Following annulment of simulated marriage
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law 1. The Constitution 31. Article 44 of the Maltese Constitution concerns the right to freedom of movement. Its sub-paragraphs (1) and (4) read as follows. “(1) No citizen of Malta shall be deprived of his freedom of movement, and for the purpose of this Article the said freedom means the right to move freely throughout Malta, the right to reside in any part of Malta, the right to leave and the right to enter Malta.” “(4) For the purposes of this Article, any person - ( a ) who has emigrated from Malta (whether before, on or after the appointed day) and, having been a citizen of Malta by virtue of Article 3(1) or of Article 5(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000, has ceased to be such a citizen; or ( b ) who emigrated from Malta before the appointed day and, but for his having ceased to be a citizen of the United Kingdom and Colonies before that day, would have become a citizen of Malta by virtue of Article 3(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000; or ( c ) who is the spouse of a person mentioned in paragraph ( a ) or ( b ) of this sub-Article or of a person who is a citizen of Malta by virtue of Article 3(1) or of Article 5(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000, and who has been married to that person for at least five years and is living with that person, or is the child under twenty-one years of age of such a person; or ( d ) who is the widow or the widower of a person mentioned in paragraph ( a ) or paragraph ( b ) of this sub-Article or of a person who at the time of his or her death was a citizen of Malta by virtue of Article 3(1) or of Article 5(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000, and who was still living with him or her at the time of his or her death and had been married to that person for at least five years or who would, but for the death of that person, have been so married for at least five years, or is the child under twenty-one years of age of such a person, shall be deemed to be a citizen of Malta by virtue of Article 3(1) or of Article 5(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000: Provided that if the Minister responsible for matters relating to Maltese citizenship at any time by order declares that it is contrary to the public interest that a spouse as is mentioned in paragraph ( c ), or a widow or widower as is mentioned in paragraph ( d ) or a child over eighteen years of age as is mentioned in paragraph ( c ) or ( d ) is to be so deemed, or to continue to be so deemed, such spouse, widow, widower or child, as the case may be, shall thereupon cease to be deemed to be a citizen of Malta as aforesaid: Provided further that the Minister responsible for matters relating to Maltese citizenship shall not be required to assign any reason for the issue of any order referred to in the immediately preceding proviso, and the decision of the Minister on any such order shall not be subject to appeal to or review in any court.” 2. The Citizenship Act 32. The relevant Articles of the Citizenship Act, Chapter 188 of the Laws of Malta, read as follows. Article 14 – previously Article 9 (prior to the amendments in 2000) “(1) Subject to the provisions of this Article, the Minister may by order deprive of his Maltese citizenship any citizen of Malta who is such by registration or naturalisation if he is satisfied that the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact. (2) Subject to the provisions of this Article, the Minister may by order deprive of his Maltese citizenship any citizen of Malta who is such by registration or by naturalisation if he is satisfied that the citizen— ( a ) has shown himself by act or speech to be disloyal or disaffected towards the President or the Government of Malta; or ( b ) has, during any war in which Malta was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was to his knowledge carried on in such a manner as to assist an enemy in that war; or ( c ) has, within seven years after becoming naturalised, or being registered as a citizen of Malta, been sentenced in any country to a punishment restrictive of personal liberty for a term of not less than twelve months; or ( d ) has been ordinarily resident in foreign countries for a continuous period of seven years and during that period has neither— (i) been at any time in the service of the Republic or of an international organisation of which the Government of Malta was a member; or (ii) given notice in writing to the Minister of his intention to retain citizenship of Malta. (3) The Minister shall not deprive a person of citizenship under this Article unless he is satisfied that it is not conducive to the public good that that person should continue to be a citizen of Malta and, in the case referred to in sub-Article (2)( c ), it appears to him that that person would not thereupon become stateless. (4) Before making an order under this Article, the Minister shall give the person against whom the order is proposed to be made notice in writing informing him of the ground on which it is proposed to be made and of his right to an inquiry under this Article; and if that person applies in the prescribed manner for an inquiry, the Minister shall refer the case to a committee of inquiry consisting of a chairman, being a person possessing judicial experience, appointed by the Minister and of such other members appointed by the Minister as he thinks proper. (5) The Minister may make rules for the practice and procedure to be followed in connection with a committee of inquiry appointed under this Article, and such rules may, in particular, provide for conferring on any such committee any powers, rights or privileges of any court, and for enabling any powers so conferred to be exercised by one or more members of the committee.” Article 15 “(1) A citizen of Malta who is deprived of his citizenship by an order of the Minister under Article 14 shall, upon the making of the order, cease to be a citizen of Malta. ...” Article 19 “The Minister shall not be required to assign any reason for the grant or refusal of any application under this Act and the decision of the Minister on any such application shall not be subject to appeal to or review in any court.” Article 27 “(1) The acquisition or retention of Maltese citizenship by any person under the Constitution of Malta or any other law, prior to the enactment of the Maltese Citizenship (Amendment) Act, 2000 shall not be affected in any way by the provisions of the said Act. (2) This Act shall not apply with regard to any application for registration as a citizen of Malta filed before the 15th day of August, 1999.” 33. The above-mentioned committee of inquiry is regulated by Subsidiary Legislation 188.02, the Deprivation of Maltese Citizenship (Committee of Inquiry) Rules. 34. Among others, the non-Maltese spouse of a citizen of Malta is eligible for “exempt person status”, which may be enjoyed as long as the spouse is still married to and living with that person. Under the provisions of the Immigration Act (Chapter 217 of the Laws of Malta), an exempt person is entitled to freedom of movement. In accordance with the Maltese Constitution, this means the right to move freely throughout Malta, the right to reside in any part of Malta, and the right to leave and the right to enter Malta. In 2004 Malta joined the European Union and the relevant directives became applicable, including Directive 2004/38/EC of 29 April 2004 on the right of EU citizens and their family members to move and reside freely within the territory of the Member States. 35. Under Article 5 of the Citizenship Act, every person born in Malta becomes a Maltese citizen on his date of birth. The Citizenship Act also provides, however, and in so far as relevant, that a person born in Malta on or after 1 August 1989 may not become a citizen of Malta unless, at the time of his birth, his father or his mother was a citizen of Malta or a person who, having been a citizen of Malta, emigrated from Malta (Article 44 § 4 (a) and (b) of the Constitution). The two provisos do not apply in the case of a new-born infant found abandoned anywhere in Malta, who would by virtue thereof be stateless. Any such infant remains a citizen of Malta until his right to any other citizenship is established. 3. The Immigration Act 36. The relevant parts of Article 14 of the Immigration Act, Chapter 217 of the Laws of Malta, read as follows. “(1) If any person is considered by the Principal Immigration Officer to be liable to removal as a prohibited immigrant under any of the provisions of Article 5, the said Officer may issue a removal order against such person who shall have a right to appeal [before the Immigration Appeals Board] against such order in accordance with the provisions of Article 25A: ... (2) Upon such order being made, such person against whom such order is made, shall be detained in custody until he is removed from Malta: ... (3) Nothing in this Article shall affect the obligation of any person who does not fulfil or who no longer fulfils the conditions of entry, residence or free movement to leave Malta voluntarily without delay. (4) Removal of a person shall be to that person’s country of origin or to any other State to which he may be permitted entry, in particular under the relevant provisions of any applicable readmission agreement concluded by Malta and in accordance with international obligations to which Malta may be party. (5) Nothing in this Article shall preclude or prejudice the application of Maltese law on the right to asylum and the rights of refugees and of Malta’s international obligations in this regard. ...” 4. The Immigration Regulations 37. The relevant part of Subsidiary Legislation 217.04 provides the following rules. “12. (1) A third country national shall only be entitled to reside in Malta if a uniform residence permit for a specific purpose is issued in his regard. (2) The provisions of subregulation (1) shall not apply to a third country national who has been given temporary permission to reside in Malta for the purpose of the processing of an application for asylum or an application for a uniform residence permit. (3) [Not yet in force] Without prejudice to Regulation 7(3), the provisions of Regulations 5, 6, 8, 9 and 10 shall mutatis mutandis apply to this Part, so however that a third country national cannot apply for a licence or a uniform residence permit for the purpose of seeking or taking up employment; nor may he apply to change the nature of the uniform residence permit into one empowering him to seek or take up employment, while he is already in Malta, save as the Minister may direct in exceptional circumstances. ” 38. Regulations 5, 6, 8, 9 and 10 refer to residence and employment with regard to citizens of the European Union. 39. Regulation 12(3) has not yet come into force but will do so on such date as the Minister may by notice in the Government Gazette of Malta appoint. B. International materials 1. United Nations 40. Malta is not a party to the 1954 United Nations Convention relating to the Status of Stateless Persons, nor is it a party to the 1961 Convention on the Reduction of Statelessness. A report by the United Nations Refugee Agency Office in Malta, entitled “Mapping Statelessness in Malta” (2014), recommended, inter alia, that Malta consider acceding to the two above-mentioned conventions and establishing an effective statelessness determination procedure, as well as ensuring the rights of stateless persons and awareness about statelessness among relevant government institutions. 2. Relevant Council of Europe instruments 41. To promote the progressive development of legal principles concerning nationality, as well as their adoption in internal law, and to avoid, as far as possible, cases of statelessness, the Council of Europe drew up the 1997 European Convention on Nationality. One of the principles of this Convention, provided for in Article 4, is that “statelessness shall be avoided”. Article 6 provides that each State Party must facilitate in its internal law the acquisition of its nationality for stateless persons. Article 7, however, specifies that a State Party may not provide in its internal law for the loss of its nationality if the person concerned would thereby become stateless, with the exception of cases of acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to that person. 42. This Convention was signed by Malta on 29 October 2003 but has not been ratified. 43. On 15 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 18 on the avoidance and reduction of statelessness. In particular, concerning the avoidance of statelessness as a consequence of loss of nationality, it recommends, in its relevant part, the following: “c. In order to avoid, as far as possible, situations of statelessness, a State should not necessarily deprive of its nationality persons who have acquired its nationality by fraudulent conduct, false information or concealment of any relevant fact. To this effect, the gravity of the facts, as well as other relevant circumstances, such as the genuine and effective link of these persons with the state concerned, should be taken into account;” 3. Relevant EU law and case-law of the Court of Justice of the European Union 44. Article 20 of the Treaty on the Functioning of the European Union (TFEU) reads as follows. “1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language. These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.” (a) Judgment of the Court of Justice of the European Union of 2 March 2010 in Rottmann, C-135/08, EU:C:2010:104 45. Dr Rottmann was born a citizen of Austria. After being accused in Austria of serious fraud in the exercise of his profession, he moved to Germany, where he applied for naturalisation. By acquiring German citizenship, he lost his Austrian citizenship by operation of law. Following information from the Austrian authorities that Dr Rottmann was the subject of an arrest warrant in their country, the German authorities sought to annul his acquisition of German citizenship on the grounds that he had obtained it fraudulently. Such a decision, however, had the effect of rendering him stateless. The referring court wished to know if this was a matter that fell within the scope of EU law, as Dr Rottmann’s statelessness also entailed the loss of EU citizenship. The Court of Justice of the European Union (CJEU) ruled that an EU member State’s decision to deprive an individual of citizenship, in so far as it implied the loss of the status of EU citizen and the deprivation of the attached rights, fell within the ambit of EU law and, therefore, had to be compatible with its principles. 46. The CJEU concluded that it was legitimate for a member State to revoke naturalisation on account of deception, even when the consequence was that the person lost their EU citizenship, in addition to citizenship of that member State. Such a decision, however, must comply with the principle of proportionality, which, among other things, required a reasonable period of time to be granted in order for the person to recover the citizenship of his or her member State of origin. (b) Judgment of the CJEU of 8 March 2011 in Ruiz Zambrano, C-34/09, EU:C:2011:124 47. Mr and Ms Zambrano, of Colombian nationality, were refused refugee status in Belgium but were not sent back to Colombia on account of the civil war in that country. From 2001, Mr and Ms Zambrano were then registered as resident in Belgium and Mr Zambrano worked there for a certain time, even though he did not hold a work permit. Mr and Ms Zambrano had two children – one born in 2003, the other in 2005 – who acquired Belgian nationality in accordance with the Belgian legislation applicable at that time. The competent authorities refused to accede to Mr and Ms Zambrano’s application to regularise their situation and to take up residence as ascendants of Belgian nationals. 48. According to the CJEU, Article 20 of the TFEU precluded national measures which had the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as EU citizens. The CJEU concluded that Article 20 of the TFEU precluded a member State from refusing a work permit and the right of residence within its territory to a third-country national upon whom his minor children, who were nationals and residents of that member State, were dependent, in so far as such decisions deprived those children of the genuine enjoyment of the substance of the rights attaching to the status of citizen of the Union. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 49. The applicant complained that the decision to divest him of his Maltese citizenship had not been made in accordance with the law. It had interfered with his right to respect for his private and family life and exposed him to the risk of being separated from his family. The decision had not been accompanied by the relevant procedural safeguards as required under Article 8 of the Convention and the State had failed to fulfil its positive obligation to protect his rights under that provision. Lastly, the applicant complained that the decision had left him stateless. He thus had to live in a state of uncertainty, where he could not even leave the country for fear of not being let back in. The provision reads as follows. “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society 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.” 50. The Government contested that argument. A. Admissibility 1. Victim status (a) The parties’ submissions 51. The Government submitted that the applicant could not claim to be a “victim” for the purposes of Article 34 of the Convention. They contended that an applicant could be considered a victim only if the State had already decided to take steps against him, and interference would come about only upon the execution or implementation of that decision. In the present case, despite the lack of any interim measure by the Court, no removal order was awaiting execution or implementation, as no such order had been issued, and no practical steps had been taken by the authorities in order to remove the applicant from Malta. The Government referred to Vijayanathan and Pusparajah v. France (27 August 1992, § 46, Series A no. 241 ‑ B), in which the Court had distinguished the applicants’ case from that of the applicant in Soering v. the United Kingdom (7 July 1989, Series A no. 161), since in the former case no expulsion order had been made in respect of the applicants. They explained that deprivation of Maltese citizenship did not mean that the person so deprived would be removed from Malta. In order for the person to be removed from Malta, a removal order would have to be issued. Such an order had not been issued in the case of the applicant in the present case. 52. The applicant submitted that he was a victim under Article 34 of the Convention, since the revocation of his Maltese citizenship threatened the very basis of his ability to reside in Malta. He was directly affected by the impugned measure, in line with the Court’s case-law. In this connection, he referred to Groppera Radio AG and Others v. Switzerland (28 March 1990, § 47, Series A no. 173). The applicant submitted that even though a deportation or removal order was not in force, the threat of such an order was imminent. Indeed, the Government had not stated that a deportation or removal order would not be issued and had expressed the view that, following the annulment of his first marriage, “the applicant’s stay in Malta was precarious”. It was probable that no such action had been taken by the authorities only because they had been informed that the case was pending before the Court and that therefore no further steps were to be taken. The applicant submitted that once the Maltese Government had accepted that he could establish his second family in Malta, as he had in fact done, any subsequent curtailment of his status in Malta would directly affect that family life. (b) The Court’s assessment 53. The Court reiterates that the word “victim” in the context of Article 34 of the Convention denotes a person directly affected by the act or omission in issue (see, among many other authorities, Nsona v. the Netherlands, 28 November 1996, § 106, Reports of Judgments and Decisions 1996 ‑ V, and Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII). In other words, the person concerned must be directly affected by it or run the risk of being directly affected by it (see, for example, Norris v. Ireland, 26 October 1988, §§ 30 ‑ 31, Series A no. 142, and Otto-Preminger-Institut v. Austria, 20 September 1994, § 39, Series A no. 295 ‑ A). It is not therefore possible to claim to be a “victim” of an act which is deprived, temporarily or permanently, of any legal effect (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 92, ECHR 2007 ‑ I). With reference to the specific category of cases involving the deportation of non-nationals, the Court has consistently held that an applicant cannot claim to be the “victim” of a deportation measure if the measure is not enforceable (see Vijayanathan and Pusparajah, cited above, § 46; see also Pellumbi v. France (dec.), no. 65730/01, 18 January 2005, and Etanji v. France (dec.), no. 60411/00, 1 March 2005). The Court has adopted the same stance in cases where execution of the deportation order has been stayed indefinitely or otherwise deprived of legal effect, and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Sisojeva and Others, cited above, § 93, with further references to Kalantari v. Germany (striking out), no. 51342/99, §§ 55 ‑ 56, ECHR 2001 ‑ X, and Mehemi v. France (no. 2), no. 53470/99, § 54, ECHR 2003 ‑ IV; see also Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; Benamar and Others v. France (dec.), no. 42216/98, 14 November 2000; A.D. v. Switzerland (dec.), no. 13531/03, 18 January 2005; and Yildiz v. Germany (dec.), no. 40932/02, 13 October 2005). 54. Regarding the applicant’s victim status in relation to the complaint that his removal from Malta would affect his private and family life, the Court notes that the authorities have not issued a removal order. Indeed, no steps towards such action have been taken at any point since 2007, when the order to revoke his citizenship was issued and was thus enforceable. Although during the intervening period proceedings concerning the applicant’s complaints have been pending before the domestic courts and subsequently before the Court, neither the domestic courts nor the Court have ordered interim measures (capable of giving any legitimacy to the letter sent to the authorities by the applicant’s legal representative – see paragraph 28 above). It follows that the authorities were under no obligation to desist from deporting the applicant, had they intended to do so. 55. Furthermore, even if such a removal order were to be issued, the applicant may appeal against it to the Immigration Appeals Board (see paragraph 36 above). The Court reiterates that where expulsions are challenged on the basis of alleged interference with a person’s private and family life (unlike complaints concerning Articles 2 and 3), it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect (see De Souza Ribeiro v. France [GC], no. 22689/07, § 83, ECHR 2012). However, domestic courts must seriously examine the circumstances and legal arguments in favour of or against a violation of Article 8 of the Convention in the event of the removal order being enforced. Haste in the execution of a removal order may have the effect of rendering the available remedies ineffective in practice and therefore inaccessible (ibid., § 95). At this stage there is no indication that any eventual removal would be executed in a perfunctory manner and with such haste that it would have the effect of rendering the available remedies ineffective in practice and therefore inaccessible (contrast De Souza Ribeiro, cited above, § 96). 56. Moreover, on a more practical level, it appears that the applicant is currently stateless; thus, as the situation stands to date, it cannot be said that he is under threat of expulsion (see for instance, Okonkwo v. Austria (dec.), no. 35117/97, 22 May 2001) as there is no guarantee that the Egyptian authorities would accept him, nor is it likely that he could be removed to another country. In any event, such arrangements would take a certain amount of time, and in the event of a removal order being issued and steps being taken in respect of its execution, the applicant would still have a possibility of pursuing the relevant remedies. 57. Thus, at this stage, the applicant cannot claim to be a “victim” of any actual or impending violation of his rights under Article 8 in connection with his potential removal, and the Government’s objection in this respect is upheld. 58. On the contrary, the Court does not find it appropriate to reach the same conclusion in so far as the applicant complains of the revocation of his Maltese citizenship itself, the order for which has already been made and executed. It follows that in respect of this part of the complaint, the Government’s objection is dismissed. 2. Significant disadvantage 59. In their final observations (concerning comments on the applicant’s claims for just satisfaction and further observations) of 22 May 2015, the Government submitted that the applicant’s complaint was inadmissible, for the purposes of Article 35 of the Convention, on account of the fact that he had not suffered a significant disadvantage as a result of the alleged violation of the Convention. Although the applicant had been deprived of his Maltese citizenship, he still lived and worked in Malta. The applicant had not provided any evidence that he could not reacquire his Egyptian citizenship. 60. The Court reiterates that, according to Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application. The Court notes that when the Government were invited to comment on the admissibility and merits of the application, they did not raise any objection to this effect in their observations of 2 March 2015. The Court finds it regrettable when new objections are raised by the Government at a stage where an applicant has in principle no further opportunity to reply. This is particularly so in the absence of exceptional circumstances which would explain the delay in raising such matters. Furthermore, while the Court may well decide to allow the applicant a right of reply, this would lengthen the procedure to the applicant’s detriment as a result of the Government’s untimely actions. In any event, the Court considers that this objection is to be dismissed for the following reasons. 61. On the basis of the general principle de minimis non curat praetor, the new criterion of no significant disadvantage hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010). Thus, the absence of any such disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Ionescu v. Romania (dec.), no. 36659/04, § 34, 1 June 2010; Rinck v. France (dec.), no. 18774/09, 19 October 2010; and Kiousi v. Greece (dec.), no. 52036/09, 20 September 2011). Moreover, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting pecuniary interests (see Korolev, cited above). 62. The Court has previously stated that although the right to citizenship is not as such guaranteed by the Convention or its Protocols, it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual (see Karassev v. Finland (dec.), no. 31414/96, ECHR 1999-II; Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 77, ECHR 2002-II; Savoia and Bounegru v. Italy (dec.), no. 8407/05, 11 July 2006; and Genovese v. Malta, no. 53124/09, § 30, 11 October 2011). Furthermore, the private life of an individual is a concept that is wide enough to embrace aspects of a person’s social identity (see Genovese, cited above, § 33). 63. In the light of the issues raised, the Court does not find it appropriate to dismiss the present complaint with reference to Article 35 § 3 (b) of the Convention. The Government’s objection is therefore dismissed. 3. Conclusion as to admissibility 64. In respect of the complaint concerning the applicant’s potential removal from Maltese territory, the Court considers that the applicant cannot claim to be a victim, within the meaning of Article 34 of the Convention, of the alleged violation of his right to respect for his private and family life. It follows that this part of the complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 65. In so far as the complaint concerns the deprivation of citizenship and its consequences, the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ observations (a) The applicant 66. The applicant insisted that his reason for marrying his first wife had not been to obtain citizenship by fraud; this was evidenced by the birth of his son and also by a psychologist’s report, in which the applicant’s anxiety at the time when he was having marital problems had been noted. He was of the view that the authorities should not simply have relied on the 1998 judgment, but that the matter required a separate independent assessment. He also argued that he could not be blamed for not having informed the authorities about the annulment of his marriage, since annotations of such annulments were entered on the relevant marriage certificate kept in the records of the Public Registry, which was a government department. Thus, the authorities had been aware of the situation from that very date. Nevertheless, they had acted on the premise that the applicant’s citizenship had remained valid, and had eventually even given his second wife “exempt person status” on that basis. 67. The applicant submitted that depriving a person of citizenship was more sensitive than restricting eligibility for citizenship, and it could not be left to a State’s discretion. Furthermore, any such decision would have to be accompanied by appropriate safeguards and an opportunity for the individual to defend himself. 68. The applicant submitted that at the time of the order depriving him of citizenship, namely 2007, he had established both a private and a family life in Malta. He had been working in Malta and had been married to his wife for more than five years and had two children, as well as a genetic bond with a son from the first marriage. In his view, when he had married for the second time, there had been no threat of his citizenship being taken away from him. Thus, it could not be said that his family life had been created at a time when the persons involved were aware that the immigration status of one of them was such that the continuation of that family life within the host State would be precarious from the outset. 69. The applicant submitted that citizenship was the gateway to several rights, including a right to unrestricted residence; a right to establish a family in Malta; a right to work there, to receive a pension, and so forth. Admitting that he had made no request for any work or residence permits, he submitted that he had no guarantee that he would acquire or be eligible for such permits. He referred to Regulation 12(3) of the Immigration Regulations (Legal Notice 205 of 2004 – see paragraph 37 above). Moreover, such permits would not solve the problem of his statelessness and his limited freedom of movement as a result of his not having a valid passport – a matter which also impinged on his ability to make a living, given his trading business. Nor could the applicant afford to pay the exorbitant fees to acquire Maltese citizenship in accordance with the Individual Investor Programme of the Republic of Malta Regulations, 2014. He further submitted that whilst the Government sold Maltese citizenship to third-country nationals who had little or no connection to Malta, he had been deprived of his citizenship even though he was connected to Malta only. 70. The applicant submitted that the measure (as well as the proceedings before the committee of inquiry) had not been in accordance with the law. As indicated in the relevant letter (see paragraph 24 above), the deprivation was based on Article 14 § 1 of the Maltese Citizenship Act (hereafter “the Citizenship Act”); however, pursuant to Article 27, the Citizenship Act did not apply to any application for Maltese citizenship lodged before 15 August 1999, and indeed the applicant had applied for citizenship in 1993. In his view, the Citizenship Act as it had stood in 2007 did not apply to his circumstances, nor was there any saving clause stating that situations such as his would continue to be regulated by the Citizenship Act as in force prior to the amendments enacted in 2000. 71. The applicant submitted that public order was not listed under Article 8 of the Convention, nor had any other legitimate aim been relied on. Although he had been found guilty of injuring his wife, the suspended sentence had played no part in the Minister’s decision. 72. Furthermore, the applicant submitted that the authorities’ action had been so belated (initiating an investigation five years after the annulment, and taking three years to investigate and take a decision on his situation) that the measure could not be deemed justified or necessary. Such a delay showed that the applicant had not posed a threat – no reasons had been given as to why it had suddenly become necessary to change the state of affairs. Moreover, in the intervening period his ties with Malta had been further strengthened. 73. The applicant submitted that the Government had failed to protect him from statelessness. This rendered the measure draconian and was disproportionate to the aim pursued. 74. In the applicant’s view, when weighing the interests of the individual against those of the State, the Court had to consider that when he had founded his second family, the prospects of joint residence were not only extremely high but even certain. The applicant had not maintained any appreciable ties with relatives in Egypt and he had now lived in Malta for over twenty years; he spoke Maltese and was perfectly integrated in Maltese culture and society. The economic consequences of his removal to any other country would be extremely detrimental to him. He also argued that should his children also be deprived of their current Maltese citizenship on the basis of his own citizenship having been revoked, they too would become stateless. (b) The Government 75. The Government submitted that the Convention did not guarantee a right to acquire a particular citizenship and that the issue of whether an applicant had an arguable right to acquire the citizenship of a State must in principle be resolved by reference to the domestic law of that State. They referred to Petropavlovskis v. Latvia (no. 44230/06, § 83, ECHR 2015). 76. The measure in issue in the present case was in accordance with the law, namely the Citizenship Act, Chapter 188 of the Laws of Malta. The relevant provision at the time was Article 9 of the Citizenship Act, which was identical to Article 14 of the amended Citizenship Act (see “Relevant domestic and international law and practice” above). Contrary to the applicant’s argument (see paragraph 70 above), the Government submitted that Article 27 § 2 of the Citizenship Act as amended in 2000 – a transitory provision – dealt with “applications” for registration which had been lodged before 15 August 1999 and were still pending. In the case of the applicant, citizenship had already been granted before 15 August 1999; thus, when the amendments to the Citizenship Act were enacted, his application had already been processed. Consequently, he could not be considered “an applicant” within the meaning of the domestic provision cited. 77. Contracting a marriage of convenience was considered to be perpetration of fraud. That had been the basis of the decision in respect of the applicant. Thus, the measure had not been arbitrary: the decision had been taken after the applicant had pleaded before the committee, produced evidence and made submissions – a procedural safeguard to protect him against any arbitrariness. Nor was the deprivation discriminatory: whenever the Department of Citizenship and Expatriate Affairs became aware that citizenship had been obtained by fraud, it took steps to deprive the individuals concerned of Maltese citizenship. 78. According to the Government, the Minister had deprived the applicant of his Maltese citizenship on the grounds that he had obtained it by fraud, a serious act that was contrary to public order. Thus, the measure was aimed at the protection of public order, which was an intrinsic part of the public interest. Reference was made to the Court’s judgments in Antwi and Others v. Norway (no. 26940/10, § 104, 14 February 2012) and Boujlifa v. France (21 October 1997, § 43, Reports 1997 ‑ VI). In that light, the Minister’s order had been justified and necessary in a democratic society. Furthermore, even though the decision had not been based on this factor, the applicant also had a criminal record, having been found guilty of injuring his own wife. 79. The Government further argued that the deprivation of the applicant’s Maltese citizenship, which had been implemented immediately, had not adversely affected him since his trading licences had been continuously renewed and he had continued to make use of a Maltese passport. Reference was made to the Court’s findings in, inter alia, Riener v. Bulgaria (no. 46343/99, § 155, 23 May 2006). In the present case (until the time of filing observations), it transpired that the applicant had not been hindered in his movement in and outside Malta. Indeed, he had continued to work in Malta and to reside there with his new family. Thus, in view of the above, there had not been an interference with the applicant’s rights. Also, the Government submitted that the applicant could apply for a work permit which was valid for a period of time and renewable on request, and subsequently obtain a residence permit on that basis. Furthermore, once his immigration status had been regularised, he would be eligible for long-term residence status after five years of legal stay. However, the applicant had not attempted to pursue any of those avenues. Nor had he provided any information as to the possibility of reacquiring Egyptian nationality, or proved that this was impossible. Furthermore, if he feared returning to Egypt, he could have applied for refugee status or humanitarian protection. 80. In so far as the applicant complained of the State’s positive obligations, the Government submitted that he had to prove the existence of private and family life at the time when the impugned measure had been adopted (they referred to Boujlifa, cited above, § 36). Thus, in the Government’s view, the date to be considered for this purpose was that when the grounds for the deprivation of citizenship had materialised, namely 16 January 1998. 81. However, the committee conducting inquiries had found that the applicant had had no relationship with his first son. Nor had he, in 1998, had any relationship with the woman who was to become his second wife. Consequently, the applicant could not argue that he had had a “family life” in 1998. As in Adeishvili (Mazmishvili) v. Russia (no. 43553/10, § 82 ‑ 83, 16 October 2014), the applicant’s relationship with his second wife had developed at a time when they were both aware of his precarious position as far as his citizenship was concerned. 82. The Government considered that the applicant was to blame for not having informed the Department of Citizenship and Expatriate Affairs, at the relevant time, about the judgment annulling his first marriage. It was not for the Government to keep abreast of such developments, which were dealt with by different authorities, and the applicant’s failure to inform the authorities only showed his bad faith. The Government submitted that once the matter had come to the attention of the relevant authorities, they had started investigations. While it was true that the process had encountered some difficulties and thus some delay, this was due to the fact that it related to events that had happened ten years earlier. 83. Distinguishing between a removal order and deprivation of citizenship, in the absence of any adverse effects on the applicant, the Government were of the view that the Maltese authorities did not have a positive obligation to regularise the applicant’s status when revoking his Maltese citizenship. 2. The Court’s assessment 84. The Court observes that old cases concerning loss of citizenship, whether already acquired or born into, were consistently rejected by the Convention organs as incompatible ratione materiae with the provisions of the Convention, in the absence of such a right being guaranteed by the Convention (see, for example, X. v. Austria, no. 5212/71, Commission decision of 5 October 1972, Collection of Decisions 43, p. 69). However, as noted above, in recent years the Court has held that although the right to citizenship is not as such guaranteed by the Convention or its Protocols, it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual (see references mentioned at paragraph 62 above). 85. Indeed, most of the cases concerning citizenship brought before the Court since the above-mentioned development in the case-law have concerned applicants claiming the right to acquire citizenship and the denial of recognition of such citizenship (see, for example, Karassev, cited above), as opposed to a loss of citizenship already acquired or born into. Nevertheless, the Court considers that the loss of citizenship already acquired or born into can have the same (and possibly a bigger) impact on a person’s private and family life. It follows that there is no reason to distinguish between the two situations and the same test should therefore apply. Thus, an arbitrary revocation of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual. Therefore, in the present case it is necessary to examine whether the decisions of the Maltese authorities disclose such arbitrariness and have such consequences as might raise issues under Article 8 of the Convention. 86. The Court notes that the decision to deprive the applicant of his citizenship was in accordance with the law, namely Article 14 (previously Article 9) of the Citizenship Act, which provides that “the Minister may ... deprive of his Maltese citizenship any citizen of Malta who is such by registration or naturalisation if [the Minister] is satisfied that the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact”. The Court notes that Article 27 § 1 only states that the amendments to the Citizenship Act would not affect the granting or retention of citizenship obtained prior to the enactment of such amendments, and thus it has no bearing on the application of Article 14 (former Article 9), which has not undergone any amendments. The Court further accepts the Government’s argument that the transitory provision in Article 27 § 2 of the Citizenship Act (see paragraph 32 above) does not apply to the applicant, as his application had already been processed and determined. Thus, his citizenship was obtained prior to the amendments to the Citizenship Act enacted in 2000. It follows that the deprivation of citizenship was in accordance with the law. 87. Moreover, the Court observes that, in accordance with Article 14 § 4 of the Citizenship Act – which was applicable in 2006 when the applicant was informed that an order was to be made to deprive him of his Maltese citizenship – prior to the Minister’s decision, the applicant was informed of the possibility of requesting an inquiry, and in fact proceeded to take such action. Thus, the applicant had the opportunity – of which he availed himself – to defend himself in a procedure which consisted of a number of hearings where he was assisted by a lawyer and where oral and written submissions were made, and evidence, including witness testimony, was produced before the relevant board. He subsequently had the opportunity to challenge that decision before the courts with constitutional jurisdiction affording the relevant guarantees. It follows that the decision depriving the applicant of his citizenship was accompanied by the necessary procedural safeguards. 88. Although it could be questioned whether in the instant case the authorities acted diligently and swiftly (see, mutatis mutandis, Nunez v. Norway, no. 55597/09, § 82, 28 June 2011, and Borisov v. Lithuania, no. 9958/04, § 112, 14 June 2011), the Court notes that any delay occurring did not disadvantage the applicant, who continued to benefit from the situation (compare Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 53, 7 December 2007). 89. The Court therefore concludes that the decision of the Maltese authorities to deprive the applicant of his Maltese citizenship was not arbitrary. Furthermore, the applicant was aware that when his marriage was annulled his citizenship could be revoked at any time by the Minister, and thus that he was in a precarious situation. Moreover, the Court cannot ignore the fact that the situation complained of came about as a result of the applicant’s fraudulent behaviour (see paragraphs 14 and 24 above) and that any consequences complained of are to a large extent a result of his own choices and actions (compare Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 49, 7 December 2007). 90. As to the consequences of the revocation of the applicant’s Maltese citizenship, the Court notes that, as held above (see paragraph 56 above), the applicant is not threatened with expulsion from Malta. Importantly, although the applicant’s Russian wife has lost her exempt person status, the applicant’s sons VR and VL have not lost their Maltese citizenship, nor have there been any attempts to that effect by the authorities in the nine years since the applicant was deprived of his Maltese citizenship. Furthermore, as admitted by the applicant himself, to date he has been able to pursue his business and continues to reside in Malta. 91. The Court reiterates that neither Article 8 nor any other provision of the Convention can be construed as guaranteeing, as such, the right to a particular type of residence permit (see Kaftailova, cited above, § 51). If it allows the holder to reside within the territory of the host country and to exercise freely there the right to respect for his or her private and family life, the granting of such a permit represents in principle a sufficient measure to meet the requirements of that provision. In such cases, the Court is not empowered to rule on whether the individual concerned should be granted one particular legal status rather than another, that choice being a matter for the domestic authorities alone (see Sisojeva and Others, cited above, § 91; Aristimuño Mendizabal v. France, no. 51431/99, § 66, 17 January 2006; Dremlyuga v. Latvia (dec.), no. 66729/01, 29 April 2003; and Gribenko v. Latvia (dec.), no. 76878/01, 15 May 2003). In this connection, the Court notes that various possibilities appear to be open to the applicant (see paragraphs 37 and 79 above), such as applying for a work permit, and subsequently a residence permit, which could eventually again make him eligible for citizenship. However, the applicant has taken no such steps, which could have prevented any adverse impact on his private and family life (compare Savoia and Bounegru, cited above), and no valid explanation has been given for his inaction. The Court notes that the only alleged obstacle referred to by the applicant is a legal provision which is not yet in force (see paragraphs 37 and 39 above). 92. Similarly, in connection with the applicant’s claim that he is currently stateless, the Court notes that although, according to a letter by the Consul of the embassy of the Arab Republic of Egypt, the applicant’s request to renounce his Egyptian nationality was approved and his Egyptian passport withdrawn (see paragraph 10 above), he has not provided the Court with any official document (such as a presidential decree, which appears to be issued in such circumstances) confirming such renunciation. Nor has the applicant provided any information as to the possibilities of reacquiring Egyptian nationality (in the event that he has truly renounced that nationality). In any event, the fact that a foreigner has renounced his or her nationality of a State does not mean in principle that another State has the obligation to regularise his or her stay in the country (see, for instance, the case of Romanians who renounced their nationality and wanted to remain in Germany, in Dragan and Others v. Germany (dec.), no. 33743/03, 7 October 2004). 93. As to the applicant’s limited freedom of movement, which would more appropriately be examined under Article 2 of Protocol No. 4 to the Convention, the Court notes that this complaint was not brought before the domestic authorities, even though the applicant was meant to return his passport in 2007, when the decision to revoke his citizenship was issued. The fact that he failed to submit his passport to the authorities and continued to reap its benefits until 2014, when his passport expired, does not exempt the applicant from the obligation to exhaust relevant domestic remedies. The Court cannot but note a pattern of inaction on the part of the applicant. 94. Given the above considerations, an assessment of the State’s negative obligations under Article 8 of the Convention is not warranted in the present case. Nor does the Court need to assess the State’s positive obligations, given that as the situation stands the applicant runs no risk of being deported (see paragraphs 54 and 56 above). 95. Bearing in mind the situation as it currently stands, the Court finds that there has been no violation of Article 8 of the Convention.
The Court firstly observed that a loss of a citizenship already acquired or born into, as in the applicant’s case, could have the same (and possibly a bigger) impact on a person’s private and family life as a person claiming the right to acquire citizenship or complaining about the denial of recognition of such citizenship. Thus, also in these situations an arbitrary revocation of citizenship could in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual. However, the Court held that there had been no violation of Article 8 of the Convention in the applicant’s case, finding that, in the circumstances of the case, the decision depriving him of his citizenship had not been arbitrary. The Court noted in particular that the decision had had a clear legal basis under the relevant national law and had been accompanied by hearings and remedies consistent with procedural fairness. It had to be borne in mind also that that situation had come about as a result of the applicant’s fraudulent behaviour. Indeed, any consequences complained of were to a large extent a result of his own choices and actions. Besides, the applicant, who was not threatened with expulsion from Malta, had nonetheless been able to pursue his business activities and to reside in Malta and it had still been open to him to apply for a work permit and a residence permit there, which could eventually also make him eligible for citizenship. Lastly, he had not sufficiently convinced the Court that he had relinquished his Egyptian nationality nor demonstrated that he would not be able to re-acquire it if he had done so.