Constitutional Court Decision 6/2015 (II. 25.)

Parties (including notable third parties)

Budapest Administrative and Labour Court (referring court); Anonymous (Applicant); Office of Immigration and Nationality (Defendant); Hungarian Helsinki Committee (Intervener); United Nations High Commissioner for Refugees (Intervener)

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Summary of Facts

The Applicant was born in 1985 and was of Somali and Nigerian descent. He arrived in Hungary in 2002 without valid travel documents and applied for recognition as a refugee but was rejected. He further applied for and was refused a residence permit. During the period when the Applicant was subject to an expulsion order and had no regularised status, he was not entitled to healthcare or employment. He could not exercise the right to marry, because he did not possess the necessary documentation.

Due to the ongoing war, the Applicant could not be returned to Somalia. The Nigerian embassy in Budapest refused to recognise him as a national in 2006, creating the possibility that the Applicant could be eligible for recognition as stateless. Hungarian law requires the immigration authority to inform individuals about the statelessness determination procedure if there is a possibility that they could be declared stateless, but the Applicant was not informed of it. However, the Applicant did receive some form of documented status for part of this period. Hungary admitted the Applicant as an exile (‘befogadott’) in 2006 and he was issued a humanitarian residence permit for two years. During this period, he was entitled to basic healthcare and employment and, presumably, was not prevented from getting married.

In 2008 the Applicant’s status was reviewed, and in 2009 the authorities issued a deportation order for the Applicant to be removed to Nigeria. The Applicant appealed without success, but the order was ultimately not enforced. During 2009, the Applicant began living with his Hungarian girlfriend. In 2010 he completed a course with a view to obtaining a work permit.

In September 2010, the Applicant submitted an application for statelessness status to the Office of Immigration and Nationality (the Defendant) after being informed by a lawyer that he could do so. The request was refused in November 2010. The Applicant appealed and was granted statelessness status by the Budapest High Court in February 2012. In October 2012, the Budapest Court of Appeal reversed this decision and refused the Applicant’s statelessness status. This decision was upheld by Kúria (Hungary’s Supreme Court) on the ground that Hungarian law requires a person to be lawfully staying in the country in order to be granted statelessness status.

The Applicant relaunched the procedure for recognition as stateless in December 2012, which was again refused by the Defendant. In these new proceedings, the Defendant concluded that the Applicant had established a prima facie case of statelessness. However, the application was again refused, this time on the basis of Section 76(1) of the Third-Country Nationals Act. In an administrative review of the decision, the Budapest Administrative and Labour Court ordered a stay of the proceedings and submitted a judicial initiative to the Constitutional Court seeking a finding of unconstitutionality by non-conformity with the Fundamental Law of the term ‘lawfully residing’ in the territory of Hungary, as provided for in Section 76(1) of Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals (hereinafter referred to as the ‘Third-Country Nationals Act’). That provision establishes that a stateless person must be refused recognition of statelessness status if he is unlawfully present in Hungary for any reason, which is contrary to Article 1 of the 1954 Convention relating to the Status of Stateless Persons (‘1954 Convention’) as the latter does not make lawful residence in the territory of the State concerned a precondition for the establishment of stateless status, and Article Q (2) and Article XV (2) of the Fundamental Law (which provide that Hungarian laws must conform with international law, and that Hungary shall respect fundamental rights without discrimination).

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Legal Arguments

According to the judicial initiative submitted by the court of first instance, ‘statelessness is a declaratory and not a constitutive act, it only establishes statelessness as a fact, but does not create it. A stateless person is also stateless if he or she enters or resides illegally on the territory of a State. The lack of travel documents is a common feature of statelessness, as no State recognises a stateless person as a national’ (paragraph 11). As a result, the term ‘lawful residence’ in Section 76(1) of the Third-Country Nationals Act deprives persons who are stateless under the 1954 Convention from having their application examined on the merits in Hungary.

It was argued that the Defendant’s fifteen year-long reluctance to recognise him as stateless or otherwise regularise his status was unacceptable, discriminatory and contrary to the Fundamental Law of Hungary.

It was also argued that the Applicant had not been able to access healthcare properly, had been deprived of any means of providing for himself and had not been able to marry his girlfriend. Despite having been stateless from the outset, Hungarian rules had prevented him from regularising his situation for a protracted period.

The Hungarian Helsinki Committee and UNHCR intervened to promote the Applicant’s success in the proceedings.

Outcome

The Constitutional Court had to decide whether Section 76(1) of  the Third-Country Nationals Act was in accordance with the Fundamental Law of Hungary, in particular section Q(2) thereof, and therefore whether it was in line with the 1954 Convention.

The Constitutional Court found the judicial initiative to be in part well-founded.

It stated that the contested provision primarily affects stateless forced migrants who have never possessed a travel document. Referring to the 1954 Convention and UNHCR Guidelines on Statelessness No. 2, it considered the link between statelessness and asylum and how a person may fall within either or both categories and the need to consider the rights and procedural rules arising under the Asylum Act and the rules governing the statelessness determination procedure. The Court noted that the UNHCR is best placed to interpret the international legal issues and to explore the practice in relation to the 1954 Convention, supported by the fact that the UN General Assembly has given the High Commissioner for Refugees responsibility for all stateless persons, and the legislator itself has provided in Section 81 of the Third-Country Nationals Act for the possibility for a UNHCR representative to participate in the procedure for the determination of statelessness.

Referring to Article 1 of the 1954 Convention, the Court noted the definition of a stateless person and that there is a detailed list of grounds and conditions for exclusion from protection under the Convention. It also pointed that some rights under the 1954 Convention are linked to lawful residence and other rights do not require this, noting that these provisions do not weaken but rather strengthen the linguistic interpretation of Article 1, since the wording makes it clear that the Contracting States have deliberately imposed an additional condition of lawful residence in some cases, while in others they have considered it unjustified. The judgment cites para 17 of the UNHCR Guidelines on Statelessness No. 2 (equivalent to para 69 of the Handbook).

The Court agreed with the judicial initiative that the Third-Country Nationals Act interprets Article 1 of the 1954 Convention restrictively. In the explanatory memorandum of the Third-Country Nationals Act, the legislator made it clear that it had included a ‘check’ to prevent abuses and Applicants applying in bad faith, by requiring lawful residence as an indispensable condition. Furthermore, the Court noted that the defendant concluded that the Applicant was stateless on the basis of the available evidence, but still dismissed the application under Section 76(1) of the Third-Country Nationals Act, which provides that ‘[p]roceedings for the recognition of stateless status are opened upon the submission of a request to the immigration authority for stateless status by a person who is lawfully residing in the territory of Hungary [...]’. While the 1954 Convention does not contain provisions on the SDP and it is for the States to determine the procedure, the said provision had in fact interpreted the definition of a stateless person in a restrictive manner that is contrary to the 1954 Convention.

The breach of an obligation in an international treaty was contrary to Article Q(2) of the Fundamental Law, which provides that Hungary shall ensure the consistency of international law and Hungarian law, and also Article B(1) which guarantees the rule of law. The Constitutional Court thus held that the term ‘lawfully’ in Section 76(1) of the Third-Country Nationals Act was contrary to the Fundamental Law and therefore annulled the term and removed it from the said provision with effect from 30 September 2015.

The provision that remains in force after removing the word ‘lawful’ means ‘that, in the case of an application by a foreign national, the initiation and conduct of the procedure for the establishment of stateless status may not be refused on the ground of the absence of lawful residence’ (paragraph 31).

It further held that ‘the partial annulment of the contested provision of Section 76(1) of the Third-Country Nationals Act by this Decision necessitates a review of the Third-Country Nationals Act, in particular with regard to the provision of stateless persons with identity and travel documents on the basis of Articles 27 and 28 of the Statelessness Convention, and a review of certain legislation also applicable to stateless persons with regard to the specific rights regulated by the Statelessness Convention, which are made conditional on the lawfulness of residence’ (paragraph 31).

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	1954 Convention relating to the Status of Stateless Persons	Articles 1, 2, 27, 28, 38
Domestic	Fundamental Law of Hungary	Article B, Q, XIV and XV
Domestic	Act no. II of 2007 on the Admission and Right of Residence of Third-Country Nationals (‘Third-Country Nationals Act’)	Sections 76(1) and 79(1)
Domestic	Government Decree no. 114/2007 (V.24.) on the Implementation of Act no. II of 2007

UNHCR Statelessness Guidelines cited

UNHCR Handbook on Protection of Stateless Persons

Key paragraphs of the Guidelines referred to

UNHCR Guidelines on Statelessness no 2: paras 17, 26-30 (current para 69 and 78-82 UNHCR Handbook)

Court's application of Guidelines

The Court acknowledged the value of the guidelines: ‘The Guidelines propose solutions to the procedural problems arising from these duplications. Although the Guidelines are one of what are known as non-binding international legal instruments, it is nonetheless undeniable that the United Nations High Commissioner for Refugees is best placed to interpret the international legal issues and to explore the practice in relation to the Statelessness Convention. This is supported by the fact that, on the one hand, the UN General Assembly has, by resolution, given the High Commissioner general responsibility for all stateless persons, including the recognition/identification, prevention, reduction and protection of statelessness, and, on the other hand, the legislator itself has provided in Section 81 of the Third-Country Nationals Act for the possibility for the representative of the United Nations High Commissioner for Refugees to participate in the procedure for the determination of statelessness. Section 164 of the Implementing Decree obliges the authority to take into account the opinion of the High Commissioner when taking evidence.’ (paragraph 18)

The Court cited paragraph 17 of the Guidelines in the judgment in support of the conclusion that there is no basis in the 1954 Convention to impose a lawful stay requirement to apply for the SDP.

The Court took into account the guidance in paragraphs 26-30 with regards to the need to assess both asylum and statelessness claims and the procedural considerations in doing so. The Court noted that these points ‘contain detailed proposals for the coordination of the asylum and statelessness procedures. They state that where a person makes both an application for stateless status and an application for asylum, it is important that both applications are assessed and, where appropriate, the Applicant is granted recognised status in both cases. Although the Guidelines do not contain legally binding provisions, it recommends that in cases of simultaneous submission, it is advisable, for reasons of confidentiality regarding identity, to conduct the asylum procedure first and suspend the procedure for stateless status for that period.’ (paragraph 18).

Available commentary

Tamas Molnár, ‘The Sudita Keita Versus Hungary Ruling of the ECtHR and the Right to Private Life of Stateless Persons: A Long Saga Comes to an End’ (2021) 9(1) Hungarian Yearbook of International Law and European Law 279

• The article analyses the domestic court proceedings of Mr Keita, including the Constitutional Court decision 6/2015 (II. 25.) and how the referring court later recognised him as a stateless person in application of the national legislation as adjusted by the Constitutional Court. It then proceeds to analyse the European Court of Human Rights’ judgment in Sudita Keita v Hungary, which found a violation of Article 8 of the European Convention on Human Rights in relation to Mr Keita.