if it takes place without due process.80 According to the European Court of Human Rights (ECtHR), “[i]n determining arbitrariness, the Court should examine whether the impugned measure was in accordance with the law; whether it was accompanied by the necessary procedural safeguards, including whether the person deprived of citizenship was allowed the opportunity to challenge the decision before courts affording the relevant guarantees; and whether the authorities acted diligently and swiftly.” 81 The decision should also consider the consequences of deprivation of nationality for the applicant. Furthermore, “deprivation of nationality must be the least intrusive means and effective means of achieving the stated legitimate purpose.” 82 32. Article 42 of the Swiss Citizenship Act provides that Swiss nationality may be revoked if a person’s conduct is seriously detrimental to the interests or the reputation of Switzerland, provided that the person concerned does not become stateless. The ordinance to the SCA specifies which crimes amount to a serious damage to Switzerland’s interests or reputation and that a criminal conviction is necessary, except when a state is not willing or able to pursue a criminal procedure. The deprivation procedure itself is not established in law. In recent years, Switzerland has deprived two persons of their Swiss nationality, including a woman who was left in a Kurdish detention camp with her three minor daughters all of whom had Swiss nationality. Several cases are currently pending. 33. Given that the deprivation procedure can be held in absentia and without a criminal conviction in the case of alleged ‘foreign fighters’ resident abroad, the practice of deprivation of Swiss nationality bears a very high risk of being arbitrary and hence in violation of international legal standards. Moreover, the fact that Article 42 SCA can only be invoked against dual nationals creates a difference in treatment as compared to nationals who only hold Swiss nationality. This leads to indirect discrimination against Swiss nationals from particular minority groups, mainly members of religious or ethnic minorities. Maintaining such a system also has a stigmatising effect on these communities and can negatively impact on social cohesion. 34. Thousands of children of alleged ‘foreign fighters’ are currently detained in Syria and Iraq and live in dire conditions, unable to access basic rights and services, which impacts on their right to a nationality, legal identity, and immediate birth registration.83 Research has found that there is a risk of statelessness among children associated with alleged ‘foreign fighters’, particularly related with three key factors: the lack of documentation or lack of recognition of documents issued by non-State actors, barriers to establishing nationality through family links, and derivative deprivation of nationality.84 These risks 80 UNHCR, ‘Guidelines on Statelessness No. 5: Loss and Deprivation of Nationality under Articles 5-9 of the 1961 Convention on the Reduction of Statelessness’, (May 2020), HCR/GS/20/05, para. 91 and para. 94. 81 ECtHR, Usmanov v. Russia, Application no. 43936/18, (22 December 2020), para. 63. 82 Communication by UN Mandate Holders and Experts to the Netherlands on the case of Fatima Habitat, (8 December 2021), Ref UA NLD 4/2021, p. 7, available at: https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26814; Institute on Statelessness and Inclusion, ‘Principles on Deprivation of Nationality as a National Security Measure’, (2020), Principles 7.5.2 and 7.5.3, available at: https://files.institutesi.org/PRINCIPLES.pdf; Human Rights Committee, ‘CCPR General Comment No. 27: Article 12 ICCPR (Freedom of Movement)’, (1999), CCPR/C/21/Rev.1/Add.9, para 14; UNHCR, ‘Guidelines on Statelessness No. 5: Loss and Deprivation of Nationality under Articles 5-9 of the 1961 Convention on the Reduction of Statelessness’, (May 2020), HCR/GS/20/05, para. 91 and para. 94. 83 UN Office of the High Commissioner for Human Rights, ‘Syria: UN experts urge 57 States to repatriate women and children from squalid camps’, (8 February 2021), available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26730. 84 Dr Rachel Pougnet and the European Network on Statelessness, ‘Risks of childhood statelessness for the children associated with alleged ‘foreign fighters’ detained in Syria and Iraq’ (October 2021), available at: http://www.bristol.ac.uk/medialibrary/sites/policybristol/briefings-and-reports-pdfs/2021/PolicyBristol_Report67_Pougnet_childhood-statelessness-risks.pdf; 11