Administrative procedure and judicial review

Under public international law, administrative procedures and judicial review are within each state's domain, unless human rights provisions are applicable. Nevertheless, the recognition of human rights aspects of nationality implies procedural fairness and review. Recent state practice shows a tendency to submit nationality disputes to the ordinary administrative and judicial process. This is reflected in the provisions of art. 10-12 ECN. According to art. 10, state parties shall ensure that applications relating to the acquisition, retention, loss, recovery or certification of their nationality be processed within a reasonable time. The requirement of a reasonable time is to be determined in the light of all the relevant circumstances. The Explanatory Report notes as an example the case of state succession, where nationals of the predecessor state have not acquired the nationality of the state in which they reside.

In this case, the successor state should process their applications very rapidly due to the urgency of the matter.

Decisions relating to nationality according to art. 11 must contain reasons in writing. As a minimum, legal and factual reasons need to be given. However, the mere registration of cases of ex lege acquisition and loss of nationality do not require reasons to be given in writing.16 For decisions involving national security, only a minimum amount of information has to be provided. In decisions which are in accordance with the wishes or interests of the individual, for example the granting of the application, a simple notification or the issue of the relevant document will suffice. Art. 11 cannot be considered a rule of customary law since there is clearly no uniform state practice. It has been noted that the internal law of some states stipulates that decisions concerning nationality may be taken by Parliament in which case no reasons are given in writing.

Art. 12, ensuring that decisions relating to nationality are open to administrative or judicial review in conformity with internal law, may raise some difficulties. Although the right of appeal may well be judged a common European standard, it is doubtful whether in matters of nationality a right of appeal must be granted in every case. Exceptions are envisaged particularly when decisions relating to naturalisation are taken by act of Parliament.

The procedural provisions of art. 10-12 ECN also support the human rights character of nationality law. The obligation to give a written reasoning as well as the right to judicial or administrative review, however, cannot yet be considered as customary international law, even within the European sphere.

Abuse of nationality

Facilitating access to nationality for migrants has resulted in growing concern among states that more open access to nationality may be misused to evade immigration restrictions or escape expulsion or deportation. The misuse of nationality laws, therefore, has also become an issue of international co-operation. Thus, for instance, nationality has been renounced in order to escape deportation by acquiring the status of statelessness. States permitting this renunciation are generally acting in violation of public international law. A state's duty to respect the sovereignty of other states and their sovereign right to decide on the admission of foreigners implies a duty to accept a responsibility for a state's own citizens including an obligation to allow their return. This obligation could be easily overcome by a renunciation of nationality in order to prevent the return of a state's own citizens. In addition, state practice supports the rule of the avoidance of statelessness. Establishing statelessness for the main purpose of restricting a state's sovereign right to decide on the admission and residence of foreign nationals means acting against the community of nations. Such renunciation may therefore be considered as invalid for the purposes of executing immigration laws.

Whether the individual acquisition of nationality may amount to an abuse of law (abus de droit) is a highly controversial issue. States resort to the notion of abuse of rights in connection with marriages of convenience, evasion of tax obligations, acquisition of residence rights and the retention of dual nationality. Marriages of convenience have also been concluded to qualify either for automatic entitlement to nationality or facilitated access to naturalisation. New problems have surfaced concerning the recognition of registered partnerships entitling a person under national law to preferential access to nationality. Misuse may also occur through the legislation of certain states allowing a person claiming to be the father to recognise a child by a simple declaration, thereby establishing the parenthood relationship and transmitting nationality to a child (Walmsley 1999: 63).

The most prominent case in which an abuse of nationality has been argued is probably the Chen case.18 Mrs. Chen, in the absence of a residence right in the United Kingdom, planned to go to Ireland in order to give birth to her second child in Belfast, with a view to obtaining Irish nationality for her. She then settled with her child in the UK and claimed the right of residence for the child as a European citizen and for herself as the mother. The UK government contended that Mrs.

Chen was not entitled to rely on the Community provisions because her move to Northern Ireland with the aim of having her child acquire the nationality of another Member State would constitute an attempt to exploit the provisions of Community law. The aims pursued by those Community provisions are not, in the view of the UK government, served where a national of a non-Member country wishing to reside in a Member State, without however moving or wishing to move from one Member State to another, arranges matters in such a way as to give birth to a child in part of the host Member State to which an other Member State applies its rules governing acquisition of nationality iure soli. Member States therefore were entitled to take measures to prevent individuals from improperly taking advantage of the provisions of Community law or from attempting, under cover of the rights created by the Treaty, illegally to circumvent national legislation. The court rejected this argument. It observed that none of the parties had questioned the legality of the child's acquisition of Irish nationality. Therefore, Member States were not allowed to restrict the effects of the granting of nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the treaty. The count of fraudulent use of nationality law was not discussed. The advocate general examined the issue but stated that in this case, 'there has not been a distortion of the purposes and the objectives of the Community provision which grants the right in question'.

The theory of abuse of rights is based on the nineteenth century concept of a social function of rights (Reich 2001: 4, 21). In principle, the court has recognised that Community law cannot be relied on for purposes of abuse or fraud. The court, however, has not supplied any clearly identifiable criteria for determining abuse of rights.

It is generally up to the states to prevent misuse. International law does not exclude appropriate measures against the misuse of nationality laws. There may, however, be scope for increased international cooperation, particularly in order to exchange information about techniques of fraud and the presentation of false documents and registering the renunciation and acquisition of nationality.