The case concerns a Sierra Leonese man, whose claim for statelessness status was rejected due to credibility concerns related to his various previous asylum and alien policing procedures. The Budapest Administrative and Labour Court (Fővárosi Közigazgatási és Munkaügyi Bíróság) – whose judgment was later confirmed by the second-instance Budapest Regional Court (Fővárosi Törvényszék) – emphasised the importance of considering and contrasting with each other all pieces of available evidence, some of which the defendant unlawfully excluded from its assessment. It also pointed out that credibility concerns related to the applicant’s previous asylum claims are not necessarily relevant for statelessness determination. In the subsequent procedure, following another rejection by the administrative authority, this time based on unspecified and incorrectly referenced national security concerns, the Budapest Administrative and Labour Court repeatedly quashed the decision and granted the applicant statelessness status, based mainly on his unquestioned Sierra Leonese origin (about which he has been consistent through all his asylum and alien policing procedures and which an anthropologist expert witness statement also corroborated) and several official confirmations by Sierra Leonese consular authorities that the applicant was not that country’s national.
This summary concerns the cases of the Budapest Administrative and Labour Court (Fővárosi Közigazgatási és Munkaügyi Bíróság), Judgment no. 26.K.31.000/2016/16. of 6 June 2016, entirely confirmed on appeal by the Budapest Regional Court (Fővárosi Törvényszék), Judgment no. 1.Kf.650.107/2016/5. of 19 April 2017; in the subsequent procedure: Hungary – Budapest Administrative and Labour Court (Fővárosi Közigazgatási és Munkaügyi Bíróság) Judgment no. 18.K.31.696/2018/23. of 18 October 2018.
1954 Convention relating to the Status of Stateless Persons, Article 1 (1)
Domestic law (main provisions regarding the in-merit consideration of the claim):
- Act II of 2007 on the entry and stay of third-country nationals, Section 79 (1) – Note that this Act is no longer in force. Since 1 January 2024, the same provision can be found in Act XC of 2023 on the general rules concerning the entry and stay of third-country nationals, Section 246 (1).
- Government Decree 114/2007 (V.24.) on the implementation of Act II of 2007 on the entry and stay of third-country nationals, Section 164 (1) – Note that this Decree is no longer in force. Since 1 March 2024, the same provisions can be found in Government Decree 35/2024 (II.29.) on the implementation of Act XC of 2023 on the general rules concerning the entry and stay of third-country nationals, Section 241 (1).
The applicant was born in Sierra Leone and arrived in Hungary in 1998. He has been subject to various asylum and alien policing procedures in Hungary. The honorary consul of Sierra Leone to Hungary repeatedly confirmed that the applicant does not possess Sierra Leonese nationality. In the present case, the competent administrative authority (the then Office of Immigration and Nationality) rejected the applicant’s claim based on his lack of credibility regarding his personal identity and origin, in light of the documentation available from 18 years of asylum and other procedures in Hungary (including contradictory statements and the wilful misleading of the authorities as to his place of residence in the country). The applicant appealed the decision with the help of a staff attorney of the Hungarian Helsinki Committee.
The applicant’s legal representative argued that credibility concerns based on 18 years of previous procedures, considering, on the one hand, that the defendant explicitly accepted that the applicant’s statelessness had to be examined with regard to Sierra Leone (never questioning his origin) and, on the other hand, that the honorary consul of Sierra Leone to Hungary confirmed that the applicant did not have that country’s nationality. She pointed out that many of the credibility concerns in question had no relevance to statelessness determination, such as those related to the applicant’s place of residence in Hungary or the circumstances of his flight from home. She emphasised that, instead, the authority should have assessed the applicant’s statements concerning his country of origin and nationality, contrasting them with other facts and circumstances at its disposal. Finally, the applicant’s legal representative criticised that the defendant unlawfully excluded important pieces of evidence from its assessment, including the witness statement issued by a Hungarian anthropologist and several official documents that substantiate the applicant’s lack of Sierra Leonese nationality.
The defendant reiterated its conclusions set forth in the administrative decision, emphasising that ‘the applicant has proven to lack credibility regarding the genuineness of his identity and origin, and the circumstances that concern his everyday life (…)’. (quote from page 6 of the judgment by the Budapest Administrative and Labour Court)
The Budapest Administrative and Labour Court (Fővárosi Közigazgatási és Munkaügyi Bíróság) granted the appeal. It confirmed that the defendant unlawfully excluded important pieces of evidence from its assessment, and, consequently, breached its obligation to clarify all relevant facts and circumstances. It pointed out that ‘[i]n the statelessness determination procedure, evidence assessment has crucial importance since not only a state can make a declaration about whom it considers to be its national, instead, the existence or lack of a nationality can be corroborated in many other ways, too’ and that ‘the pieces of evidence (…) should be assessed in comparison with other pieces of evidence, not in isolation’ (page 8). The first-instance court also confirmed that the defendant assessed facts and circumstances which were either not relevant to statelessness determination (such as the reasons for his flight from home, relevant for the assessment of the applicant’s previous asylum claims), or whose relationship with statelessness determination the authority failed to clarify (such as the applicant’s place of residence in Hungary).
On appeal, the Budapest Regional Court (Fővárosi Törvényszék) confirmed the judgement of the first-instance court and obliged the administrative authority to re-open the case and conduct a new procedure.
In the subsequent procedure, the Office of Immigration and Nationality repeatedly rejected the applicant’s claim for statelessness status. The rejection was based on the expert opinion issued by the Constitution Protection Office (Alkotmányvédelmi Hivatal) which, departing from its previous opinions issued in 2012 and 2015, stated that the applicant’s stay violated Hungary’s national security interests, referring to Article 1 F (c) of the 1951 Convention relating to the Status of Refugees (sic).
The Budapest Administrative and Labour Court (Fővárosi Közigazgatási és Munkaügyi Bíróság) quashed the administrative decision and granted stateless status to the applicant. It pointed out the erroneous reference to the 1951 Refugee Convention by the Constitution Protection Office, the contradiction between the expert opinions of the two national security services which the defendant did not strive to clarify and the fact that the previous court decisions (see above) ordering a new administrative procedure did not foresee the necessity of obtaining new expert opinions from national security services (in light of the two positive opinions of the latter from 2012 and 2015). The court also emphasised that the applicant had made consistent statements about his place of birth, previous place of residence, his parents’ names and nationality in all the previous procedures and that Sierra Leone was undoubtedly the only state in connection to which his nationality, or the lack thereof, had to be examined. It referred to the various official confirmations by the honorary consul of Sierra Leone to Hungary and the Embassy of Sierra Leone in Moscow about the applicant’s lack of Sierra Leonese nationality and the applicant’s efforts to obtain a Sierra Leonese passport which remained unsuccessful. Finally, it also made reference to the witness statement issued by a Hungarian anthropologist who had previously lived in Sierra Leone, which confirmed that the applicant had lived in Freetown based on the detailed information he provided. The first-instance court decision was not appealed and became final.