There is no such thing as a European code regulating access to (and loss of) European citizenship. Whoever wants to know how to gain or lose EU citizenship, has to carefully read through the legislation of 27 different EU Member States. The fact that the number of Member States recently decreased by one is of little help. This is precisely the aim of the report I wrote for GLOBALCIT entitled Citizenship Loss and Deprivation in the European Union (27 + 1) (the report includes the United Kingdom, not only out of habit, but also because it is a major inspiration for other Common Law countries – Cyprus, Ireland and Malta – and EU countries more broadly).
At first sight, any analysis of the current legislation (which can be found on the GLOBALCIT database) might seem complicated. Citizenship legislation of EU Member States is indeed the result of various constitutional identities. As rightly put by Marcel Prélot in 1948, a famous French lawyer, “to fully understand the domain of constitutional law, one should get right down […] to the problem of nationality.” Nationality is closely connected to exclusive and jealous identities of each individual Member State. However, an in-depth analysis shows that, beyond apparent diversity, EU Member States share common principles and rules, and frequently behave with the same aims: ‘In varietate concordia.
EU ‘basic law’ on loss of citizenship: renunciation and fraud
The EU Member States share a typical structure. Nationality laws are primarily based on voluntary and involuntary loss. The loss is considered voluntary if the procedure is initiated by an individual, and involuntary if initiated by a public authority (e.g., government, court, etc.).
Voluntary loss of nationality (i.e., at the initiative of the individual) is frequently called ‘renunciation’. All 27 (+1) Member States allow renunciation as a way to terminate the nationality, making it the most widespread mode of loss. Prevention of statelessness applies in all cases and prevents the risk of the individual being left without any nationality, in full compliance with international and European law.
In some countries like Luxembourg, the Netherlands and Portugal, statelessness prevention is the only obstacle to the renunciation, which makes individuals free to repudiate their nationality by a sole act of will (in case of multiple nationalities). In the vast majority of countries, however, the renunciation is subject to various conditions, such as completion of military duties, fiscal obligations or residence abroad. Conversely, in some other countries like Poland, release of nationality is only granted through the discretionary consent of the head of state. Thus, if renunciation is undoubtedly one of the basic principles of EU 27+1 rules on the voluntary loss of nationality, the ease of access to this procedure is radically different from one Member State to another.
On the ‘involuntary’ side (i.e., at the initiative of the public authority), loss of a nationality acquired by fraud is, by far, the most widespread mode of loss among EU members: 24 Member States (plus the United Kingdom) have formal provisions for this mode of loss (in Croatia, Poland, and Sweden, where there are no formal provisions, revocation is probably still possible though application of general principles of administrative law). This mode of loss follows the Latin adage ‘fraus omnia corrumpit’, i.e., the discovery of fraud nullifies the decision based on it. The operative event of the fraud refers to the bad faith of the individual: forged documents, wrong information, concealed facts, misleading information, retention of information, etc.
Some Member States define a limited time period for launching the procedure following citizenship acquisition, guaranteeing a certain degree of legal certainty. For instance, this period varies from five (Belgium, Finland, and Germany) to ten years (Bulgaria, Hungary, and Latvia), and reaches twelve and fifteen years in the Netherlands and Spain respectively. Because of the seriousness of a fraudulent acquisition, international law does not require States to prevent statelessness – only Bulgaria and Luxembourg formally forbid the loss of nationality in this situation. Together with renunciation, loss of nationality acquired by fraud lay the shared foundations of the EU Basic Law on voluntary and involuntary loss of citizenship. One other mode may join them in the foreseeable future.
Recent trend: nationality revocation in case of terrorism
Many Member States are changing their laws, or adopting new provisions, to facilitate nationality deprivation for individuals related to terrorist activities (most notably those connected to ISIS), in an attempt to prevent their nationals from returning to Europe – using revocation as a modern form of exile or banishment. This development first emerged in the 2010s and is now on the rise.
The United Kingdom is leading the charge among liberal democracies using nationality revocation as a way to banish its citizens suspected of, or convicted for, terrorist activities. From the early 2000s, UK legislation empowers the government to target every British citizen on the grounds of vague and discretionary standards – “conducive to the public good” – and is quite light on statelessness prevention – absolute protection being put aside when “vital interests” are at stake. From only a few cases every year the figures exploded to 104 in 2017. The last figures recently disclosed by the Home Office in March 2020 indicate that 21 individuals were deprived of British citizenship in 2018. Many cases have been reported in the British and international press, such as the recent case of Shamima Begum.
Following the UK example, other EU Member States are now widely adopting this strategy. Between 2015 and 2017, Austria, the Netherlands and Bulgaria decided to amend their legislations to target individuals suspected of terrorist activities. This trend is now rapidly spreading, with Member States not only extending their legislation, but also creating laws specifically designed for terrorist activities and foreign fighters. In 2018, Italy created new provisions targeting naturalised citizens convicted for terrorist activities, without any formal prevention of statelessness. Germany created new rules in 2019 to target its citizens fighting alongside foreign terrorist groups. Finland introduced a new case for nationality revocation in 2019, targeting Finnish citizens who are sentenced to five years of imprisonment for treason, high treason, or terrorism. Finally, Denmark extended its legislation in 2019 to target foreign fighters.
This situation raises questions, especially in the EU where all Member States clearly affirmed their commitment to “the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law” stated in the preamble of the Treaty on European Union. The EU unformal ‘Basic Law’ on Loss of Citizenship could thus benefit from the Article 4 of the recent Principles on Deprivation of Nationality, stating that “States shall not deprive persons of nationality for the purpose of safeguarding national security.”