FN11) Roma arrived from India to Europe in a series of migrations approximately 1000 years ago. Although accurate data is not available, plausible estimates indicate that there are currently well over ten million Roma in Europe. Roma have seen repeated episodes of persecution in Europe. Today they face stigmatisation, widespread stereotyping, and often intense hostility throughout Europe. For a comprehensive overview of the human rights situation of Roma in Europe, see Commissioner for Human Rights (2012) Human Rights of Roma and Travellers in Europe, Strasbourg: Council of Europe.
FN22) For a number of reasons which are evident or explicit in this paper, a distinction between first and later migrants and so-called autochthonous minorities is explicitly not taken as the starting point for explorations of law in this area.
FN33) H. Arendt (1958) The Origins of Totalitarianism, Cleveland, OH: World Publishing.
FN44) See Claude Cahn, ‘Who is a German?’ (2000) 20 SAIS Review, 117–124.
FN55) The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in particular requires states, “to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms”. ICERD Article 2(1)(a) commits states “to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation”. Article 2(1)(c) requires that states “amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists”.
FN66) For information on the Kaufmann and other cases of Sinto statelessness in Germany, see S. Milton (1998) ‘Persecuting the Survivors: The Continuity of “Anti-Gypsyism” in Postward Germany and Austria, in S. Tebbutt (Ed.), Sinti and Roma: Gypsies in German-Speaking Society and Literature, Oxford: Berghahn Books, pp. 35–48.
FN77) European Commission of Human Rights, East African Asians v. United Kingdom, report adopted on 14 December 1973 pursuant to Article 31 of the Convention.
FN88) For a recent rigorous treatment of citizenship from within a human rights perspective, see D. Weissbrodt (2008) The Human Rights of Non-Citizens, Oxford University Press, New York, USA.
FN99) Field research by the author, Republic of Macedonia, July 1996.
FN1010) The Article 8 Project of The Tolerance Foundation, (1996) From Exclusion to Expulsion: The Czech Republic’s “New Foreigners”, Part I: Judicial Expulsion, Prague.
FN1111) European Roma Rights Centre (1998) A Pleasant Fiction: The Human Rights Situation of Roma in Macedonia, Country Reports Series No. 7, Budapest: European Roma Rights Centre.
FN1212) J. Dedić, V. Jalušić and J. Zorn (2003). The Erased: Organized Innocence and the Politics of Exclusion, Ljubljana: Peace Institute; Kuric and Others v. Slovenia, Application no. 26828/06, Council of Europe: European Court of Human Rights, 13 July 2010.
FN1313) Council of Europe Commissioner for Human Rights, 12 February 2004, Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to Estonia, 27–30 October 2003, for the attention of the Committee of Ministers and the Parliamentary Assembly, CommDH5, paragraph 7.
FN1414) Council of Europe Commissioner for Human Rights, 11 July 2007, Memorandum to the Estonian Government: Assessment of the progress made in implementing the 2004 recommendations of the Commissioner for Human rights of the Council of Europe, For the attention of the Committee of Ministers and the Parliamentary Assembly, CommDH(2007)12.
FN1515) European Court of Human Rights (Grand Chamber), judgment 19 February 2009, Case of Andrejeva v. Latvia (Application no. 55707/00).
FN1616) See especially, Case of Broniowski v. Poland, (Application no. 31443/96), 22 June 2004, as well as, more recently, by implication, D.H. and Others v. the Czech Republic, 13 November 2007.
FN1717) Author discussions with National Roma Centre, Chisinau, Republic of Moldova, February 2011.
FN1818) ETS No. 166, opened for signature 6 November 1997; entry into force 1 March 2000. Elspeth Guild has distinguished the terms “citizen” and “national” as follows: “citizen: this group is defined by national law, commonly contained in constitutions; as a term, it is most evident by its absence in international human rights conventions. . . . ”; “national: in this concept there is an inference that the relationship between the individual and the state is recognised beyond the borders of the state; the national is the citizen viewed from outside the state. . . . ” (see E. Guild (2004) The Legal Elements of the European Identity: EU Citizenship and Migration Law, The Hague: Kluwer Law International, pp. 20–21). See also the useful summary provided in A.M. Boll (2007) Multiple Nationality and International Law, Leiden: Martinus Nijhoff Publishers, pp. 57–92. Unless otherwise specified, this paper will use the terms “citizen” and “national” as synonymous.
FN1919) ETS No. 200, opened for signature 19 May 2006; entry into force 1 May 2009.
FN2020) See, for example, European Court of Human Rights, Admissibility Decision, Case of Slivenko and ¬Others v. Latvia, 23 January 2002: “. . . for the purposes of Article 3 of Protocol No. 4 the applicants’ ‘nationality’ must be determined, in principle, by reference to the national law. A ‘right to nationality’ similar to that in Article 15 of the Universal Declaration of Human Rights is not guaranteed by the Convention or its Protocols, although an arbitrary denial of nationality may under certain circumstances amount to an interference with the rights under Article 8 of the Convention (see, mutatis mutandis, Karassev and Family v. Finland, no. 31414/96, 12.1.1999, to be reported in ECHR 1999-II).”
FN2121) See Equal Rights Trust (2010) Unravelling Anomaly: Detention, Discrimination, and the Protection Needs of Stateless Persons, London: Equal Rights Trust.
FN2222) Nationality is one of only a very limited number of grounds for which the Court has deemed that “very weighty reasons” would have to be put forward to justify a difference in treatment (see European Court of Human Rights, Judgment, Gaygusuz v. Austria, 31 August 1996). This issue is treated in detail below.
FN2323) See B. Blitz & C. Sawyer (2011) Statelessness in the European Union, Cambridge: Cambridge University Press.
FN2424) There is an extensive body of literature on EU citizenship. Particularly insightful is E. Guild (2004) The Legal Elements of European Identity: EU Citizenship and Migration Law, The Hague: Kluwer Law International.
FN2525) The Czech Romani community was almost entirely killed in the Holocaust. After World War II and throughout Communism, Roma were resettled from Slovakia to the Czech Republic, particularly to areas from which approximately three million ethnic Germans had been expelled in 1945 and 1946.
FN2626) Under pressure from the European Union and the international community, Czech lawmakers undertook a number of legal reforms partially restoring access to Czech citizenship for excluded Slovak citizens. This included a major legal reform in which all persons of then-Slovak republican nationality on the territory of the Czech Republic on 1 January 1993 (the day of the division of Czechoslovakia and the creation of independent Czech and Slovak republics) were entitled to Czech citizenship if they had been on the territory of the Czech Republic for the entire six-year period intervening.
FN2727) European Council of the European Union Directive 43/2000. Implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.
FN2828) European Council of the European Union Directive 2000/78/EC of 27 November 2000. Establishing a general framework for equal treatment in employment and occupation.
FN2929) Summaries of EU gender equality law are available at: http://ec.europa.eu/employ¬ment_social/gender_equality/legislation/index_en.html.
FN3030) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, Official Journal L 158, 30/04/2004 P. 0077 – 0123. During the period 2007–2010, there are indications that a taboo against expelling EU citizens may have broken down, particularly in light of actions by the Danish, French and Italian governments to collectively expel Roma from Bulgaria and Romania. Section VIII below addresses this issue in further detail.
FN3131) See http://www.bbc.co.uk/news/world-europe-11344313.
FN3232) Inciteful comment on the (lack of ) an EU response is available at: http://leighphillips.wordpress.com/2010/08/02/maybe-the-roma-need-their-own-love-parade-to-get-the-eu-to-notice-them/.
FN3333) See Romea.cz, Romové vzali věci ze skládky, podle médií však rabují, available online at http://www.romea.cz/index.php?id=detail&detail=2007_8455.
FN3434) European Court of Human Rights, Judgment, Amuur v. France : “[. . .] Despite its name, the international zone does not have extraterritorial status. [. . .]” (25/06/1996, REF00000573).
FN3535) European Court of Human Rights, Judgment 5 February 2002. Conka v. Belgium.
FN3636) European Court of Human Rights, Judgment 31 August 1996, Gaygusuz v. Austria.
FN3737) See, for example, Cyprus v. Turkey, 4 EHRR 482 (1976).
FN3838) The Court’s case-law establishes that “discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations” (Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 IV); the Court has also held that “The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different” (European Court of Human Rights, Judgment, Thlimmenos v. Greece (Application no. 34369/97 ), 6 April 2000). Prior to the Court’s 2007 Grand Chamber decision in D.H. and Others v. the Czech Republic, it did not examine extensively the distinction between direct and indirect discrimination.
FN3939) D.H. and Others v. the Czech Republic, 13 November 2007.
FN4040) Connors v. United Kingdom, 27 May 2004, para. 84.
FN4141) Adopted February 1995, H(1995)010, text available online at http://www.coe.int/t/dghl/monitoring/minorities/1_AtGlance/PDF_H(1995)010_FCNM_ExplanReport_en.pdf.
FN4242) This point is dramatically illustrated by the acts of Mr. Marin Mogos and his family, arrested at their home in Germany on 7 March 2002, at approximately 4.30 a.m., and expelled by force by the German authorities to Romania from Munich Airport, despite pending domestic appeals, as well as a pending application before the ECtHR. The family had been in Germany continuously since 1990. In 1990 they had given up their Romanian passports and declared themselves stateless. From 1997 onwards they had the status of “tolerated” (“geduldet”). Upon arrival at Bucharest’s Otopeni Airport, they refused to re-accept their Romanian citizenship and thus were not readmitted to Romania. They lived in the transit zone of Bucharest Airport for the next five years. Mr. Mogos committed suicide on 17 March 2007, still at Bucharest Airport.
FN4343) For a comprehensive overview of the human rights situation of Roma in Europe, see Commissioner for Human Rights (2012) Human Rights of Roma and Travellers in Europe, Strasbourg: Council of Europe.
FN4444) J. Bhabha (2011) Children Without a State: a Global Human Rights Challenge, Cambridge, MA: Massachusetts Institute of Technology.
FN4545) Council of Europe, European Commission against Racism and Intolerance (ECRI), Third Report on Italy, adopted on 16 December 2005, paragraph 96. See also Council of Europe Commissioner for Human Rights, Viewpoint, “No-one should have to be stateless in today’s Europe”, 09/06/2008, www.coe.int/commissioner.
FN4646) Author field research, 1996–present.
FN4747) Plan International, 2009. Count Every Child – the Right to Birth Registration, Plan International Publications, available online at http://plan-international.org/birthregistration/files/count-every-child-2009. See also B. Blitz and M. Lynch (2011) Statelessness and Citizenship, Edward Elgar Publishing.
FN4848) Concerning Romania, see United Nations Development Programme (UNDP) (2002) The Roma in Central and Eastern Europe: Avoiding the Dependency Trap, available online at http://hdr.undp.org/en/re¬ports/regional/europethecis/Avoiding_the_Dependency_Trap_EN.pdf.
FN4949) European Court of Human Rights, Judgment 24 October 2003, Smirnova v. Russia.
FN5050) See, for example, European Court of Human Rights, Judgment 13 December 2005, Timishev v. ¬Russia.
FN5151) A number of international monitoring bodies have expressed concerns at the treatment of non-¬citizens in Germany. For example, the UN Committee against Elimination of Racial Discrimination has expressed concerns about the absence of any protection accorded to populous de facto minority groups resident in Germany for longer periods of time (see CERD/C/338/Add.14, 10 August 2000). The Council of Europe’s European Commission against Racism and Intolerance (ECRI) noted that around nine per cent of the entire population (circa 7 000 000 persons) do not have German citizenship and called for regularization of status of long-term foreign residents (see Council of Europe’s European Commission against Racism and Intolerance, Second Report on Germany, adopted on 15 December 2000 and made public on 3 July 2001, para. 9). See also ECRI’s Third Report on Germany, 8 June 2004, para. 53).
FN5252) Insured persons in the Federal Republic of Germany enjoy equal access to the benefits of statutory health insurance, irrespective of their nationality or origin. The legislation governing the statutory health insurance scheme contains no restrictions on benefit based on the nationality of the claimant. In the case of asylum seekers and persons facing deportation, however, protection available is limited, as a general rule, to the treatment of acute illnesses and pain. Other health care benefits may be granted on a discretionary basis.
FN5353) See http://www.bundesregierung.de/Content/DE/Publikation/IB/Anlagen/auslaenderbericht-7-tabellenanhang-barrierefrei,property=publicationFile.pdf (accessed 22 September 2008), p. 223, on file with the author.
FN5454) Here again there appears to be no public data by ethnicity. However, out of a total of around 282,100 persons from Serbia and Montenegro in Germany at the end of 2006, around 194 400 had been in Germany for periods of ten years or longer. See http://www.bundesregie¬rung.de/Con¬tent/DE/Publikation/IB/Anlagen/auslaenderbericht-7-tabellenanhang-barrierefrei,property=publicationFile.pdf (accessed 22 Sep¬tember 2008), p. 214, on file with the author.
FN5555) See http://www.bundesregierung.de/Content/DE/Publikation/IB/Anlagen/auslaenderbericht-7-barrierefrei,property=publicationFile.pdf (accessed 22 September 2008), on file with the author.
FN5656) Ruling in June 2008, the Court set a time limit of nine months, i.e., to March 2009 to amend Austrian law to provide a right to apply (“Antragsrecht”) for a permit for humanitarian reasons. Details are available online at http://www.oe24.at/zeitung/oesterreich/politik/article323890.ece (accessed 8 October 2008).
FN5757) Author field research 1996–2007, as well as Brigitte Mihok (2001) Zurück nach Nirgendwo: Bosnische Roma-Flüchtlinge in Berlin, Berlin: Metropol-Verlag.
FN5858) The UN Committee on the Elimination of Racial Discrimination (CERD) has explicitly instructed States Parties to the ICERD “to take all necessary measures in order to avoid any form of discrimination against immigrants or asylum-seekers of Roma origin” (CERD, Discrimination against Roma: 16/08/2000, General Recommendation 27, Article 1, para 5).
FN5959) See C. Cahn (2003) ‘Die Politik der Abschiebung: Europa under der Versuch einer Lenkung der Roma’, in: Jahrbuch zur Organisation fur Sicherheit und Zusammenarbeit in Europa (OSZE), Band 9, Baden-Baden: Nomos Verlagsgesellschaft, p. 231.
FN6060) United Nations Development Programme and the Agency for Human and Minority Rights Government of the Republic of Serbia, March 2008, Reintegration of Returnees in Serbia: An Overview of Awareness Raising Activities of the Agency for Human and Minority Rights, Belgrade, pp. 2–3.
FN6161) The Act to Amend the Nationality Law established that children born in Germany of foreign parents acquire German citizenship at birth if one parent has been legally and ordinarily resident in Germany for eight years and is a citizen of the European Union with a right of freedom of movement, or a citizen having an equivalent status from another country within the European Economic Area, or a citizen of Switzerland, or has an EU right of residence or settlement permit. Citizens of Turkey and other non-EU or EEA states are covered by the alternative “possession of a settlement permit”. Children who have acquired German citizenship on the basis of the principle of ius soli have to opt for either the German or the foreign citizenship when they come of age. If they opt for German citizenship, they have to give up their foreign citizenship unless it is impossible or unreasonable for them to do so. They have to make this decision before they reach the age of 23. Children under the age of 10 who were born before 1 January 2000 and who would, at birth, have met the requirements of the principle of ius soli first introduced by the Act to Amend the Nationality Law were given a special naturalization entitlement which expired on 31 December 2000. Under this interim rule, too, the children have to opt for either German or foreign citizenship upon attaining the age of majority.
FN6262) Belgium Luxembourg, Sweden, Finland and Portugal, with Portugal’s reform particularly praised (R. Bauböck (2006) Who are the citizens of Europe?, in Eurozine, available online at http://www.eurozine.com/articles/2006-12-23-baubock-en.html (accessed 28 March 2009)).
FN6363) Katherine Verdery has recently explored in detail links between kinship and national ideology: “I find it helpful to assimilate national identities into the larger category of social relations within which I think they belong: kinship. In my view, the identities produced in nation-building processes do not displace those based on kinship but – as any inspection of national rhetorics will confirm – reinforce and are parasitic upon them. . . . Nationalism is thus a kind of ancestor worship, a system of patrilineal kinship, in which national heroes ocuppy the place of clan elders in defining the nation as a noble lineage”. Verdery also refers to Benedict Anderson’s view that we should treat nationalism “as if it belonged with ‘kinship’ and ‘religion’, rather than ‘liberalism’ or ‘fascism’”. (K. Verdery (1999) The Political Lives of Dead Bodies: Reburial and Postsocialist Change, New York, NY: Columbia University Press).
FN6464) A non-exhaustive list of countries in Europe operating “right of return” for ethnic kin includes: Armenia, Belarus, Bulgaria, Croatia, Czech Republic, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Lithuania, Moldova, Norway, Poland, Russia, Serbia, Slovakia, Slovenia, Spain, Ukraine and the United Kingdom. Bauböck contends that, in the European Union, “Seven of the old member states and all new ones permit their emigrants to transfer their citizenship by descent from generation to generation without any residence requirements in the country of origin” (Bauböck, op. cit.).
FN6565) The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) defines racial discrimination as “any distinction, exclusion, restriction or preference (emphasis added) based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms”. ICERD Article 5(d)(iii) explicitly extends the ban on racial discrimination to “the right to nationality”.
FN6666) See Paul Hockenos (2004) Homeland Calling: Exile, Patriotism and the Balkan Wars, Ithaca, NY: Cornell University Press.
FN6767) Mihok, op. cit.
FN6868) European Committee of Social Rights, Decision on the Merits, 7 December 2005, European Roma Rights Centre v. Italy, Complaint No. 27/2004, paras. 16–18, available online at http://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/CC27Merits_en.pdf.
FN6969) GISTI et al. (2008) Plainte contre la France pour violations du droit communautaire en matière de libre circulation des personnes, Paris: Gisti, pp. 27–29.
FN7070) Arguably new powers may be available to the Court in this area as a result of the entry into force of Protocol 12, providing a comprehensive ban on discrimination in the exercise of any right secured by law. However, to date a limited number of states are bound by Protocol 12, and the Court as yet has not ruled on any cases challenging discrimination in the Allocation of citizenship, or in citizenship proceedings.
FN7171) D.H. and Others, Grand Chamber Judgment 13 November 2007; Sampanis and Others v. Greece, Judgment 5 June 2008; Oršuš and Others v. Croatia, Grand Chamber Judgment 16 March 2008.
FN7272) Sejdic and Finci v. Bosnia and Herzegovina, Grand Chamber Judgment 22 December 2009.
FN7373) Munoz Diaz v. Spain, Judgment 8 December 2009.
FN7474) Conka v. Belgium, Judgment 5 February 2002.