Politicised cases: Russian citizenship, article 8 and sanctions
Following Russia’s widely condemned invasion of Ukraine, members of the international community began to impose controls not just on the Russian state but also on the activities of Russian nationals, and in particular Russian international businesspeople.
At the government level, those controls include suspensions of visas and targeted sanctions.[1] At the business and banking level, they include freezing accounts and declining to provide new financial products.
In most cases, such restrictions can be seen as a legitimate attempt to isolate Russian businesspeople, with the aim of encouraging them to use their considerable power to pressure Putin to stop acting aggressively and breaking international law.
But what happens when the measures end up affecting somebody who is technically a Russian national, but who does not fall within the group those measures are intended to target — because instead of being a Kremlin favoured oligarch, they are the victim of political persecution by Russia?
For Russian nationals who are also citizens of other countries, the obvious answer is to renounce (i.e. get rid of) your Russian citizenship. Unfortunately, though, it is often not as simple as that.
That is because Russian domestic law prohibits renunciation where the applicant owes an outstanding obligation to Russia (including civil or tax obligations) or is the subject of an indictment or unserved sentence in a criminal case.[2]
This is an obvious problem for the victims of Russian political persecution, who are very often subjected to baseless and abusive criminal prosecutions, designed to land them in prison and strip their assets.
Put simply, anybody who falls into that category cannot renounce their citizenship under Russian domestic law, no matter how clearly they can demonstrate their innocence. Although that would imply that such persons cannot escape sanctions and monetary penalties, it is our considered view that all is not lost.
That is because there are at the international level to try and get around this problem — relying on human rights treaties and case-law relating to Article 8 of the European Convention on Human Rights (“ECHR”).
Proving the criminal case against you is abusive and politically motivated
Before we get into the details of those options, it is worth emphasising their common theme: to stand a chance of success, you will always need to gather compelling evidence to prove not only that you are innocent of all charges but also that the prosecution is politically motivated and has been attended by repeat abuses and a lack of due process.
As expert asylum lawyers, we are very well-placed to assist with this. It is precisely the exercise we conduct in asylum claims involving allegations of criminality. In short, you must be ready to conduct a mini trial, with witnesses and experts who can corroborate your account.
In asylum claims, it is the Home Office or First-tier Tribunal you must convince. In this context, Interpol is likely to be central. Allegations of criminality by Russia will very often lead to an Interpol Red Notice — which is essentially a flag to police forces across the world to arrest the subject pending their extradition or surrender.
The first thing you will want to do if subject to such a Notice is make representations to Interpol. If those are strong enough, the Interpol Commission for the Control of Interpol’s Files (CCF) may release a judgment confirming that, in their view, the case against you is political. If Interpol does that, you will have a strong basis to argue that the outstanding criminal investigation or conviction should be given no weight by any fair and objective decision maker.
Using the evidence of political motivation to renounce Russian citizenship or persuade other states and bodies not to impose prejudicial measures
Naturally, even a strongly worded decision from Interpol cannot change the effect of domestic Russian law. But it may allow you to rely on international law, and engage with international bodies, to do so.
The first thing to say here is that Russia is not bound by any treaty that explicitly relates to nationality or the right to renounce it. Russia has not ratified the European Convention on Nationality 1997 and nor has it signed the Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality 1963.
Moreover, since 26 September 2022, Russia is no longer a party to the ECHR[3] — which means you cannot apply to Strasbourg for a declaration that Russia’s conduct amounts to a breach of human rights.
Fortunately, though, Russia does remain a party to the International Convention on Civil and Political Rights 1966 (“ICCPR”). Although this does not contain any explicit provision relating to changing or renouncing national status, it does provide protection against unlawful or arbitrary interference with a person’s privacy and reputation.[4]
In substance, that protection is similar to the protection provided by Article 8 of the ECHR. As a result, it is our view that the case-law regarding Article 8 is relevant to illuminating the extent of the protection provided by the ICCPR. Helpfully, the Article 8 case law shows that decisions regarding citizenship, including the arbitrary refusal of a request to renounce citizenship, can engage Article 8 where there is a serious impact on the person’s honour and reputation.
That is a high threshold. Whether you can meet it will always depend on the facts of the case. But clearly there may be scope to argue that preventing a person from renouncing their citizenship puts Russia in breach of the ICCPR, where (1) you can show that the criminal case is unfounded and abusive and (2) there is very clear evidence that Russia’s refusal is having a dramatic impact on your ability to pursue professional and business activities, as well as your private life.
Even if you can make that argument, it begs the question of how you can leverage the breach to compel Russia to process your renunciation request. It is almost always necessary to exhaust domestic remedies first, by going direct to Russia. If they still refuse, despite all of the evidence, then your next option is likely to be making complaints to the United Nations Human Rights Committee and the UN Human Rights Council.
Conclusion and practical points to consider
It is worth bearing in mind that a complaint to either of the above bodies is likely to take a long time to process. If, while waiting for the outcome of those complaints, you continue to be subject to prejudicial and unfair measures by other countries or businesses, it may be prudent to make representations directly to those countries or businesses setting out why they should treat you as though you have already renounced Russian citizenship.
This novel approach may be of significant benefit in the sanctions arena. In the UK, there are various restrictions on individuals engaging in financial activities with persons who are “connected” with Russia.[5] Although this “connection” is not automatically met where a person is a Russian national,[6] it is likely that any business potentially affected by the relevant Regulations will take a precautionary approach towards anybody tainted by Russian association. Regulation 54D of the Russia (Sanctions) (EU Exit) Regulations 2019 prohibits the provision of legal advisory services to certain categories of non-UK persons. This prohibition would not bite if the individual in question had, for example, dual Russian and British nationality, as their British nationality would render them a UK person for the purpose of the Regulations.
However, a Russian national who has amassed a compelling case that they are the victim of state persecution and an arbitrary refusal to renounce their citizenship may be in a strong position to persuade service providers that they can assist without breaching sanctions. This may also assist in any application for a licence from the Office of Financial Sanctions Implementation. In effect, you may be able to utilise international law to circumvent Russian domestic law.
Each of these steps is complicated legally and likely to require detailed and well-prepared evidence. Should this be relevant to you or anybody you know, we would be pleased to advise on how best to push to renounce Russian citizenship — or indeed citizenship of any oppressive, persecutory state.
For further information, please contact Matt Ingham, Asylum Partner and Mark Jones, Defence & Investigations Partner in the Citizenship and Immigration department, alternatively, telephone on 020 7465 4300.
[1] https://www.fragomen.com/insights/worldwiderussia-update-on-visa-suspensions-for-russian-citizens.html
[2] Article 20(a) and (b) of the Federal Law of 31 May 2002, No. 62-FZ.
[3] https://www.coe.int/en/web/portal/-/the-russian-federation-is-excluded-from-the-council-of-europe
[4] Article 17.
[5] See for example Regulation 16 of The Russia (Sanctions) (EU Exit) Regulations 2019.
[6] The definition of “connected with” Russia in section 19A(2) of the same Regulations is met where a person is ordinarily resident in Russia or located there.
