“Everyone has the right to a nationality”

ECHR and citizenship: The case of Genovese v. Malta

11 October 2011 | Sebastian Köhn

The European Court of Human Rights today issued a decision in the case of Genovese v. Malta. It found that there had been a violation of article 14 in conjunction with article 8. The case was submitted to the Court almost exactly two years ago and concerns a young man who was born out of wedlock to a British mother and a Maltese father. The applicant has British nationality, but also sought to become a Maltese national (based on his father being a national). 

After a number of administrative hurdles had been overcome, the applicant learnt that he was not eligible for Maltese nationality because he was born out of wedlock. Under Maltese law at the time, only the mother was able to confer nationality if the child was born out of marriage (the law has since changed). I’ve written about this form of ‘reversed’ gender discrimination in nationality law before - it is, for instance, still the norm under US law in certain circumstances.

The government made a number of arguments (for example that there was no violation of the right to family life (article 8) because the father had rejected his son). But the Court took a broader view and considered the notion of private life more generally, and found that the denial of citizenship had a negative impact on the applicant’s ‘social identity’:

’..even in the absence of family life, the denial of citizenship may raise an issue under Article 8 because of its impact on the private life of an individual, which concept is wide enough to embrace aspects of a person’s social identity. While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of Article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that Article.” 

As for the discrimination argument (article 14), the applicant argued that there were two forms of discrimination at play: 

  1. Gender discrimination because the father was not permitted to confer nationality to his son;
  2. Discrimination on the basis of his ‘illegitimate’ status (I hate that word!)

The Court found that the applicant had been discriminated against as a person born out of wedlock. But because it found this violation it did not think it was necessary to also consider if there was sex discrimination involved in the case. Having said that, the Court did say:

The Court notes that the only other reason put forward by the Government is the social reality of such cases and the fact that, while a mother is always certain, a father is not. The Court cannot accept this argument.

There was one dissenting opinion by Judge Valenzia - coincidentally the Maltese judge in the Chamber.

This case is important because it confirms, again, that while citizenship is not a Convention right per se there are circumstances under which denial or deprivation of nationality will raise issues under article 8.

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