The asylum application submitted by a refugee of Palestinian origin with Syrian travel document was rejected and the applicant was provisionally admitted in Switzerland, as the enforcement of removal has proven unreasonable. The applicant and his family submitted a subsequent application for recognition of statelessness. The Swiss Federal Court recognised the statelessness of Palestinian refugees from Syria, for whom UNRWA protection or assistance is objectively no longer accessible.
National Law (AIG)
Article 1D of the Refugee Convention
The applicant, a refugee of Palestinian origin from Syria, left his country of origin in 2014 with a Schengen visa issued by the Swiss Embassy in Lebanon. After seeking asylum in the Netherlands, he arrived in Switzerland under the Dublin procedure, where he also applied for asylum.
The asylum application submitted in Switzerland was rejected in 2015. At the same time, the preliminary admission of the applicant was ordered due to the unreasonableness of the enforcement of removal. The applicant’s spouse and his four children were also provisionally admitted to Switzerland.
In 2015, the applicant, his Syrian spouse, and his four children applied for recognition of statelessness, stating that they were registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), which is active in Syria. The applicants claimed that they would no longer fall under the protection of the UNRWA because of their departure.
The authorities (the State Secretary for Migration) rejected the request for recognition of statelessness in 2017. The appeal filed against the authorities' decision was rejected by the Federal Administrative Court.
The applicants request that the Federal Administrative Court’s decision is set aside, their statelessness is recognised and that they are granted a residence permit. The applicants prove a legitimate interest, as stateless persons in the light of the 1954 Convention would be entitled to legal advantages. The applicants argue that UNRWA can no longer provide assistance, and that it is impossible for them to obtain travel documents from the Syrian representation.
The authorities (the State Secretariat for Migration) claim that the recognition of statelessness would not grant any legal advantages as the applicants have been temporarily granted residence permits in the meantime.
In addition, the authorities do not recognise the statelessness status if persons deliberately lose their nationality or do not do everything reasonable to retain or regain their nationality. As the applicants’ departure from Syria in 2014 was voluntary and they had the possibility to obtain travel documents from the Syrian representation, the authorities do not consider the applicants as stateless persons within the meaning of Article 1 paragraph 1 of the 1954 Convention.
The Swiss Federal Court held that the recognition of statelessness grants a right to reside and work in Switzerland as well as to the issuance of travel documents. Although persons holding a residence permit have the same possibilities and rights to work as a stateless person according to Swiss law, it must be assessed in addition to what extent the applicants may apply for travel documents via the Syrian authorities and travel abroad with Palestinian passports.
In the Swiss Federal Court’s view, the issuance of Swiss travel documents undoubtedly represents an advantage for them. The recognition as a stateless person would grant the applicants a right to obtain Swiss travel documents and therefore result in a legal advantage for the applicants, compared to the current situation. An ultimate legitimate interest in the annulment of the contested decision is therefore given for the applicant.
The Swiss Federal Court states that the exclusion clause under Article 1D of the Refugee Convention can only be applied if the person can objectively claim the protection or assistance of UNRWA again. The Swiss Federal Court held furthermore that the 1954 Convention formally defines a stateless person as 'a person who is not considered as a national by any State under the operation of its law'. In the Court’s view, there is no evidence that the applicants willingly renounced their nationality or would have the opportunity to acquire a nationality. The applicants would consequently need to be considered as stateless persons and the State Secretariat for Migration’s refusal to recognise the applicants’ statelessness would violate the 1954 Convention.
The court approved the appeal. The authorities (the State Secretariat for Migration) are ordered to recognise the applicants as stateless persons.