re-enter their country, before deporting them, and if this cannot be guaranteed, to suspend
deportation and therefore detention with a view to deportation, and to regularize their stay.
The Court also requires States to award effective and adequate remedies; these cannot be
limited to the issuance of retroactive residence permits but must also include full
compensation for the harm caused by the arbitrary deprivation of nationality. For the Court,
a failure to apply for citizenship is not a reasonable ground for depriving a group of aliens
of their residence permits. Such discriminatory treatment has been found to violate the right
to private life and/or family life as well as property rights.
3.4 The Court of Justice of the European Union
Article 67(2) of the Treaty on the Functioning of the EU (TFEU) in conjunction with Article
352 TFEU provide the legal basis for EU competence regarding stateless persons. While
some secondary legislation assimilates stateless persons with third-country nationals (e.g.,
qualification for international protection directive 2004/83/EC and 2011/95/EU (recast), or
long-term residence directive 2003/109/EC), others treat them on an equal footing with EU
citizens (e.g., regulation 883/2004 regarding social security benefits).174
According to the Court of Justice of the EU (CJEU), it is the duty of the Member States to lay
down the conditions for the acquisition and loss of nationality, with due regard to EU law. 175
The CJEU describes citizenship of the Union as the fundamental status of nationals of the
Member States.176 In the case Rottmann v Bayern, Dr Rottmann, an Austrian national by birth,
had obtained German nationality by naturalization. This was then withdrawn because it had
been obtained fraudulently, through deception. According to Austrian law, he lost his
Austrian nationality upon acquiring German nationality, without being entitled to recover it
automatically should his German naturalization be withdrawn. He was therefore made
stateless. The CJEU found the German decision to be consistent with EU law and human
rights law more generally, including Article 8(2) of the Convention on the Reduction of
Statelessness and Article 7(1) and (3) of the European Convention on Nationality according
to which a person may be deprived of the nationality of a Contracting State if he or she has
acquired that nationality by means of misrepresentation or act of fraud. The CJEU further
found this to be in keeping with ‘the general principle of international law that no one is
arbitrarily to be deprived of his nationality’ (i.e., Article 15(2) UDHR, and Article 4(c) of the
European Convention on Nationality). For the CJEU, ‘When a State deprives a person of his
nationality because of his acts of deception, legally established, that deprivation cannot be
considered to be an arbitrary act’,177 even if he thus becomes stateless.178 However, any such
See, European Network on Statelessness, ‘Submission to the European Commission Consultation on the future
of Home Affairs policies: An open and safe Europe – what next?’, January 2014.
175 Case C-369/90 Micheletti and Others [1992] ECR I-4239, para.10; Case C-200/02 Zhu and Chen [2004] ECR I-9925,
para.37; Case C-135/08 Rottmann v Bayern [2010] ECR I-1449, para.39.
176 Case C-184/99 Grzelczyk [2001] ECR I-6193, para.31; Case C-413/99 Baumbast and R [2002] ECR I-7091, para.82;
Rottmann, para.43.
177 Rottmann, para.53.
178 Ibid, para.52.
174
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