The applicant, a stateless person residing in Hungary, faced protracted difficulties in regularising his legal situation, being eventually recognised as stateless after fifteen years' residence. During thirteen of those years, the applicant had no legal status in Hungary and was entitled to neither healthcare nor employment, nor was he able to marry. Constitutional Court proceedings were initiated by a judge, in which the judge proposed to declare that the term "lawful residence" in the territory of Hungary, as provided for in 76§ (1) of Act no. II of 2007 on Admission and Right of Residence of Third-Country Nationals (Harmtv), which requires a person to be lawfully staying in the country in order to be granted statelessness status, was contrary to the Fundamental Law of Hungary, and to order a general prohibition of its application in the given case. The Constitutional Court held that the term “lawful residence” was contrary to the Fundamental Law of Hungary, thus deleted it from the cited law. However, it refused to prohibit its application to the underlying procedure, as the applicant concerned was able to initiate a new procedure afterwards. This case reached the European Court of Human Rights (Sudita Keita v. Hungary).
1954 Convention Relating to the Status of Stateless Person, Articles 1, 2, 27, 28, 38
Fundamental Law of Hungary, sections Q, XIV and XV
Government Decree no. 114/2007 (V.24.) on the Implementation of Act no. II of 2007
Act no. II of 2007 on the Admission and Right of Residence of Third-Country Nationals (hereinafter: “Harmtv”), sections 76(1) and 79(1)
The applicant was born in 1985 and was of Somali and Nigerian descent. He arrived in Hungary in 2002 without valid travel documents and applied for recognition as a refugee. While the application was being assessed, the applicant was entitled to basic healthcare and employment rights. The application was rejected in November 2002.
In April 2003 an expulsion order was issued to the applicant, but its enforcement was suspended until September 2004 pending fulfilment of certain preconditions. The applicant applied for and was refused a residence permit. During the period when the applicant was subject to an expulsion order and had no regularised status, he was not entitled to healthcare or employment. He could not exercise the right to marry, because he did not possess the necessary documentation.
Due to the ongoing war, the applicant could not be returned to Somalia. The Nigerian embassy in Budapest refused to recognise him as a national in 2006, creating the possibility that the applicant could be eligible for recognition as stateless. Hungarian law requires the immigration authority to inform individuals about the statelessness determination procedure if there is a possibility that they could be declared stateless, but the applicant was not informed of it. However, Hungary admitted the applicant as an exile (befogadott) in 2006. On 19 July 2006, the applicant was issued with a humanitarian residence permit which was valid until 19 July 2008. During this period, he was entitled to basic healthcare and employment and, presumably, was not prevented from getting married.
In 2008 the applicant’s status was reviewed and the Immigration Authority decided that he could not be accepted as a refugee or protected person, and that no prohibition on refoulement existed regarding Nigeria. The applicant unsuccessfully challenged the decision. As a result, he lost his entitlement to healthcare and employment, and no longer possessed the necessary documentation to get married.
In 2009 the authorities issued a deportation order for the applicant to be removed to Nigeria. The applicant appealed without success, but the order was ultimately not enforced. During 2009 the applicant began living with his Hungarian girlfriend. In 2010 he completed a heavy-machinery operator course with a view to obtaining a work permit.
In September 2010, the applicant submitted an application to be granted statelessness status after being informed by a lawyer that he could do so. The request was refused in November 2010. The applicant appealed and was granted statelessness status by the Budapest High Court in February 2012. In October 2012, the Budapest Court of Appeal reversed this decision and refused the applicant statelessness status. This decision was upheld by Kúria (Hungary’s Supreme Court) on the ground that Hungarian law requires a person to be lawfully staying in the country in order to be granted stateless status.
The applicant relaunched the procedure for recognition as stateless in December 2012. After initial refusal in June 2013, the court of first instance asked the Constitutional Court to declare unconstitutional the requirement for ‘lawful stay’. On 23 February 2015, the Constitutional Court removed the lawful stay requirement with effect from 30 September 2015 with reference to Hungary’s obligations under international law, in particular the 1954 Convention Relating to the Status of Stateless Persons.
According to the judicial initiative, statelessness is a declaratory and not a constitutive act, it only establishes statelessness as a fact, but does not create it. A stateless person is also stateless if he or she enters or resides illegally on the territory of a State. The lack of travel documents is a common feature of statelessness, as no state recognizes a stateless person as a citizen. As a result, the term “lawful residence” in section 76(1) of Act no. II of 2007 on the Admission and Right of Residence of Third-Country Nationals deprives persons who are stateless under the 1954 Convention from having their application examined on the merits in Hungary.
It was argued that the authorities’ fifteen year-long reluctance to recognise him as stateless or otherwise regularise his status was unacceptable, discriminatory and contrary to the Fundamental Law of Hungary.
It was also argued that the applicant had not been able to access healthcare properly, had been deprived of any means of providing for himself and had not been able to marry his girlfriend. Despite having been stateless from the outset, Hungarian rules had prevented him from regularising his situation for a protracted period.
There was no opposing party, thus no counter arguments were presented, as this case was initiated before the Constitutional Court of Hungary.
The Constitutional Court had to decide whether section 76(1) of Act no. II of 2007 on the Admission and Right of Residence of Third-Country Nationals (Harmtv) is in accordance with the Fundamental Law of Hungary, in particular section Q(2) thereof. Section Q(2) of the Fundamental Law of Hungary prescribes that all Hungarian legal regulations shall be in accordance with Hungary’s international obligations, i.e. the international treaties to which Hungary is party. Therefore, the Constitutional Court had to examine whether the current wording of the Harmtv is in line with the 1954 Convention Relating to the Status of Stateless Persons.
Without the removal of the ‘lawful stay’ requirement, it is practically impossible for the applicant to be recognised as stateless. This meant that contrary to the principles flowing from the 1954 UN Convention relating to the Status of Stateless Persons, the applicant, a stateless individual, was required to fulfil requirements which he was unable to fulfil.
Considering the above, the Constitutional Court established that the applicant was not provided with an effective and accessible procedure enabling him to have the issue of his status in Hungary determined and thus as a result the ‘lawful stay’ requirement frustrated the applicant's right to be officially recognised as a stateless person under the 1954 Convention.
The Constitutional Court held that the term “lawful residence” was in fact contrary to the Fundamental Law of Hungary, thus deleted it from the Harmtv, however refused to prohibit the application thereof in the underlying procedure, as the applicant concerned was able to initiate a new procedure afterwards.