The applicant (allegedly a former Cameroonian national who had lost his identity documents) applied for a declaration of statelessness to the Defendant authority who rejected the application on the ground that the applicant did not have any identity documents and failed to cooperate during the verification of his identity by not trying to obtain such documents. This decision was upheld by the court of first instance and was subsequently challenged by the applicant before the Hungarian Supreme Court (Kúria). The Supreme Court held that the application for review was well-founded and confirmed that the definition of statelessness also covers cases where the practice of the competent foreign authority shows that it has ceased to consider an individual as a national. The Court reconfirmed that the burden of proof is shared in the statelessness determination procedure and further clarified that an applicant cannot automatically be held to violate their duty to cooperate if they do not possess identity documents and cannot acquire such documents due to reasonable circumstances.
- 1954 Convention relating to the Status of Stateless Persons
- 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.)
- 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. törvény végrehajtásáról – Vhr.)
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 to the Defendant 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 belongs to a minority which was at the time engaged in an armed struggle with the central government in Cameroon, he will not be able to obtain an identification document from the Cameroonian authorities.
The Defendant addressed 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 is not a Cameroonian national.
On 7 October 2020, the Defendant rejected the applicant’s request on the ground that he did not cooperate during the verification of his identity and dismissed his argument that he is unable to obtain his marriage certificate or the birth certificate of their children through his spouse, deeming it unacceptable. According to the Defendant, the applicant (within the meaning of Article 1(1) of the 1954 Statelessness Convention) cannot be considered as a stateless person because he failed to demonstrate that his statelessness is likely.
The applicant appealed against this decision which 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 has 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 judgement of the court of first instance requesting that the judgement be set aside and that the proceedings before the Defendant be reopened.
The applicant argued that under the definition of statelessness it is irrelevant whether he previously was a national of another country and if so, why his nationality is no longer recognised by the authorities of that country. Therefore, 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 Convention, point 37 of the Handbook and UNHCR Guideline 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 Defendant 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 cannot 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 Guideline No. 1, the burden of proof should be shared in the statelessness determination procedure.
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 Defendant 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.
The Hungarian Supreme Court (Kúria) ruled in favour of the applicant.
The Supreme Court pointed out that the burden of proof should be shared according to Hungarian law. As the procedure is initiated on his request, the applicant should provide any information/documents available to him in support of his request. At the same time, the Hungarian authorities are obliged to obtain the necessary information from the foreign authorities.
“A hontalansági eljárásban osztott bizonyítási teher érvényesül a hatóság és a kérelmező között, emellett pedig annak is jelentősége van, hogy a hontalansági eljárás kérelemre indul.” ("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.")
The Court held that it is not automatically a breach of the obligation to cooperate if the applicant does not submit the marriage or birth certificates. The Court emphasised that according to paragraph 38 of UNHCR Guidance No. 2, a person applying for statelessness has mostly no or only 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.
“Nem tekinthető minden további vizsgálat nélkül az együttműködési kötelezettség megsértésének, ha a kérelmező nem rendelkezik személyazonosító iratokkal, illetve ha azok pótlása iránt ésszerű okokból nem tud intézkedni.” ("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.")
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), cannot be disregarded. The Defendant authority 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 is not a Cameroonian national. In 2018, however, the embassy did not answer. In 2018, they sent a request to the Cameroonian embassy in Nigeria which also did not reply. Against this background, the Supreme Court ruled that the Defendant failed to assess the response/silence 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 Defendant 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 belongs to the English-speaking minority.
“A Harmtv. Vhr. 164§ (1) alapján beszerzett információkat a határozat meghozatala során nem lehet figyelmen kívül hagyni.” ("The information obtained pursuant to Art. 164§ (1) of the Vhr. Of the Harmtv. may not be disregarded in the decision.")[GS9] [DMA10]
According to the Supreme Court, the applicant rightly argued that the Defendant unlawfully failed to assess the response/silence of the Embassies despite the fact that the Hungarian Law prescribes their taking into account as a kind of bound proof.
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.
“A Harmtv. 2. § b) pontja szerinti hontalan-fogalom arra az esetre is kiterjed, amikor a kérelmező korábbi állampolgársága szerinti országának hatósága a kérelmezőt már nem ismeri el állampolgárának.” ("The concept of statelessness under Section 2(b) of the Harmtv. also covers cases where the authority of the applicant's country of former nationality no longer recognises the applicant as a national.")
The Supreme Court stated that the Defendant’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 judgement of the court of first instance, annulled the Defendant's decision and ordered the Defendant to reopen the proceedings. It ruled that in the retrial, the Defendant 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 will 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; evaluate the embassies' replies and silences 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.
- UNHCR Guidance No. 2
- UNHCR Handbook and UNHCR Guideline No. 5
- UNHCR Guideline No. 1