Usmanov v Russia

Parties (including notable third parties)

Mr Bakhtiyer Kasymzhanovich Usmanov (Applicant); The Russian Government (Respondent)

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Summary of Facts

The Applicant, born in Tajikistan in 1977 (then USSR), moved to Russia with his family in 2007. He obtained a three-year residence permit in 2008 and later applied for nationality under the simplified naturalisation procedure for former USSR nationals but omitted listing four siblings as ‘close relatives’. His naturalisation application was accepted, and his wife and children were later granted Russian nationality.

In 2017, the Ministry of the Interior sought to annul his nationality, alleging false information in the application. The District Court confirmed this, rejecting his explanation that a duty officer had informed him it was not relevant to list his siblings. Appeals to the Regional Court and Supreme Court were dismissed on merit. A constitutional challenge to section 22 of the Russian Citizenship Act was dismissed.

On 5 April 2018, the Applicant’s nationality and passports were annulled, leaving him undocumented and without legal status in Russia. Days following the annulment decision, the Federal Security Service imposed a 35-year entry ban on the Applicant, on the basis that he was a threat to national security and public order without providing evidence. On appeal, the Regional Court found the measure to be appropriate and held that the Applicant could settle in any country, there was no risk to life in Tajikistan, and that his family could remain in Russia. An appeal to the Supreme Court was dismissed on procedural grounds.

In August 2018, the Applicant was ordered to leave Russia, which he refused. After refusing, he was found guilty of an administrative offence, fined, and detained in a foreigner detention centre pending removal. On appeal, the Applicant argued that expulsion would breach Articles 3 and 8 of the European Convention on Human Rights, but domestic courts dismissed this.

The European Court of Human Rights granted interim measures under Rule 39, preventing removal to Tajikistan until compliance with Article 8 was assessed. He remained in detention throughout the proceedings.

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Legal Arguments

Legal arguments by the Applicant

The Applicant argued that the decision to annul his Russian nationality and remove him from Russian territory amounted to a violation of Article 8, which protects the right to respect for private and family life. The applicant stated that the relevant domestic law was unforeseeable in its application, as it did not provide for the annulment of nationality for submitting incomplete information during naturalisation applications, instead only applying if the information submitted was knowingly false.

Additionally, the Applicant asserted that the interference with his rights had not been necessary in a democratic society as the authorities had failed to consider his family situation or provide reasons for their assessment that he posed a threat to national security.

Legal arguments by the Respondent

The Government argued that the interference with the Applicant’s rights under Article 8 was justified, proportionate, and had pursued the legitimate aim of safeguarding national security provided for under Article 8(2) of the Convention.

It maintained that the ‘quality of law’ requirement was met, as the applicable domestic law clearly required applicants to provide exhaustive information for naturalisation applications, and mandated non-discretionary annulment when details were missing.
The Government further submitted that the Applicant’s refusal to leave Russia voluntarily is evidence of their disregard for Russian law, which, when combined with the alleged security threat, provided valid grounds for removal.

Lastly, the Government reiterated that the reasons underlying the Applicant’s entry ban had been carefully examined by the domestic courts during adversarial proceedings, as had the applicant’s ability to maintain family ties in Russia and Tajikistan.

Outcome

In its analysis, the Court examined the annulment of nationality and the decision to forcibly remove the Applicant from Russian territory separately, as the annulment did not automatically result in removal, and the lower courts examined the issues separately.

On the Annulment of Nationality

The Court began by outlining its general principles concerning the scope of Article 8, explaining that while the right to ‘private life’ by itself does not guarantee the right to nationality, it ‘cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8’ (paragraph 5). Rather, the Court noted that in previous judgments it had outlined a two-part test for determining whether an issue concerning the revocation of nationality arises under Article 8. This two-part test considers firstly the consequences of the revocation of nationality for an applicant, and secondly whether the revocation was arbitrary.

Accordingly, beginning by looking at the consequences for the Applicant, the Court found that the annulment of nationality resulted in three major consequences. Firstly, he was deprived of any legal status in Russia. Secondly, he was left without any valid identity documents. Here, the Court emphasised the fact that Russian nationals ‘ha[ve] to prove their identity unusually often in their everyday life, even when performing such mundane tasks as exchanging currency or buying train tickets’ (paragraph 60), and that individuals can be fined for their failure to possess valid identity documents.

Finally, the Court outlined that the annulment of the Applicant’s nationality was a precondition for the imposition of the entry ban and the decision to remove the applicant from Russian territory. Considering these consequences, the Court held that the annulment of Russian nationality amounted to an interference with the rights enshrined in Article 8.

In assessing arbitrariness, the Court reiterated that it examines three factors: whether the measure was in accordance with the law; whether adequate procedural safeguards existed, including judicial review with relevant guarantees; and whether the authorities acted diligently and swiftly.

The Court reminded that the requirement of being ‘in accordance with the law’ not only encompasses a legal basis in domestic law, but also demands that such law is accessible, foreseeable, and clear, including clear limits on administrative discretion to protect against arbitrary interference.

For the Court, while holding that the annulment of nationality is not inherently incompatible with the Convention and did have a basis in domestic law, it found the clarity and the procedural safeguards of the domestic laws lacking. In particular, the Court found issue with the fact that the law did not specify what information was relevant for naturalisation. Here, the Court referred the concept of ‘relevant facts’ for naturalisation reflected in the European Convention on Nationality and its Explanatory Report as an example.

Similarly, the Court noted that the authorities were not required to give reasoned decisions or consider contextual factors such as the nature of the missing information, time elapsed since naturalisation, family ties, or the Applicant’s integration. The Court also highlighted that the authorities had not explained why obtaining information on the applicant’s siblings was necessary for naturalisation. It also noted that the domestic courts had similarly dismissed arguments about strong ties and family life as irrelevant. As a result of these facts, and the fact that the authorities claimed they had no choice but to annul the Applicant’s nationality, the Court determined that the ‘legal framework as in force at the material time fostered excessively formalistic approach to the annulment […] and failed to give adequate protection against arbitrary interference’ (paragraph 70).

Considering the analysis, and the fact that the Government failed to justify why the omission of the Applicant’s siblings was necessary to justify the annulment of his nationality, the Court found the annulment measure to be ‘grossly disproportionate to the Applicant’s omission’ (paragraph 71) and held there had been a violation of Article 8.

On the Expulsion of the Applicant from Russian Territory

The Court held that the decision to remove the Applicant from the country amounted to an interference with the right to respect for family life, irrespective of the fact that the expulsion was taken in accordance with domestic law. While the Government argued that the expulsion taken to enforce the entry ban was legitimate since it protected public safety, the Court rejected the argument that the expulsion to enforce the entry ban was necessary to protect public safety, concluding that ‘neither they nor the domestic courts outlined the basis for the security services’ allegations’ (paragraph 75). Additionally, the Court maintained that the domestic authorities had failed to engage with specific facts concerning the Applicant’s alleged threat to national security, instead confining themselves to a purely formal examination of the decision (paragraph 76).

As a result, the Court held that the interference with the right to respect for family life could not be proportionate, despite the possibility of it pursuing a legitimate aim. Moreover, the Court found no evidence that the domestic proceedings concerning the entry ban or the expulsion order had duly balanced the relevant considerations at stake, namely the length of the Applicant’s stay in Russia; the Applicant’s ties to Russia; the difficulties for the Applicant and his family after the removal; and the best interest and well-being of his children.

As it was never convincingly established that the threat posed by the Applicant to Russian national security outweighed his connections to Russia, the Court found a violation of Article 8 concerning the expulsion decision. Given this conclusion, the Court felt it unnecessary to examine whether the entry ban satisfied the requirements of Article 8.

Joint Concurring Opinion of Judges Lemmens and Ravarani

While agreeing with the outcome, the concurring opinion took issue with the majority’s reasoning with respect to the annulment of the applicant’s nationality. In particular, the opinion believed the reasoning was methodologically flawed, and it put the blame for the violation of the applicant’s rights on the wrong organ of the Russian Federation.

Concerning the methodology used, the concurring opinion began by noting that the current state of the case-law dealing with issues of denial or revocation of nationality is ‘great confusion… to which more confusion is added by the present judgment’ (paragraph 2). The opinion noted that there are four main approaches, with the majority applying the ‘consequence-based’ approach (paragraph 5). However, the judges asserted that confusion also surrounds each element of the majority’s chosen approach.

Instead, the Joint Concurring Opinion outlined an alternative methodology, preferring a general three-step rule whereby ‘any interference with the right to respect for private life constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that is or are legitimate under paragraph 2 and can be regarded as “necessary in a democratic society”’ (paragraph 11). The judges opined that such an approach would avoid the ad hoc reasoning used by the majority in this case.

On the blame for the violation, the concurring judges did not believe the violation occurred at the level of the legislature based on the quality of the law. Rather, the conclusion put forward by the concurring judges is that there was no reason under domestic law at the time preventing the authorities from explaining the reasons for the annulment and that jurisprudence from the Constitution Court in fact must be interpreted as having required such an explanation. As a result, this would mean that the measure was not in accordance with the law, which is at odds with the majority’s finding.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	European Convention on Nationality	Article 7
Domestic	Russian Citizenship Act (no. 62-FZ of 31 May 2002)	Section 22
Domestic	Regulation on the Examination of Issues Related to Citizenship of the Russian Federation (adopted by Presidential Decree no. 1325 of 14 November 2002)	Section 54
Domestic	Presidential Decree no. 398 of 17 June 2020 amending Section 54 of the above Regulation	Section 54 (amended)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Not available.