After discovering that the applicant had omitted information when applying for Russian nationality, his nationality was annulled and an entry ban was enforced. The Court applied a two-pronged approach to assess whether the deprivation of the applicant’s nationality was an interference with his right to private and family life, which assessed (i) the consequences for the applicant, and (ii) whether the measure was arbitrary. In light of the far-reaching consequences of this decision and its apparent arbitrary nature, the Court held that the annulment interfered with the applicant's rights guaranteed under Article 8 ECHR. Further, the Court found that the expulsion of the applicant from Russian territory failed to respect the principle of proportionality, given the lack of evidence of any threat to Russian national security posed by the applicant, thereby violating Article 8.
- Russian Citizenship Act Section.22
- Regulation on the Examination of Issues Related to Citizenship of the Russian Federation Section.54
- Presidential Decree no. 398 of 17 June 2020 amending Section.54 of the Regulation
Council of Europe
- European Convention on Nationality, Art. 7
- European Convention on Human Rights, Art. 8
The applicant was born in Tajikistan in 1977, at the time one of the Soviet Republics. He later married in 2001, and the couple had 2 children born in 2001 and 2003. In 2007 the applicant, his wife and children moved to Russia, where he received a three-year residence permit in 2008. That same year the applicant filed for Russian citizenship under the simplified naturalisation procedure for former citizens of the USSR.
While filling out the naturalization paperwork the applicant neglected to mention his two other brothers and two sisters as ‘close relatives’, which the applicant claimed was the result of the officer on duty telling him it was not necessary to list all of his relatives. On 15 July 2008 the application was granted citizenship, and his wife and two children were granted citizenship on an unspecified later date. Additionally, the applicant had two more children, born in 2009 and 2016.
In 2017 the Novgorod Regional Department of the Ministry of the Interior (‘DMI’) applied to the Novgorod District Court to have it established as a legal fact that the applicant had submitted false information regarding his siblings while applying for citizenship. the District Court allowed the application and dismissed the argument that the officer on duty had advised the applicant to not list all of his relatives on the grounds that the evidence was unsubstantiated.
The applicant appealed the decision to the Novgorod Regional Court and the Supreme Court of Russia, both of which dismissed the appeal. Similarly, the applicant challenged the compatibility of section 22 of the Russian Citizenship Act with the Russian Constitution. The Constitutional Court in 2019 refused to examine the complaint on the merits.
On 5 April 2018 the DMI annulled the applicants Russian citizenship, his internal passport, and travel passport, leaving the applicant without any valid identity documents. Moreover, on 12 April 2018 the Novgorod Regional Department of the Federal Security Service drew up a decision imposing a thirty-five-year entry ban on the applicant on the basis that he was a threat to national security and public order. The Regional Court and Supreme Court refused to hear the applicant challenge to this entry ban. In August 2018 the DMI informed the applicants of his obligation to leave Russian territory in light of the entry ban, which the applicant refused to comply with. The District Court, finding the applicant guilty of an administrative offence under Article 18.8 §1.1 of the Code of Administrative Offenses, granted the DMI an order for the forced removal of the applicant and imposed a fine.
The applicant was arrested and placed in a temporary detention centre for foreigners pending his administrative removal. He appealed the court’s decision and argued that his removal would breach Articles 3 and 8 ECHR. The Novgorod Regional Court upheld the decision, however the European Court of Human Rights (‘the Court’) granted the applicant’s request for interim measures under Rule 39, indicating that Russia may not remove the applicant to Tajikistan until it was determined whether a violation of Article 8 had occurred. The applicant remained detained for the duration of the proceedings.
The applicant complained that the decision to annul his Russian citizenship and remove him from Russian territory amounted to a violation of Article 8. In particular, the applicant stated that the domestic law was unforeseeable in its application as it did not provide for the annulment of a decision on citizenship for submitting incomplete information, instead only applying if the information submitted was knowingly false. Additionally, the applicant asserted that the interference with his rights had not been necessary in a democratic society as the authorities had failed to take into account his family situation or explain their findings that he posed a threat to national security.
The Government submitted that there had been a legitimate interference with the applicant’s rights under Article 8 as the interference had pursued the legitimate aim of guaranteeing national security, pursuant to Article 8 §2. According to the Government the “quality of law” requirement in Article 8 was satisfied as the applicable domestic law stipulated a person’s duty to provide exhaustive information related to his application for Russian citizenship in a clear and foreseeable manner. And when information was found to be missing, the Government argued that legislative rules required citizenship to be annulled.
Additionally, the Government cited the applicant’s refusal to leave Russia voluntarily as evidence of his lack of respect of Russian law. Combined with the alleged national security threat, and the fact that the reason for the applicant’s entry ban had been scrutinised by domestic courts, the Government asserted that there was good reason for the applicant’s removal from Russia.
Finally, the Government claimed that the applicant’s familial status and ties with Russia and Tajikistan had duly been taken into account and assessed during the proceedings.
The Court began by defining the scope of Article 8, explaining that while the right to ‘private life’ by itself does not guarantee the right to citizenship, it “cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8” (§ 53). Rather, the Court adopted a two-part test for determining whether an issue concerning the revocation of citizenship arises under Article 8: the Court would consider (i) what the “consequences” of the revocation were for the applicant and (ii) whether the revocation was “arbitrary” (§ 53).
In its analysis the Court examined the annulment of citizenship and the decision to forcibly remove the applicant from Russian territory separately, as the annulment did not automatically result in removal, and the lower courts examined the issues separately.
(a) Annulment of citizenship
The Court applied its two-part test, beginning by looking at the consequences of the annulment of citizenship.
(i) Consequences for the applicant
The Court found that the annulment of citizenship resulted in three major consequences for the applicant. First, he was deprived of any legal status in Russia; secondly he was left without any valid identity documents; and finally the annulment was a precondition for the imposition of the entry ban and the decision to remove the applicant from Russian territory. In its decision the Court emphasised the fact that in Russia identity documents are required often in everyday life, from buying train tickets to receiving medical care, and individuals can be fined for their failure to possess proper identity documents (§ 60).
In light of these consequences, the Court held that the annulment of Russian citizenship amounted to an interference with the rights enshrined in Article 8
(ii) Whether the measure was arbitrary
In determining arbitrariness, the Court noted that its examination should consider “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” (§ 54 and § 63).
To be in ‘accordance with law’ requires that the measure has some basis in domestic law, and the law must be accessible to the person concerned and foreseeable as to its effects. For instance “the law must indicate the scope of discretion conferred on the competent authorities and the manner of its exercise with sufficient protection against arbitrary interference” (§ 64). From these premises the court examined the lawfulness of the Russian Citizenship Act, the Regulation on the Examination of Issues Related to Citizenship of the Russian Federation, the accompanying procedural guarantees, and the manner in which the domestic authorities acted.
While the Court accepted that the basis of the annulment of the applicant’s Russian citizenship was found in the relevant domestic laws, it found the clarity and the procedural safeguards of the domestic law lacking. Since the authorities were not required to give a reasoned decision specifying the factual grounds on which the annulment decision was made, and the fact that they claimed they had no choice but to annul citizenship, the Court determined that the “legal framework as in force at the material time fostered excessively formalistic approach to the annulment… and failed to give adequate protection against arbitrary interference” (§ 70).
In light of the foregoing two-step analysis, and the fact that the government failed to justify the deprivation of Russian citizenship, the Court found a violation of Article 8 which was grossly disproportionate to the applicant’s omission. The Court then went on to address the expulsion of the applicant separately.
(b) Expulsion of the applicant from Russian territory
Article 8 secures the right to respect for family life. The Court held that the decision to remove the applicant from the country amounted to an interference with this right, irrespective of the fact that the expulsion was taken in accordance with domestic law and as a result of the entry ban. While the Government argued that the expulsion taken to enforce the entry ban was legitimate since it protected public safety, the Court rejected this, concluding that “neither they nor the domestic courts outlined the basis for the security services’ allegations” (§ 75). Additionally, the Court maintained that the domestic authorities had failed to engage with specific facts concerning the applicants alleged threat to national security, instead “confine[ing] themselves to a purely formal examination of the decision” (§ 76).
As a result, even assuming that exclusion was legitimate, the Court could not conclude that the interference with the right to respect for family life was proportionate. Moreover, the Court found no evidence in either of the proceedings (for the entry ban or the expulsion order) that the Domestic court had duly balanced the relevant considerations at stake, namely “(i) the length of the applicant’s stay in Russia; (ii) the solidity of his professional, social, cultural, and family ties; (iii) the difficulties which he and his family were likely to encounter after the applicant’s removal…; and (iv) the best interest and well-being of his children” (§ 77).
As it was never convincingly established that the threat posed by the applicant to Russian national security outweighed his connections to Russia, the Court found a violation of Article 8 with respect to the expulsion decision. Given this conclusion the Court felt it unnecessary to examine whether the entry ban satisfied the requirements of Article 8.
Joint Concurring Opinion of Judges Lemmens and Ravarani
While agreeing with the outcome, the concurring opinion took issue with the majority’s reasoning with respect to the annulment of the applicant’s citizenship. In particular, the opinion believed the reasoning was methodologically flawed, and it put the blame for the violation of the applicant’s rights on the wrong organ of the Russian Federation.
(a) Methodological flaw with respect to the annulment of citizenship
The concurring opinion began by noting that the current state of the case-law dealing with issues of denial or revocation of citizenship is “great confusion… to which more confusion is added by the present judgment” (§ 2). The opinion noted that there are four main approaches, with the majority applying the “consequence-based” approach (§ 5). However, the judges asserted that confusion also surrounds each element of the majorities chosen approach.
Instead, the Joint Concurring Opinion outlined an alternative methodology, preferring a general rule whereby “any interference with the right to respect for private life constitutes a violation of Article 8 unless it is ‘in accordance with the law’, pursues an aim or aims that is or are legitimate under paragraph 2 and can be regarded as ‘necessary in a democratic society’” (§ 11). The judges opined that such an approach would avoid the ad hoc reasoning used by the majority in this case.
(b) On the domestic legal framework and its application by the competent authorities in the present case
While finding a violation of the applicant’s rights under Article 8, the concurring judges did not believe the violation occurred at the level of the legislature. Rather, “the conclusion… would be that the impugned measure lacked a legal basis in domestic law” (§ 15). This is at odds with the majorities finding.
The Court found a violation of Article 8 of the Convention on two grounds. First, due to the annulment of the applicant’s Russian citizenship, and secondly as a result of the decision to expel the applicant from Russian territory.
Strasbourg Observers' Analysis: https://strasbourgobservers.com/2021/01/22/usmanov-v-russia-a-confusing…
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Joint Concurring Opinion
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