Switzerland - Federal Administrative Court, judgment no. F-2453/2017

The applicant was a Syrian national of Kurdish ethnicity, who unsuccessfully applied for asylum in Switzerland. He subsequently claimed that he has been deprived of Syrian nationality and therefore ought to be recognised as stateless. The State Secretariat for Migration and the Court decided that he did not meet the standard of proof to substantiate his statelessness. 

Case number
F-2453/2017
Citation
https://www.swissrights.ch/bvge/2019-F-2453_2017.php
Date of decision
State
Court / UN Treaty Body
Federal Administrative Court of Switzerland
Language(s) the decision is available in
German
Applicant's country of birth
Syria
Applicant's country of residence
Switzerland
Facts

The applicant was born 1980 and arrived in Switzerland on 14 November 2008, with his wife and two children, where they applied for asylum on 15 November 2008. The applicant initially claimed to be a Syrian national of Kurdish ethnicity. In his asylum application it appeared that he has already applied for asylum in Germany with a different identity, affecting his credibility with the authorities. The asylum application in Switzerland was initially rejected and a deportation ordered against the family, but it was replaced with a temporary permission to remain, as the deportation was deemed unacceptable and also because he was recognised as a refugees (but not granted asylum) due to political activities sur place.

On 28 July 2016 the applicant requested to be recognised as stateless. He submitted that when he attempted to register with Syrian authorities the birth of his youngest child, who was born in Switzerland in the meantime, he was informed that he was no longer in the records of the Syrian authorities. His passport could neither be extended nor renewed, and he lost his nationality sometime between 2006 and the present. On 16 March 2017 the applicant’s request to be recognised as stateless was rejected.

Decision & Reasoning

The Court firstly considers the definition of a stateless person, and elaborates on the issue that voluntary statelessness does not give rise to entitlement to international protection.

The Court reasoned as follows about the lack of a statelessness determination procedure in Switzerland and the standard of proof:

“In the absence of a special legal regulation, the procedure for the recognition of statelessness follows the Administrative Procedure Act and the general principles of administrative procedural law. Therefore, in principle, full evidence must be provided for the existence of a fact. If the proof is unsuccessful, the lack of evidence comes at the expense of the party who derives rights from the fact, according to the general rule on the burden of proof […].”

“The principle of investigation places the responsibility for verifying the facts on the authority […] The principle of investigation is balanced out by the individual’s obligation to cooperate in the investigation of the facts. The duty to cooperate comes into play, among other things, in proceedings that are initiated at the request of the individual […], and applies in particular to facts which the individual knows better than the authority, or which the authority cannot investigate the facts at all or without excessive effort without the participation of the individual […]. It must be considered that in the present claim a negative fact out to be established (in particular: the lack of a nationality). However, this does not change anything about the distribution of the burden of proof […].”

After having considered the evidence presented by the applicant, the court concluded that “the claim of deprivation of nationality has no basis”.

The Court concludes that:

“[T]he applicant has neither proven nor credibly demonstrated that he has been deprived of his nationality and is therefore stateless.”

Outcome

The Court upheld the decision of the State Secretariat for Migration not to recognise the applicant as stateless.