The risk of statelessness increases the likelihood that deprivation may be seen as arbitrary, even if it is not a necessary element. The 2004 ruling of the Eritrea-Ethiopia Claims Commission (established under the Permanent Court of Arbitration to determine claims for loss and damage relating to the war between the two states that broke out in 1998) stated that: [I]nternational law limits States’ power to deprive persons of their nationality. In this regard, the Commission attaches particular importance to the principle expressed in Article 15, paragraph 2, of the Universal Declaration of Human Rights, that “no one shall be arbitrarily deprived of his nationality.” In assessing whether deprivation of nationality was arbitrary, the Commission considered several factors, including whether the action had a basis in law; whether it resulted in persons being rendered stateless; and whether there were legitimate reasons for it to be taken given the totality of the circumstances.306 Deprivation on grounds of fraud or criminal offences Deprivation of nationality on the grounds that it was fraudulently acquired is also subject to limits. The UNHCR Guidelines on Statelessness No. 5, commenting on Article 8(2)(b) of the 1961 Convention in relation to deprivation of nationality on grounds of fraudulent acquisition, note that: [T]here is a clear implication that the misrepresentation or fraud must have been a key causal factor in the person concerned acquiring nationality in the first place. Deprivation of nationality is not permissible if the nationality would have been acquired even if the misrepresentations or concealment had not occurred. In addition, fraud or misrepresentation in the acquisition of nationality should be distinguished from fraudulent acquisition of documents that may be submitted as part of the process to acquire nationality. Fraudulent documents are not in themselves evidence of fraudulent acquisition of nationality, as persons may in certain situations be forced to obtain documents by irregular means even if they have a legal entitlement to nationality.”307 Moreover, provisions on loss and deprivation should be proportionate to a legitimate aim.308 Whether sufficient consideration has been given to these principles will be a question of fact. The European Court of Human Rights refused to strike down Malta’s decision to revoke acquisition of nationality that had allegedly been fraudulently acquired, on the basis that the decision had had a clear legal basis under the relevant national law, hearings and remedies had been consistent with procedural fairness, and the person had not shown that he was rendered stateless.309  The Court of Justice of the European Union (CJEU) has separately developed a line of jurisprudence on the criteria that must be considered in such cases.310  In the Rottmann case, concerning withdrawal of nationality on the grounds that naturalisation had been fraudulently obtained, the CJEU found that such a withdrawal could potentially be justified, even if the person is rendered stateless, but it required an evaluation of proportionality in relation to the particular facts of the case.311  In Tjebbes, the CJEU set out procedural requirements for a case-by-case consideration in denationalisation cases, rather than allowing automatic loss (in this case, for residence outside of the country).312  In JY, the CJEU developed the arguments on proportionality, finding that the decision of the Austrian authorities to revoke nationality acquired by naturalisation on the grounds of traffic offences was not proportionate.313 National courts have also considered the question of disproportionality. In the Rottmann case, the German Federal Administrative Court subsequently found that the administrative decision to withdraw the German nationality was proportional, despite the uncertainty about the restoration of the Austrian nationality of the applicant.314 In 2008, however, the German Federal Administrative Court ruled that the withdrawal of nationality granted to stateless minors 306 Award of the Eritrea-Ethiopia Claims Commission in Partial Award (Civilian Claims), 44 ILM 601 (2005) at para. 60, https://pca-cpa.org/en/cases/71/. UNHCR, Guidelines on Statelessness No. 5, supra n 103, para. 51. Compare the Convention relating to the Status of Refugees, 1951, art 31, in relation to “illegal entry or presence”. 307 308 Ibid., para. 52 & 94. 309 Ramadan v. Malta (application no. 76136/12), 21 June 2016. For a survey of the development of this jurisprudence, see Gerard-René de Groot and Ngo Chun Luk, “Twenty Years of CJEU Jurisprudence on Citizenship”, German Law Journal Vol. 15, no. 5 (2014), pp 821–34. 310 Janko Rottmann v. Freistaat of Bayern, Case C-135/08, Court of Justice of the European Union, Judgment of 2 March 2010, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62008CJ0135. The case was then sent back to the national courts for consideration based on this ruling. 311 M.G. Tjebbes and Others v Minister van Buitenlandse Zaken, Case C-221/17, Court of Justice of the European Union (Grand Chamber) Judgment of 12 March 2019, https://curia.europa.eu/juris/liste.jsf?nat=or&mat=or&pcs=Oor&jur=C&num=C-221%252F17. 312 JY v Wiener Landesregierung, Case C-118/20, Court of Justice of the European Union (Grand Chamber), Judgment of 18 January 2022, https://curia.europa. eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=C-118/20&jur=C. 313 Judgment 5 C 12.10, German Federal Administrative Court (Bundesverwaltungsgericht), 11 November 2010, case summary at https://caselaw.statelessness. eu/caselaw/germany-federal-administrative-court-judgment-5-c-1210-rottmann. 314 74 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S