be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others .175 101. To consider whether a restriction on a right is “necessary , the test that is mostly used is that of “least intrusive or “least restrictive means. Indeed, according to the Secretary-General, “ m easures leading to the deprivation of nationality … must be the least intrusive instrument of those that might achieve the desired result, and they must be proportional to the interest to be protected. 176 Further, the deprivation of nationality must be the least intrusive means necessary of those that might achieve the desired aim of the State.177 According to, for instance, the Court of Justice of the European Union (CJEU), this means that “ … when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued .178 102. From case law on the ECHR, it follows that interferences with human rights need to be necessary in a democratic society,179 which entails a slightly different test than the one described above. With regard to Article 8 of the ECHR specifically, the European Court of Human Rights has held that “necessity entails that “the interference must correspond to a pressing social need, and, in particular, must remain proportionate to the legitimate aim pursued .180 In assessing whether an interference was “necessary it is the duty of the State to demonstrate the existence of the pressing security, social, or economic (and so forth) need behind the interference.181 Also, it is not just the use of powers in a specific situation that must be necessary, but also the introduction of general measures or new powers. 103. The effectiveness of the framework of administrative measures, including deprivation of nationality, should be monitored and progress towards expected results should be tracked.182 This indicates that the necessity of nationality deprivation in a national security context should be carefully considered. Furthermore, “States should also consider whether the person still poses a terrorist threat and include any new facts, information or current assessments ,183 showing that the necessity of a measure must be based on current threat. This is particularly important in the context of nationality deprivation, as this is permanent, whereas administrative measures generally are of a temporary nature.184 This therefore breaches the rule of necessity. 104. Necessity should be taken into account at the policy and decision level. For the purpose of the principle here, also in light of the above, for nationality deprivation to be “strictly necessary , the State should have fully explored all other (existing), less intrusive options before introducing (new) citizenship stripping powers. The State must consider whether the (new) powers are effective to 175 Art. 52(1) Charter of Fundamental Rights of the EU. UN Human Rights Council, ’Human rights and arbitrary deprivation of nationality: Report of the Secretary-General‘, A/HRC/13/34 (2009), para 25. 177 See UNHCR, ’Tunis Conclusions‘ , para , see also UNHRC Guidelines No 5 (2020), para 94. 178 CJEU, United Kingdom v Commission (1998), Case C-180/96, para 96. 179 See, for instance, Art. 8(2) ECHR. Article 8(2) ECHR also lists broad legitimate purposes for interferences with this right: “in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 180 ECtHR, Piechowicz v Poland (2012), Application no. 20071/07, para 212. 181 ECtHR, Piechowicz v Poland (2012), Application no. 20071/07, para 212. 182 Glion Recommendations (2019), p. 13. 183 Glion Recommendations (2019), p. 12. 184 Glion Recommendations p. : “Generally, administrative measures are temporary measures imposed on an individual . 176 56

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents