CRC - A.M. (on behalf of M.K.A.H.) v. Switzerland (no 95/2019)

Court name: Committee on the Rights of the Child (CRC)
State: Switzerland
Date of decision:
Legal instruments: 1954 Statelessness Convention, 1997 European Convention on Nationality, Convention on the Rights of the Child (CRC), European Union law
Key aspects: Access to social and economic rights, Childhood statelessness, Country of return, Discrimination, Procedural safeguards, Refugee status determination, Statelessness and asylum

The communication concerned M.K.A.H., a stateless child, and centred around whether Switzerland violated his rights under Articles 2 (2), 6, 7, 16, 22, 24, 27, 28, 29, 37 and 39 UNCRC when it decided to return him and his mother back to Bulgaria, pursuant to the agreement between Switzerland and Bulgaria relating to the readmission of migrants in irregular situations, where they had previously obtained subsidiary protection.

Some of the findings of the Committee included: (i) Switzerland had not respected the best interests of the child nor heard him at the time of the hearing of the asylum request; (ii) the child ran a real risk of being subject to inhuman and degrading treatment in case of a return to Bulgaria; (iii) Switzerland had not sought to take the necessary measures to verify what access to nationality the child could benefit from in Bulgaria. Article 7 UNCRC implicates that States must take the necessary positive actions to implement the right to acquire nationality.

Switzerland - Federal Administrative Court, judgment no. F-6147/2015

Court name: Federal Administrative Court (Bundesverwaltungsgericht)
State: Switzerland
Date of decision:
Legal instruments: 1954 Statelessness Convention
Key aspects: Access to social and economic rights, Burden of proof, Childhood statelessness, Determination/confirmation of nationality, Exclusion grounds, Protection, Stateless status and documentation, Statelessness and asylum, Statelessness determination

Applicants requested to be recognised as stateless in addition to having already been recognised as refugees. The judgments deals with the question of whether refugee status is comparable in rights to the status of nationals within the meaning of the exclusion clause in Article 1(2) of the 1954 Convention. The Court sides with the applicants confirming their right to be recognised as stateless persons in addition to having been granted asylum-based residence status. 

Austria - Constitutional Court case of 6 March 2014

Court name: Constitutional Court of Austria (Verfassungsgerichtshof)
State: Austria
Date of decision:
Legal instruments: 1954 Statelessness Convention, European Convention on Human Rights (ECHR)
Key aspects: Burden of proof, Childhood statelessness, Country of return, Deportation and removal, Protection, Residence permit, State succession, Statelessness determination

The applicant is of Roma ethnic origin, with parents from former Yugoslavia, who was born, grew up, and worked his whole life in Austria. He has had a permanent residence permit until 1995, when the latter was withdrawn due to applicant's criminal convictions. The Court found the applicant to be stateless, and determined that expulsion of a stateless person without a former country of habitual residence amounts to violation of Article 3 ECHR. 

France - Nantes Administrative Court of Appeal, case no. 14NT01490

Court name: Nantes Administrative Court of Appeal
State: France
Date of decision:
Legal instruments: 1954 Statelessness Convention
Key aspects: Birth registration, Burden of proof, Childhood statelessness, Standard of proof, Statelessness determination

The applicant was born in Taiwan, and entered France as an unaccompanied minor on a "borrowed" passport. Her application for stateless status was rejected, as she did not make sufficient effort to obtain Chinese nationality. OFPRA also relied on the applicant having had a "double identity" in France and therefore being untrustworthy, and on the fact that France does not recognise Taiwan as an independent state.