Genovese v. Malta

Parties (including notable third parties)

Mr Ben Alexander Genovese (Applicant); The Maltese Government (Respondent)

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Summary of Facts

The Applicant was born in Scotland to a British mother and a Maltese father, out of wedlock. The Applicant’s father refused to acknowledge the applicant as his son, despite it being confirmed scientifically and judicially.

The Applicant’s mother made a request for him to acquire Maltese nationality, on his behalf. The Malta High Commission denied the initial request on the basis that the mother did not hold Maltese nationality, and that at that time there was no Maltese national recorded as a parent on the Applicant’s birth certificate. The mother subsequently obtained a Scottish court order to amend the birth certificate to include the father, establishing paternity.

According to the Maltese Government, the Applicant’s mother was informed that despite the establishment of a Maltese father, the Applicant was still not eligible for Maltese nationality under Section 5(2)(b) and 17(1)(a) of the Maltese Citizenship Act, as children born out of wedlock were only eligible for nationality if their mother were Maltese. The mother’s second application on behalf of the Applicant was therefore rejected on this basis.

In 2002, the Applicant’s mother brought constitutional proceedings on the Applicant’s behalf, complaining that the provisions of the domestic law were contrary to the Maltese Constitution and the ECHR. Meanwhile, in 2003, a Maltese court also declared the father to be the Applicant’s biological parent.

In the constitutional proceedings, the Civil Court found the provisions of the Maltese Citizenship Act to violate the Constitution due to its discriminatory outcome but abstained from deciding on its compatibility with the ECHR. On appeal to the Constitutional Court, the first-instance judgment was reversed in respect to compatibility with the Constitution, however, the case was referred back to the Civil Court for judgment on combability with the ECHR.

In 2008, the Civil Court held that the Section 17(1)(a) of the Maltese Citizenship Act breached the Applicant’s rights under Articles 8 and 14 ECHR. The Court held that the Applicant’s private life was affected and that the Applicant faced discrimination due to his illegitimate status and the sex of his Maltese parent.

In 2009, on appeal to the Constitutional Court, the decision was reversed, holding that the right to nationality was not a substantive Convention right and any denial of nationality would not restrict the Applicant’s family life, since he did not have a relationship with his father. It held that the State was therefore not obliged to grant nationality to a non-national. The Applicant subsequently appealed his case to the European Court of Human Rights (ECtHR).

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Legal Arguments

Legal arguments by the Applicant

The Applicant argued that the Maltese citizenship provisions discriminated against him in violation of Article 14 in conjunction with Article 8 ECHR. He maintained that the case fell within the scope of private life, as nationality would allow him to reside indefinitely in Malta and potentially build a relationship with his biological father, regardless of the father’s unwillingness to do so.

The Applicant submitted that he had suffered discrimination based on his illegitimate status and the sex of his Maltese parent. Had his parents been married, or had his mother been Maltese, the Applicant submits he would have qualified for nationality under section 5(2)(b) of the Maltese Citizenship Act. Instead, he was excluded solely because he was born out of wedlock and his Maltese parent was his father. This status, reflected on his birth certificate, meant that even judicial recognition of paternity could not remedy the denial, which he argued restricted his ability to foster family ties and enjoy private life.

Legal arguments by the Respondent

The Government first raised preliminary objections, noting that amendments to the Maltese Citizenship Act in 2007 made the Applicant eligible for citizenship, yet he never applied, thereby questioning the Applicant’s victim status. On admissibility, the Government argued that the Applicant’s domestic submissions focused on ‘family life,’ not ‘private life,’ and that the facts did not fall within Article 8 because family life requires close personal ties, which were absent. According to the Government, biological reality alone was insufficient, and there was no legal impediment to developing such ties. Moreover, as an EU citizen, the Applicant could freely enter, reside, and work in Malta, so nationality was not necessary for contact with his father. The Government emphasized that citizenship and nationality are not rights protected by the Convention, and therefore Article 14 could not apply.

On the merits, the Government contended that any differential treatment was objectively justified. They denied discrimination based on sex, arguing that the law distinguished by the sex of the parent, not the child, and applied equally regardless of the Applicant’s sex. The Government maintained that legitimacy-based distinctions were necessary because marriage creates a clear parental link absent in cases of children born out of wedlock, and while maternity is always certain, paternity may not be. This social reality justified treating illegitimate children of Maltese fathers differently from those born in wedlock. The Government also argued that voluntary or judicial acknowledgment of paternity did not alter eligibility, as the law excluded all illegitimate children of Maltese fathers with foreign mothers. Thus, the distinction served to ensure certainty of parental ties and reflected legitimate policy considerations.

Outcome

The Court first dismissed the Government’s preliminary objections, holding that the case concerned the Applicant’s eligibility for nationality before the 2007 amendments. Therefore, his failure to apply after those amendments was irrelevant. It also found that the Applicant had properly raised an Article 14 complaint in conjunction with both private and family life under Article 8 before the domestic courts.

The Court then held that Article 14, taken together with Article 8, was applicable. It reiterated that ‘family life’ under Article 8 is not limited to marriage-based ties and can include relationships between natural fathers and children born out of wedlock, even where such ties are only potential. However, in this case, the Applicant and his father had no existing relationship, and the father showed no intention to establish one. Therefore, the denial of nationality did not impede family life.

Nonetheless, the Court emphasised that ‘private life’ is a broad concept encompassing aspects of social identity. While the Convention does not guarantee a right to nationality, an arbitrary denial of nationality may, in certain circumstances, affect private life. Here, the refusal of Maltese nationality impacted the Applicant’s social identity sufficiently to bring the case within the ambit of Article 8. Since Maltese law expressly granted a right to nationality by descent, the State was obliged to secure that right without discrimination. Given the Applicant’s claim of differential treatment based on illegitimacy, a ground covered by Article 14, the Court concluded that Article 14 in conjunction with Article 8 was applicable and dismissed the Government’s objection.

On the merits, the Court began by recalling that under Article 14 a difference in treatment is discriminatory if it has no reasonable justification, meaning it does not pursue a legitimate aim or lacks proportionality. While the margin of appreciation is afforded to Contracting States in assessing justifications for differential treatment in law, this margin varies depending on the subject matter and background. In this light, the Court emphasised that equality between children born in and out of wedlock has long been recognised in Europe, as reflected in the 1975 European Convention on the Legal Status of Children Born out of Wedlock and evolving domestic laws. Even though Malta has not ratified that Convention, the Court reaffirmed that very weighty reasons are needed to justify distinctions based on birth status, citing Marckx v. Belgium and Inze v. Austria.

The Court then noted that the Applicant was in an analogous situation to other children with a Maltese father and a foreign mother who met all criteria for nationality under section 5(2)(b) of the Maltese Citizenship Act. The only factor excluding him was his illegitimacy. The Court then rejected the Government’s arguments that marriage creates a parental link absent in cases of children born out of wedlock and that paternity is less certain than maternity, noting that the Applicant’s father was legally recognised and registered on the birth certificate, whether voluntarily or by judicial determination, yet the exclusion persisted. It held that distinctions based on such a link are precisely what Article 14 seeks to prevent unless objectively justified, and no reasonable grounds were shown.

Accordingly, the Court concluded that the difference in treatment based on illegitimacy lacked objective and reasonable justification and violated Article 14 in conjunction with Article 8. Given this finding, it was unnecessary to examine the alleged discrimination based on the sex of the Maltese parent.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	European Convention on Human Rights	Article 8, 14
Domestic	Maltese Citizenship Act	Sections 5, 17
Regional	1975 European Convention on the Legal Status of Children Born out of Wedlock

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Rene de Groot and Olivier Vonk, ‘Nationality, Statelessness and ECHR’s Article 8: Comments on Genovese v. Malta’ (2012) 14(3) European Journal of Migration and Law 317.

• This article analyses the landmark European Court of Human Rights case of Genovese v. Malta, which made an invaluable contribution to the field of nationality law. For the first time the European Court clearly ruled that (access to) nationality falls under the scope of protection of the ECHR as part of a person’s social identity, which in turn is part of that person’s private life. In this article, the authors analyse the case itself as well as its consequences for the nationality laws of several European countries.
• The authors highlight that the recognition of nationality as a component of private life under the ECHR subjects all nationality laws to the Convention's non-discrimination principle. The authors argue this has the potential to transform nationality from a discretionary sovereign act into a right protected against arbitrary and discriminatory state interference.
• The article suggests that this ruling creates obligations for numerous European states to urgently reform their nationality laws to eliminate sex- and birth-status-based discrimination. The article suggests that the laws of Austria, Denmark, Finland, Sweden, Iceland, and the Netherlands were (at that time) therefore untenable because they impose discriminatory conditions on children acquiring a father's nationality out of wedlock.
• The authors argue that the logic of the judgment should be expansively applied beyond acquisition to critically scrutinise other areas of nationality law, particularly loss and deprivation. They contend that if nationality is protected private life, then automatic loss provisions, withdrawal procedures that lack independent judicial review, and disproportionate evidential demands for naturalisation may also violate Articles 6 and 8 of the ECHR.

Louise Reyntjens, ‘Citizenship Deprivation under the European Convention-system: A Case Study of Belgium’ (2019) 1(2) The Statelessness and Citizenship Review 263.

• While the article focuses on citizenship deprivation practices, the author argues that the principles and reasoning established in Genovese – namely, that no distinction should be tolerated between a child and parent based on the parent’s nationality acquisition status unless objectively justified – are broadly applicable to all cases involving differential treatment in nationality law. In particular, the author suggests this reasoning extends to render discriminatory such laws that create distinctions between individuals born with nationality and those who acquire it later.

Joshua Kerr, ‘Deprivation of Citizenship, the Immigration Act 2014 and Discrimination Against Naturalised Citizens, (2018) 32 Journal of Immigration, Asylum and Nationality Law 103

• The author argues that Genovese was a pivotal moment in the development of Article 8, as the Court recognised that nationality can form part of an individual’s social identity. This interpretation brought nationality issues within the ambit of Article 8, and its significance lies in the fact that once a matter falls within this ambit, Article 14’s prohibition on discrimination applies. Hence, where States choose to grant nationality rights, they must do so without discrimination under the ECHR.
• The author explains that this reasoning reflects a broader principle: nationality is not merely a legal status but a key component of social identity, shaping how individuals perceive themselves and how they are perceived by society and the State. This interpretation has far-reaching implications because it enables human rights scrutiny of nationality laws, including those on acquisition, loss, and deprivation of nationality. The author then analyses how these principles have been applied in subsequent UK jurisprudence, criticising courts that have rejected this approach as adopting a narrow and misguided view of Article 14. By contrast, decisions that embrace Genovese’s logic affirm that denial or removal of nationality, given its profound impact on identity, falls within Article 8’s ambit and therefore triggers Article 14.