2019
Statelessness & Citizenship Review
1(2)
the ‘wrong’ group of people to be subjected to citizenship deprivation. Since
‘community ties’ are not considered or wrongly considered at this level, a
subsequent expulsion decision can easily be blocked because of the (previously
not considered) individual’s art 8 ties. Experience teaches us that subsequent
expulsion decisions will generally happen, because denationalising an individual
without subsequently expelling them will allow the individual to stay on the
territory, albeit as a non-citizen. However, from security perspectives, the
citizenship status of an individual is irrelevant. Having the ECtHR consider the
applicant’s community ties already at the level of the measure potentially leading
up to expulsion, might avoid such discrepancies. The Court’s established case law
on art 8 in the context of expulsion has taught us that they hold a ‘realistic’ view
of community ties — unlike the Belgian authorities — which they could then
extend to the level of the deprivation decision.
Although the ECtHR does not consider citizenship deprivation as an explicit
discrimination issue, nationality legislation is a field of law where many
differences are installed. This opens the door for an examination under art 14
ECHR, most often in combination with art 8 ECHR. For example, Belgian
legislation installs a difference between children born Belgian as a consequence
of being born to Belgian parents, and children who became Belgian as a
consequence of their parents acquiring Belgian citizenship. 138 Is such a difference
maintainable from the perspective of the prohibition of discrimination? From
analysing the ECtHR’s case law we learn that it is not. No objective justification
could be found for treating both categories of Belgian nationals differently. Unlike
the ECHR’s (current) protection in the context of private and family life, 139 its
case law on the prohibition of discrimination in the context of nationality issues
seems to offer more redress for the individuals targeted by denationalisation
polices.
138 CBN (n 5) arts 8(1) 1°, 12, 23–23/2(1).
139 ECHR (n 7) art 8.
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