Johansen v. Denmark

Parties (including notable third parties)

Mr. Adam Johansen (Applicant); The Danish Government (Respondent); European Centre for Law and Justice (ECLJ) (Third Party Intervener)

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Summary of Facts

The Applicant was born in 1990 on the Faroe Islands to a Danish mother and Tunisian father, and held both Danish and Tunisian nationality. The Applicant maintained that he was unaware that he held Tunisian nationality until 2017, when during criminal proceedings the Danish Ministry of Immigration issued an opinion on his nationality status, based on an interpretation of Tunisian nationality law and available documentation that he had acquired Tunisian nationality at birth and had never renounced or lost it. This was not confirmed by Tunisian authorities at the time.

The Applicant had lived in Denmark for the majority of his life, married a Danish national in 2009, and had a son born in 2010. The Applicant’s links to Tunisia were limited to his father and short visits. In 2016, the Applicant was arrested and later convicted of terrorism offences for entering Syria in 2013 and accepting recruitment and training from the Islamic State in Iraq and the Levant (‘ISIL’), receiving a four-year prison sentence. The prosecution subsequently recommended to deprive the Applicant of his Danish nationality and to expel him from the country, supported by an assessment from the Danish Immigration Service. Although the first and second instance courts found no basis for such measures, the Supreme Court reversed these decisions on appeal and deprived the Applicant of his Danish nationality and expelled him to Tunisia with a permanent ban on his return in November 2018.

The Supreme Court held that Section 8b(1) of the Danish Nationality Act allowed for deprivation of nationality for serious terrorism offences, and expulsion under the Aliens Act would follow unless contrary to international obligations. Applying Article 8 ECHR connection criteria, the Court acknowledged the Applicant’s Danish ties but found his Tunisian links ‘not insignificant’ (paragraph 16) and ruled that the gravity of his crimes justified these measures as proportionate. The rationale for such links to Tunisia included inter alia, that the Applicant had visited Tunisia several times on holiday, and that ‘[the Applicant] has stated that Islam means everything to him and that he practises Islam in his everyday life’ (paragraph 16).

The Supreme Court further reasoned that his family could accompany him to Tunisia or maintain contact remotely.

Following the judgment, Danish authorities struggled to obtain travel documents from Tunisia to execute the expulsion order. The Applicant completed his criminal sentence in March 2020 but remained in custody under immigration law until November 2020, subsequently moving to a mandatory pre-departure centre with reporting requirements.

In 2021, the Applicant sought to reopen his case, claiming he did not possess Tunisian nationality. This was rejected after Tunisian authorities confirmed his nationality and agreed to issue travel documents. The expulsion order remained in force at the time of proceedings before the ECtHR.

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Legal Arguments

Legal arguments by the Applicant

The Applicant complained that the order to withdraw his Danish nationality and to expel him from Denmark was in violation of Article 8 ECHR. He argued that the Tunisian authorities had never confirmed his Tunisian nationality during the criminal proceedings or after his release, submitting that the deprivation measure would render him stateless. The Applicant further argued that Article 7 of the European Convention on Nationality provides an exhaustive list of grounds for deprivation that exclude general criminal offences. The Applicant also stressed the novelty of his case, as it involved a deprivation measure issued for someone who acquired nationality at birth, distinguishing it from prior case-law such as Ghoumid v. France which concerned individuals who acquired nationality later in life.

Regarding expulsion, the Applicant submitted that the Supreme Court overlooked his employment history, lack of prior criminal record, studies, and good behaviour after returning from Syria in 2014. The Applicant also noted that, despite the seriousness of his crime, he had not been convicted of planning or committing terrorist attacks.

Legal arguments by the Respondent

The Government argued that the application was manifestly ill-founded and should be declared inadmissible, maintaining that the Supreme Court had thoroughly assessed all relevant factors, including the Applicant’s Danish nationality acquired at birth, as well as Article 8 ECHR and relevant case-law. The Government also submitted that the Applicant had not disputed his Tunisian nationality before domestic courts.

The Government disagreed with the Applicant’s view that Article 7 of the European Convention on Nationality did not authorise deprivation of nationality for an act of terrorism, referring inter alia to the preamble to the Council of Europe Convention on Prevention of Terrorism and similarities among the legislation of European States that acts of terrorism were perceived to be against the vital interest of the State and could lead to deprivation of nationality. The Government submitted that the deprivation and expulsion measures had complied with legal requirements, included procedural safeguards, were diligently and swiftly acted upon, and were necessary in a domestic society and proportionate under Article 8 ECHR, as balanced by the Supreme Court.

Third Party Intervention

The European Centre for Law and Justice (ECLJ) adhered to the Government’s arguments, asserting deprivation and expulsion measures complied with Article 8. Referring to Article 5 of the European Convention on Nationality, the ECLJ argued that individuals who acquire nationality at birth should be treated the same as those who acquired it through naturalisation, so the Applicant should not receive preferential treatment. The ECLJ proposed adding two criteria to the Court’s Article 8 assessment: the stability of the host society and its ability to reintegrate the Applicant, and the difficulty of removing the Applicant from the environment that led to his crimes.

Outcome

On Deprivation of Nationality

The Court reiterated that while the right to nationality is not guaranteed under the Convention, arbitrary deprivation of nationality may raise issues under Article 8 ECHR because nationality forms part of personal identity. It subsequently applied a two-step test established in previous jurisprudence: whether the revocation was arbitrary, and the consequences for the Applicant.

On arbitrariness, the Court found that Section 8b of the Danish Nationality Act was a sufficiently clear and lawful basis for the deprivation measure. Regarding the Applicant’s argument that Danish law was incompatible with the European Convention on Nationality, the Court noted that its role does not extend to interpreting other conventions beyond the ECtHR. The Court further held that the Applicant had been afforded sufficient procedural safeguards, noting the Applicant’s ability to contest the decision before three levels of jurisdiction, and that authorities acted swiftly and diligently. The measure followed his conviction for serious terrorist offences, which the Court considered a legitimate basis for firm State action. Therefore, the Court held that the deprivation decision was not arbitrary.

On the consequences for the Applicant, the Court examined inter alia whether the Applicant became stateless, lost legal status or valid documents, faced expulsion, or suffered major impacts on daily life or family. Regarding the Applicant’s nationality status, the Court found this to have been carefully reviewed by domestic authorities and courts, which established he acquired Tunisian nationality at birth through his father under Tunisian law. The Court further relied on the confirmation from the Tunisian Embassy that the Applicant was a Tunisian national and relevant evidence, including a Tunisian passport found in the Applicant’s home. Accordingly, the Court was satisfied that the Applicant was not rendered stateless by the deprivation decision.

The Court then examined how the Supreme Court balanced the seriousness of the offence against the impact on the Applicant’s private and family life. It noted that the Supreme Court considered the Applicant’s strong ties to Denmark, but also his connections to Tunisia. In particular, the Court did not question the Supreme Court’s finding that it was relevant the Applicant had visited Tunisia on several occasions and was committed to Islam. The Court subsequently agreed with the Supreme Court’s assessment of proportionality, finding that all issues had been diligently considered. The Court further added that the Applicant’s acquisition of nationality at birth did not significantly alter the consequences of the deprivation measure given the gravity of his offences and his apparent lack of attachment to Denmark’s values by virtue of his prior terrorism offences.

Accordingly, the Court held that the deprivation of Danish nationality did not violate Article 8, and this part of the application was declared manifestly ill-founded.

On Expulsion

The Court began by noting that the Applicant could not be expelled while he remained a Danish national. However, once his nationality was revoked, expulsion became possible under domestic law, provided the statutory conditions were met and the order complied with Article 8 § 2 ECHR. The Court reaffirmed that States have the right to control entry and residence and may expel those convicted of crimes, but such interference must be lawful, pursue a legitimate aim, and be necessary in a democratic society. It accepted that the expulsion order interfered with the Applicant’s private and family life, was in accordance with the law, and pursued the legitimate aim of preventing disorder and crime.

The Court then applied a proportionality test, using the criteria established in its case-law: inter alia, the nature and seriousness of the offence, length of stay, time elapsed since the offence and conduct during that period, family situation, best interests of the children affected, and the solidity of the Applicant’s social, cultural, and family ties to a host country and country of destination. The Court emphasised that ‘very serious reasons’ were required to justify expelling a non-Danish national born and raised in Denmark, noting that the domestic courts were fully aware of this standard.

The Court later dismissed the Applicant’s argument regarding his good behaviour after returning from Syria, observing that he had spent most of that period in custody. It also held that the lifelong re-entry ban accompanying the expulsion order was significant but justified given the Applicant’s serious threat to public order. Regarding family life, the Court found that the Supreme Court had sufficiently considered the Applicant’s marriage and child in Denmark.

In conclusion, the Court found that the Supreme Court had thoroughly assessed all relevant factors, balanced competing interests, and provided ‘very serious reasons’ for expulsion (paragraph 84). Accordingly, the Court held that this part of the application must also be rejected as manifestly ill-founded.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	European Convention on Human Rights	Article 8, Article 35 § 3(a) and 4
Regional	European Convention on Nationality	Articles 5, 7
Regional	Council of Europe Convention on Prevention of Terrorism	Preamble
Domestic	Danish Nationality Act	Section 8b
Domestic	Danish Aliens Act	Section 26, 32
Domestic	Danish Penal Code	Articles 114c and 114d
Domestic	Code de la Nationalité Tunisienne (The Tunisian Nationality Act)	Articles 6(1), 33, 34, and 39

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

No commentary available.