina Christina Morson v State of the Netherlands and Head of the Plaatselijke Politie within the meaning of the Vreemdelingenwet; Sweradjie Jhanjan v State of the Netherlands [1982] ECR 3723. Case 14/83 Von Colson and Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891. Case 238/83 Caisse d’Allocations Familiales de la Region Parisienne v. Mr.and Mrs. Richard Meade [1984] ECR 2631. Case 293/83 Françoise Gravier v. City of Liège [1985] ECR 593. Case 267/83 Aissatou Diatta v. Land Berlin [1985] ECR 567. Cases 53/84 Stanley George Adams v. Commission of the European Communities [1985] ECR 3595. Case 94/84 Office national de l’emploi v. Joszef Deak [1985] ECR 1873. Case 307/84 Commission of the European Communities v French Republic [1986] ECR 1725. Case 59/85 State of the Netherlands v. Ann Florence Reed [1986] ECR 1283. Case 66/85 Deborah Lawrie-Blum v. Land Baden-Württemberg [1986] ECR 2121. Case 139/85 R.H.Kempf v. Staatssecretaris van Justitie [1986] ECR 1741. Case 225/85 Commission of the European Communities v Italian Republic [1987] ECR 2625. Joined Cases 281, 283–285, 287/85 Federal Republic of Germany and others v. Commission of the European Communities [1987] ECR 03203. Case 39/86 Sylvie Lair v Universität Hannover [1988] ECR 3161. Case 197/86 Steven Malcolm Brown v The Secretary of State for Scotland [1988] ECR 3205. Case 292/86 Claude Gullung v. Conseil de l’ordre des avocats du barreau de Colmar et de Saverne [1988] ECR 111. Case 3/87 The Queen v. Ministry of Agriculture, Fisheries and Food, ex parte Agegate Ltd. [1989] ECR 1621. Case 186/87 Ian William Cowan v Trésor public [1989] ECR 195. Case 196/87 Udo Steymann v. Staatssecretaris van Justitie [1988] ECR 6159.

Bibliography  467 Case 5/88 Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609. Case C-33/88 Pilar Allué and Carmel Mary Coonan v Università degli studi di Venezia [1989] ECR 1591. Joined Cases C-297/88 and C-197/89 Massam Dzodzi v. Belgian State [1990] ECR I-3763. Case C-292/89 The Queen v Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen [1991] ECR I-745. Case C-363/89 Danielle Roux v Belgian State [1991] ECR I-273. Case C-3/90 M.J.E.Bernini v. Minister van Onderwijs en Wetenschappen [1992], ECR I-1071. Case C-369/90 Mario Vicente Micheletti and others v. Delegación del Gobierno en Cantabria [1992] ECR I- 4239. Case C-370/90 The Queen v. Immigration Appeal Tribunal et Surinder Singh, ex parte Secretary of State for Home Department [1992] ECR I-4265. Case C-4/91 Pilar Allué and Carmel Mary Coonan v Università degli studi di Venezia [1991] ECR I-5627. Case C-112/91 Hans Werner v. Finanzamt Aachen-Innenstadt [1992] ECR 429. Case C-168/91 Christos Konstantinidis v Stadt Altensteig – Standesamt and Landratsamt Calw – Ordnungsamt [1993] ECR I-1191. Case C-206/91 Ettien Koua Poirrez v. Caisse d’allocations familiales de la region parisienne, substituee par la Caisse d’allocations familiales de la Seine-Saint-Denis [1992] ECR I-06685. Case C-419/92 Ingetraut Scholz v. Opera Universitaria di Cagliari and Cinzia Porcedda [1994] ECR I-505. Case C-473/93 Commission of the European Communities v Grand Duchy of Luxemburg [1996] ECR I-3207. Case 7/94 Landesamt für Ausbildungsförderung Nordrhein-Westfalen v Lubor Gaal [1995] ECR I-1031. Case C-55/94 Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165. Case C-173/94 Commission of the European Communities v Kingdom of Belgium [1996] ECR I-3265. Case C-193/94 Criminal proceedings against Sofia Skanavi and Konstantin Chryssanthakopoulosi [1996] ECR I-929. C-214/94 Boukhalfa v. Bundesrepublic Deutchland [1996] ECR I-2253. Case C-290/94 Commission of the European Communities v Hellenic Republic [1996] ECR I-3285. Case C- 4/95, 5/95 Fritz Stöber and José Manuel Piosa Pereira v. Bundesanstalt für Arbeit [1997] ECR I-511. Joined cases C-65/95 and C-111/95 The Queen v Secretary of Sate for the Home Department, ex parte Mann Singh Shingara and Abbas Radiom [1997] ECR I-03343. Case C-299/95 Friedrich Kremzow v Republik Österreich [1997] ECR I-2629. Case C-36/96 Faik Günaydin, Hatice Günaydin, Günes Günaydin and Seda Günaydin v Freistaat Bayern [1997] ECR I-05143. Joined Cases C-64 -65/96 Land Nordrhein-Westfalen v. Kari Uecker and Vera Jacquet v. Land Nordrhein Westfalen [1997] ECR I-03171. Case C-85/96 María Martínez Sala v. Freistaat Bayern [1998] ECR I-0269. Case C-98/96 Kasim Ertanir v Land Hessen [1997] ECR I-05179. Case C-274/96 Criminal proceedings against Horst Otto Bickel and Ulrich Franz [1998] ECR I-7637. Case C-336/96 Mr.and Mrs.Robert Gilly v. des services fiscaux du Bas-Rhin [1998] ECR I-2793. Case C-348/96 Criminal proceedings against Donatella Calfa [1999] ECR I-11. Case C-416/96 Nour Eddline El-Yassini v Secretary of State for Home Department [1999] ECR I-1209. Case C-1/97 Mehmet Birden v Stadtgemeinde Bremen [1998] ECR I-07747. C-340/97 Őmer Nazli, Caglar Nazli and Melike Nazli v. Stadt Nűrnberg [2000] ECR I-957. Case C-378/97 Criminal proceedings against Florus Ariël Wijsenbeek v. Arrondissementsrechtbank Rotterdam [1999] ECR I-6207. Case C-179/98 Belgian State v. Fatna Mesbah [1999] ECR I-7955. Case C-224/98 Marie-Nathalie D’Hoop v. Office national de l’emploi [2002] ECR I-6191. Case C-356/98 Arben Kaba v. Secretary of State for the Home Department [2000] ECR I-02623. Joined Cases C-122/99 P and C-125/99 P D & Sweden v. Council of the European Union, [2001] ECR I-4319. Case C-135/99 Ursula Elsen v. Bundesversicherungsanstalt für Angestelte [2000] ECR I-10409. Case C-184/99 Rudy Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-6193. Case C-192/99 The Queen v. Secretary of State for the Home Department ex parte Kaur [2001] ECR I-1237. Case C-413/99 Baumbast, R v. Secretary of State for the Home Department [2003] ECR I-7091.

468  Bibliography Case C-459/99 Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL (MRAX) v. État belge [2002] ECR I-6591. Case C-60/00 Mary Carpenter v. Secreatary of State for the Home Department [2002] ECR I-6279. Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v. Republik Österreich [2003] ECR I-5659. Case C-189/00 Urszula Ruhr v. Bunderstalt für Arbeit [2001] ECR I-8225. Case C-257/00 Nani Givane and Others v. Secretary of State for the Home Department [2003] ECR I-345. Case C-466/00 Arben Kaba v. Secretary of State for the Home Department [2003] ECR I-2219. Case C-100/01 Ministre de l’Intérieur v. Aitor Oteiza Olazabal [2002] ECR I- 981. Case C-101/01 Bodil Lindqvist [2003] ECR I-12971. Case C-109/01 Secretary of State for the Home Department v. Hacene Akrich [2003] ECR I-9607. Case C-117/01 K.B. v. National Health Service Pensions Agency and Secretary of State for Health [2004] ECR I-541. Case C-285/01 Isabel Burbaud v. Ministère de l’Emploi et de la Solidarité [2003] ECR I-8219. Case C-405/01 Collegio de Oficiales de la Marina Mercante Espanola v. Administracion del Estado [2003] ECR I-10391. Joined Cases C-482/01 and C-493/01 Georgios Orfanopoulous, Natascha Orfanopoulos, Melina Orfanopoulos, Sofia Orfanopoulos and Land Baden-Wüettemberg; Raffaele Oliveri and Land BadenWürttemberg [2004] ECR I- 5257. Case C-47/02 Albert Klaas Raas, Albertus Snoek v. Bunderepublik Deutchland [2003] ECR I-10447. Case C-138/02 Brian Francis Collins v. Secretary of State for Work and Pensions [2004] ECR I-2703. Case C-148/02 Carlos Garcia Avello v. État belge [2003] ECR I-11613. Case C-200/02 Kunqian Catherine Zhu, Man Lavette Chen v. Secretary of State for the Home Department [2004] ECR I-9925. Case C-224/02 Heikki Antero Pusa v. Osuuspankkien Keskinäinen Vakuutusyhtiö [2004] ECR I-5763. Case C-456/02 Michel Trojani v. Centre public d’aide sociale de Bruxelles (CPAS) [2004] ECR I-7573. Case C-467/02 Inan Cetinkaya v Land Baden-Württemberg [2004] ECR I-10895. Case C-152/03 Hans-Jurgen Ritter Coulais, Monique Ritter-Coulais v. Finanzamt Germersheim [2006] ECR I- 1711. Case C-209/03 The Queen ex parte Dany Bidar v. London Borough of Ealing, Secretary of State for Education and Skills [2005] ECR I-2119. Case C-215/03 Salah Oulane v. Minister voor Vreemdelingenzaken en Integratie [2005] ECR I 1215. Case C-403/03 Egon Schempp v. Finanzamt München V [2005] ECR I-6421. Case C-408/03 Commission of the European Communities v. Kingdom of Belgium [2006] ECR I-2647. Case C-503/03 Commission of the European Communities v. Kingdom of Spain [2006] ECR I – 1097. Case C-540/03 European Parliament v. Coucil of the European Union [2006] ECR I-5769. Case-96/04 Standesamt Stadt Niebüll [2006] ECR I-3561. Case C-144/04 Werner Mangold v. Rüdiger Helm [2005] ECR I-9981. Case C-145/04 Kingdom of Spain v. United Kingdom of Great Britain and Northern Ireland [2006] ECR I-7917. Case C-258/04 Ioannis Ioannidis v. Office national de l’emploi [2005] ECR I-8275. Case C-300/04 M.G. Eman, O.B. Sevinger v. College van burgemeester en wethouders van Den Haag [2006] ECR I-8055. Case C-406/04 Gérald De Cuyper v. Office national de l’emploi [2006] ECR I-6947. Case C-1/05 Yunying Jia v. Migrationsverket [2007] ECR I-1. Case C-192/05 K. Tas-Hagen, R.A.Tas v. Raadskamer WUBO van de Pensionen – en Uitkeringsraad [2006] ECR I-10451. C-209/05 Kommission der Europäischen Gemeinschaften v. Republik Österreich, the case removed from the register on 29 June 2006. Case C-287/05 D.P.W.Hendrix v. Raad van Bestuur van het Uitvoeringsinstitut Weknemersverzekeringen [2007] ECR I-6909. Case C-291/05 Minister voor Vreemdelingenzaken en Integratie v. R.N.G. Eind [2007] ECR I-10719. Case C-212/06 Government of the French Community, and Walloon Government v. Flemish Government [2008] ECR I-1683. Case C- 353/06 Stefan Grunkin, Dorothee Regina Paul, Leonhad Matthias Gunkin-Paul v. Standesamt Niebüll [2008] ECR I-7639.

Bibliography  469 Case C-499/06 Halina Nerkowska v. Zakład Ubezpieczeń Społecznych Oddział w Koszalinie [2008] ECR I-3993. Case C-158/07 Jacqueline Förster v. Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-18507. Joined Cases C-22/08 and C-23/08 Athanasios Vatsouras, Josif Kouptantze v. Arbeitsgemeinschaft (AGE) Nürnberg 900 [2009] ECR I-04585. Case C-47, 50, 51, 53, 54, 61/08 Commission v. Belgium, France, Luxembourg, Austria, Germany and Greece [2011] ECR I-4105. Case C-127/08 Blaise Baheten Metock et. al. v. Minister for Justice, Equality and Law Reform [2008] ECR I-6241. Case C-135/08 Janko Rottman v. Freistaat Bayern [2010] ECR I-1449. Case C-137/08 Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform [2008] ECR I-06241. Case C-294/06 The Queen, on the application of Ezgi Payir, Burhan Akyuz and Birol Ozturk v Secretary of State for the Home Department [2008] ECR I-00203. Case C-310/08 London Borough of Harrow v. Nimco Hassan Ibrahim, Secretary of State for the Home Department [2010] ECR I-1065. Case C-480/08 Maria Teixeira v. London Borough of Lambeth, Secretary of State for the Home Department [2010] ECR I-1107. Case C-578/08 Rhimou Chakroun v. Minister van Buitenlandse Zaken [2010] ECR I-1839. Case C-34/09 Gerardo Ruiz Zambrano v. Office national de l’emploi [2011] ECR I-1177. Case C-145/09 Land Baden-Württemberg v. Panagiotis Tsakouridis, Judgment of 23 November 2010 [not yet reported]. Case C-162/09 Secretary of State for Work and Pensions v. Taous Lassal [2010] ECR I-9217. Case C-208/09 Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien, Judgment of 22 December 2010 [not yet reported]. Case C-325/09 Secretary of State for the Home Department v. Maira Dias, Judgment of 11 July 2011 [not yet reported]. Case C-348/09 I. V Oberbügermeisterin der Stadt Remscheid, Judgment 22 May 2012 [not yet reported]. Case C- 403/09 PPU Jasna Detiček v. Maurizio Sgueglia [2009] ECR I-12193. Case C-434/09 Shirley McCarthy v. Secretary of State for the Home Department [2011] ECR I-3375. Case C-7, 9/10 Staatssecretaris van Justitie, Other party: O.Inan, Kahveci, Judgment of 29 March 2010 [not yet reported]. Case C-571/10 Servet Kamberaj v. Instituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES), Giunta della Provincia autonoma di Bolzano, Provincia autonoma di Bolzano, Judgment of 24 April 2012 [not yet reported]. Case C-149/10 Zoi Chatzi v. Ipourgos Ikonomikon [2010] ECR I-8489. Case C-206/10 European Commission v. Federal Republic of Germany [2011] ECR I-3573. Case C-282/10 Maribel Dominguez v Centre informatique du Centre Ouest Atlantique and Préfet de la région Centre, Judgment of 24 January 2012 [not yet reported]. Case C-502/10 State Secretary van Justitie v Mangat Singh, Judgment of 18 October 2012 [not yet reported]. Case C-508/10 Commission v. Netherlands, Judgment of 26 April 2012 [not yet reported]. Case C-617/10 Åklagaren v. Hans Åkerberg Fransson, Judgment of 26 February 2013 [not yet reported]. Case C-40/11 Yoshikazu Iida v. Stadt Ulm, Judgment of 8 November 2012 [not yet reported]. Case C-61/11 PPU Hassen El Dridi, alias Karim Soufri, Judgment of 28 April 2011 [not yet reported]. Case C-256/11 Dereci, Heimi, Kokollari, Maduike, Stevic v. Bundesministerium für Inneres, Judgment of 15 November 2011 [not yet reported]. Case C-356–357/11 O. and S. v Maahanmuuttovirasto and Maahanmuuttovirasto v. L, Judgment of 6 December 2012 [not yet reported]. Case C-399/11 Criminal proceedings against Stefano Melloni, Judgment of 26 February 2013 [not yet reported]. Case C-23/12 Mohamad Zakaria, Judgment of 17 January 2013 [not yet reported].

Court of First Instance/General Court Case T-572/93 Odigitria AAE v Council of the European Union and Commission of the European Communities [1995] ECR II-2025.

470  Bibliography Case T-66/95 Hedwig Kuchlenz-Winter v. Commission of the European Communities, [1995] ECR-SC I-A-87, II-287.

Other Courts or Dispute Settlement Institutions. Iran-Unites States Claims Tribunal, Esphahanian v. Bank Tejarat, Case No. 157 (Second Chamber) (1983) ILR, 72. Iran-US Claims Tribulal, Ataollah Golpira v. Islamic Republic of Iran, Case No. 211, (1983) ILR, 72. Iran-Unites States Claims Tribunal, Case No. A/18 (1984), (1987) ILR, 75. Italian-United States Conciliation Commission, Mergé claim (1995) ILR, 22.

National Courts Constitutional Court of the Czech Republic

Czech Constitutional Court. See decision of the Court on Pensions Case Pl. ÚS 5/12 of 31 January 2012.

Constitutional Court of the Republic of Latvia Judgment No. 2000-03-01, 30 August 2000. Judgment No. 2001-02-0106, 26 June 2001. Judgment No. 2004-15-0106, 7 March 2005. Judgment No. 2005-13-0106, 15 June 2006. Judgment No. 2004-14-01, 6 December 2006. Decision No. 2007-07-01, 21 August 2007. Judgment No. 2007-10-0102, 29 November 2007. Judgment No. 2009-94-01, 13 May 2010. Judgment No. 2010-20-0106, 17 February 2011.

Administrative Courts of Latvia

Judgment of the Department of Administrative Cases, the Senate of the Supreme Court in case No. SKA – 10 (C27162801) 9 March 2004. Judgment of the Department of Administrative Cases, the Senate of the Supreme Court in case No. SKA – 89 (C27261801) 24 August 2004. Judgment of Regional Court of administrative cases in case No. C-27189303 (AA 266-04/6) 30 September 2004. Judgment of Regional Court of administrative cases in case No. C-27-441-04/1 (AA 150-04/3) 8 November 2004. Judgment of District Court of administrative cases in case No. C27086604 (A1062-04/7) 15 November 2004. Judgment of District Court of administrative cases in case No. C27144702 (A475-04/7) 1 December 2004. Judgment of Regional Court of administrative cases in case No. C27232303 (AA 372-04/7) 22 December 2004. Judgment of the Department of Administrative Cases, the Senate of the Supreme Court in case No. SKA – 9 (C27202402), 11 January 2005. Judgment of the Department of Administrative Cases, the Senate of the Supreme Court in case No. SKA – 136 (A42173104) 13 April 2005. Judgment of Regional Court of administrative cases in case No. C27225803 (AA 261-05/01) 15 April 2005. Judgment of Regional Court of administrative cases in case No. A42151204 (AA890-05/8) 5 May 2005. Judgment of District Court of administrative cases in case No. A42244804 (A1476-05/13) 19 May 2005. Judgment of Regional Court of administrative cases in case No. A42173504 (AA 629-05/4) 9 June 2005. Judgment of District Court of administrative cases in case No. A42051204 (A63-0457) 20 June 2005.

Bibliography  471 Judgment of Regional Court of administrative cases in case No. A42005904 (A 59-04/9, AA 369-05/2), 9 August 2005. Judgment of Regional Court of administrative cases in case No. C27212003 (AA 508-05/2) 19 August 2005. Judgment of Regional Court of administrative cases in case No. C27188903 (AA484-05/5) 23 September 2005. Judgment of Regional Court of administrative cases in case No. A 688-04/8 (AA 398-05/3) 21 November 2005. Decision of District Court of administrative cases in case No. A42248104 (A11486-05/3) 19 December 2005. Judgment of the Department of Administrative Cases, the Senate of the Supreme Court in case No. SKA – 35 (A42005904) 7 February 2006. Decision of Regional Court of administrative cases in case No. 42248104 (A1230-06/12) 17 February 2006. Judgment of the Department of Administrative Cases, the Senate of the Supreme Court in case No. SA – 24 February 2006. Decision of the Department of Administrative Cases, the Senate of the Supreme Court in case No. SKA – 221 (A42248104) 11 April 2006. Judgment of Regional Court of administrative cases in case No.A42348705 (AA 934-06/10) 15 May 2006. Judgment of District Court of administrative cases in case No. C27270301 (A684-06/18) 15 May 2006. Judgment of Regional Court of administrative cases in case No. C27137903 (AA 452-06/12) 22 June 2006. Judgment of Regional Court of administrative cases in case No. A42399505 (AA 1944-06/6) 3 October 2006. Judgment of District Court of administrative cases in case No. A42488705 (A1118-07/11) 30 March 2007. Judgment of District Court of administrative cases in case No. A42305006 (A 1293-07/21) 16 April 2007. Judgment of Regional Court of administrative cases in case No. A42399505 (AA43-1832-07/15) 21 June 2007. Judgment of District Court of administrative cases in case No. A42377606 (A1960-07/9), 30 November 2007. Judgment of Regional Court of administrative cases in case No. A42415906 (AA43-1059-07/6) 28 December 2007. Judgment of Regional Court of administrative cases in case No. A42416006 (AA43-0133-08/4) 29 January 2008. Judgment of the Department of Administrative Cases, the Senate of the Supreme Court in case No. SKA-24/2008 (A42051204) 14 February 2008. Judgment of Regional Court of administrative cases in case No. A42488705 (AA43-0593-08/17) 2 April 2008. Judgment of District Court of administrative cases in case No. A42603207, 24 April 2008. Judgment of Regional Court of administrative cases in case No. A42051204 (AA43-1868-07/9) 28 April 2008. Judgment of the Department of Administrative Cases, the Senate of the Supreme Court in case No. SKA – 417/2008 (A42572706) 23 September 2008. Judgment of the Department of Administrative Cases, the Senate of the Supreme Court in case No. SKA – 678/2008 (A42545307) 6 November 2008.

Civil Courts

Judgment of the Civil Law Department of the Senate of the Supreme Court in case No. SKC-215/2011, 22 June 2011. Civil Cases Court Chamber of the Supreme Court in case No. C04318208, PAC-0118/12, 16 February 2012. Civil Cases Court Chamber of the Supreme Court in case No. C03058707, PAC-0220/2013, 18 February 2013.

472  Bibliography Civil Cases Court Chamber of the Supreme Court in case No. C03058707, PAC-0330/2013, 4 March 2013.

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Media Articles Saeima nemaina likumu par Eiropas Kopienas pastāvīgā iedzīvotāja statusu Latvijā [Parliament does not change the Law on EC long-term resident status in Latvia] www.apollo.lv, 22 June 2006. Prezidente liek pārskatīt EK pastāvīgā iedzīvotāja statusa likumu [President requests review of EC long-term resident status law] www.apollo.lv, 31 May 2006. ‘Visa waiving for Latvia’s ‘‘non-citizens’’ jeopardizes Russia-EU talks’, Ria Novosti [Russian national news agency] 18 June 2008. Riekstiņš aicina Krieviju nevilcināties ar informēšanu ‘Arctic Sea’ lietā [Foreign Minister Riekstins requests Russia to speed up information in Arctic Sea’ case] News portal Delfi, 20 August 2009. Pirātu nolaupiītā tankkuģu apkalpē Latvijas valstspiederīgais [Person from Latvia among crew members of tanker seized by pirates] weekly magazine IR, 12 October 2011. Merkele aicina palielināt imigrantu skaitu valsts dienestā [Merkel proposes to increase the number of immigrant employees in the civil service] National News Agency LETA 16 January 2012, and Zviedrija pētīs valsts pilsonības būtību [Sweden will research the essence of nationality of the State], 16 January 2011. ‘Kants vai katastrofa’ [Kant or catastrophy] weekly magazine Ir, 19–25 April 2012. ‘Putin Endorses Eased Citizenship Requirements’, The Moscow Times, available at accessed 24 January 2013. ‘Jus sanguinis revisited’, The Economist, March 2 1013, 25

Index absence from territory 159, 180–181, 182, 293, 294, 439 Accession Partnership (EU with Latvia) 336 accommodation 257, 268, 269, 283, 288, 291, 296, 316 ACHPR (African Charter on Human and Peoples’ Rights) 90, 425 ACHR (American Convention on Human Rights) 90, 425 Acosta Arcarazo, Diego 251, 287, 315 autonomy/discretion of States 93, 96, 100–101 duty of 92–117, 426, 428 international law 92–117, 426, 428 readmission 92, 290, 439 right to be admitted 109–112 Adonnino Committee 238 Agenda 2000 (EC) 336 Agreement on the Transfer of Corpses (Council of Europe) 171 Aguilar, Francisco Jose 97 Alber, Siegbert 153 Alfredsson, Gudmundur 72–73 Amsterdam Treaty (1997) 248, 412, 437 Articles on Diplomatic Protection (ILC) 86–91, 114, 426 Articles on Nationality in case of State Succession (ILC) 47, 48 Articles on State Responsibility (ILC) 89 Association Agreement (EU-Latvia) 336 asylum/asylum seekers 90, 220n194, 247, 248, 260, 267 Autem, Michael 38, 41 autonomous residence 227–230, 241–242, 291, 435 Benchmarks of National Identity, Civic Society and Integration Policy (Cabinet of Ministers, Latvia) 404, 447 Bennouna, Mohamed 86–87n49, 88 Besson, Samantha 194 Bhagwati, Jagdish 97 birthright citizenship 37–39, 54, 68, 114, 415. See also ius sanguinis; ius soli Blue Card holders 258. See also highly qualified employees; HQE Directive

access to employment 279 equal treatment 282, 442 free movement 289–291 residence conditions 291 resident permits 290 study grants 282 unemployment 290 withdrawal of status 279 Blue Cards 262, 290, 295 Bolzano Recommendations (OSCE, 2008)  42, 138 Borchard, Edwin 78, 81–82 Brinkman, Gisbert 275 British Nationality Act (1981) 131 British Overseas Citizens 142–143 Brownlie, Ian 44, 45, 81 ‘burden to move’ concept 202–203, 207 ‘by reason of their nature and consequences’ test 173–174, 211, 420, 421 Carrera, Sergio 8, 301, 312 Castro Oliveira, Alvaro 227 CAT (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) 90, 425 CBSS (Council of the Baltic Seas States) 322n1, 334n27 CEDAW (Convention on the Elimination of All Forms of Discrimination against Women) 38 CERD (International Convention on the Elimination of All Forms of Racial Discrimination) 42, 73, 90, 418, 425 Chan, Johannes M.M. 71 Chanet, Christine 98 Charter of Fundamental Rights of the European Union 125, 162, 163, 265, 316–317, 431, 439, 441–442, 455 Article 7 (private and family life) 119, 210, 227, 235, 238, 272, 434 Article 9 (marriage/founding family) 434, 435 Article 21 (discrimination) 119 Article 24 (children’s rights) 119, 139, 150, 227, 238 Article 33 (legal, economic, social protection) 119

* References in bold indicate that there is a more detailed discussion of the topic.

484  Index Article 34 (social security/assistance) 119, 283 Article 45 (freedom of movement and residence) 119, 174, 250, 437–438 Article 46 (diplomatic/consular protection) 119, 167, 171, 428, 429 Article 51 (field of application) 119, 193, 226, 422 child care allowances 195 children/children’s rights 37–39, 43 age limits 270, 271, 309–310 dual/multiple nationality 55, 56, 57 expulsion 103–105, 185, 232 family reunification 102, 224, 225–227, 235, 241–242, 270, 318, 427 integration requirements 308, 309–310 international law 67–68, 427 registration of surnames 148–150 residence rights 224, 228–230, 235, 237, 242, 435 right to nationality 67–68, 114, 416 stateless children 38, 68, 353, 359 A citizens’ agenda—Delivering results for Europe (EC, 2006) 122 citizens v. non-citizens 391–392 definition 25, 26 equal treatment 67 human rights 13, 34–35 identity dimension 13, 15 loss of 74, 159, 160–161 national law 25 rights dimension 13, 14–15 status dimension 13–14 Citizenship Law (Latvia, 1919, 1994), ) 322n1, 325, 327, 328, 333, 334–335, 340, 342, 362, 370, 407 amendments/reform 339, 341, 343, 344–345, 347, 352, 358, 404, 443, 445–446, 447 Article 2 (definition of nationals) 340–341, 351, 356, 357 Article 3 (children) 352–353, 354 Article 4 (equality of nationals) 342 Article 11 (restrictions for naturalization) 346 Article 15 (naturalization of children) 354 Article 16 (approval of children to change citizenship) 354 Article 20 (language exams) 347–348 Article 21 (exemption from tests) 349 Article 23 (renunciation of nationality) 355 Article 24 (revocation of nationality) 355, 357 Article 31 (naturalization requirements) 352 Citizenship and Migration Department (Latvia) 322n1, 349, 354, 370–373, 398, 401, 403 civis europeus sum concept 121

CJEU (Court of Justice of the European Union) 13–14. See also ECJ on access to employment 278, 279 cooperation with ECtHR 125 on EU citizenship 5, 122 on family reunification 265–267, 269–271, 275 on multiple nationality 144–155 proportionality test 164 on reverse discrimination 126 on social benefits and assistance 283–284 ‘substance of rights’ doctrine 164 on voting rights 141 COCON (Consular Cooperation Working Group) 170 Committee on the Elimination of Racial Discrimination 99, 363, 427 Committee on the Rights of the Child 353 Common Basic Principles for Immigrant Integration Policy in the EU 440, 442 common immigration policy 246, 250, 262, 315. See also EU Immigration Code (draft) Community preference principle 278, 287–288 compatriots, Russian 331–333, 337 Compatriots Living Abroad and International Humanitarian Cooperation 333 Constitution of the Latvian SSR (1978) 325 constitutional patriotism 454 consular assistance and protection. See also diplomatic protection case law 378 cooperation and coordination between States 168–170, 173, 239, 428 detained persons 78–79 harmonization 6, 173, 429 continuous residence 180–181, 254, 262, 397 CAT (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment)  90, 425 Convention on the Avoidance of Statelessness in Relation to State succession (Council of Europe) 49 Convention on Certain Questions Relating to the Conflict of Nationality Laws Article 1 142 Convention on the Elimination of All Forms of Racial Discrimination. See CEDAW Convention on Elimination of Discrimination Against Women Article 9 69 Convention on the Nationality of Married Women 69 Article 1 56

Index  485 Convention on Reduction of Cases of Multiple Nationality and Military Obligation in Cases of Multiple Nationality (1963) 55, 57 Convention on the Reduction of Statelessness 61–63, 64, 352, 358, 445 Convention Relating to the Status of Refugees 61 Convention Relating to the Status of Stateless Persons 59–61, 62 Council of Europe 26, 248n6 involvement in Latvian citizenship 328, 334, 336, 381, 390, 400–401 CRC (Convention on the Rights of the Child) 445 Article 3 353 Article 7 68, 352–353 criminal convictions expulsion due to 105–109, 154, 183, 185, 186, 187, 218, 433 right of entry and 216–217, 218, 272, 434 right of nationality/citizenship and 96n85, 156 cross-border test 190–194, 202, 211, 226, 231–232, 241, 421, 432 Davies, Gareth 28, 196, 224, 235, 242 DDR Citizenship 137–138 death of EU citizen rights of family members 180, 227–228, 230, 291, 435 Decision 1/80 (Association Council) 254, 258 Decision 85/381/EEC 248n5 Decision 88/384/EEC 171 Decision 95/553/EC 170 Decision 96/409/CFSP 170 Declaration of Independence (Latvia) 326 Declaration of the Rights of the Child (UN) 67 denationalization 38, 50–51, 58, 69–71, 92 denaturalization 70 denizenship 364, 365 Denmark 39n10, 130 descent 37–39. See also ius sanguinis detained persons 79, 176, 177, 378, 392 diplomas recognition of 147, 280, 281, 282 diplomatic protection. See also consular assistance and protection autonomy/discretion of States 77–78, 89–90, 425 EU citizens 167–173, 428–429 human rights and 87, 88–90 international law 77–91, 114, 425–426 multiple nationality and 84–85, 86, 91, 426 nationality of claims 83–86, 87

non-citizens 377–379 refugees 90–91, 426 requirements for 80 standards of treatment 80–83, 425 State responsibility 87, 89 stateless persons 90–91, 114, 426 Directive 64/221/EEC 216 Article 27 183, 186 Article 28 183, 184, 185, 186 Article 29 186, 188 Article 33 186 Directive 68/360/EEC 181 Directive 73/148/EEC 222 Directive 90/364/EEC 179 Directive 93/96/EEC Article 4 203 Directive 2000/78/EC 285 Directive 2003/86/EC. See Family Reunification Directive Directive 2003/109/EC. See LTR Directive Directive 2004/38/EC 14, 109, 198, 204, 217, 232, 238 aim 174 Article 2 211, 222 Article 3 214–215, 220 Article 4 215 Article 5 175, 176–177, 215, 221 Article 7 178, 223, 227, 229 Article 8 178–179 Article 12 227, 228, 229, 230 Article 13 228 Article 14 183, 195 Article 16 180, 181, 223 Article 17 180, 228 Article 18 228 Article 24 189–190, 194 Article 32 177 cross-border element in 150, 421, 430 on expulsion 188, 433 on family reunification 210, 214, 225, 434 on social assistance 208 Directive 2004/43/EC 285 Directive 2004/114/EC. See Students Directive Directive 2005/71/EC. See Researchers Directive Directive 2009/50/EC. See HQE Directive Directive 2011/98/EU 281 Directive on Consular Protection for Union Citizens Abroad (proposal) 429 discrimination case law 431 on grounds of nationality 189–190, 202, 205, 431–432 on grounds of sex 212 prohibition of 72, 74, 119

486  Index regarding naturalization 138, 420 reverse discrimination 126, 191, 192, 231, 432 discrimination. See also equal treatment; non-discrimination rule divorce rights of family members 96n115, 110n136, 214, 225n208, 227, 228–229, 236, 291, 353, 387 domicile 26–27. See also habitual residence dominant nationality 43–48, 85, 86. See also dual nationality; multiple nationality diplomatic protection 85, 86, 91 EU law 147, 153, 155, 419 international law 162, 426 Donner, Ruth 43, 71, 84 Dougan, Michael 163 Draft Articles on the Responsibility of the State for Injuries Caused in its Territory to the Person or Property of Aliens (ILC) 82 dual nationality 44, 46–47. See also dominant nationality; multiple nationality agreements between States 132, 134 in international law 417 in Latvia 322, 354–355, 356, 358–359 liberalization 246 ‘due regard to EU law’ doctrine 6, 135, 137, 162, 420 Dugard, John 87n49, 88, 90 Eastern Europe 138, 143 ECHR (European Convention on Human Rights and Fundamental Freedoms) 14, 30, 125, 418 Article 3 71 Article 8 101–102, 104, 105, 106, 108, 109, 111, 212, 218, 232, 233, 238, 265, 272, 308, 369, 383, 385, 387, 417, 427 Article 14 75, 83 on diplomatic protection 88, 425 on expulsion and withdrawal of status 316 on family reunification 223, 308 on free movement 94 on non-citizenship 392–396 Protocol 1, Article 1 393 Protocol 1, Article 3 140 Protocol 4, Article 2 101, 430 Protocol 4, Article 3 101, 384, 408 Protocol 4, Article 4 101 on residence rights 307 on right to entry 218 on right to nationality 34 on right to private and family life 100–101 ECJ (European Court of Justice) 357, 358 Airola v. Commission of European Communities 152 Avello v. État belge 148, 149–150, 164, 234, 241, 421, 434

Baden-Württemberg v. Tsakouridis 185 Baumbast v. Home Department 123–124, 157, 177–178, 206, 228–229, 230, 430 Belgian State v. Mesbah 153, 154, 155 Bidar v. London Borough of Ealing 124, 204, 431 Boukhalfa v. Bundesrepublik Deutschland 126, 190 Carpenter v. Home Department 231–232, 233, 241, 434 Centre public d’aide sociale de Courcelles v. Lebon 199, 222 Chakroun v. Minister van Buitenlandse Zaken 267, 269, 308, 439 Chen v. Home Department 135–136, 156, 163, 179, 224, 226, 233, 234, 241, 420, 435 Collins v. Secretary of State for Work and Pensions 199–200, 206, 431 Commission v. Belgium 178–179 Commission v. Netherlands 349 Commission v. Spain 216, 241, 434 Criminal proceedings against Vincent Auer 147 Criminal proceedingss against Bickel and Franz 190, 195, 196, 202 De Cuyper v. Office national de l’emploi 207 Dereci v. Bundesministerium für Inneres 161, 226, 234–236, 238, 242, 274, 421, 434 D’Hoop v. Office national de l’emploi 198–199, 206, 207, 241 Diatta v. Land Berlin 214 Förster v. Informatie Beheer Groep 198–199 Gilly v. des services fiscaux du Bas-Rhin 145, 146 Gravier v. City of Liège 190–191 Grunkin-Paul v. Standesamt Niebüll 149–150 Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve 157, 199, 203–204, 206, 208, 431 Gullung v. Conseil de l’ordre des avocats du barreau de Colmar et de Saverne 144–145 Home Department v. Akrich 218, 221, 233, 241, 434 Home Department v. Dias 181–182, 194 Iida v. Stadt Ulm 225–227 Ioannidis v. Office national de l’emploi 205, 431 Jia v. Migrationsverket 222 Kaba v. Home Department 224–225 Kamberaj v. Instituto per l’Edilizia sociale della Provincia di Bolzano 283, 431 Konstantinidis v. Stadt Altensteig 121 Koua Poirrez v. Caisse d’allocations familiales de la region parissienne 191 Lindqvist 266

Index  487 London Borough of Harrow v. Ibrahim 229, 242, 435 McCarthy v. Home Department 150–151, 234, 236, 274, 421 Martinez Sala v. Freistaat Bayern 123, 195, 196, 431 Metock v. Minister for Justice, Equality and Law Reform 220–221, 222, 233, 241, 271, 434 Micheletti v. Delegacion del Gobierno en Cantabria 5, 133–134, 135, 136, 153–154, 156, 163, 418, 419–420 Min. de l’Intérieur v. Olazabal 184 Min. voor Vreemdelingenzaken en Integratie v. Eind 218–220, 222, 226 MRAX v. État belge 217, 224, 434 Nani Givane v. Home Department 228 Nerkowska v. Zaklad Ubezpieczen Spolecznych Oddzial w Koszalinie 207 Netherlands v. Reed 215 Nordrhein-Westfalen v. Uecker 191 Orfanopoulos and Oliveri v. Land Baden Württemberg 186–187 O.S. v. Maahanmuuttovirasto 236, 238, 270 Oulane v. Min. voor Vreemdelingenzaken en Integratie 175–176, 430 Pusa v. Osuuspankkien Keskinäinen Vakuutusyhtiö 206, 207 The Queen ex parte Bidar v. London Borough of Ealing 196–198 The Queen v. Home Department ex parte Kaur 142–143, 157, 418 The Queen v. Immigration Appeal Tribunal ex parte Antonissen 200 The Queen v. Immigration Appeal Tribunal and Singh 224, 254–255 Ritter-Coulais v. Finanzamt Germersheim 146–147 Rottmann v. Freistaat Bayern 124, 139, 142–143, 156–159, 161, 163–164, 234, 237, 241, 356, 359, 421 Schmidberger v. Österreich 141 Scholz v. Operat Universitaria di Cagliari 145 Secretary of State for Work and Pensions v. Lassal 180–181, 430 Staatssecretaris van Justitie v. Kahveci and Inan 153, 154, 155, 163 Tas-Hagen v. Raadskamer WUBO 207 Texeira v. London Borough of Lambeth  229–230, 435 Trojani v. Centre public d’aide sociale de Bruxelles 201 Vatsouras v. Arbeitsgemeinschaft Nürnberg 200 Walloon Government v. Flemish Government 191–192

Werner v. Finanzamt Aachen-Innenstadt 146 Wijsenbeek v. Arrondissmentsrechtbank Rotterdam 175, 176 Zambrano v. Office national de l’emploi 150, 161, 224, 232–234, 236, 237, 238, 242, 372, 421, 432, 435 ECN (European Convention on Nationality) 13, 34 Article 2 26, 46 Article 4 35, 38, 63, 69, 70 Article 5 35, 69, 74, 75–76 Article 6 38, 40, 41, 46, 68, 345, 353, 446 Article 7 46, 63, 70, 157 Article 8 50, 63, 150 Article 12 446 Article 13 50 Article 14 56 Article 15 56 Article 16 57 Article 17 57 Article 18 47, 49 Latvia and 445–446 on long-term residents 416 on multiple nationality 56–57, 417 on statelessness 63–64 ECOSOC (Economic and Social Council) 60 Resolution 319 B II 156I(XI), 1950 58 ECtHR (European Court of Human Rights) 395 Abdulaziz, Cabales and Balkandali 110 Ahmut v. Netherlands 109, 110, 111 Amrollahi v. Denmark 108n127 Andrejeva v. Latvia 392–396, 445 Beldjoudi v. France 106 Berrehab v. Netherlands 102 Boultif v. Switzerland 107–108 cooperation with CJEU 125 on deprivation of nationality 416 on expulsion 184 Fjodorova v. Latvia 386, 387, 444 on free movement 101 Gül v. Switzerland 109 I v. UK 212 on integration measures 308–309 Jakupovic v. Austria 108n128 Kaftailova v. Latvia 368–369, 444 Kurič and others v. Slovenia 50 Maslov v. Austria 108, 233 Matthews v. United Kingdom 139, 140, 144, 162, 419 Moustaquim v. Belgium 105–106 Nasri v. France 105 Nunez v. Norway 105 Omoregie v. Norway 104, 105, 233 Petropavlovskis 351, 446 Rodrigues da Silva v. Netherlands 103–104, 105, 422, 433

488  Index Sen v. Netherlands 110–111 Sisojeva v. Latvia 382, 385–387, 388, 444 Slivenko v. Latvia 382–385, 388–389, 395, 445 Tãnase v. Moldova 72 Tuquabo-Tekle v. Netherlands 111 Üner v. Netherlands 108 on withdrawal of residence permits 296 Yildiz v. Austria 102–103 Ždanoka v. Latvia 463 education, access to 229, 281–282 EEAS (European External Action Service) 171–172 EEC-Turkey Association Council 154 Decision No. 1/80 154 effective link 43–48, 415, 417. See also dominant nationality; genuine link case law 44–46, 47, 84, 163, 194–202 diplomatic protection 426 dual/multiple nationality 46–47, 91, 155 employment 206 EU law 134, 136, 194, 419 genuine link v. 44 international law 136, 417, 419, 426 length of residence 194–195 non-citizens 377 single nationality 84 social security benefits 197–198, 199–200, 201, 240 State succession 47 voting rights 141 effective nationality. See dominant nationality elections voting and standing rights 72, 119, 140–142, 417 employment calculation of employment periods 393, 394, 395 illegal 233 employment, access to 316, 439 autonomy/discretion of States 263, 278, 280, 281, 287 case law 143–144 Community preference principle 278, 287–288 effective link 206 equal treatment 278, 279, 316, 439 EU law 143, 206 family members 280 highly qualified employees 279 long-term residents 278–281, 287–288, 289 researchers 280 students 280 third-country nationals 278–281, 287–288, 316 entry, right of 239. See also free movement and residence

autonomy/discretion of States 175, 218 CJEU case law 175–176, 215–223 criminal convictions and 216–217, 218, 272, 434 EU law 175–177, 239 family reunification 215–223, 433–435 international law 94–96 in Latvia 379–382 equal treatment 71, 73 access to employment 278, 279, 316, 439 acquisition of nationality/citizenship 67, 69 case law 189–210, 392–396 cross-border element 190–194 diplomatic protection 85 EU citizens on basis of nationality 189–190, 202, 240, 285, 420 EU law 202–210, 240 EU legal immigrants 277–281 highly qualified employees 279, 282, 318, 439, 442 in integration 9, 305, 307–308 link to territory 194–202 long-term residents 277, 281, 282, 284–285, 286, 289, 318, 437, 439, 442 ‘near equality’ concept 284, 285, 289, 305, 307–308, 315, 437, 438 non-citizens 389–398 reverse discrimination 126, 191, 192, 231, 240, 432 sex equality 56, 69, 212, 417 social benefits/assistance 191–192, 197–200, 205, 208, 209–210 third-country nationals 250, 251, 277–278, 315, 316, 318 Essen European Council (1994) 336 Estonia 67 EU Citizenship Report (2013) 450 EU citizenship/EU citizens access to EU citizenship EU legal immigrants 452, 453 non-citizens 364 proportionality test 420 autonomy/discretion of Member States 121, 124, 129–130, 132, 133, 139–144, 162, 420, 422, 449 case law 124, 133–136, 139, 147–152, 418 concept 119–127, 412, 417–423, 451 definition 5, 22, 26, 412 development and outlook 161, 449–455 diplomatic protection 167–172, 428–429 equal treatment 189–190, 202, 240, 285, 420, 431, 437 EU law 202–210 expulsion 183–189, 230–238 family reunification 210–238, 433–435

Index  489 free movement and residence 173–183, 215–230, 429–433 international law requirements 162 link to territory 194–202 loss of EU citizenship 125, 159, 420, 422 national v. EU citizenship 118, 120, 121, 418 objectives/role of EU citizenship 119, 120–121, 449–450 social assistance 432 status of 4–6, 120, 123, 125, 238, 450 trans-national status 418–419, 451–452 voting rights 140–141 EU Common Basic Principles on integration 404, 405, 409 EU Immigration Code (draft) 252, 264, 267, 273, 284, 286, 318, 442 aim 246 Article 3 273 Article 16 281 Articles 15–20 281 common mobility rules 292 on family reunification 309 on recognition of residence permits 286 EU legal immigrant status/EU legal immigrants 246–252, 254n3, 315, 450. See also Blue Card holders; family members; highly qualified employees; long-term resident status; researchers; students; third-country nationals access to EU citizenship 452–453 access to status 253–275, 438 equal treatment 277–281 expulsion 292–297, 439 free movement and residence 286–292, 441 political rights 452, 453 withdrawal of status 292–297, 439 EU Network of Independent Experts on Fundamental Rights 364 Europe 2020 growth strategy 8, 163, 290, 318, 441 European Arrest Warrant 379 European Convention on Extradiction and its Protocols 379 European Convention on Human Rights and Fundamental Freedoms. See ECHR European Convention on the Legal Status of Migrant Workers 15–16 European Convention on Nationality. See ECN European Court of Human Rights. See ECtHR European Court of Justice. See ECJ European External Action Service (EEAS) 171– 172, 429 European Parliament Act (UK) 140 Evatt, Elizabeth 97 Evian agreements 106 expulsion 114

arbitrary 94 case law 184–188, 230–238, 293, 382–385, 387–389, 440 children 103–105, 185, 232 collective 101, 131, 389 criminal convictions 105–109, 183, 185, 186, 187, 218, 433 EU citizens 183–189, 230–238 EU law 183–189, 430 EU legal immigrants 292–297, 439 family members 183, 230–238 illegal aliens 103, 104–105, 232 in international law 426, 427 long-term residents 100, 103, 105, 183, 185, 292–297, 387 non-citizens 383–384, 385, 408, 444 proportionality test 183, 184, 187, 195, 384, 385, 430, 433 Soviet era immigrants (Latvia) 329–330, 383–384, 385, 387–388 standards 316–317 third-country nationals 101, 292–297, 306, 307, 316–317 threat to public policy, security or health 183, 184, 185–186, 188, 239, 384, 388, 432 ‘unreasonable burden’ on social system 183, 195, 203–204, 207, 208, 239, 430–431, 432–433 family life, right to 94 case law 101–112, 382–389 family members. See also children; family reunification access to education 282 access to employment 280 autonomous residence rights 227–230, 291, 311, 318, 435 definition 211–215, 270–271 equal treatment 280, 282 expulsion 183, 230–238 integration conditions 308–311 residence permits 264, 268, 296–297 rights of 153, 154, 155, 434 travel documents 215–216, 241, 434 family reunification 210–211, 247. See also family life, right to application 271 autonomy/discretion of States 268, 269 case law 110–111, 216–238, 241–242, 265–267, 269–272, 433–435, 439 children and 102, 224, 225–227, 235, 241–242, 270, 318, 427 conditions 214, 265, 267, 268–269, 271, 308 cross-border test 211, 232 denial of 272, 439–440

490  Index dependence criterion 222–223, 235 dual nationals 318 EU law 433–435 free movement and residence 215–230 harmonization 272–273 highly qualified employees 274 human rights and 265–267, 268, 317 illegal stay 221–232, 241, 242 individual circumstances 266, 438–439 international law 427–428 long-term residents 274 ‘purely internal situation’ 232, 233 researchers 274 residence permits 214, 268–269 resources of sponsor 269–270 social benefits and assistance 269–270 students 274 ‘substance of rights’ test 211, 232, 234, 237, 242, 435 third-country nationals 218–238, 264–275, 427 waiting period 268 Family Reunification Directive (2003/86/ EC) 221, 252, 264, 265–266 aim 265 Article 2 271 Article 3 267 Article 4 270, 274, 309 Article 5 310 Article 6 272, 296 Article 7 267, 268, 270, 271, 274, 296, 308, 310 Article 8 268 Article 14 280, 282 Article 16 268, 296 Article 17 266, 296, 308, 310, 438–439 Article 18 296 on integration measures 301, 304, 308 Faroe Islands 130 Federal Agency for the CIS 333 Federal Law on State Policy Regarding Compatriots Abroad (Russia) 331, 333 Former USSR Citizens Law (Latvia) 362, 370, 372 Article 1 (definition of non-citizens) 367– 368, 375 Article 2 (expulsion of non-citizens) 381 Article 2 (human rights and duties) 389–390 Article 7 (revocation of non-citizen status) 373 Formisano, Marco 8 Foucault, Michel 122 Foundation for Integration of Society (Latvia) 400 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949) 327, 343

Framework Convention for the Protection of National Minorities 390–391 Franck, Thomas 3, 121 Fratini, Franco 261 fraud acquisition of nationality 156–159, 356–358 obtaining of resident status 293 free movement and residence. See also entry, right of; family reunification; leave, right to; residence autonomy/discretion of States 98, 99, 101, 289, 291–292 case law 94–112, 144–147 EU citizens 173–183, 215–230, 239, 429–433 EU law 119, 123, 143, 173–238, 429–433 primary legislation 205 secondary legislation 178, 204, 205, 206, 238 EU legal immigrants 286–292, 441 harmonization 291–292 highly qualified employees 441 international law 94–112, 426–428 long-term residents 441 non-citizens 380, 381–382 ‘one’s own country’ concept 96–100, 426, 427 proportionality test 430 third-country nationals 8, 286–292, 306, 317, 318 workers 8, 143, 144–147, 154, 219, 254n3 Friedman, George 453 Galicki, Zdzislaw 87–88 Garcia-Amador, F.V. 82–83, 88, 425 Geelhoed, L.A. 124 General Recommendations on non-citizens (CERD) 73 genuine link 44, 45, 46, 158, 159, 378. See also effective link case law 197, 198, 200, 206 Germany 131–132, 137 Gibraltar 140, 141 Greenland 130 Grimm, Dieter 20 Groenendijk, Kees 251, 305 Groot, Gerard René de 137, 142 Guild, Elspeth 270 Habermas, Jürgen 20–21, 454 habitual residence 27, 40, 41, 45, 49, 53, 55, 57, 75, 78, 134, 199, 353 Hague Convention on Conflict on Nationality Laws (1930) 33, 53 Article 3 55, 148–149 Article 4 85, 86 Article 5 55, 86 Article 15 37–38 on statelessness 58

Index  491 Hague Programme (2005/C 53/01) 300 Hailbronner, Kay 121, 203–204, 209, 238 Hall, Stephen 5, 139, 142, 157 Halleskov, Louise 256, 284 Hammar, Thomas 364 Handbook on Integration for Policy-Makers and Practitioners (EC, 2007) 300 harmonization consular protection 6, 173, 429 family reunification 272–273 free movement and residence 291–292 integration 300, 312–313, 317 Harvard Draft Article 3 37 Article 5 81n21 Article 9 37 Article 12 55 Higgins, Rosalyn 88 highly qualified employees 247. See also Blue Card holders; HQE Directive access to employment 279 equal treatment 279, 318, 439 family reunification 274 free movement and residence 441 long-term resident status 260, 262 non-citizens 397 residence conditions 261 salary threshold 261 hosting agreements 279–280 HQE (Highly Qualified Employees) Directive 252, 258, 259, 263, 287 Article 6 261, 262 Article 7 261–262 Article 8 261–262, 295 Article 9 295 Article 11 260 Article 14 282 Article 15 274 Article 16 262 Article 19 290 HRC (Human Rights Committee) 68 Canepa v. Canada 98 on expulsion 389 on free movement and residence 416–417 on non-citizenship 426–427 Stewart v. Canada 96–97 Winata v. Australia 100 Hudson, Manley O. 37, 39, 54, 58, 64 human rights 19. See also children/children’s rights; ECHR; ECtHR impact on citizenship 13, 34–35 impact on nationality 34, 35, 64, 65–76, 113–114, 415–416 ICCPR (International Covenant on Civil and Political Rights) 370, 445, 446

Article 12 94, 95, 96–97, 99, 380, 408 Article 13 94–95, 96 Article 24 67, 352 on diplomatic protection 425 on free movement 94 ICJ (International Court of Justice) Barcelona Traction Company (Belgium v. Spain) 77, 80 LaGrand (Germany v. US) 78–79, 425, 426 Nottebohm (Liechtenstein v. Guatemala) 44–46, 47, 77, 84, 136n22, 378, 426 Reparation for Injuries 172–173 Ījabs, Ivars 403–404 ILC (International Law Commission) 14 Article 1 48, 88–89 Article 3 89 Article 6 91 Article 7 91 Article 8 89–90 Article 11 47 Article 12 89 Article 16 89 Article 24 47 Article 25 47 Articles on Diplomatic Protection 86–91, 114 Article 6 426 Articles on Nationality in case of State Succession 30, 47, 48, 416 Articles on State Responsibility, Article 2 89 on denationalization 709 Draft Articles on State Responsibility for Injuries Caused in its Territory to the Person or Property of Aliens 82 on statelessness 58–59, 60 illegal immigration and residence 95–96, 233, 247 expulsion 103, 104–105, 232 family reunification 221–232, 241, 242 in Latvia 372 regularization 223, 224, 241 immigrants, EU legal. See EU legal immigrant status Immigration Act (UK, 1948) 131 Immigration Code, EU Immigration, Integration and Employment (COM, 2003, 336) 299 Immigration Law (Latvia) 345 immigration/immigrants 18, 247. See also EU Immigration Code (draft); EU legal immigrants; illegal immigration and residence autonomy/discretion of States 315 case law 316, 438 conditions 316

492  Index EU competence 8, 312, 317–318, 437, 441–442, 450, 451 harmonization 257, 312–313, 316 immigration exams 440, 441 immigration policies common 246, 248–249, 250, 262, 315–316, 318 national 253–254, 315 in Latvia 329–333 profile of immigrants 247, 315, 437 proportionality test 261 quota system 259, 288n23, 439 standards of treatment 81, 412 status and rights of immigrants 8–9, 188, 437–442 injuries to individuals 79–80, 82, 172–173 integration autonomy/discretion of Member States 303, 306, 307, 308, 312, 440–441 case law 309–310, 311–312, 440–441 EU competence 303, 307, 317–318 EU law 300–301, 404, 405 family members 308–311 harmonization 300–301, 312–313, 317 in Latvia 331, 347, 399–405 national integration policies 9–10, 247–248, 249, 300, 302–303, 305–306 ‘near equality’ concept 305, 307–308 non-discrimination 453–454 proportionality test 303–304, 306–307, 308, 317 requirements for 299–319, 441 measures v. conditions 304, 305, 307, 319, 440 students 311 third-country nationals 246, 299–319 integration programmes. See also language proficiency courses/tests 302–303, 304, 306, 307, 312, 317 in Latvia 399–400, 403, 404, 446 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (UN) 15 International Law Association 58 Iran-US Claims tribunal 85–86 Esphahanian v. Bank Tejarat 85 Golpira v. Islamic Republic of Iran 85 Ireland 135n20, 136 Irish Nationality and Citizenship Act 135 Italy 132, 134 ius sanguinis 415 EU law 139, 353 international law 37–39, 114 Latvian law 337, 340, 341 ius soli 139, 286, 450

EU law 134, 136, 139 international law 37–39, 114 Latvian law 352 Jacobs, Francis 121, 148, 200, 205, 206 Jebens, Sverre Erik 104–105 Jesse, Moritz 301 JHA Council 300 job-seeker’s allowances 199–200 Joppke, Christian 13, 20 Kamto, Maurice 32, 69–70, 107 kinship 41–42 Kiwan, Dina 34 Kocharov, Anna 289, 290 Kokott, Juliane 174, 205, 210 Kostakopoulou, Dora 9, 19, 163, 196, 228, 301 Kunz, Josef L. 25, 31–32 La Pergola, Antonio Mario 123 labour market test 288, 294, 295, 316 language proficiency 9, 10, 441. See also integration programmes; naturalization courses/tests 303, 304, 306, 311, 397, 398, 440, 446 language requirements 10, 282, 292, 311, 397, 441 in Latvia 12, 341, 345, 347–350, 352, 397, 398, 399–400, 403, 407, 446–447 Latin America 132, 134, 138 Latvia 15, 24. See also non-citizens (Latvia) administrative courts 322n1, 362, 376 Constitution (Satversme) 326, 342, 347, 349, 367, 377, 378, 379 Constitutional Court 361–362, 367, 373, 380, 393 case law 362–363, 368–376, 378, 446 language 12, 330–332, 390, 400, 404, 444 military service/forces 355–356 NATO membership 333, 344, 401, 446 population 327–328, 330tab. propiska system 362, 367, 407 restoration of independence 325–326, 327, 329 Soviet occupation 325, 326, 341, 399 State continuity 326, 327, 333, 337, 340, 343, 407, 443 statelessness in 357, 363, 371, 375–376, 446 Latvian citizenship/Latvian citizens. case law 356–358, 362–363, 378, 446 children 34, 322, 339, 340, 351–355, 443, 445 citizen’s rights citizens v. non-citizens 391–392 pensions 391–396 political rights 391

Index  493 public service positions 391 renewal of rights 327, 340–341 voting rights 391 diplomatic protection/consular assistance 377–379 dual/multiple nationality 322, 354–355, 356, 358–359 equal treatment 389–398 ethnic approach 322, 340–342, 404 expulsion 329–330, 334, 343, 383–384, 385, 387–388 family reunification 398 integration policy 347, 350, 399–405, 407–408, 446, 447 international law and 445 ius sanguinis principle 340, 341 ius soli principle 352, 353 long-term residents 11, 397, 398, 400 loss of citizenship 355–359 nationals (definition) 339–340 naturalization 327, 328, 333, 342–351, 364, 400, 401–403, 403tab., 446, 447 ‘age window system’ 328, 339, 342, 343–344, 402, 443 courses and exams 334, 347–350, 350tab., 397–398, 400, 401, 403, 408, 446, 447 fees 348–349 language requirements 341, 344, 347, 400, 407, 447 naturalization figures 402tab. quota system 334, 339, 340, 342, 343 restrictions 346–347 simplication of procedures 403, 408, 443 permanent residence 398, 408 residence permits 345, 361, 386 role of international organizations 328, 334, 336–337, 339, 362, 407 Russian influence 331–333 Soviet-era immigrants 11–12, 322n1, 329–333, 342, 361, 362, 399, 407, 443, 444, 446 Soviet-era immigrants and, Russian military personnel 361, 368, 374, 382–387, 389 travel documents 357, 362, 380, 381, 408 Latvian parliament (Saeima) 327, 367, 379, 403 Latvian-Russian bilateral treaty 383, 384, 386 Lauterpacht, Hersch 65–66, 78, 426 Law on the Diplomatic and Consular Service (Latvia) 378 Law on the Entry and Residence of Foreigners and Stateless Persons (Latvia) 361 Law on Long Term Residents (Latvia) 379 Law of Nationality (Harvard Law School) 25 Law on the Population Register (Latvia) 370 Law on Protection of the Rights of a Child (Latvia) 370–371

Law on State Pensions (Latvia) 395 Law on the Status of Former Soviet Citizens who are not Citizens of Latvia or any Other State (Latvia) 362, 397. See also Former USSR Citizens Law (Latvia) leave, right to 215, 239 international law 94–96 non-citizens 379–382 legal EU immigrants Léger, Philippe 126, 146 Lisbon Treaty 7, 121 on diplomatic protection and consular assistance 6, 167–168, 173, 428 on immigratiocn 250, 258 on status and rights of immigrants 9 long-term resident status/long-term residents 253–258, 260. See also LTR (Long-Term Residence) Directive absence from territory 294 access to EU citizenship 452 access to nationality 319, 416 autonomy/discretion of States 416 case law 254–258 conditions for 254, 262 education 281–282 employment 278–281, 287–288, 289 equal treatment 277, 281, 282, 284–286, 289, 318, 437, 439, 442 expulsion 100, 103, 105, 183, 185, 292–297, 387 free movement and residence 441 highly qualified employees 260, 262 integration tests 306–307 nationalization vs. 285 ‘near equality’ concept 284, 285, 289, 305, 307–308, 315, 437 non-citizens 397, 444 refusal of status 257, 288, 294, 307 residence permits 288–289 social/tax benefits and assistance 281, 282–284 withdrawal of status 292–297, 316–317 LTR (Long-Term Residence) Directive (2003/109/EC) 225, 251, 260, 408 aim and scope 253–254 Article 3 254, 255, 397 Article 4 254, 256 Article 5 256, 294, 304 Article 6 257 Article 7 257 Article 9 293, 294 Article 11 277, 278, 281–284, 288–289 Article 12 279, 293 Article 13 258, 290 Article 14 287, 288 Article 15 288, 304

494  Index Article 17 288 Article 18 289–290 Article 22 294 Article 23 289 on family reunification 274 on integration 301, 304, 305 non-citizens 364, 367, 379–380, 391 Luxembourg European Council (1998) 336 Maastricht Treaty (1992) 4, 122 Declaration No. 2 on Nationality of Member States 129–130 Maduro, Miguel Poiares 156, 159 marriage 55, 271, 309 multiple nationality 56–57 nationality after 114 same-sex 211–214, 435 Martens, S.K. 106–107, 110 Medina Quiroga, Cecilia 97 Medvedev, Dmitry 381 migration/migrants 8, 248. See also free movement and residence; immigration EU competence 315, 412 evolution of 247–248 figures 449 national migration policies 247–248 Mikulka, Václav 30 military service/obligations 54, 55, 60, 160, 180 in foreign military force 160, 355–356, 419 Soviet military in Latvia 361, 368, 373, 382–386, 389 Monitoring Committee of the Parliamentary Assembly (Council of Europe) 390 Moroccon-EC Cooperation Agreement 153, 154 Muižnieks, Nils 331, 332, 403 Mulcahy, Suzanne 312 multiculturalism 453 multinational corporations 87 multiple nationality 53, 54–57, 113, 114, 133–134. See also dominant nationality; dual nationality autonomy/discretion of States 417 children 55, 56, 57 CJEU case law 144–155 diplomatic protection 84–85, 86, 91, 426 ECN on 56–57 equal treatment 56 in Latvia 354, 354–355, 356, 358–359 national citizenship EU citizenship v. 6, 118, 120, 121, 418 international law 419 national identity 3, 21, 126, 412 nationality 3, 31 access to 37–51 nationality at birth 37–39, 54, 68, 136, 139. See also ius sanguinis; ius soli

naturalization 39–48 state succession 48–51, 416 autonomy/discretion of States 156, 162, 412, 415, 416, 451–452 children 67–68, 114, 416 definition 25–26 denationalization 38, 50–51, 58, 69–71, 92 ‘due regard to EU law’ 137, 138, 139, 156 equal treatment of nationalities 189–190, 202, 205 EU competence 419, 423, 451, 452 EU law 135, 416, 419, 420, 428–435 fraud 156–159, 356–358 human rights and 34, 35, 65–76, 113–114, 415–416 imposition of 43, 325, 327, 357 international law 22–23, 31–51, 69–72, 113, 115, 415–417, 419, 425–428 invalid nationality 52 loss/deprivation of 50–51, 58, 62, 63. See also criminal convictions; public policy, threat to; public security, threat to arbitrary deprivation 69–72, 114, 416–417 proportionality test 357 renunciation 56–57, 62, 355, 373, 375–376 restoration of nationality 326, 327 revocation 355, 356–357, 358 national law 25, 32, 35 non-discrimination rule 72–76, 417 residence v. 114–115 Nationality Act (UK, 1948) 131 naturalization 8, 98, 99 conditions 138, 420 consent 42–43 residence 40–42 differences between Member States 130–132, 315 discriminatory provisions 138–139 effective link 43–48 EU competence 437 exams 302, 317, 334, 347–350, 440, 447 exceptional 40 international law 39–48, 99, 100, 427 long-term residents 99, 100, 103, 104, 285, 307 ‘near equality’ concept 284, 285, 289, 305, 307–308, 315, 437, 438 Netherlands, The 130–131, 140, 141–142 Nijman, Janne 19–20 Nollkaemper, André 19–20 non-citizens (Latvia) 330 access to status 367–373 case law 368–376, 378, 380, 382–389, 392–396, 444–445 children 370–373, 445 citizens vs. non-citizens 391–392 citizenship status and 401, 403, 408 definition 363, 367–368

Index  495 diplomatic protection 377–379 effective link 377 equal treatment 389–398 EU law 364–365, 367, 396–398 expulsion 383–384, 385, 408, 444 free movement and residence 379–382 integration 399–405 long-term resident status and 397, 444 loss of status renunciation 373, 375–376 revocation 373–376 naturalization 381, 382, 400, 401–403, 403tab., 409 permanent residence 398, 408 rights of non-citizens 444, 447 pensions 391–396, 392 political rights 364, 391, 408, 444 public service positions 444 residence rights 361–362, 369–370, 379–389 right to private life 382–389 social benefits and assistance 382, 444 Soviet-era immigrants 11–12, 322n1, 329–333, 342, 362, 399, 407, 443, 444, 446 Russian military personnel 361, 368, 374, 382–387, 389 stateless persons v. non-citizens 363–364, 371, 375–376 status of non-citizens 364, 379, 382, 408, 443–444 third-country nationals v. non-citizens 381, 382 travel documents/travel rights 377–379, 380, 381, 401, 408, 444 non-discrimination rule 35, 72–76, 125, 132–133, 191, 240, 307, 316, 417 birthright citizenship 39 case law 431–432 free movement and residence 429–433 integration 453–454 Norway 104 Nowak, Manfred 26, 67, 95, 99 OCMA (Office of Citizenship and Migration Affairs, Latvia) 322n1, 349, 354, 370–373, 398, 401, 403 O’Hudson, Manley 25 O’Leary, Siofra 120, 205 Oliveira, Jessurun d’ 120, 137 ‘one’s own country’ concept 96–100, 426, 427 Oosterom-Staples, Helen 205–206 OSCE (Organization for Security and Cooperation in Europe) 42 Commissioner for the Protection of National Minorities 322n1, 334, 343–344, 347–348, 352

involvement in Latvian Citizenship Law 328, 333–334, 335, 336, 343–344, 347–348 Panhuys, Haro Frederik van 32–33 Papagianni, Georgia 265, 277 Parry, Clive 46 patriotism, constitutional 454 PCIJ (Permanent Court of International Justice) 53 Advisory Opinion concerning the Tunis and Morocco Nationality Decrees 31 Mavrommatis Palestine concessions 78 Panevezys-Saldutiskis Railway (Estonia v. Lithuania) 79–80 Peers, Steve 260–261, 309, 310, 319 Pentassuglia, G. 336 Permanent Court of International Justice. See PCIJ permanent residence 16, 180, 182, 201, 386–387, 398, 408 Pettiti, L.-E. 106 political rights 364, 408, 444, 452, 453 private life, right to case law 100–112, 382–389 proportionality principle/test 101, 107, 143, 157, 164, 442 access/loss of EU citizenship 420 expulsion 183, 184, 187, 195, 384, 385, 430, 433 free movement and residence 430 immigration 261 integration 303–304, 306–307, 308, 317 loss of nationality 357 naturalization 349 recourse to social benefits 201, 204 Proposal for a Council Directive on consular protection for citizens of the Union Abroad 171–172 public health, threat to 188, 260, 272, 288, 432 public policy, threat to 272, 288, 293, 295, 388, 432 public security expulsion after threat to 183, 184, 185–186, 384, 388, 432 refusal of access after threat to 272, 288 withdrawal of status after threat to 257, 260, 293, 295 ‘purely internal situations’ 211, 232, 233, 421 QCCs (Qualified Commonwealth Citizens) voting rights 141 quasi citizenship 364–365 Read, John 45–46 readmission 92, 290, 439 Reding, Viviane 450–451 refugees 57, 58, 61 diplomatic protection 90–91, 114, 426

496  Index registered partnerships 211–213, 227, 271 same-sex 211–214, 435 Regulation (EC) 539/2001 216, 381 Regulation (EC) 883/2004 195, 284, 381 Regulation (EC) 987/2009 195, 284, 381 Regulation (EEC) 1251/70 228 Regulation (EEC) 1408/71 195 Regulation (EEC) 1612/68 195, 196, 210, 214, 230 Regulation (EEC) 1613/68 220, 228–229 Regulation (EEC) 1932/2006 381 Regulation (EEC) 2434/93 220 Regulation (EU) 492/2011 195, 196, 210, 214, 228–229 Regulation (EU) 1231/2010 284, 381 Report on Nationality Including Statelessness (Manley O’Hudson) 25 access to employment 279–280 definition 259 equal treatment 280 family reunification 274 free movement and residents 291 hosting agreements 279–280 residence permits 295 Researchers Directive (2005/71/EC) 251, 258–259, 260, 263 Article 2 259 Article 6 261 Article 8 261 Article 9 274 Article 10 295–296 Article 12 280 Article 13 291 Article 15 260 residence permits 224 conditions 256–257, 259, 261, 288 duration of 261–262, 311 fees 257, 268–269 fixed-period 256 formally limited 253–256 long-term 254 recognition 286, 317, 439 refusal 288 renewal 294 withdrawal 294, 295–297 residence(rights)/residents 94, 96, 114, 307 absence from territory 159, 180–181, 182 autonomous residence 227–230, 241–242, 291, 435 autonomy/discretion of States 256, 258, 261, 269 case law 142–143, 177–182, 223–230 children 224, 225–227, 228–230, 235, 237, 242, 435 conditions 178, 260 continuous residence 180–181, 254, 262, 397

death 227–228 definition 26–27 EU law 119, 177–183 family reunification 214, 223–230, 268–269, 291 habitual residence 41, 57 international law 115 length of 102, 111, 194–195, 201, 256 nationality vs. 114–115 naturalization and 40–42 non-citizens 361–362, 369–370, 379–389 permanent residence 16, 180, 182, 201, 386–387, 398, 408 prolonged residence 41 residence periods 111, 194–195, 201, 256, 430 students 197–198, 261, 311 temporary residence 178, 179 third-country nationals 223, 224, 225, 226, 235–236, 254, 256–257, 259, 316, 317 Resolution (72)I (Council of Europe) 26–27 Resolution on limitation of admission of third-country nationalas to the territory of Member States for employment (Council of Europe) 248n6 Resolution on Renewal of the Republic of Latvia’s Citizens’ Rights and Fundamental Principles of Naturalization (Latvian Supreme Council) 326–327 reverse discrimination 126, 191, 192, 231, 240, 432 Rosas, Allan 25 Rozenvals, Juris 341 Russia influence on Latvian citizenship 331–333, 407, 408 support to compatriots 331–333, 337, 399 Russian Foreign Policy Concept 331–332 Russkiy Mir Foundation 333 Russo, C. 110 Saeima. See Latvian Parliament same-sex partnerships/marriages 211–214, 435 Satversme (Latvian Constitution) 326, 347, 349, 367, 378, 392 Article 91 (equality of nationals) 342 Article 98 (right to depart and return) 377, 379, 380 Schachter, Oscar 454 Scheinin, Martin 97–98 Schengen 16, 172, 175, 241, 246, 429, 452 Schengen Implementation Agreement (SIA) 216 Schengen Information System (SIS) 216, 385n22 Schram, Gunnar G. 66 Seville Council meeting (2002) 249

Index  497 Sharpston, Eleanor on EU fundamental rights 422 on reverse discrimination 192–193, 221, 240, 433, 434 on right to EU citizenship 224 on rights to move and reside 233, 239, 240 on ‘substance of rights’ test 237, 432 Shaw, Jo 157 sickness insurance 179, 191–192, 229–230, 256, 261, 268, 288, 291, 438 SIS (Schengen Information System) 216, 385n22 Slovenia 50–51 social benefits and assistance 179, 180, 195 case law 153–154, 194–210, 283–284, 431 cross-border issues 284 effective link and 201, 206, 240 equal treatment 191–192, 197–200, 205, 208, 209–210 family reunification and 269–270 financial solidarity between States 183, 199, 203, 209–210 job-seeker’s allowances 199–200 long-term residents 282–284 proportionality test 201, 204 student allowances 197–198, 203–204 ‘unreasonable burden’ on social system 183, 195, 203–204, 207, 208, 239, 430–431, 432–433 Solange doctrine 151n78, 422, 433 Sorensen, M. 45 Spain 132, 134, 138 Spaventa, Eleonora 209, 231 State continuity (Latvia) 326, 327, 333, 361, 407, 443 State discretion 23 ‘by reason of their nature and consequences’ 173–174, 211, 420, 421 ‘due regard to EU law’ 6, 135, 137, 162, 420 limitation of 35 ‘substance of rights’ 420–421, 422, 435 State succession 47, 48–51, 114, 326, 361, 416 case law 50–51 stateless persons 57–58, 363–364 children 38, 68, 353, 359 de facto 58, 60, 61, 63, 64, 66 de jure 58, 61, 63, 66 definition 60 diplomatic protection 90–91, 114, 426 imposition of nationality on 43 non-citizens v. 363–364, 371, 375–376 rights of 60, 61 statelessness 38, 43, 53, 57–59, 113. See also Convention on the Reduction of Statelessness; Convention Relating to the Status of Stateless Persons

case law 155–158, 357, 358, 362, 446 causes for 48, 58, 70, 71, 159–161, 361 ECN on 63–64 EU law 155–161 human rights law 64 ILC on 58–59, 60 international law 57–64, 416 legal cases 155–161 student grants 197–198, 203–204, 282 students access to employment 280 equal treatment 280 family reunification 274 free movement and residence 291 integration conditions 311 residence conditions 261, 291 residence rights 197–198 resident permits 295–296, 311 Students Directive (2004/114/EC) 252, 258, 259, 260 Article 3 259 Article 6 291 Article 7 261, 291 Article 8 291 Article 9 261 Article 10 261, 311 Article 11 261, 311 Article 14 311 Article 15 311 Article 16 296 Article 17 280 Article 18 260 on family reunification 274 on integration 301, 311 access to/loss of EU citizenship 420–421, 422 family reunification 211, 232, 234, 237, 242–243, 435 surnames 148–150 Tampere European Council (1999) 9, 163, 248, 250, 258, 267, 299, 439 temporary residence 178, 179 terrorism 184, 249, 272 TEU (Treaty on European Union) Article 2 151, 162, 422 Article 3 242–243 Article 4 137, 420, 422 Article 6 125, 227, 266, 267, 438 Article 35 167 TFEU (Treaty on Functioning of the European Union) Article 18 (prohibition of discrimination) 6, 148, 149, 152, 162, 176, 189, 192–193, 196, 198, 199, 201, 202–203, 204, 205–206, 208, 240, 243, 285, 429, 431–432, 433

498  Index Article 20 (establishment of EU Citizenship) 5, 119, 129, 139, 141, 148, 149, 150–151, 162, 167, 171, 191, 193, 196, 232, 233, 234, 236, 237, 239, 259, 397, 417, 420, 421, 429 Article 21 (freedom of movement/residence) 6, 7, 119, 136, 141, 150, 152, 162, 174, 177, 179, 180, 182, 193, 198, 201, 202–203, 206, 208, 233, 237, 239, 240, 243, 429, 430, 433 Article 22 (voting/standing for elections) 119, 141 Article 23 (diplomatic protection) 6, 7, 119, 141, 167–168, 170–171, 172, 428 Article 24 (Ombudsman/citizen’s initiatives) 119, 141 Article 45 (free movement of workers) 9, 145, 199, 205, 225, 239, 292 Article 49 (freedom of establishment) 225 Article 56 (freedom to provide services) 176 Article 77 (internal/external borders) 251 Article 79 (common immigration policy) 9, 250, 251, 258, 262, 264, 277, 280, 300, 319, 439 Article 355 (territorial scope) 130 Thessaloniki Council (2003) 299 third-country nationals 153, 154 access to employment 278–281, 287–288, 316 admission of 262 definition 218–221, 397 equal treatment 250, 251, 277–278, 315, 316, 318 expulsion 101, 292–297, 306, 307, 316–317 family reunification 218–238, 264–275, 427 free movement and residence 8, 286–292, 306, 317, 318 illegal stay 223, 224, 231–232 integration 246, 299–319 ‘near equality’ concept 284, 285, 289, 305, 307–308, 315 non-citizens vs. 381, 382 residence conditions 256–257, 259, 316 residence permits 317 residence rights 223, 224, 225, 226, 234, 235–236, 254, 257 Thym, Daniel 238 tideover allowances 198 Tizzano, Antonio 136, 141 Toner, Helen 125 transnational citizenship/identity 4, 15, 21–22 travel documents 175–176, 357, 429–430 of family members 215–216, 241 in Latvia 377–380, 381, 401, 408, 444 Trstenjak, Verica 194, 226

UDHR (Universal Declaration of Human Rights) Article 11 49 Article 15 49, 65–67, 69, 113–114 on free movement 94 on prohibition of discrimination 72 UN Commission on Human Rights 59 UN Conference on the Elimination or Reduction of Future Statelessness 61 UN Convention on the Rights of the Child 105 UN High Commissioner for Refugees 61, 364 United Kingdom 131, 138, 140 United Nations Charter 72 Universal Declaration of Human Rights. See UDHR Utzinger, André 194 Verzijl, Jan H.W. 32, 66 Vienna Convention on Consular Relations (1963) 428 Article 8 168 Article 36 79 volunteers 311 voting rights 119, 143, 391 case law 140–142 war victim benefits 207 Weiler, Joseph H.H. 4, 121 Weis, Paul on concept of nationality 32, 113 on conflicts of nationality 53 on diplomatic protection 78 on imposition of nationality 43 on multiple nationality 54 on right to nationality 66 on statelessness 57, 60, 61 Wiesbrock, Anja 301, 312 women equal treatment 69, 114, 417 nationality of married 56–57, 417 work permits 232, 287 workers, foreign 247, 249, 260 expulsion 183 family reunification 247 free movement and residence 8, 143, 144–147, 154, 219, 254n3 Ziemele, Ineta on appropriate connection 47 on international law 33 on non-citizenship 361, 385, 393, 394 on right to nationality 66, 67–68, 114