“Everyone has the right to a nationality”

Thoughts on Strategic Litigation: Can EU law prevent and reduce Roma statelessness in Europe?

2 April 2015 | ADAM WEISS, LEGAL DIRECTOR, EUROPEAN ROMA RIGHTS CENTRE

The Court of Justice famous weighed in several years ago on the relevance of EU law to situations where EU citizens are made stateless (Case C-135/08, Rottmann). This has led to discussion, including on this blog, about how EU law might apply more broadly to situations of statelessness in Europe.  The purpose of this piece is to continue that discussion and illustrate its urgency by pointing to two realistic examples of Roma statelessness in Europe and speculating about how they could raise Rottmann-like points. In the process, this blog sketches out two potential cases for strategic litigation designed to elicit from the courts a broader view of the role of EU law, and specifically the notion of Union citizenship, in preventing and reducing statelessness in the Union.

Inability to renew identity documents in Bulgaria

The first example comes from Bulgaria.  Bulgarian national identity cards include a registered address. Many Roma Bulgarian citizens have left the homes where they had their registered addresses; often this is part of a movement from rural to urban areas in search of job opportunities.   Like many people moving from rural to urban areas, they often are unable to produce a property deed or a tenancy agreement.  As a result, when their identity cards expire, they cannot not renew them.  Without valid identity cards, people cannot renew their passports and may be refused health care, education, and access to other services to which they normally have a right. The problem is described powerfully in an NGO-made video, “Being Mr Nobody”. In the long term, it creates a risk of statelessness: without valid identity documents (particularly in the context of general anti-Roma racism in Bulgaria and across Europe), the Bulgarian authorities may refuse to recognise these people as Bulgarian citizens at some point in the future.  As in Serbia, a lack of valid documents may also eventually cause problems for birth registration, raising the spectre of stateless children. Bulgaria will eventually join the border-free Schengen zone: it is not difficult to imagine a Bulgarian family without valid identity documents moving to another EU Member State and having children there, and the Bulgarian authorities someday refusing to acknowledge that the family (or at least the children) are Bulgarian citizens.

The problem raises many issues under EU law. For example, under Directive 2004/38, Bulgarian citizens can use their national identity cards to exercise their free movement rights under Articles 20 and 21 of the Treaty on the Functioning of the EU. Any restriction on the renewal of identity cards is a restriction on the freedom of movement and must therefore be proportionate, under the relevant CJEU case law. It seems hard to justify the current Bulgarian system. 

Highlighting this as a statelessness issue adds legal value to what is otherwise a dry proportionality argument.  It allows us to explore the relevance of the Rothmann judgment to factually different situations.  It also allows us to name in law what is more than a simple free-movement problem. The social exclusion of Roma through a long history of oppression is a Europe-wide phenomenon and what appear to be neutral administrative requirements interact with the vulnerable status of Roma communities to lock them out of a wide range of rights.  A restriction on free movement rights does not capture, in legal terms, the exclusionary structure in place. Statelessness does, even if the focus, under EU law, would be on the loss of the rights associated with Union citizenship as opposed to national citizenship. Given that the situation already engages other areas of EU law, this makes a good subject for strategic litigation to expand on the gains made in Rottmann.

Inability to naturalise in Italy

Significant numbers of Roma moved from what was Yugoslavia to Italy in the 1990s. Many Romani children, now coming of age, were born to those who moved. The break-up of Yugoslavia is a well-known cause of statelessness.  Italy provides a mechanism for those over 18 who were born and grew up in Italy to naturalise there.  However, many Roma young adults in this situation are unable to naturalise because they did not secure residence permits as a child. The European Roma Rights Centre has reported that the movement of Roma from Yugoslavia to Italy in the 1990s has potentially left tens of thousands of Roma stateless there. 

It could be argued that there is a breach of Article 8 ECHR: the refusal of a naturalisation application is arguably an interference with the right to respect for private life (following the judgment in Genovese v Malta), and it hardly seems necessary in a democratic society (i.e. proportionate) to refuse it to someone because she failed to take certain steps as a child.  It is not a straightforward argument, though, as judges deciding on human rights grounds alone may be reluctant to make a judgment that amounts to requiring a State to naturalise someone as its citizen, contrary to its laws or administrative regulations. EU law might be a game-changer. But Rottmann (like the Bulgarian case above) dealt with a recognised Union citizen losing his Union citizenship. Does Union law have anything to say about people who were born and raised in the Union who are nonetheless stateless? Given that EU law in this area (like Article 8 ECHR) is fundamentally about proportionality, the Italian case may be a good one to litigate strategically, again, with the aim of eliciting from the courts a broader understanding of EU law’s role in reducing statelessness. This is nonetheless riskier than the Bulgarian case.

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As is sadly often the case, the particular vulnerability of Roma means that their situations provide good testing grounds for seeing how EU law can be used to advance fundamental rights. These two examples are meant to show that moving forward the Rottman jurisprudence is more than a question of theory. 

Register now for the European Network on Statelessness conference “None of Europe’s Children Should be Stateless” which will take place in Budapest on the 2nd and 3rd June 2015. More information is available here.

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