Germany - Federal Administrative Court, 26 February 2009, 10 C 50.07

Country of Decision:
Country of Applicant:
Date of Decision:
15-02-2009
Citation:
10 C 50.07
Additional Citation:
asyl.net/M15645
Court Name:
Federal Administrative Court
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Headnote: 
  1. The denial of citizenship may represent a severe violation of basic human rights according to Art. 9.1 (a) of the Qualification Directive.
  2. In assessing the severity of the violation of rights caused by the denial of citizenship, under Art. 4.3 of the Qualification Directive, the individual situation and personal circumstances of the person concerned have to be taken into account.
  3. A person is stateless according to Section 3 (1) of the Asylum Procedure Act, if no state considers him/her as a national under its own law, i.e. a de jure stateless person. For de-facto stateless persons, therefore, a threat of persecution has to be established with reference to the state of their de jure nationality.
  4. The habitual residence of a stateless person under Section 3 (1) of the Asylum Procedure Act does not need to be lawful. It is sufficient if the focus of the stateless person’s life is in the country, and therefore the stateless person did not merely spend a short time there, and the competent authorities did not initiate measures to terminate his/her residence.
Facts: 

Applicant 1 and applicant 2, her son, born in 1994 in the Russian Federation, are ethnic Armenians. Applicant 1 stated that her father was of Armenian ethnicity and her mother was an ethnic Russian. She grew up in Baku/Azerbaijan. Since she was constantly threatened on account of her Armenian ethnicity, she left Azerbaijan in 1992 and went to Russia. She resided there illegally but had an apartment and engaged in commerce. Because the situation for people from the Caucasus in Russia was also poor, the applicants and her son went to Germany in 2002. In June 2002 they applied for refugee status and asylum under national law. 

Their applications were rejected by decision of the 16 of October 2002. In a decision of 4 February 2003, the Administrative Court rejected the appeal. The applicant appealed this decision. The High Administrative Court of Mecklenburg-Vorpommern, in a decision of 16 May 2007, ordered the asylum authorities to find that the conditions under Section 60 (1) Residence Act / Art 1 A(2) of the 1951 Refugee Convention were met. It based its decision substantially on the following considerations: On account of their Armenian ethnicity the applicants were threatened with political persecution in case of return to Azerbaijan, because of their loss or non-possession, respectively, of citizenship, and their associated unprotected status. It found that the applicants were stateless. The court held that an examination of the persecution threatening them should focus on Azerbaijan as the country of their habitual residence. Following the collapse of the Soviet Union, applicant 1 had Azerbaijani citizenship under the Azerbaijani Citizenship Act of 1991, but had subsequently lost it, or at least did not acquire or reacquire it, since she was living abroad for more than five years. The Citizenship Law underwent an amendment in 1998. It defines as citizens those persons who held Azerbaijani citizenship at the time of entry into force of that law. The basis for citizenship was registration at the person’s place of residence in Azerbaijan at the time of entry into force of that law (no later than 2000). In any case, applicant 1 could not de facto be considered an Azerbaijani citizen.

Decision & Reasoning: 

The court held that the decision by the High Administrative Court was unlawful. However, in its approach, the High Administrative Court correctly assumed that a denial of citizenship for reasons relevant to asylum (reasons for persecution Art 10 of the Qualification Directive) may represent persecution within the meaning of Section 60 (1) Residence Act / Art 1A(2) of the 1951 Refugee Convention in conjunction with Art. 9 of the Qualification Directive and may thus result in a grant of refugee status. The court held:

State persecution need not consist only of interference with life, limb or liberty. Violations of other rights to protection and freedom may also qualify as characterising elements of persecution. In terms of the intensity of interference, a state’s withdrawing of the material rights of citizenship from a citizen, thus excluding him from the general system of peace within the national unit, must also fundamentally be considered as persecution. This also applies taking account of Art. 9.1 (a) of the Qualification Directive, whose application is ordered by Section 60 (1) (5) of the Residence Act. Accordingly, persecution relevant to asylum includes acts which are sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which a deviation is not permissible under Art. 15.2 of the ECHR. Although the denial of the citizenship does not violate a right that persists in case of public emergencies within the meaning of the ECHR. However, this is not necessary, since Art. 9.1 (a) of the Qualification Directive mentions it only as an example. However, it violates Art. 15 of the Universal Declaration of Human Rights (right to a nationality). The decisive factor with regard to the severity of the violation of rights caused by deprivation of citizenship within the meaning of Art 9.1 (a) of Qualification Directive is that the state deprives the person in question of his/her fundamental status as a citizen and thus forcibly denies residency protection, thereby rendering the person stateless and unprotected, in other words: It excludes the person from the state’s system of peace and protection. The case law of other European countries considers the deprivation of citizenship, linked with characteristics relevant to asylum (persecution grounds), as an act of persecution (see Court of Appeal for England and Wales, decision of 31 July 2007 EB (Ethiopia) v. Secretary of State for the Home Department, [2007] EWCA Civ 809).

Denial of citizenship constitutes persecution within the meaning of Section 60 (1) of the Residence Act / Art 1A(2) of the 1951 Refugee Convention only if it is linked with characteristics relevant to asylum (persecution grounds) within the meaning of this provision. A deprivation of citizenship that merely represents an administrative sanction for a breach of a duty that is incumbent upon all citizens alike cannot be considered a persecution relevant under asylum law (case law of the Federal Administrative Court).

Regarding applicant 1, the High Administrative Court’s findings do not seem to preclude the possibility that she may already have lost her citizenship under the Citizenship Law of 1991, and that this did not result from reasons relevant to asylum.

If the High Administrative Court in its re-examination arrives at the conclusion that applicant 1 already lost her Azerbaijani citizenship under the Citizenship Law of 1991 and became de jure stateless, her claim to recognition would have to be examined under the standards that apply to stateless refugees. For this, it would be necessary that the applicants are threatened with persecution in the country of their previous habitual residence within the meaning of Section 60 (1) of the Residence Act (Section 3 (1) Asylum Procedure Act, Article 2 (c) of the Qualification Directive). In examining this, the High Administrative Court will have to assume that the applicants had their habitual residence in the Russian Federation.

Contrary to the opinion of the High Administrative Court, habitual residence within the meaning of these legal provisions does not presuppose that the stateless person’s residence must be lawful. In fact, it is sufficient if the focus of the life of a stateless person is in that country, and therefore they did not merely spend a short time there, and the competent authorities did not initiate measures to terminate his/her residence.  

If, accordingly, the Russian Federation must be considered as the applicants’ last habitual residence, there can be, in this Court’s opinion, no link to Azerbaijan as a further country in which she had a previous habitual residence. At least in a case like the present one, where applicant 1 focused her life in the Russian Federation for ten years and applicant 2 was born and raised there, there is no reason to revert additionally to Azerbaijan.

If the High Administrative Court arrives at the conclusion that applicant 1 has not been deprived of citizenship de jure, but is only de facto denied central rights of citizenship (e.g. the right of entry) a grant of refugee status may be considered if the conduct of the authorities is founded on grounds relevant to asylum. However, in that case more detailed findings would be needed that applicant 1 has indeed been denied the rights associated with citizenship, which also presupposes that she demonstrates that she has made serious and unsuccessful efforts to recover the denied rights. In case she has omitted to make reasonable efforts in order to re-enter Azerbaijan, the necessary severity of violation of rights in the meaning of Art. 9.1 of the Qualification Directive may well be absent.

If the High Administrative Court finds that the applicants suffered persecution relevant to asylum, it will again have to address the question of obtaining internal protection in Nagorno-Karabakh (Azerbaijan). In this respect it is not sufficient to find that the applicants do not possess valid travel documents nor is it inevitable that they wouldn’t be able to obtain them. Rather, most recently in its decision of 29 May 2008 (10 C 11.07), the Federal Administrative Court has pointed out that typically such obstacles can be removed. Based on its previous findings that refugees of Armenian ethnicity are legally entitled to Armenian citizenship, the High Administrative Court will have to consider Art. 4 (3) (e) of the Qualification Directive. 

If persecution relevant to asylum by Azerbaijan is affirmed and internal protection cannot be obtained, it must be re-examined whether the applicants already found safety against persecution in the Russian Federation and can return there. The reference to the applicants’ lack of Russian citizenship and the absence of permission for their residence there does not justify the conclusion that clearly neither repatriation nor a (lawful) return is possible.

Outcome: 

The case was remanded to the High Administrative Court Mecklenburg-Vorpommern for a further hearing and decision.

Subsequent Proceedings : 

Not known.

Observations/Comments: 

Though this issue was not decisive in this case, the Court also deals with the question whether a stateless person may have more than one country of habitual residence, as this is affirmed by UNHCR in its Handbook of 1979 (No.104/105) and the Federal Court of Canada (decision of 11 May 1998). The Federal Administrative Court is of a different opinion in this respect.

Case Law Cited: 

Ireland - Maarouf v Canada, Federal Court, 13 December 1993, [1994] 1 F.C. 723

Canada - Thabet v Minister of Citizenship and Immigration [1998] 4 FC 21

Germany - Federal Administrative Court, 08 February 2005, 1 C 29.03

Germany - Federal Administrative Court, 24 October 1995, 9 C 3.95

UK - EB (Ethiopia) v Secretary of State for the Home Department [2007] EWCA Civ 809