A stateless Palestinian was denied naturalisation as a German citizen by the competent authorities. Subsequently the applicant filed an action for naturalisation against the Free State of Bavaria (defendant). The Federal Administrative Court found that the applicant had to be considered to be a "stateless person" within the meaning of Art. 2 of the German Act to Reduce Statelessness of 29 June 1977 (Gesetz zur Verminderung der Staatenlosigkeit vom 29. Juni 1977 - StaatenlMindÜbkAG) and ordered the defendant to naturalise the applicant.
- Art.1 (1) of the Convention relating to the Status of Stateless Persons of 28 September 1954 ("1954 Convention")
- Art.2 of the German Act to Reduce Statelessness of 29 June 1977 (Gesetz zur Verminderung der Staatenlosigkeit vom 29. Juni 1977 - StaatenlMindÜbkAG)
The applicant was born on 3 February 1982 in Berlin. Her parents, Palestinians from Lebanon, had entered Germany in September 1981 and applied for asylum for themselves and their children. This application was rejected on 24 March 24 1982. On 5 May 1982, the immigration authorities ordered the parents of the applicant to leave the territory of the Federal Republic of Germany no later than one month after the asylum decision became final, and threatened them with deportation in the event of their failing to leave voluntarily within the specified period. The notification stated that the order to leave the country and the threat of deportation applied equally to the children, including the applicant. After the asylum proceedings had been finally concluded, the foreigners department (Ausländerbehörde) issued the parents of the applicant temporary toleration certificates in May 1985 and, when handing them over, pointed out that deportation to Lebanon was out of the question under the present circumstances. However, if the situation changed, they would have to expect the whole family to be deported. For the same reasons, the foreigners department extended the toleration certificates in the period that followed. On 7 March 1991, the applicant received a residence permit limited to two years in accordance with Section 100 II of the 1990 German Foreigners Act (Ausländergesetz) (which has, since 31 December 2004, ceased to be in forces). On 13 March 1997, the applicant's parents applied for their naturalisation, citing the German Act to Reduce Statelessness. The competent authority rejected the application. The subsequent objection to this decision was rejected by the government of Upper Palatinate (Oberpfalz).
The applicant's subsequently filed action for naturalisation (Verpflichtungsklage auf Einbürgerung) was unsuccessful in two prior instances before being decided by the German Federal Administrative Court in a final judgment.
N/A
Article 2 of the German Act to Reduce Statelessness does not provide the applicant with a right to naturalisation, as its prerequisites are not met:
- The stay of the applicant in Germany was not "lawful". The immigration authorities must have agreed to a stay of the parents for an unlimited duration. Their toleration neither provides a lawful nor a permanent residence. Similarly, a residence permit is not sufficient. Only with the issuance of an unlimited residence permit does the five-year period specified in the German Act to Reduce Statelessness begin.
- The applicant was not "stateless". The statelessness required for the naturalisation claim is determined according to the 1954 Convention relating to the Status of Stateless Persons ("1954 Convention"). This does not apply to Palestinian refugees as long as they are assisted by UNRWA. If these individuals are excluded from the general benefits of the 1954 Convention, they cannot be granted the special benefit of naturalisation under the German Act to Reduce Statelessness. As such, it is excluded to consider them stateless for the naturalisation claim in question here. Furthermore, Palestinians are not stateless based on the international legal doctrine of the three elements of statehood.
A "stateless person" within the meaning of Article 1 (1) of the 1954 Convention is an individual who is not considered a national by any state under its law (see paragraph 13 of the judgment) (reiteration of previous judgments of the Federal Administrative Court, see BVerwG 16.10.1990 - 1 C 15/88, BVerwG 10.7.1984 - 1 C 30/81, BVerwG 27.9.1988 - 1 C 20/88).
Palestinians who do not possess any other nationality are stateless persons within the meaning of Article 1 (1) of the 1954 Convention and thus also within the meaning of Article 2 of the German Act to Reduce Statelessness of 29 June 1977 (Gesetz zur Verminderung der Staatenlosigkeit vom 29. Juni 1977 - StaatenlMindÜbkAG).
- The systematic context and the history of the 1954 Convention indicate that this group of individuals is stateless within the meaning of Article 1(1) of the Convention, without it being necessary to clarify the politically and legally disputed question of whether there is a Palestinian nationality.
- Article 1 (2) of the 1954 Convention states that such Convention shall not be applied "to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance so long as they are receiving such protection or assistance".
- Such a provision would not have been necessary if the Palestinians were not "stateless" within the meaning of Article 1 (1) of the 1954 Convention.
- Article 1 (1) of the German Act to Reduce Statelessness generally does not refer to the scope of application of the 1954 Convention but rather to statelessness in the sense of Article 1 (1) of the German Act to Reduce Statelessness (see paragraph 17 of the judgment).
- Therefore the exception set out in Article 1 (2) of the Convention Relating to the Status of Stateless Persons is irrelevant for the application of the German Act to Reduce Statelessness. An expansive naturalisation, extending beyond the intended international treaty obligations, is excluded by Article 2 of the German Act to Reduce Statelessness, which ties naturalisation to stricter conditions than those outlined in the 1954 Convention.
“Permanent residence” (dauernder Aufenthalt) for the purposes of Article 2 of the German Act to Reduce Statelessness essentially means the same as “habitual residence” (gewöhnlicher Aufenthalt). A person has their “permanent residence” (dauernder Aufenthalt) in Germany if they live in Germany not only temporarily but for an unforeseeable period of time, so that the end of their residence is uncertain. Children and adolescents usually share their parents' residence. Also, if the immigration authorities accept the stay of persons for an unforeseeable period of time by repeatedly granting toleration visas, permanent residence (dauernder Aufenthalt) may be established.
A permanent stay of the parents does not require formal approval from the immigration authorities. This approval is only generally necessary to establish lawful residence. Legality must be distinguished from the permanence of the stay and must be assessed separately for each family member. For permanent residence, it is sufficient that the immigration authorities refrain from ending the parents' stay in the country, for example, because they consider such a termination of residence to be unreasonable or unfeasible, regardless of their legal options.
Permanent residence (dauernder Aufenthalt) is “lawful” (rechtmäßig) within the meaning of of Article 2 of the German Act to Reduce Statelessness if the immigration authorities grant a residence permit in accordance with Section 5 of the 1990 German Foreigners Act (Ausländergesetz) [N.B.: the German Foreigners Act has ceased to be in force on 31 December 2004. However, the reasoning / decisions of the Federal Administrative Court under the old law are still relevant.] or if the stateless person is exempt from the requirement of a residence permit.
The Federal Administrative Court ordered the defendant (Free state of Bavaria) to naturalise the applicant.
On the definition of "statelessness" (de-iure vs de-facto):
- BVerwG 10.7.1984 - 1 C 30/81
- BVerwG 27.9.1988 - 1 C 20/88
Other participants in the proceedings were:
- Federal Republic of Germany as interested party (Beigeladene)
- Federal Chief Prosecutor (Oberbundesanwalt) (now replaced by the Representative of the federal interest at the Federal Administrative Court (Vertreterin des Bundesinteresse beim Bundesverwaltungsgericht)