Austria - Constitutional Court case of 30 August 2018

The applicant was born in Armenia and belongs to Yazidis minority. After many years of unlawful residence in Austria, and several unsuccessful attempts to deport him, he applied for a toleration permit, which was refused as he did not cooperate sufficiently with the authorities' attempts to obtain travel documents for him to travel to Armenia, and there is also a possibility he may be a Russian or a Ukrainian national. The Court sided with the applicant, stating that it was the authorities' responsibility to substantiate any presumed links between the applicant and a specific state, before the duty to cooperate could be imposed.

Case name (in original language)
Ra 2018/21/0029
Case number
Ra 2018/21/0029
Date of decision
Court / UN Treaty Body
Constitutional Court of Austria (Verfassungsgerichtshof)
Language(s) the decision is available in
Applicant's country of birth
Applicant's country of residence

The applicant was born in Armenia, and entered Austria in 2005, and then again in 2006 after having been deported to Slovakia. He attempted to regularise his residence several times, but those requests were rejected and followed by expulsion orders to Slovakia, Armenia, and Ukraine. Only the deportation to Slovakia was once successfully carried out. The applicant has been residing continuously in Austria since May 2006. In  December 2012 he applied for a tolerated stay permit, which was rejected most recently before this judgment in 2018. The applicant belongs to the Yazidis minority, and as he has claimed in his asylum procedures since 2007, he is stateless, and therefore his deportation is unrealistic.  

Decision & Reasoning

The Court did not directly engage with the applicant’s alleged statelessness in its reasoning. It found, however, that there needs to be a sufficiently convincing reason to presume the existence of a certain nationality before cooperation can be required of an applicant. The Court reasoned as follows:

“10. […] As to the claim that the applicant refused to cooperate in a reasonable manner in obtaining a replacement travel document, it should be noted that the "acts of denial" (failure to fill out a form to obtain a laissez-passer) refer exclusively to Armenia. In the case at hand the actions of the applicant cannot lead to concrete conclusions. It has already been stated that relation to Armenia has not been established in the given context. As far as the opinion expressed in the contested decision that the obligation to cooperate exists vis-à-vis any state which the authority suspects to potentially be a state of origin is devoid of substance.”

“11 It is moreover not true, contrary to what the authorities argue, that the rejection of the applicant’s request [for tolerated stay] is (already) justified on the basis that not all possibilities have been fully investigated, "especially with regard to the Russian Federation and the Republic of Ukraine". It is the authorities' responsibility to carry out the investigations it considers necessary […], and their failure to take necessary investigative steps cannot disadvantage the applicant."


The Court declared unlawful the authorities' decision to deny the applicant a tolerated stay status.