Supreme Court, Judgment no. Kfv.II.37.715/2021/6

Parties (including notable third parties)

The Applicant; National Directorate General of Alien Polic, Budapest and Pest County Regional Directorate (The Respondent) Note: The Budapest Administrative and Labour Court judge initiated a review before the Constitutional Court, meaning the proceedings lacked traditional parties.

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Summary of Facts

The Applicant, allegedly a Cameroonian national, arrived in Hungary on 4 February 2001. He submitted multiple applications for recognition as a refugee, which were rejected. He was issued a humanitarian residence permit instead. After its expiry he was expelled from the country, however, he refused to leave Hungary. In 2018 the Applicant applied for statelessness status.

The Applicant claimed that he was a Cameroonian national but had lost his Cameroonian passport. Allegedly, around the year 2000, he submitted his birth certificate to a Hungarian administrative authority. However, the birth certificate was never returned to him. He also stated that due to the political situation in Cameroon and, more specifically, the fact that he belonged to a minority which was at the time engaged in an armed struggle with the central government in Cameroon, he was not able to obtain an identification document from the Cameroonian authorities.

The Respondent sent requests for information to the Embassies of Cameroon in Nigeria and Vienna but did not receive a proper answer from either authority. In 2015, the embassy of Cameroon in Vienna merely stated that based on the available information, the Applicant was not a Cameroonian national.

On 7 October 2020, the Respondent rejected the Applicant’s request on the ground that he did not cooperate during the verification of his identity. The Respondent also dismissed the Applicant’s argument that he was unable to obtain his marriage certificate or the birth certificate of his children through his spouse, deeming it unacceptable. According to the Respondent, the Applicant cannot be considered as a stateless person (within the meaning of Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons, the ‘1954 Convention’) because he failed to demonstrate that his statelessness is likely.

The Applicant appealed against this decision. This appeal was dismissed by the Court of first instance. The Court stated that the Applicant submitted the application for declaration of statelessness after 18 years of living in Hungary under asylum and immigration procedures. He had earlier declared himself to be a Cameroonian national, and there was nothing to suggest that he had lost his nationality. Furthermore, the court stated that, according to Hungarian law, the Applicant must prove his statelessness or at least show it to be likely.

The Applicant appealed against the judgment of the court of first instance requesting that the judgment be set aside and that the proceedings be reopened.

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Legal Arguments

Legal Arguments by the Applicant

The Applicant argued that under the definition of statelessness it is irrelevant whether he previously was a national of another country, and even if so, why his nationality is no longer recognised by the authorities of that country. Statelessness for practical reasons also meets the definition of statelessness and the reasons behind the loss of nationality are irrelevant.

Relying upon Article 1(1) of the 1954 Convention, paragraph 37 of the UNHCR Handbook on Protection of Stateless Persons, and UNHCR Guidelines on Statelessness No. 5, the Applicant argued that deprivation of nationality applies equally to the situation where, from the circumstances, it is obvious that the country of former nationality no longer considers an individual as a national even though there is no formal act pointing to a loss of nationality. The non-provision of information by the relevant authorities can also be considered as relevant proof. Both the Respondent and the Court of first instance failed to consider the fact that, in 2015, the Cameroonian consulate in Vienna responded to the request of the Hungarian authorities stating that based on the submitted data, the Applicant is not a Cameroonian national. Additionally, the Applicant argued that he could be held liable for his inability to obtain any identification documents and even if he could provide the requested documents, these documents would not prove the loss of nationality. In any event, according to the UNHCR Guidelines on Statelessness No. 1, the burden of proof should be shared in the statelessness determination procedure.

Legal Arguments by the Respondent

The Respondent argues that the fact of statelessness has not been proven by the Applicant. There is no proof that he had lost his Cameroonian nationality, and the silence of the authorities cannot be assessed in favour of the Applicant’s application for statelessness. The Respondent emphasised that it was not possible for the Cameroonian authorities to identify the Applicant based on the data provided. Further, the Applicant had refused to attempt to obtain the documents necessary for identification although he had contact to Cameroonian nationals who could probably help him.

Outcome

The Supreme Court ruled in favour of the Applicant. It held that ‘statelessness that is rooted in practice also corresponds to the definition of statelessness’ as in Hungarian law and the 1954 Convention (page 37).

The Supreme Court noted that the burden of proof should be shared according to Hungarian law. As the procedure was initiated at his request, the Applicant should have provided any information or documents available to him in support of his request. At the same time, the Hungarian authorities were obliged to obtain the necessary information from the foreign authorities. According to the Supreme Court, ‘in the statelessness procedure, the burden of proof is shared between the authority and the Applicant, and the fact that the statelessness procedure is initiated upon request is also relevant’ (page 41).

The Court held that it was not automatically a breach of the obligation to cooperate if the Applicant did not submit marriage or birth certificates. The Court emphasised that according to paragraph 38 of UNHCR Guidelines on Statelessness No. 2, a person applying for statelessness has mostly no or only a few documents to support their application. This should be considered by the authority conducting the procedure and, where appropriate, it should accept a reasonable explanation from the Applicant. ‘It shall not be considered a breach of the duty to cooperate without further investigation if the Applicant does not have identification documents or if he is unable to provide them for reasonable grounds’ (paragraph 43).

Further, the Court ruled that information obtained by the Hungarian authorities pursuant to Section 164 (1) of the Government Decree 114/2007 (24 May 2007) on the implementation of Act II of 2007 on the entry and residence of third-country nationals (i.e., information that must be considered in determining whether the Applicant is not recognised as a national of any state under its own law), could not be disregarded. The Respondent sent two requests to Cameroon’s embassy in Vienna, one in 2015 and one in 2018. The embassy replied in 2015 that based on the submitted data Applicant was not a Cameroonian national. In 2018, however, the embassy did not answer. The Respondent also sent a request to the Cameroonian embassy in Nigeria, which likewise did not reply.

Against this background, the Supreme Court ruled that the Respondent failed to assess the non-response of the embassies in a lawful manner. The Court of first instance also unlawfully failed to notice this deficiency. The Supreme Court further noted that the Respondent neither considered nor attempted to clarify the difficulty of obtaining the documents, taking into account the internal political situation in Cameroon and the fact that the Applicant belonged to the English-speaking minority.

Finally, the Hungarian Supreme Court ruled that the definition of statelessness according to Hungarian law also covers cases where the Applicant is no longer recognised as a national by the authorities of the country of former nationality. ‘The concept of statelessness under Section 2(b) of the Act II of 2007 on the entry and residence of third-country nationals also covers cases where the authority of the Applicant's country of former nationality no longer recognises the Applicant as a national’ (page 40).

The Supreme Court stated that the Respondent’s findings of fact and the reasons for its decision were deficient in a manner that affected the merits of the case, and the court of first instance did not notice these deficiencies. The Supreme Court found the application for review well-founded, reversed the judgment of the court of first instance, annulled the Respondent’s decision and ordered the Respondent to reopen the proceedings. It ruled that in the retrial, the Respondent must:

• obtain country information to clarify the difficulties of locating and submitting the missing documents and whether the internal political situation in Cameroon and the Applicant’s status as an English-speaking minority would affect the chances of completing this exercise;
• examine the Applicant’s file in the asylum procedure and check if his birth certificate can be found; and
• evaluate the embassies' replies and non-responses together with the obtained country-information, taking into consideration that the Applicant is only expected to take such steps that are reasonably necessary to obtain the documents.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	1954 Convention relating to the Status of Stateless Persons
Domestic	Act II of 2007 on the entry and residence of third-country nationals (2007. évi II. törvény a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról -Harmtv.)	Section 2, 79, 164
Domestic	114/2007 (V. 24.) on the implementation of Act II of 2007 on the entry and residence of third-country nationals (114/2007. (V. 24.) Korm. rendelet a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törv
Domestic	Hungarian Civil Code

UNHCR Statelessness Guidelines cited

UNHCR Handbook on Protection of Stateless Persons

Key paragraphs of the Guidelines referred to

UNHCR Guidelines on Statelessness no. 2, para 38 (equivalent to para 90 in the Handbook)

Court's application of Guidelines

The Court agreed with the Applicant’s claim that the burden of proof should be shared and that under the UNHCR Guidelines, the Applicant should not need to provide documentary evidence.

Available commentary

No commentary available.