Last Updated on October 14, 2022 by LawEuro
Information Note on the Court’s case-law 267
October 2022
Judgment 13.10.2022 [Section V]
Article 14
Discrimination
Difference in avenues of access to French nationality depending on whether individuals born in France, to French-born parents of Algerian origin, were born before or after Algerian independence: no violation
Facts – Until Algeria gained its independence, on 5 July 1962, all individuals born in French Algeria automatically had French nationality. There were two separate legal statuses. Almost the entire population had a civil status under local law (Islamic law). Those who had made a specific application to a court were accorded ordinary civil status under French law (French Civil Code).
Pursuant to Ordinance no. 62-825 of 21 July 1962 individuals from Algeria with local civil status, and their children, were offered the possibility, in France, of obtaining recognition of French nationality by signing a declaration to that effect until 23 March 1967.
The law of 9 January 1973 provided that children of Algerians who were born in France after 1 January 1963 could benefit from the rule of attribution of French nationality on the basis that both the child and one of the parents were born in France.
The applicant was born in France, before Algerian independence, to parents who were born French on the French territory of Algeria and fell under the local civil status, and he had lived continuously in France and had been issued with a French identity card and voter’s card. In December 2011 the registrar of the District Court refused his request for a certificate of French nationality. As he had been a minor at the time of independence, he had lost his French nationality because his father had not signed a declaration of recognition of French nationality. His brothers and sisters, born after Algerian independence, had acquired French nationality.
The applicant was unsuccessful in his appeals against the refusal.
The applicant complained of discrimination, based on the date of birth, between individuals born in France to French‑born parents before Algerian independence and their siblings born in France to French‑born parents after independence.
Law – Article 14 taken together with Article 8:
(a) Applicability – Even though the Convention or the Protocols thereto did not guarantee a right to a given nationality as such, any arbitrary deprivation of nationality might in certain circumstances raise an issue under Article 8 of the Convention. Nationality was an element of individual identity. Thus the facts of the case fell under Article 8, such that Article 14 could be relied upon in conjunction with that provision.
Conclusion: Article 14 in conjunction with Article 8 was applicable.
(b) Merits – The difference in treatment complained of by the applicant concerned individuals born in France whose parents had been born French on the French territory of Algeria, had fallen under the local civil status and had lost French nationality after Algeria’s independence because they had not signed a declaration of recognition of French nationality; their children had thus been treated differently depending on whether they had been born before or after independence. The differentiation complained of by the applicant therefore related to the circumstances of birth and more precisely to the date of birth. It was thus mainly based on a temporal criterion which corresponded to “birth”, a ground of discrimination expressly prohibited by Article 14.
Apart from the fact that he had been born before Algeria’s independence, whereas his brothers and sisters had been born after that date, when their parents no longer had French nationality, the applicant was in a situation similar to theirs as regards the circumstances of his birth: they were all born in mainland France to the same parents, who had been born French on the French territory of Algeria. The similarities between the applicant’s situation and that of his siblings thus appeared to prevail over any differences.
As regards the aim of the difference in treatment between the applicant and his siblings, in the context of Algeria’s accession to independence the policy had sought to maintain family unity at the time of the transfer of sovereignty by ensuring that minor children automatically adopted their parents’ status in respect of French nationality.
The legitimacy of the aim was particularly unquestionable as it was related to France’s sovereign decision at that time to leave to persons who had local civil status, and who were therefore eligible for Algerian nationality at the time of Algeria’s independence, the choice whether or not to retain French nationality, rather than obliging them to keep it. In addition, considerations of legal certainty justified the temporary nature of the mechanism introduced.
As to the reasonable relationship of proportionality between the means used and the legitimate aim pursued, France had a broad margin of appreciation to determine if and to what extent it was justified to make a distinction between the minor children of individuals with the Algerian local civil status, in terms of the avenues of access to French nationality, depending on the child’s date of birth, i.e. whether it was before or after Algerian independence. This distinction, at the time, had been appropriate to the legitimate aim pursued, bearing in mind that the question whether their parents remained French nationals had arisen precisely on account of, and in the context of, Algerian independence.
As regards the impact on the applicant’s own situation, French law offered him various avenues through which to recover his French nationality: by a declaration demonstrating enjoyment of French civil status (possession d’état de Français), by naturalisation, and by reinstatement as a French national. The Court noted in particular that the third of these options, to which the Minister of Justice, the Minister of the Interior and the Court of Appeal had drawn the applicant’s attention, appeared to be particularly tailored to his situation.
Having regard to the documents in the case file, and noting in particular that such proceedings would not be declared out of time, the Court did not doubt that, if the applicant decided to apply for his reinstatement as a French national, the national authorities would process his application promptly.
Admittedly, the possibility of regaining French nationality would not provide a full response to the applicant’s complaint, at the heart of which was his perception of a retroactive negation of an element of his identity, as a result of the fact that, even though he had been born French in France and had long been identified as a French national, having been given a French identity card and a voter’s card, the domestic courts had ruled, when he was already 62 years old, that he had in fact ceased to be a French national at the age of six.
Nevertheless, the difference in treatment between the applicant and his siblings did not relate to the principle of access to French nationality but to the avenues available for such access, thus significantly nuancing its impact on his right to respect for his private life.
While the respondent State had made a regrettable error in issuing an identity card and voter’s card to an individual who no longer had French nationality, this matter had no bearing on the question before the Court as to whether the difference in treatment complained of by the applicant had been discriminatory, regardless of the consequences of that error for the applicant’s right to respect for his private life.
In those circumstances, and having regard to the broad margin of appreciation afforded to the respondent State, the measures it had adopted had been proportionate to the legitimate aim pursued. The difference in treatment complained of by the applicant, affecting the enjoyment of his right to respect for his private life, had thus been based on an objective and reasonable justification.
Conclusion: no violation (unanimously).
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