CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 novembre 2014

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He is represented before the Court by Dr I. Refalo, a lawyer practising in Valletta. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background to the case In 1992/1993 the applicant had been in Malta illegally as he had overstayed his tourist visa. On 18 November 1993 the applicant civilly married MP, a Maltese citizen. On 26 February 1994 they also married according to the Catholic rite. On 19 April 1994, following a request by the applicant, consequent to this marriage the applicant was registered as a Maltese citizen. He therefore filed an application to renounce his Egyptian nationality. On 29 September 1994 his request was approved and his Egyptian passport withdrawn. In December 1996 a child, LR, was born of this marriage. LR is a Maltese citizen. At around this time various family disputes arose between the couple. The applicant’s marriage was annulled by a judgment of 19 January 1998. The court delivering the judgment was satisfied (to the degree necessary in civil proceedings, namely on a balance of probabilities) that the applicant’s only reason for marrying had been to remain in Malta and that therefore there had been a simulation of marriage. Not having been appealed, the judgment became final. The applicant, however, remained resident in Malta and retained his Maltese citizenship. On 30 June 2003, the applicant married VA, a Russian citizen. Following an application (to which was attached the above mentioned judgment), VA was granted ‘exempt person status’ and thus had full freedom of movement (see Relevant domestic law). Two sons were born from this marriage, VR and VL, in 2004 and 2005 respectively. They are both Maltese citizens. On 8 May 2006 the applicant was informed that an order was to be made to deprive him of his Maltese citizenship ((Section 14 (1) of Citizenship Act “the Act” (see Relevant domestic law)) which, following the judgment of 19   January 1998, appeared to have been obtained by fraud. He was informed of his right to an inquiry. The applicant objected to this decision claiming that it was not true that he had obtained his marriage by fraud and noting that he had three Maltese children. In consequence, proceedings were instituted to investigate the applicant’s situation and if necessary divest him of his Maltese citizenship. A committee was set up for this purpose according to Article 14 (4) of the Act. A number of hearings were held before the committee where the applicant was assisted by a lawyer and was allowed to make oral and written submissions and submit evidence, including witness testimony. It appears from the documents available that the applicant contested the basis of the decision on his annulment and claimed that he was not aware that he could appeal it. He also contested the findings of a court of criminal jurisdiction that had found him guilty of injuring his wife and causing a permanent disability (no details about this procedure were submitted to the Court). His ex-wife also gave testimony as well as a citizenship department official and a priest. The final recommendation of the committee to the Minister was not made available to the applicant. The applicant’s lawyer’s requests for a copy of the acts concerning these proceedings remained unsatisfied. On 31 July 2007, the Minister ordered that the applicant be deprived of his citizenship with immediate effect, in accordance with Article 14 (1) of the Act. By a letter dated 2 August 2007, from the Director of the Department of Citizenship, the applicant was informed that the Minister of Justice and Internal Affairs had concluded that the applicant had obtained citizenship by fraudulent means and therefore on 31 July 2007, in accordance with Article   14 (1) of the Act, the Minister ordered that he be immediately divested of his citizenship. He was required to return his certificate of registration as a Maltese citizen. 2.     Constitutional redress proceedings The applicant instituted constitutional redress proceedings complaining under Articles 6, 8 and 14 of the Convention. He claimed that he had not had a fair trial and appropriate access to court for the determination on his right to citizenship. Moreover, he had not been divested of his citizenship in accordance with the law and the requisites for such an action had not existed as his first marriage had not been one of convenience. By a judgment of 12 July 2011 the Civil Court (First Hall) in its constitutional competence rejected the applicant’s complaint under Article   6, having considered that the committee set up for this purpose had not been a tribunal, but solely an investigative body capable of giving recommendations and not final decisions. The court, however, found that the applicant’s Article 8 rights would be breached if, as a result of his being divested of his citizenship he would become an alien, with the result that his de jure family (in respect of the second marriage) would suffer irremediable upset because the father (of the two Maltese children of that marriage) had been required to move to another country. Thus, the removal of citizenship in the present case was in breach of Article 8. It, consequently, annulled the order of 31 July 2007 and considered it not necessary to deal with any further complaints. On appeal, by a judgment of 25 May 2012 the Constitutional Court revoked the first-instance judgment in part. It rejected the Article 6 complaint on the basis that the provision was not applicable in the absence of a civil right. In that connection it rejected the applicant’s contention that the withdrawal of citizenship affected his right to a family and therefore was civil in nature, as citizenship was a matter of public law and falling under the prerogatives of the State. It further reversed the part of the judgment in respect of Article 8, commenting that it had not been established that the applicant had family life in Malta, and, even if this were so, the withdrawal of the applicant’s citizenship would not necessarily result in him having to leave Malta. Indeed it had not transpired that the applicant would be denied Maltese residence or that he applied for it and was refused, nor had a removal order been issued. 3.     Other developments Following the introduction of the application before this Court, on 16   November 2012 the applicant wrote to the relevant authorities informing them that the case was pending before the Court and that therefore no action should be taken on the basis of the order of 31 July 2007. No feedback apart from an acknowledgment of receipt was received concerning such letter. However, while the order to deprive the applicant of his citizenship with immediate effect remains in force, no action has to date been taken in pursuit of such order. Although, the applicant considers that the implementation of the order is only a matter of time, he is currently still residing and carrying out his business in Malta. He has a trading licence which is periodically renewed and he is still using a Maltese passport to travel. The applicant does not appear to have any contact with his first son, but alleges to be in a family environment with his second wife and their children. B.     Relevant domestic law and international materials 1.     Domestic law The relevant articles of the Maltese Citizenship Act, Chapter 188 of the Laws of Malta, read as follows: Article 14 “(1) Subject to the provisions of this article, the Minister may by order deprive of his Maltese citizenship any citizen of Malta who is such by registration or naturalisation if he is satisfied that the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact. (2) Subject to the provisions of this article, the Minister may by order deprive of his Maltese citizenship any citizen of Malta who is such by registration or by naturalisation if he is satisfied that the citizen - ( a ) has shown himself by act or speech to be disloyal or disaffected towards the President or the Government of Malta; or ( b ) has, during any war in which Malta was engaged unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was to his knowledge carried on in such a manner as to assist an enemy in that war; or ( c ) has, within seven years after becoming naturalised, or being registered as a citizen of Malta, been sentenced in any country to a punishment restrictive of personal liberty for a term of not less than twelve months; or ( d ) has been ordinarily resident in foreign countries for a continuous period of seven years and during that period has neither - (i) been at any time in the service of the Republic or of an international organisation of which the Government of Malta was a member; or (ii) given notice in writing to the Minister of his intention to retain citizenship of Malta. (3) The Minister shall not deprive a person of citizenship under this article unless he is satisfied that it is not conducive to the public good that that person should continue to be a citizen of Malta and, in the case referred to in subarticle (2)( c ), it appears to him that that person would not thereupon become stateless. (4) Before making an order under this article, the Minister shall give the person against whom the order is proposed to be made notice in writing informing him of the ground on which it is proposed to be made and of his right to an inquiry under this article; and if that person applies in the prescribed manner for an inquiry, the Minister shall refer the case to a committee of inquiry consisting of a chairman, being a person possessing judicial experience, appointed by the Minister and of such other members appointed by the Minister as he thinks proper. (5) The Minister may make rules for the practice and procedure to be followed in connection with a committee of inquiry appointed under this article, and such rules may, in particular, provide for conferring on any such committee any powers, rights or privileges of any court, and for enabling any powers so conferred to be exercised by one or more members of the committee.” Article 15 “ (1) A citizen of Malta who is deprived of his citizenship by an order of the Minister under article 14 shall, upon the making of the order, cease to be a citizen of Malta.” Article 19 “ The Minister shall not be required to assign any reason for the grant or refusal of any application under this Act and the decision of the Minister on any such application shall not be subject to appeal to or review in any court.” Article 27 “(1) The acquisition or retention of Maltese citizenship by any person under the Constitution of Malta or any other law, prior to the enactment of the Maltese Citizenship (Amendment) Act, 2000 shall not be affected in any way by the provisions of the said Act. (2) This Act shall not apply with regard to any application for registration as a citizen of Malta filed before the 15th day of August, 1999.” The mentioned committee of inquiry is regulated by subsidiary legislation 188.02, the Deprivation of Maltese Citizenship (Committee of Inquiry), Rules. Amongst others, the non-Maltese spouse of a citizen of Malta is eligible for “exempt person status” which may be enjoyed as long as the spouse is still married to and living with that person. An exempt person under the provisions of the Immigration Act (Chapter 217 of the Laws of Malta), is entitled to freedom of movement which according to the Maltese Constitution means the right to move freely throughout Malta, the right to reside in any part of Malta, the right to leave and the right to enter Malta. In 2004 Malta joined the European Union and the relevant directives became applicable, including Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. 2.     International materials (a)     European Union Case-law Rottmann v. Freistaat Bayern, 2 March 2010, CJEU, C-135/08 [2010] ECR II-05089 (see paras. 41-45) - Dr Rottmann was born a citizen of Austria. After being accused in Austria for serious fraud in the exercise of his profession, he moved to Germany where he applied for naturalisation. By acquiring Ger ­ man citizenship he lost his Austrian citizenship by operation of law. Following information from the Austrian authorities that Dr Rottmann was the subject of an arrest warrant in their country, the German authorities sought to annul his acquisition of German citizenship on the ground that he had obtained it fraudu ­ lently. Such decision, however, had the effect of rendering him stateless. The referring court wished to know if this was a matter that fell within the scope of EU law, as Dr Rottmann’s statelessness also entailed the loss of Union citizen ­ ship. The CJEU ruled that an EU Member State decision to deprive an individual of citizenship, in so far as it implies the loss of status of EU citizen and depriva ­ tion of attached rights, falls within the ambit of EU law and, therefore, must be compatible with its principles. The CJEU concluded that it is legitimate for a Member State to revoke naturalisation on account of deception, even when the consequence is that the person loses Union citizenship, in addition to citizenship of that Member State. Such a decision, however, must comply with the principle of proportionality, which, among other things, requires a reasonable period of time to be granted in order for him or her to recover the citizenship of his or her Member State of origin (See Handbook on European law relating to asylum, borders and immigration Edition 2014 , European Union Agency for Fundamental Rights, 2014, Council of Europe, 2014).   Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm), C-34/09, judgment of the Court of Justice (Grand Chamber) 8 March 2011 - Mr and Ms Zambrano, of Colombian nationality, were refused refugee status in Belgium but were not sent back to Colombia on account of the civil war in that country. From 2001, Mr and Ms Zambrano were then registered as resident in Belgium and Mr Zambrano worked there for a certain time, even though he did not hold a work permit. In 2003 and 2005, Mr and Ms Zambrano had two children which acquired Belgian nationality in accordance with the Belgian legislation applicable at that time. The competent authorities refused to accede to Mr and Ms Zambrano’s application to regularise their situation and to take up residence as ascendants of Belgian nationals. According to the Court of Justice, Article 20 of the Treaty on the Functioning of the European Union ( TFEU) precluded national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. The Court of Justice concluded that Article 20 TFEU precludes a Member State from refusing a work permit and the right of residence within its territory to a third-country national upon whom his minor children, who are nationals and residents of that Member State, are dependent, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of citizen of the Union. (b)     Relevant Council of Europe instruments Desiring to promote the progressive development of legal principles concerning nationality, as well as their adoption in internal law and desiring to avoid, as far as possible, cases of statelessness, the Council of Europe created the 1997 European Convention on Nationality. One of its principles, provided for in Article 4 is that “statelessness shall be avoided”. In its Article 6 it provides that each State Party shall facilitate in its internal law the acquisition of its nationality for stateless persons. In its Article 7 it however provides that a State Party may not provide in its internal law for the loss of its nationality if the person concerned would thereby become stateless, with the exception of cases of acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant. This Convention was signed by Malta on 29 October 2003 but has not since then been ratified. On 15 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 18 on the avoidance and reduction of statelessness. COMPLAINTS The applicant complains that the order divesting him of his citizenship, was not in accordance with the law, it interfered with his right to private and family life and exposed him to the risk of being separated from his family. That decision had not been accompanied by the relevant procedural safeguards as required under Article 8 of the Convention and lastly the state had failed to fulfil its positive obligation to protect the applicant’s rights under that provision. Moreover, the applicant, who remained stateless, was left to live in a state of uncertainty, where he could not even leave the country for fear of not being let in.     QUESTIONS TO THE PARTIES 1.     Has there been an interference with the applicant’s right to respect for his private and/or family life, within the meaning of Article 8 § 1 of the Convention?   2. If so, was that interference in accordance with the law? In particular what provisions of law, in force at the relevant time, was the decision based on?   3. Was the measure necessary in terms of Article 8 § 2? Have the authorities acted in good time?   4. What are the legal repercussions on the applicant as a result of the deprivation of citizenship, and which of these repercussions have actually come about in practice?   5. Has a removal order been issued in respect of the applicant? If so, what practical steps have been taken by the Maltese authorities aimed at the applicant’s effective removal? If not, on what basis is the applicant still residing in Malta? What are his possibilities of retaining residence in Malta? Has he attempted any of such possibilities, or applied to obtain any other status?   6.     Alternatively, given the specific situation of the applicant, did the Maltese authorities have a positive obligation to protect the applicant’s rights under Article 8 § 1 of the Convention by regularising his situation when withdrawing his citizenship?