A. Introduction
The deprivation of citizenship is a governmental act affecting the sense of identity, of belonging to, and of participation in, a community. The strategy of citizenship deprivation is one of the meansFootnote 1 used by national authorities to counter the security threat represented by foreign terrorist fighters (FTFs)Footnote 2 especially after the Islamic State in Iraq and the Levant’s (ISIL) attack in Paris in 2015.Footnote 3 It is part of the “war on terrorism” that has been at the top of the international security agenda of Western democracies following the 9/11 attacks.
This Article explores the limits imposed by EU law on national authorities of EU members wishing to deprive their nationals of citizenship. For the purpose of this study, we will examine the limits that stem both from the European Convention on Human Rights and Fundamental Freedoms (ECHR) and European Union (EU) law, thus leaving out other sources of international law. In the former context, there are cases in which suspected terrorists challenged the deprivation of citizenship in light of the right to respect for private and family life. In the latter context, the Court of Justice of the European Union has never been asked to examine whether the stripping of citizenship of foreign terrorist fighters is in line with EU law. Yet there is case law on EU-derived conditions that national authorities should respect in stripping individuals of their citizenship. We focus our attention on case law that may be applied to the case of deprivation of citizenship of a FTF.
Although Member States are exclusively competent to attribute citizenship and to deprive an individual of this status, they are bound to respect EU law when they do so. The reason why they must have “due regard”Footnote 4 to EU law when they strip an individual of national citizenship is that they may simultaneously deprive citizens of their EU citizenship and of the rights attached to it. An EU citizen has a number of rights, the most important of which is the right to move and reside freely within the territory of the Member States.Footnote 5 The Court of Justice of the European Union, hereinafter “CJEU” or the “Court of Justice,” has “set EU citizenship on the route to becoming an autonomous status, with a future federal potential.”Footnote 6 Therefore, the case-law of the CJEU, interpreting the rights enjoyed by EU citizens, is one of the factors that national authorities of EU member States need to take into consideration in the decision to deprive a certain person of their citizenship. This Article will show the contours of the obligation to have “due regard” to EU law.
Our Article will also seek to examine whether EU law is relevant for the repatriation of the FTFs and of their family members who are in camps situated in Syria—or Iraq—and wish to return to their home countries. According to recent data, about 35,000 individuals from more than sixty countries outside Syria remain in Al-Hol displaced people’s camp.Footnote 7 The number of EU nationals among them is unclear. We assume that there are EU citizens there, considering recent case-law before the European Court of Human Rights (ECtHR) and before Member States’ national courts.Footnote 8 It may be wondered whether EU Member States could refuse to re-patriate these persons. This problem is not merely theoretical. As it will be shown in Section F, the State of origin of these persons may be unwilling for political reasons to authorize their re-entry into the country.Footnote 9 As in the case of deprivation of nationality, the repatriation of Member States’ nationals falls within the competence of national authorities; the latter must respect human rights as protected by the domestic legal order and the European Convention on Human Rights (ECHR) in making those decisions. At the same time, the protection afforded by the EU Charter of Fundamental Rights and the possession of the European citizenship should also be considered when decisions about repatriation are made. In this Article we inquire as to whether FTFs and children of FTFs could rely on the case-law on EU citizenship to be able to be repatriated, considering that they derive autonomous rights from their status of European citizenship.
This Article is structured as follows. Section B provides an overview of the cases in which the ECtHR had the opportunity to consider whether national measures on the deprivation of citizenship on account of terrorism were compatible with the right to respect for private and family life.Footnote 10 Section C turns to the EU context to examine the case law of the Court of Justice, concerning the loss of citizenship in an EU Member State and the limits to which national authorities are subject to in making their decisions with respect to dual nationals holding the citizenship of one of the Member States. This Section also touches upon the relationship between the European Convention on Human Rights and EU law. The interaction between those two levels of protection is one of the distinctive characteristics of public law in Europe, and it assumes particular relevance in a context in which EU law stipulates at least equivalence in the level of protection of corresponding ECHR rights. Although in all cases before the ECtHR persons who were deprived of their citizenship lost, at least one discussed at national level—in Denmark—the applicant, the wife of a Foreign Terrorist Fighter, was successful. This case is briefly summarized in Section D. Then, Section E assesses how the case law of the CJEU could be applied to the case of FTFs to contest the deprivation of citizenship, in case these persons are dual nationals holding the nationality of one of the EU Member States. Section F considers the refusal to readmit foreign terrorists’ fighters due to the reluctance of their country of origin to take them back and hints at a decision of the ECtHR on the right of family members of FTFs to enter the territory of the State of nationality—Subsection I—and at the position of a special category of EU citizens, the children of FTF who are in camps in Syria—Subsection II. This Subsection gives an overview of the EU-derived rights that could be invoked by the mentioned persons to be repatriated; a special emphasis will be placed on the rulings concerning the enjoyment of the substance of European citizenship rights. The final section will draw some conclusions as to whether or not the EU citizenship may represent an obstacle to the deprivation of citizenship.
B. Nationality Withdrawal on Grounds of Terrorism and the Right to Respect for Private and Family Life in the Case Law of the European Court of Human Rights
I. The Relevant Human Rights Provisions
In its relevant part, Article 8(1) ECHR guarantees the right to respect for private and family life.Footnote 11 Article 8(2) ECHR introduces grounds for the justification of interferences with this right: Interferences must be in accordance with the law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.Footnote 12
The right to respect for private and family life must be taken into account by national authorities when making the decision to deprive a dual national of one of their citizenships. The ECtHR has issued several rulings concerning respect of the mentioned right in cases of citizenship deprivation for suspected terrorists.Footnote 13 In none of these cases has the ECtHR found that national authorities had breached this right. National authorities were recognized a wide margin of discretion in stripping dual nationals of their nationality.Footnote 14
Among other cases,Footnote 15 three may be mentioned by way of example of what constitutes a restriction of the right guaranteed in Article 8 ECHR, and of the grounds of justifications relied upon by the Member States. These two steps—restriction and justification—in the reasoning of the ECtHR are discussed, respectively, in the next two sub-sections.
II. Restrictions to the Right to Respect for Private and Family Life
In K2 Footnote 16 the ECtHR examined for the first time the compatibility of the deprivation of citizenship of a British national with the right to respect for private and family life. The applicant, who was a dual national, had left the country to engage in terrorist-related activities in Somalia and he had been stripped of the British nationality on account of national security concerns while he was in Sudan. His family was in the UK. He argued that the decision to exclude him from the UK interfered with the right of Article 8 ECHR. In particular, given that he had not been able to communicate with his lawyer while he was in Sudan, this was a breach of the procedural safeguards required by Article 8 of the Convention.
More recently, in Ghoumid and others the ECtHR examined a complaint of former—French nationals who were deprived of their nationality in their home country.Footnote 17 The decision by the French authorities was made because the applicants were convicted of participation in a criminal conspiracy to commit an act of terrorism. The applicants argued in particular that the revocation of their nationality had breached their right to respect for their private life.
The third example, Johansen, concerns Denmark.Footnote 18 In 2018 Denmark stripped Mr. Johansen of his nationality. Johansen, a dual Danish-Tunisian national, born in Denmark, was convicted of enlisting and traveling to Syria as a fighter for the terrorist organization ISIS.Footnote 19 The difference with the Ghoumid decision mentioned above was that Mr. Johansen was born in Denmark. Yet, he was expelled to Tunisia with a permanent re-entry ban. It was the first time that the decision to revoke the citizenship was made with respect to a Danish national with very strong ties to Denmark—he had a wife, child, mother and siblings—and only rather weak ties to Tunisia, the country of his father’s nationality, as a consequence of which Johansen was also a Tunisian citizen by birth.Footnote 20 The Strasbourg Court rejected the claim that Article 8 ECHR had been breached, considering that the decision made by the Danish authorities was adequate and sufficient. Such a decision was neither arbitrary nor a disproportionate interference with his right to a private life.
III. Grounds of Justification Relied upon by the States
In K2, the most important legal issue was whether the decision of the national authority had been taken in full respect of the guarantees provided for by Article 8 ECHR. The ECtHR proceeded to consider whether three procedural conditions were met, first: hether the revocation was arbitrary, that is to say, was not provided for by law; second, whether authorities had acted diligently and quickly; and third, if procedural guarantees were respected. The ECtHR rejected the complaint insofar as the decision to revoke the British nationality was not arbitrary: It was justified by the legitimate aim pursued, namely, the protection of the public from the threat of terrorism. In addition, the ECtHR rejected the notion that Article 8 could “be interpreted so as to impose a positive obligation on Contracting States to facilitate the return of every person deprived of citizenship while outside the jurisdiction in order to pursue an appeal against that decision.”Footnote 21
In Ghoumid, the ECtHR held that there had been no violation of Article 8, because the decision to deprive the applicants of French nationality had not been arbitrary because they were afforded substantial procedural safeguards, the possibility to deprive citizenship for offenses related to terrorism is provided by law, in Article 25 of the French Civil Code; and pursues a legitimate aim. In addition, the concerned decision had not had a disproportionate effect on the applicants’ private life: They were able to remain in France, and the only consequence of the deprivation of nationality for the applicants’ private life was that they lost an element of their identity. This was not enough for the ECtHR to consider that the loss of nationality carried disproportionate consequences for the applicants. The ECtHR fully shared the French government’s concern over terrorist violence which is defined as a threat to human rights and declared that it “understands [. . . .] the decision of the French authorities, following the attacks in France in 2015, to take a firmer stand against individuals who had been convicted of a serious offence constituting an act of terrorism.”Footnote 22 The applicants also argued that their loss of nationality was a “disguised punishment” constituting a sanction for conduct in respect of which they had already been convicted and sentenced in 2007 by the Paris Criminal Court. This would be in breach of Article 4 of Protocol 7.Footnote 23 The ECtHR rejected this claim after having recognized that the deprivation of nationality was not a criminal measure in French law. In addition, the commission of a particular serious act such as in the case of terrorism, is such as to sever the bond of loyalty to France and to undermine the very foundation of democracy. The primary purpose of citizenship deprivation is “thus to serve as a solemn acknowledgment of this severance of their bond with France.”Footnote 24
In Johansen, the Danish government’s defense was that terrorism is perceived to be a threat to a vital interest of the State and may lead to the deprivation of nationality. The European Centre for Law and Justice (ECLJ) adhered to the arguments put forward by the Government. In its analysis the ECtHR considered the consequences of the revocation of citizenship, and it noted that “in determining the consequences of the revocation, the Court has never stipulated a list of elements that have to be taken into account.”Footnote 25 Yet, the assessment was made that the Supreme Court of Denmark had diligently addressed the consequences of depriving the applicant of his Danish citizenship. The Strasbourg Court took the view that the seriousness of the terrorist offences committed by the applicant, constituted a serious threat to human rights and they showed his lack of attachment to Denmark and its values. Finally, the fact that the applicant had obtained Danish nationality by birth was irrelevant.Footnote 26
The three cases briefly sketched out above show that the ECtHR imposes very light limits on national authorities wishing to deprive suspected terrorists of their citizenship. The close ties to terrorism are a security concern of such a magnitude that it is virtually impossible to obtain the annulment of the decision to strip a dual national of their nationality on the ground that this is a disproportionate interference with their right to a private and family life. In the next section we will turn to the influence of the possession of European Union citizenship on the ability of Member States to strip dual nationals of national citizenship.
C. Deprivation of Nationality and the Influence of the Possession of European Union Citizenship
I. EU Citizenship Law and Its Dependence on National Citizenship
It should be recalled that European Union citizenship is a derived status. Under Article 20(1) Treaty on the Functioning of the European Union: “[E]very 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.”Footnote 27 Article 21(1) TFEU specifies the content of EU citizenship as follows: “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 the Treaties and by the measures adopted to give them effect.”Footnote 28
The attribution or withdrawal of citizenship is a matter of national law.Footnote 29 The EU has no competence to adopt measures in this area. The acquisition and loss of EU citizenship are therefore entirely parasitic on citizenship of a Member State,Footnote 30 and it is for Member States to determine the acquisition and loss of national citizenship. There is no “direct citizen-to-Union process”Footnote 31 for its acquisition. In EP v Préfet Du Gers, concerning the “mass loss” of EU citizenship of all British nationals after Brexit, the Court of Justice confirmed that there can be no benefits of EU citizenship, such as political rights, “decoupled” from national one.Footnote 32
II. The Duties of Member States Stemming from the Provisions of EU law, and Possible Justifications on Which Member States Can Rely
Even though the award and withdrawal of nationality is a matter of national—not EU—competence, Member States must exercise their powers “with due regard” to the requirements of EU law in situations covered by this body of law. In particular, given that domestic law on national citizenship can be dispositive of an EU status, EU citizenship, the decision of a national authority resulting in the actual or potential deprivation of national citizenship makes the situation fall under the scope of EU law “by reason of its nature and its consequences.”Footnote 33 In particular, national authorities are under an obligation to carry out the assessment of the consequences of the decision to withdraw the citizenship for the person concerned and their family.Footnote 34
This duty was first outlined in Rottman, a case in which an Austrian citizen had acquired German nationality. By operation of German law, this entailed an automatic renunciation to Austrian nationality. When it turned out that Mr. Rottman had obtained his German citizenship by fraud, the German authorities proceeded to withdraw his German nationality. The CJEU held that, because deprivation of German citizenship would strip Mr. Rottman of EU citizenship, and he was no longer Austrian either, the connection with EU law entailed an EU-derived obligation for national authorities to consider the consequences of such withdrawal. In particular, the deprivation had to be subject to a proportionality test, under EU law and under national law. The public interest pursued by the German authorities was the “special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality.”Footnote 35 This public interest was threatened by instances of fraud and therefore the withdrawal of nationality was prima facie legitimate. Although the Court of Justice left it for competent national authorities to decide, it provided guidance as to what parameters they should follow in taking such a decision: They would have to assess the effect of the decision on Mr. Rottmann and his family with a view to balance the gravity of the offence, the lapse of time between the offence and the decision of withdrawal and whether Mr. Rottmann would be able to recover his previous nationality.Footnote 36
The same formula was repeated in Tjebbes.Footnote 37 Loss of EU citizenship, by virtue of nationality deprivation, entails that the situation falls within the ambit of EU law.Footnote 38 National authorities must carry out an assessment of the proportionality of the decision to withdraw citizenship, which cannot, therefore, be purely automatic. In Tjebbes, the issue arose because Dutch law provided for the automatic loss of citizenship for Dutch nationals residing for ten years outside EU territory, and for the children of the couple. The ECJ held instead that the principle of proportionality mandates an individualized assessment of each decision,Footnote 39 also in the light of the right of the child. In its judgment, the ECJ considered Article 20 TFEU in light of Article 7 of the EU Charter of Fundamental Rights, which stipulates that everyone has the right to respect for their private and family life, home and communications, and of Article 24(2) Charter, which establishes the obligation to take into consideration the best interests of the child.Footnote 40 The Charter must guide the scrutiny of the proportionality of a national measure, which is carried out by the competent national authorities, and must ensure that the loss of nationality is consistent with the fundamental rights guaranteed by the Charter.Footnote 41
Another interesting issue was raised in Wiener Landesregierung. In this preliminary ruling on the interpretation of Article 20 of the TFEU the de facto deprivation of national citizenship was at issue.Footnote 42 The case concerns an Estonian national, JY, who had applied for Austrian citizenship; under the Austrian legislation, this implied the need to renounce to his original citizenship. After the Estonian government decided to relinquish the latter, the Austrian authorities withdrew the assurance as to the grant of the Austrian citizenship to the applicant, who had become in the meantime stateless. The reason to adopt such a decision was that JY had committed traffic offences punishable by administrative fines. The issue was whether the unlawful acts committed by the applicant justified the revocation of the guarantee to obtain Austrian citizenship.
The CJEU qualifies the withdrawal of the assurance mentioned above to be based on Austria’s public policy and public security.Footnote 43 As a result, the person was left with neither Estonian nor Austrian citizenship. The ECJ confirmed that in order to rely on the mentioned public interests, the Austrian authorities must show that JY posed a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”—public policy— or a “threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests”—public security.Footnote 44 The ECJ held that:
[A]s a justification for a decision entailing the loss of the status of citizen of the Union conferred on nationals of Member States by Article 20 TFEU, the concepts of “public policy” and “public security” must be interpreted strictly, so that their scope cannot be determined unilaterally by the Member States without being subject to control by the EU institutions.Footnote 45
Then, the ECJ did not leave to the national court to decide whether the de facto withdrawal of citizenship was justified; it carried out the proportionality assessment by itself. The ECJ ruled that JY was neither a threat to the public policy of Austria, nor to its public security, taking into consideration the nature and gravity of the two administrative offences committed by JY after the application for citizenship and of the significant consequences that the denial of Austrian citizenship would have implied for in the normal development of her family and professional life.
The most recent case on deprivation of citizenship is X (Thai national).Footnote 46 At issue in this preliminary reference was the compatibility with Article 20 TFEU, read in conjunction with Article 7 of the EU Charter of Fundamental Rights of a decision by the Danish authorities whereby they stripped X, a dual US-Danish national, of her nationality. By virtue of Danish law,Footnote 47 she automatically lost nationality upon reaching the age of twenty-two as she was a person born abroad and who had not resided in Denmark for more than few weeks. That decision by the Danish authorities meant that X was also deprived of EU citizenship. This case is interesting because the principles laid down by the CJEU in this decision could be applied to EU nationals such as children of FTF who may have been born outside EU Member States from an EU national. The CJEU considers that the loss of the nationality of an EU Member State has serious consequences for the EU applicant because she will lose the EU citizenship. Therefore, even if Article 20 TFEU, read in the light of Article 7 of the EU Charter of Fundamental Rights, does not preclude the Danish legislation on Nationality, leading to the deprivation of citizenship for lack of genuine link on the date on which the Danish national reaches the age of twenty-two, there are conditions that the Danish authorities must respect. In particular, she must have the opportunity to lodge, within a reasonable period, an application for the retention or recovery of the nationality, which enables the competent authorities to examine the proportionality of the consequences of the loss of that nationality from the point of view of EU law and, where appropriate, to allow the retention or recovery ex tunc of that nationality. In order to enable the rights which citizens of the Union derive from Article 20 TFEU to be exercised effectively, such a period must extend, for a reasonable length of time, beyond the date on which the person concerned reaches that age and cannot begin to run unless those authorities have duly informed that person of the loss of his or her nationality or of the imminence of that loss, and of his or her right to apply, within that period, for the maintenance or recovery of that nationality. Failing that, those authorities must be in a position to carry out such an examination, as an ancillary issue, in the context of an application by the person concerned for a travel document or any other document showing his or her nationality.Footnote 48
Having set out the conditions defined by the CJEU on how a decision leading to the cessation of the status of an EU citizen should be made, in the next section it is necessary to examine how these conditions could be applied by national authorities before deciding to strip a Foreign Terrorist Fighter of their citizenship.
Before turning to this topic, we would like to briefly consider the interplay between the protection afforded to respect of private and family life in the contexts of the ECHR and of the EU. This is necessary considering that in the Tjebbes, Wiener Landesregierung and X (Thai national) rulingsFootnote 49 the CJEU relies on Article 7 of the Charter of Fundamental Rights, concerning respect of private and family life, which is also protected by Article 8 ECHR. It appears that in the mentioned cases there is no explicit discussion of the relationship between the two provisions. In particular, the Court in Luxembourg never says that Article 7 of the Charter is interpreted in line with Article 8 ECHR, nor does it take a stance on whether Article 7 of the Charter affords higher protection than Article 8 ECHR. The relationship between the two provisions is regulated by Articles 52(3) and 53 of the Charter, which establish, respectively, equivalence between Charter rights and corresponding ECHR rights—but allows for EU law to guarantee more protection— and the non-affectation between EU rights and Charter rights—EU law cannot guarantee less protection than ECHR rights.Footnote 50 It should be stressed that in this Article we do not aim at inquiring on whether the fundamental rights which the CJEU protects circumscribe the ability of Member States to strip persons of their Union citizenship by depriving them of their Member State nationality.Footnote 51 We examine the mentioned cases to appreciate the effects of the possession of the Union’s citizenship on Member States’ powers to denationalize their citizens; indeed, this is the main factor that may protect Union citizens from the deprivation of national citizenship; the right to private and family life has a secondary importance in the reasoning of the CJEU. It should be added that the questions raised in the preliminary rulings by the referring courts revolve around the Union citizenship rather than Articles 7 of the Charter of Fundamental Rights and Article 8 of the ECHR. This also explains why the CJEU does not consider whether the level of protection against the deprivation of citizenship afforded by EU law is equivalent to that afforded by ECHR law as far as the right to private and family life is concerned.
D. An Example of a Successful Challenge to a Decision Depriving a Family Member of a Foreign Terrorist Fighter of her Danish Citizenship
In the previous section we have seen how difficult it is to question the legality of a decision to deprive a dual national of their citizenship on the ground that such a decision would breach their right to private and family life. In this context, it is necessary to refer to a recent decision of the Danish Supreme Court which is noteworthy because the deprivation of citizenship was successfully challenged on appeal by the family member of a FTF.
In 2021, mothers and children held in Syrian camps were repatriated to Denmark if they held Danish citizenship; in contrast, those who had been stripped of their nationality were left in these camps with their children. One of the persons who was deprived of the Danish nationality, a Danish-Iranian woman, challenged this decision in 2020. In the context of this litigation, the applicable law was the Consolidated Act on NationalityFootnote 52 enabling the Danish authorities to deprive a national of Danish citizenship in a number of cases.
The applicant aged twenty at the time, had flown to Syria to join the ISIS in 2015, had married a terrorist fighter and had become the mother of three children. In 2023 the Danish Supreme court reversed the decisions of the administrative courts which had previously rejected the action.Footnote 53 The main reason at the basis of the latest ruling was that the applicant had only very limited links with Iran. She had spent all her life in Denmark, she had family links in this country, and she spoke the language whereas she did not speak Farsi. The appellant had successfully argued that the consequences of her expulsion to Iran would have been a disproportionate interference with her right to private life, and she could not be expelled to Iran without risking being subjected to inhumane treatment,Footnote 54 considering the life threatening situation to which women are exposed to in Iran. In contrast to this case, arguably a very special one, justified also in light of the killings of women in 2022-2023 in Iran, in other cases the actions, concerning women who had some ties with the countries to which they were expelled, were rejected.Footnote 55 This ruling of the Danish Supreme court is, therefore, quite unique and is not likely to open up the way to many decisions overturning the revoking of citizenship.Footnote 56
E. The Deprivation of Nationality of Foreign Terrorist Fighters and the Limits Posed to National Authorities by the Case Law on European Union Citizenship
National authorities must comply with the case law of the CJEU on loss of EU citizenship. As shown in Section C, the Court of Justice identifies a number of obligations which affect the decision to strip FTF of their nationality.
First of all, the deprivation of citizens of their nationality is subject to a proportionality test.Footnote 57 The measure concerned must pursue an objective of public interest, such as the protection of public policy or public security, which should be narrowly interpreted and their scope is subject to the control of EU institutions, in particular the Court of Justice.Footnote 58 The classic test for the former is “the existence [. . . .] of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society,” and for the latter it is “a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests.”Footnote 59
It is submitted that terrorism may be considered a threat to a fundamental interest of society or a threat to the functioning of the institutions; therefore, the deprivation of citizenship to fight terrorism pursues an objective of public interest.Footnote 60
In order to assess whether the threat to public policy or security represented by a FTS is such as to justify the deprivation of citizenship, it is necessary to rely on the test developed in Wiener Landesregierung.Footnote 61
The ECJ’s position in this ruling is remarkable because it articulates the parameters that national authorities must follow when deciding to deprive an individual of his citizenship. The principle of proportionality, as interpreted by the CJEU in the mentioned ruling, could be relied upon by FTF to oppose decisions to strip them of their nationality. A national authority is required to balance the need to protect security with the rights deriving from the status of European Union citizen. The rationale is that citizenship deprivation has the permanent effect of preventing the enjoyment of the substance of the rights associated with the European Union citizenship, as it was spelt in by the case-law stemming from the judgments in Ruiz Zambrano.Footnote 62 In this ruling the ECJ’s has elevated the Union citizenship to an independent source of rights.Footnote 63
Drawing on the latter case law and on the ruling in X (Thai national) decided by the CJEU in September 2023,Footnote 64 a judgeFootnote 65 could consider the loss of the Union citizenship a serious consequence in itself of the deprivation of the national citizenship. In sum, the person who is denationalized could claim that the possession of European Union citizenship confers a special resilience to the withdrawal of the national citizenship—or to acts that can be assimilated to it such as the temporary exclusion orders.Footnote 66 The long arm of EU law has reached the national prerogative of citizenship’s deprivation due to the permanent affect that such a decision has on the rights attached to European Union citizenship, including the right to have access to the “EU territory.”
It could be argued that there are still obstacles in applying the principles laid down by the Court of Justice in Wiener Landesregiuerung to the case of the deprivation of citizenship of FTF. The view could be taken that in the circumstances of the case in Wiener Landesregierung, the CJEU had a relatively easy task in determining whether the decision to strip him of the Austrian citizenship was proportionate. The Court had to examine whether administrative offences, concerning road safety, committed by the applicant in the main proceedings, justified the decision of the Austrian administrative authorities to withdraw the assurance that she would have obtained the Austrian citizenship after she had renounced to her original nationality in order to obtain that of Austria. The position of the CJEU was straightforward because the decision to revoke the assurance as to the grant of the Austrian nationality—causing the loss of the European Union citizenship—and the effect of such a decision on the normal development of JY’s family and professional life was clearly disproportionate with respect to the gravity of the offences committed.
In case Member States wished to strip FTF of their nationality, they could more easily than in the ruling in Wiener Landeregierung case prove that the conditions set out therein are satisfied: These persons are a genuine and sufficiently serious threat affecting one of the fundamental interests of society. Yet, in light of the proportionality test defined in that decision, they would have to prove that the threat is “present,” and it is not simply a matter of the past. Turning to the situation of FTF and their family members in the Syrian camps, it could be argued that the threat to national security is not present. It is noteworthy that it rests upon the member State of origin to define the length of time that needs to be passed before a threat is no longer present.Footnote 67 At the same time, it is not sure that the “past threat” defense would be sufficient to avoid the deprivation of citizenship. In this context, it should be noted that there is at least one ruling which make it difficult to rely on this defense. In the ruling in K. and H.F,Footnote 68 the CJEU was confronted with a third country national, K.,Footnote 69 who had been considered an undesirable migrant by Dutch authorities because in the past he had committed crimes against humanity. The fact that a long time had passed since he had committed crimes against humanity did not matter. The applicant had introduced an action at national level and a Dutch Court had raised a preliminary ruling before the CJEU. The latter took the view that the exceptional gravity of the crimes committed twenty years before by K., who later had become a Union citizen, made the applicant a permanent threat to fundamental interests of society.Footnote 70 According to the CJEU, the conduct of the individual concerned showed the persistence in him of a disposition hostile to the fundamental values enshrined in Articles 2 and 3 TEU, such as human dignity and human rights. K. was considered capable of constituting a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, within the meaning of the first sentence of the second subparagraph of Article 27(2) of Directive 2004/38.Footnote 71 It is submitted that in an hypothetical preliminary ruling procedure, concerning a decision to strip a FTT of his nationality, the precedent in K. may lead the CJEU to leave to the referring court whether the threat to the fundamental interests of society represented by a FTT are of a permanent nature, regardless of the time passed from the commission of crimes. In K. the CJEU still requires national authorities to carry out a proportionality test and to weigh the protection of the fundamental interest of society at issue, on the one hand, against the interests of the person concerned in the exercise of his right to freedom of movement and residence as a Union citizen and of his right to respect for private and family life, on the other hand.Footnote 72 The referring court might decide that these persons are a permanent threat after an individual assessment or that the enhanced protection against the expulsion of a Union citizenFootnote 73 can be extended to a decision authorizing the deprivation of citizenship. The authors take the view that there are good arguments to claim that the deprivation of citizenship has more serious consequences than the expulsion of a Union citizen.
A further issue worth exploring is whether the deprivation of European Union citizenship could be excluded for EU dual nationals because the consequence is that it prevents EU citizens from having access to not only the territory of their Member State of nationality but also to the EU territory. This notion of “EU territory” was explored in an interesting essay by Mantu.Footnote 74 This scholar enquired on whether EU citizenship confers the right to be present on the territory of the EU as a whole, taking the case of third country nationals who enjoyed the right to stay in an EU member State in order to enable their family members, who were EU citizens, to enjoy the substance of their rights. Mantu argued that the genuine enjoyment of the rights of EU citizens is linked with the presence of the EU citizens on the EU territory as a whole. Mantu further contended that “[t]he return of foreign fighters who are EU citizens and the attempts of some states to deprive them of nationality to block such return may prove fertile ground for testing the implications of the notion of EU territory.”Footnote 75 Actually, Union citizenship could be conceived as the status enabling access to the EU territory. If this were to be the case, it is submitted that national authorities have an additional factor to take into consideration to justify their decision to deprive FTFs of the nationality in assessing the proportionality of the deprivation of citizenship in order to protect national security. In other words, if this interpretation is followed, the possession of the Union citizenship may offer a FTF a further layer of protection with respect to the shield already offered by Member States’ obligations to respect human rights, such as the right to respect for private life. Therefore, even if Member States are exclusively competent to protect national security, they could deprive the dual national of their nationality only to the extent that they represent an actual threat to this interest and bear in mind the consequences of stripping them of their status of EU citizens. Thus, EU citizenship could be used by those dual nationals, who are deprived of their citizenship, to build an additional layer of protection to human rights considerations against expulsion towards their second country of nationality.
F. The Refusal to Readmit Family Members of Foreign Terrorist Fighters as a Violation of Article 3(2) of Protocol 4 to the ECHR
I. Readmission of Family Members of Foreign Terrorist Fighters
The threat posed by FTF in 2014–2015 had caused the UNSC to reiterate the obligation of Member States to prevent the entry into or transit through their territories of any individual about whom that State has credible information that provides reasonable grounds to believe that they were seeking entry into or transit through their territory for the purpose of participating in the foreign terrorist fighter-related activities described in paragraph 6 of resolution 2178 (2014).Footnote 76 The same resolution also reiterated “the obligation of Member States to prevent the movement of terrorist groups, in accordance with applicable international law, by, inter alia, effective border controls.”Footnote 77
Under the authority of the mentioned UNSC resolution and of the EU Directive (EU) 2017/541,Footnote 78 EU Member States were entitled both to prevent the travelling of individuals to States where the ISIL was active and to refuse the transit towards the countries of destination. According to an estimation, “50 000 persons have travelled to Syria and Iraq to join jihadist groups, including 5 000 individuals from the EU.”Footnote 79 Yet, neither the UNSC Resolution, nor the Directive authorize the States of origin of individuals, who have travelled Syria, to deprive them of their citizenship.Footnote 80
As mentioned in the introduction to this Article, there are still FTFs in Syria.Footnote 81 In addition to depriving the terrorist fighters of citizenship, a way to prevent these persons from returning home is the Member States of origin’s refusal to re-admit its nationals. It should be noted that such a practice may be in breach of Article 3(2) of the Protocol 4 to the ECHR, providing for the right to enter the territory of the State of nationality.Footnote 82 Did this provision cover the right to repatriation of family members of FTFs? This issue was raised for the first time in H.F.Footnote 83 The case concerned the repatriation of French nationals, two women and their children, who were held in difficult humanitarian conditions in Kurdish-run camps after the fall of the Islamic State. The parents of the two women applied to the Strasbourg court because the French authorities had refused to repatriate their daughters and grandchildren without undertaking an individual assessment of their case.Footnote 84 France argued that the applicants’ family members did not fall within its jurisdiction within the meaning of Article 1 of the Convention.Footnote 85 The ECtHR confirmed by majority that the exceptional circumstances of the case gave rise to a jurisdictional link with the victims of the violation. In particular, it was materially impossible for these persons to leave the camps in order to reach the French border or of any other state without the assistance of the French authorities.Footnote 86 In this ruling the Strasbourg Court did not hold that there was a right to repatriation, under Article 3(2) of Protocol 4 to the ECHR. The ECtHR makes clear that the ECHR does not guarantee a right to diplomatic protection by Contracting State for the benefit of any person within its jurisdiction.Footnote 87 Neither there was an obligation under international treaty law or customary international law for States to repatriate their nationals.Footnote 88 The ECtHR also stressed that there was no consensus at European level in support of a general right to repatriation for the purposes of entering national territory within the meaning of Article 3 § 2 of Protocol No. 4.Footnote 89 Consequently, French citizens being held in the camps in north-eastern Syria could not claim a general right to repatriation on the basis of the right to enter national territory.Footnote 90
Yet, the respondent State was found in violation of Article 3 (2) of Protocol 4 to the ECHR and was required to re-examine the requests to enter the French territory, while ensuring that appropriate safeguards are afforded against any arbitrariness. Indeed, France had failed to submit to an independent body from the government the examination of the request for repatriation made by the applicants, thus depriving the latter of any possibility to challenge the decision of the French authorities to reject the request of repatriation.
II. Readmission of Affected Children with EU Citizenship or enjoying a Right to Permanent Residence
In the previous section we have briefly mentioned the position of the FTFs and of family members who are refused readmission and we have shown that no right to repatriation is recognised by the ECtHR to family members of FTFs. It is now appropriate to consider whether the possession of the European citizenship could be a factor that might be relied upon by children who are EU nationals.Footnote 91 In Syria there are camps in which children of suspected ISIS terrorists live in difficult humanitarian situations. The rights of these children are surely affected by the decision to deprive FTFs of their nationality or the refusal to repatriate them.Footnote 92 Children cannot represent a security concern and have not carried out any illegal activity. They can be considered victims of terrorist fighters themselves.Footnote 93 Yet, they remain in detention centers with their parents and are exposed to violence without being able to return to their home country.Footnote 94 The United Nations High Commissioner for Human Rights has recognized that States have specific obligations vis-à-vis children who are associated with terrorist groups abroad. For example, children cannot be stripped of their nationality and they should be afforded consular protection.Footnote 95 It is now time to examine whether the EU citizenship provides an additional layer of protection for this specific category of EU citizens.
1. Children with EU Citizenship
Although the repatriation of EU nationals falls within Member States’ competence, the exercise of this competence is shaped by EU law. It is submitted that a child—EU citizen—of a FTF has the right to re-enterFootnote 96 and reside in the EU under the authority of the Ruiz Zambrano and the X (Thai national) rulings.Footnote 97 This is because the refusal to readmit a child of a FTF would deprive the minor of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen, as it was the case for Diego and Jessica Ruiz Zambrano.Footnote 98 Certainly, these children had a nexus with the EU territory whereas this is not the case for the child of a FTF who is located outside the EU territory. Yet, what mattered for the EU-derived right of residence of Diego and Jessica’s mother was that the children possessed the EU citizenship.Footnote 99 Their place of residence was not relevant. A confirmation that the location of the EU minor citizen is not decisive for them to benefit of his rights of EU citizen can be found in X (Thai national) ruling.Footnote 100 In this case it was held that the consequences for an EU minor citizen of being prevented from entering and residing in the Union are analogous to those deriving from being compelled to leave the territory of the country. In the X (Thai national) case the child who possessed the European citizenship had always lived outside the EU; therefore, they found themselves in a situation which might be similar to that of a child of a FTF. In the context of this ruling, the CJEU found that the refusal of a right of residence to the third country national, parent of a child who is a citizen of the Union, would undermine the substance of the rights of the child only if the latter was to enter and reside in the EU territory.Footnote 101 On the basis of this reasoning, the child of a FTF, who is located outside the EU, has a right to be readmitted to the EU because this is the only way for him to enjoy the rights deriving from the EU citizenship. Member States are under an obligation to facilitate readmission because they are bound both to respect art. 24(2) of the Charter of Fundamental RightsFootnote 102 and to safeguard the effet utile of the EU citizenship.
In principle, the child of a FTF enjoys an autonomous right of residence from their parents.Footnote 103 This right is subject to the condition that they are economically self-sufficient, that is, as long as their maintenance is assured.Footnote 104 Yet, for the purposes of our analysis, we will assume that a minor child of a FTF is dependent on the parent, who has followed the partner terrorist in Syria or elsewhere.Footnote 105 In case this parent is a third country national, they should be able to return to the EU and reside with the minor. Should the right of residence be refused to the parent, the child would be deprived of the possibility to exercise their rights of EU citizen, as in the circumstances giving rise to the Ruiz Zambrano ruling.Footnote 106
The intensity of the relationship of dependencyFootnote 107 between the parent third country national and the child is a determining factor for a national authority to decide on whether the parent of the child may be granted a right to reside in the EU. The age of the child is of fundamental importance. In the Chavez-Vilchez caseFootnote 108 the ECJ made clear that in making their decisions concerning the right of residence of third country nationals, national authority are required to take the right to respect for family life into consideration as well as the best interest of the child,Footnote 109 which is protected by the EU Charter of Fundamental Rights.Footnote 110 Scholars have convincingly argued that the best interest of the child, if not a general principle, is a kind of safeguard principle, which provides increased protection to migrant children.Footnote 111 They have also claimed that this principle safeguards the protection of the status of EU citizens who are in situation of dependency.Footnote 112 It may be claimed that on the basis of the possession of EU citizenship and of the best interest of the child, public authorities should re-admit to the EU territory children EU citizens and the parent from whom they are dependent.
2. Children with a Permanent Right of Residence
In case children of FTFs have merely a permanent right of residence,Footnote 113 they do not enjoy a right to be re-admitted in their country of residence together with their families. The Committee on petitions of the European Parliament has tabled a motion for resolution that advocated the approximation of the status of EU-long term migrant with that of European Union citizen; yet, this proposal was not retained in the final report voted by the European Parliament.Footnote 114 So long that such an approximation does not take place, long term migrants will not be able to enjoy additional rights from EU law. Notwithstanding the lack of EU rules, EU Member States may decide to follow OSCE’s recommendations to its members on the basis of which national authorities should ensure that “children with meaningful links to the state” are able to return and receive protection and support for reintegration, recovery and education consistent with their needs, taking all feasible measures to ensure that no child is rendered stateless.”Footnote 115 The italicized notion clearly encompasses at least children who enjoy a permanent right of residence in the EU Member States but also all those who can claim to have those links.
It is well documented that the countries of origin of children who are living in Al Hol and Roj camps in Syria are reluctant to take them back home. This was stated in 2021 by the Special Rapporteurs of the UN Human Rights Council, including Fionnuala Ní Aoláin, Special Rapporteur on the promotion and protection of human rights while countering terrorism. These rapporteurs urged fifty-seven States to repatriate 64,000 people, mostly women and children—who are held in the mentioned camps in northeast Syria.Footnote 116 These persons come from various countries, including EU member States such as Austria, Belgium, Denmark, Finland, France, Germany Poland, Romania, Portugal, Spain, and Sweden.Footnote 117 States have an obligation to protect their nationals when they are abroad and are exposed to breaches of human rights as it happened in the mentioned camp.Footnote 118
An open approach to repatriation was taken by Russia, Kosovo, and Indonesia;Footnote 119 Kazakhstan repatriated children in 2019 and Kyrgyzstan re-admitted eighty-three citizens including twenty-one women and sixty-two children held in camps in north east of Syria in 2023.Footnote 120 In contrast, EU countries seem to have taken a more restrictive approach to repatriation,Footnote 121 despite the requests made by the Autonomous Administration of North and East Syria (AANES), the de facto authority in northeast Syria, to take their nationals back.Footnote 122 Countries which are particularly affected by the foreign fighters phenomenon such as Belgium,Footnote 123 France,Footnote 124 Germany,Footnote 125 the Netherlands, and Sweden have eventually taken the decision to repatriate women and children in many cases.Footnote 126
G. Conclusions: EU Citizenship as an Obstacle to the Deprivation Citizenship
Even though the deprivation of citizenship is a matter of national law, there is a distinct EU law dimension that Member States must take into account when deciding to strip an individual of their citizenship. The justifications to deprive of citizenship on grounds of public policy or public security should be interpreted narrowly taking into consideration the consequences that the loss of EU citizenship would have on individuals and on their family members, especially if they are also EU citizens. Beyond this general proposition, the parameters of the assessment are left to the national authorities. EU law does not provide guidance on the reasons why it is possible to resort to the deprivation of citizenship. This is because on the one hand, the EU lacks competence on the attribution or deprivation of citizenship and on the other hand, the principle of proportionality is inherently flexible, it has a “protean nature,”Footnote 127 and it does not stand in the way of stripping citizenship, be it as a punitive or as a preventive measure.
All this does not mean that Member States enjoy unfettered discretion. The CJEU may intervene in monitoring national authorities’ invocation of public interests when stripping individuals of their nationality.Footnote 128 The obligation to have “due regard” to EU law in this context has transformed the power to deprive an individual, who is a dual national, of their citizenship into a national prerogative which is subject to limits under EU law. Thus, Member States’ decision on who is or is not a constituent of its polity is subject to EU conditions laid down by the CJEU, which must be respected.
In this Article, we have suggested that the possession of EU citizenship could be a factor to be taken into consideration by national authorities when assessing the proportionality of the decision to deprive a FTF of their nationality. In addition to weighing up the interference that such a decision has on human rights, in particular on the right to private and family life, the national authorities should also consider the possession of the EU citizenship as an obstacle to the deprivation of citizenship. Indeed, the loss of Union citizenship deprives the Union citizen of the possibility to enjoy the substance of their, EU-derived, rights. It is possible that respect for private and family life, as protected by national law, may be successfully invoked by applicants as shown by the Danish decision of March 2023.Footnote 129
Yet, the case law of the Court of Justice is an additional instrument that could be used by dual nationals who are stripped of their citizenship to oppose this national decision on the ground that the individual in question does not pose a present threat to security and that the consequences of the deprivation of the national citizenship have a permanent effect on their status of EU citizenship. EU citizenship thus offers a further layer of protection against the deprivation of citizenship; if this was not the case, then EU citizenship would be deprived of its effet utile. It should be stressed that, should a national court be presented with the question whether a national authority has correctly complied with the case-law of the CJEU concerning the European citizenship, it may not necessarily follow this reasoning. The national court may consider that, in the circumstances of the case, a FTF presents a permanent threat to the fundamental interests of society. This may lead to uphold the decision to strip the individual of their nationality.
A further issue touched upon in this Article concerns the repatriation of FTFs and their family members. In exercising their competences, Member States should respect Article 3(2) of Protocol 4 to the ECHR, as shown in Section F. Yet, in H.F. and others Footnote 130 the family members of FTF and their children were not recognized the right to be repatriated. Turning to children of FTFs, they can benefit from the principles of the Ruiz Zambrano ruling.Footnote 131 Children should be able to return to their country of nationality with their parents, if they are dependent on them; this is the only way for the children to be able to fully enjoy their rights as Union citizens. We consider that such an interpretation is corroborated by the principle of the best interest of the child, which is encapsulated in Art. 24(2) of the Charter of Fundamental Rights. The possibility to repatriate children should also be extended to children who have a close link with an EU member State, such as long-term residency. In principle, the EU does not have a competence to decide about repatriation of EU nationals and therefore so far a common approach has not been taken at EU level on this issue. Because EU citizenship is the fundamental status of Member States’ nationals, it is submitted that the Council could take a common approach with respect to FTFs; more precisely, there should be a minimum common position on at least the return of children of these persons if they are EU citizens.
Acknowledgements
The authors wish to thank Cécile Rapoport for her support and Finn Corcoran for the language editing. The usual disclaimer applies. The preliminary findings of the research leading to this publication were published in S. Poli, L. Lonardo, The deprivation of citizenship of foreign terrorist fighters and their family members and the problem of repatriation of these persons through the lens of EU law, 1 EUI working Paper, Department of Law, 1–32 (2024).
Competing Interests
The authors declare none.
Funding statement
The research at the basis of this Article was funded by the Jean Monnet network “PROJECT NUMBER - 620541-EPP-l-2020-l-UK-EPPJMO-NETWORK EU COUNTER TERRORISM NETWORK, (EUCTER) and by Progetto di Ricerca di Ateneo (PRA 2022-2024) ‘Le sfide della statualità contemporanea: governo, cittadinanza e conflitti tra poteri.’
Authorship Note
Sara Poli is Professor of European law at the University of Pisa (Italy) and visiting professor at LUISS (Italy). Luigi Lonardo is Lecturer at University College Cork, where he is Acting Director of the Centre for European Integration; he is also adjunct faculty at Sciences Po Paris. Sara Poli is the author of Sections D, E and F; Luigi Lonardo has written Sections B and C. The introduction and conclusions were jointly written.
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