The case concerned the statelessness determination of a former Yugoslav national born in Kosovo, who had been living in Hungary since 1993, and whose Serbian nationality was officially recognised by Serbia in 2007. The 2009 judgment of the Budapest Court (Fővárosi Bíróság) in Hungary upheld that such an official confirmation disproves the applicant’s statelessness, even if he had never lived in the Republic of Serbia. The Court emphasised that the only subject matter of statelessness determination is the applicability of the 1954 Convention’s definition of a stateless person while examining the compatibility of the applicant’s expulsion to the country of nationality with other human rights obligations (such as the right to family life or non-refoulement) does not correspond to this particular procedure.
1954 Convention relating to the Status of Stateless Persons, Article 1 (1)
Act II of 2007 on the entry and stay of third-country nationals, Section 79 (1) – Note that this Act is no longer in force.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)
The applicant was born in 1965 in Kosovo, Federal People’s Republic of Yugoslavia. He arrived in Hungary in 1993 as a Yugoslav national. He was expelled from Hungary in 1998, but his expulsion could not be carried out for several years due to the denial of readmission by Serbian authorities and the rejection by the United Nations Mission to Kosovo (UNMIK) to issue a nationality certificate until a final decision is reached regarding the status of Kosovo. In the subsequent statelessness determination procedure, the competent administrative authority (the then Office of Immigration and Nationality) approached the Embassy of the Republic of Serbia, which confirmed the applicant’s Serbian nationality. Meanwhile, the UNHCR confirmed that the applicant did not have the nationality of Kosovo. Consequently, the administrative authority rejected the applicant’s claim.
The applicant debated the recognition of his Serbian nationality by the Embassy of the Republic of Serbia on the grounds that he had never lived or even stayed in Serbia. He emphasised that he had arrived in Hungary as a Yugoslav national. He argued that his Serbian nationality ceased to exist due to Kosovo’s declaration of independence. To prove that his country of origin is Kosovo and not Serbia, he presented his UNMIK registration document issued on 4 August 2008 for five years. He argued that it would result in a human rights violation if he, an ethnic Albanian, were sent to Serbia without a passport, while he had a child with Hungarian nationality living in Hungary.
The defendant insisted that the previous impossibility of carrying out the applicant’s expulsion cannot, in itself, substantiate the recognition of his statelessness, after receiving the official confirmation of his Serbian nationality from the Embassy of the Republic of Serbia. The statelessness determination procedure is not aimed at examining the consequences of the applicant’s expulsion, nor does the proceeding authority have to examine the merits of the competent Serbian authority’s declaration regarding the applicant’s Serbian nationality. It also argued that nothing prevents the applicant from acquiring the nationality of Kosovo in the future.
The Budapest Court (Fővárosi Bíróság) rejected the appeal. It confirmed that the recognition of the applicant’s Serbian nationality by the competent authority of the Republic of Serbia cannot be disputed, even if the applicant does not wish to stay in Serbia due to his Hungarian child living in Hungary, his Kosovan origin and Albanian ethnicity and the hostile relationship between Serbia and Kosovo, since in the statelessness determination procedure only the applicability of the Convention’s definition of a stateless person ought to be examined. The Court also specified that such a confirmation of nationality can only be disputed with regards to its conformity with the law of the State concerned. The Court considered Serbia’s rejection of Kosovo’s independence a ‘notorious fact’, which was deemed coherent with the applicant’s consideration as a Serbian national by the competent Serbian authorities. Finally, the Court emphasised that ‘neither the lawfulness and fairness of the applicant’s removal to Serbia nor the conditions he will face there are to be examined in the statelessness determination procedure, since the subject of the latter is not the applicant’s expulsion to Serbia or the prohibition of refoulement, only and exclusively the applicability of the Convention’s definition of a stateless person (…)’. (all quotes from page 3)
The judgement of the Budapest Court (Fővárosi Bíróság) became final.