Ghoumid and others v. France: The Grey Hole of Nationality Revocation

Jules Lepoutre (University Côte d’Azur)

Back in 2015, five individuals were deprived of their French nationality. By all French standards, this was massive. This sounds like a prelude to the subsequent projects of President Hollande to extend nationality revocation to French-born citizens – but that is another story. These five individuals challenged the revocation decrees before the European Court of Human Rights (ECtHRts). For many observers, the Court was finally facing a good opportunity to pull the states back towards to the liberal principles. The decision in Ghoumid and others v. France was issued on 26 June 2020. The ECtHRts failed to recognise any violation of the European Convention on Human Rights and Fundamental Freedoms. Worse, it created a “grey hole,” i.e., formal protection of the rule of law which is substantially inconsistent.

These five individuals were not naturalised citizens. Two of them were born and raised in France, accessing French nationality automatically at 18. Two others obtained French nationality by declaration via marriage. The final one became French during minority, thanks to the collective effect of the naturalisation of his father. All were dual-nationals: four with Morocco, one with Turkey. They were all found guilty of terrorist activities in 2007, because of their involvement in the “groupe islamiste combattant marocain” (Moroccan Islamist fighting group) from 1995 to 2004 and sentenced to six to eight years in prison. Prime Minister Manuel Valls revoked their nationality by decree on October 7, 2015 (based on art. 25 of the civil code). The Conseil d’Etat – the French administrative supreme court – rejected their appeals in 2016, which opened the way for European legal challenge.

Two main grounds were articulated by the applicants: the violation of the right to respect for private and family life (art. 8 of the Convention); the right not to be tried or punished twice (art. 4 of the Protocol No. 7 to the Convention).

1. On the one hand, the first ground based on article 8 was classic: simple argument, always rejected by the Court (see K2 v. The United Kingdom and Ramadan v. Malta). It is based on the principle of proportionality: the gravity of the facts leading to the revocation v. the personal or family attachments in France. To achieve this, the Court examined the arbitrariness and the consequences of the decisions for the five applicants. Two elements were particularly problematic: first, the delay in the revocation (issued eight years after conviction); second, the substantial interference with family and private life.

As for the delay, the standard of “diligence and promptness” of the European Court case-law is normally designed to prevent any delayed measure. Moreover, as the French Government acknowledged during the proceedings, this delay was entirely caused by the political context. These five nationality revocations were clearly meant to show political action against terrorism, in a climate of uncertainty (after the Charlie Hebdo shooting, before the Paris attacks). Far from issuing any criticism, the judges considered that “given the circumstances of this case” this timeframe did not reveal any arbitrariness. In other words, the political purpose of the revocations had precisely the effect to justify the delay of the measures – where one could have imagined the exact opposite.

Regarding the interference of the decisions with family and private life, the Court did not find any disproportionality for two reasons, one regarding family life, the other private life. The first reason is that nationality deprivation does not lead per se to the deportation. Individuals are still legally authorised to reside on French soil, expecting a removal order, but without any certainty. For the Court, only this removal order could challenge the right to respect for family life. Conversely, the judges considered that the revocation of nationality had no impact on family life. This reasoning is doubtful. Nationality revocation interferes with family life in many aspects, and primarily through the right to work and the right to social benefits (both lost by the five applicants). The second reason is that terrorism “constitutes, in itself, a grave threat to human rights,” following the words of the Court. Terrorism works as a label which makes difficult, if not impossible, to prove any disproportionate interference with the right to respect for private life. Even for those born and raised in France, the Court found the revocation caused no disproportionate interference with the social identity of the applicants. In troubled times, security of the state is prevailing in the analysis of the judges.

2. On the other hand, expectations for success on the second ground, based on article 4 of the Protocol No. 7 to the Convention, were high. It was the first time that this argument was submitted to the Court. Simple idea: Nationality revocation is a penalty, itself based on a previous criminal conviction. This could fall under the prohibition of the ‘double jeopardy’ or ‘non bis in idem’ principle, i.e., the right not to be tried or punished twice, protected by article 4 of the Protocol No. 7 to the Convention.

It was anticipated that the ECtHRts would examine the question of the cumulation of a criminal sentence and a nationality revocation for the exact same facts. But the Court did not. In a reasoning which is rather unclear, the judges considered that nationality revocation is not a punishment. The Court found that the criterion of severity was not met: “[the] degree of severity [of nationality revocation] had to be seen in relation to the fact that it was a response to conduct which, in matters of terrorism, constituted an attack on democracy itself.” In other words, nationality revocation is certainly a severe measure, but when put into perspective with an attack on democracy, the severity evaporates. The Court thus declared the ground inadmissible.

This reasoning contradicts common sense and French case-law. Even if nationality revocation in French law is an administrative measure and not a criminal conviction, both the Conseil d’Etat and the Conseil constitutionnel (the supreme administrative court and the constitutional court) already ruled that nationality revocation is a punishment. It gives then the impression that the European Court started with the intention to deny the claim, and then built a ‘hand-made’ justification to exclude nationality revocation from the protection of article 4 of the Protocol No. 7. Denying the punitive nature of nationality revocation was then the only way for the judges to bring about that result. It seems quite clear that the Court softened its own standards to protect state sovereignty – a heavy tendency in the last decade. But at what price?

In The Constitution of Law – Legality in a Time of Emergency (Cambridge University Press, 2006), David Dyzenhaus framed the concept of ‘grey hole.’ He argues (and the point is worth quoting in full) that

a grey hole is a legal space in which there are some legal constraints on executive action – it is not a lawless void – but the constraints are so insubstantial that they pretty well permit government to do as it pleases. In addition, since such grey holes permit government to have its cake and eat it too, to seem to be governing not only by law but in accordance with the rule of law, they and their endorsement by judges and academics might be even more dangerous from the perspective of the substantive conception of the rule of law than true black holes.

Following this decision of the European Court of Human Rights, there is no doubt that nationality revocation has become such a grey hole.

The cover picture of this blogpost shows the building of the European Court of Human Rights (Strasbourg). The original file can be found here.