The ECtHR on citizenship revocation: Solving or compounding the confusion?

Christian Prener (University of Southern Denmark)

In late 2018, the Danish Supreme Court made headlines by revoking the citizenship of Danish-born Adam Johansen, who had been convicted of enlisting and traveling to Syria as a fighter for the terrorist organisation ISIL, and ordering that he be expelled to Tunisia, overturning the judgments of two lower courts. The decision was controversial not only because it was the first time a Danish-born national was deprived of their citizenship, but also because Johansen had very strong ties to Denmark – where he was born, raised and lived with his wife, child, mother and siblings for the vast majority of his life – and only rather weak ties to Tunisia, the country of his father’s origin, where Johansen had consequently also acquired citizenship at birth.

Earlier this month, the European Court of Human Rights (ECtHR) brought closure to the case, rejecting Johansen’s complaint that the revocation of his Danish nationality and expulsion to Tunisia were in breach of his right to private and family life under Article 8 of the European Convention on Human Rights (ECHR). The Chamber (Second Section) was satisfied that the Danish Supreme Court had conducted an ‘adequate and sufficient’ consideration of its decision.

The inadmissibility decision is the latest addition to the increasing body of case law on the sensitive relationship between security-related citizenship revocation and Article 8 ECHR, with the ECtHR so far giving states generous leeway when it comes to revoking the citizenship of nationals convicted of terrorist offences. While Johansen leaves many questions open, the decision sheds new light on the Court’s approach to the practice of citizenship revocation and its compatibility with Article 8.

A restoration of order or confusion greater than before’?

In its 2020 Usmanov judgment, concerning citizenship revocation on the basis of fraud, the Court affirmed what it had already suggested in several previous cases (inter alia K2, Mansour, Ghoumid et al),namely that citizenship revocation can be in breach of Article 8 if the decision is arbitrary or if it entails disproportionate consequences for the private and family life of the applicant. The specifics of this ‘two-step’ test have, however, been subject to both confusion and criticism for some time (including in a previous post on this blog).

In their concurring opinion in Usmanov, Judges Ravarani and Lemmens, while both fully supporting the finding of a violation, criticised the Court’s approach to revocation decisions, arguing that “there is a need for a more coherent approach, in line with the generally applicable principles relating to Article 8”, and that, following Usmanov, “the confusion is now even greater than before”. Lemmens and Ravarani argued that the ‘two-step’ test gives rise to inconsistency, instead favouring the traditional ‘three-step’ test, in which the legal basis of the decision, the aim invoked by the government, and the proportionality of the decision form the basis of the assessment.

Some of the confusion discussed in Usmanov seems to have permeated into the Danish Supreme Court’s Johansen judgment, which makes the unfortunate mistake of conflating the proportionality assessments of the revocation order and the expulsion order, effectively testing the proportionality of the revocation against the criteria initially established in Maslov for the purpose of assessing an expulsion. Despite several overlaps, loss of citizenship implies negative consequences for the applicant beyond those of an expulsion. While both may interfere with the applicant’s attachment to community, family and work, loss of citizenship also entails the loss of the right to reside and work, as well as loss of social benefits and social identity, making it imperative that the compatibility of a revocation decision with Article 8 is not tested against the criteria developed to assess the proportionality of an expulsion decision.

In response to this, the ECtHR clarified in Johansen that while the Danish Supreme Court had sufficient regard to both the arbitrariness and consequences of the revocation, “the [Strasbourg] Court has never stipulated a list of elements that have to be taken into account. Nor has it applied a proportionality test similar to the test to be applied in expulsion cases” (§ 52). In other words, national courts should not test revocation decisions against the Maslov criteria but rather in relation to the factors introduced by the Court in previous revocation cases, such as whether the revocation rendered the applicant stateless, whether the revocation led to expulsion or made continued stay in the country uncertain, whether the applicant has left the country voluntarily, whether the revocation of nationality had considerable consequences for the applicant’s daily life, and the nature and seriousness of the offence and the risk posed to society (see Johansen § 53-55).   

Balancing the consequences: when is a connection too weak?

It has also long been unclear under Article 8 ECHR whether the consequences of citizenship revocation can ever be considered disproportionate for those convicted of terrorist offences. The Court has frequently granted states a very wide margin of appreciation in this context, often emphasising the serious threat to human rights posed by terrorist acts themselves (e.g. Ghoumid).

Some observers may have hoped that Johansen could be bring some clarity to this question, given the applicant’s strong family ties to Denmark and only weak connection to Tunisia. On this basis, Johansen argued that the revocation of his citizenship violated his Article 8 ECHR rights, citing the preparatory work to Section 8B § 1 of the Danish Nationality Act, which explicitly states that “deprivation should not occur even in cases of very serious crimes, if the person in question holds no or a very weak connection to another state. In these cases, Denmark ought to take responsibility for the individual Danish citizen” (translation from Danish). Johansen further claimed that the fact that he had acquired his Danish nationality at birth distinguished his case from Ghoumid, in which the applicants had been born and raised in France but only acquired citizenship later in life.

However, the ECtHR sided with the Danish Supreme Court, finding that, despite his strong ties to Denmark, Johansen also had a not ‘insignificant’ connection to Tunisia, on the basis that he had visited several times, including a six-month stay in 2005, spoke the language (to some degree at least), and was a practising Muslim (the latter of which had been disproportionately emphasised by the Supreme Court). The Strasbourg Court dismissed the view that Johansen’s case could be distinguished from others on the basis of him having acquired citizenship at birth, finding that this had no direct bearing on the consequences of the revocation, and focused instead on the seriousness of the terrorist offences of which he had been convicted: “the fact the applicant in the present case had obtained Danish nationality by birth does not significantly alter or add to the consequences for the applicant when taking into consideration that the applicant was convicted of serious terrorist offences, which themselves constituted a serious threat to human rights, and which to a large extent showed his lack of attachment to Denmark and its values” (Johansen § 70).

In this regard, Johansen further solidifies the Court’s developing practice, according to which extremely weighty reasons would have to put forward for citizenship revocation, as a sanction in response to terrorism, to be incompatible with Article 8 ECHR. It is also still unclear exactly when, if ever, a person’s connection to the ‘other’ country is ‘weak enough’ for the consequences of a citizenship revocation to be considered disproportionate to the aim of the revocation order. In this sense, little progress has been made to cover the ‘grey hole’ of insubstantial constraints which continues to prevail in Article 8 cases dealing with citizenship revocation for terrorist offences.

While leaving several questions open, Johansen confirms the Court’s long held position that the compatibility of citizenship revocation with Article 8 relies on two separate issues: firstly, the arbitrariness of a decision – such as whether the decision was taken in accordance with the law, was accompanied by necessary procedural safeguards, and whether the authorities had acted ‘diligently and swiftly’ – and, secondly, the consequences that a revocation order may have for an applicant, including both the immediate consequences of losing citizenship status (residency rights, working rights, voting rights), the loss of identity and social attachment, and subsequently the derivative consequences that may follow from (the risk of) an expulsion. Nonetheless, the straightforward questions raised by Judges Ravarani and Lemmens remain strangely unaddressed: “what exactly should be taken into account: is it the impact [of the revocation] as such, or is it the impact weighed against the general interest served by the denial or revocation of citizenship?” (Usmanov, Separate Opinion § 8). What the Johansen case does clarify is that although some consequences of revocation and expulsion may overlap, their compatibility with Article 8 ECHR are to be considered independently and that the proportionality of a revocation cannot rely on the same predetermined list of criteria used when assessing the impact an applicant’s life in expulsion cases.

Finally, above all, Johansen is new proof that when it comes to citizenship revocation for terrorist offences, the Court’s willingness to approve even very harsh consequences for the applicant has yet to find its limits.

Featured image: CherryX (CC BY-SA 3.0)