The case concerns the statelessness determination of a woman from Nigeria who arrived in Hungary in 2003. The Budapest Administrative and Labour Court (Fővárosi Közigazgatási és Munakügyi Bíróság) and, in its final and affirmative second-instance judgment, the Budapest Regional Court (Budapesti Törvényszék) confirmed that the lack of documentary evidence regarding an applicant’s personal identity is insufficient for rejecting their recognition as a stateless person if the relevant country of origin has officially confirmed the applicant’s lack of nationality and the applicant has made consistent statements about their identity and origin in previous proceedings. The two courts also ruled that it cannot be evaluated to the applicant’s detriment that their country of birth and previous residence failed to provide them with identity documents. Importantly, they also clarified that credibility concerns from previous asylum procedures (if they do not concern identity and origin) and the refusal to complete a travel document request form on one occasion are not material considerations for the statelessness determination procure.
This case summary includes a summary of the Budapest Administrative and Labour Court (Fővárosi Közigazgatási és Munkaügyi Bíróság), Judgment no. 20.K.33.955/2016/8. of 17 February 2017 and the Budapest Regional Court (Fővárosi Törvényszék), Judgment no. 1.Kf.650.032/2017/8. of 20 December 2017, which entirely confirmed the case on appeal.
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- Act II of 2007 on the entry and stay of third-country nationals, Section 79 (1) – Note that this Act is no longer in force.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of 2007 on the entry and stay of third-country nationals, Sections 160 (2)-(3) and 164 (1) – Note that this Decree is no longer in force.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, Sections 237 (2)-(3) and 241 (1).
The applicant was born in Nigeria to Nigerian parents. She arrived in Hungary in 2003 and applied for asylum. After subsequent asylum and alien policing procedures, the applicant submitted a claim for statelessness status. The competent administrative authority (the then Immigration and Asylum Office) based its assessment on the following considerations:
- The Hungarian asylum and alien policing authorities repeatedly tried to establish the applicant’s personal identity through the Nigerian authorities, without success.
- The applicant’s statements were contradictory and questionable, and she refused to cooperate with the proceeding authority when she refused to complete and sign the form necessary for the issuance of a travel document.
- In November 2009, the Embassy of Nigeria informed the applicant about its readiness to issue her with a travel document. In contrast, twenty days later, the same embassy already communicated that the applicant was not a Nigerian national.
- The Embassy of Nigeria in Budapest personally interviewed the applicant in October 2010 and concluded that she was not a Nigerian national.
- The applicant had consistently identified herself as a Nigerian national since her arrival in Hungary in 2003.
- During the statelessness procedure, the competent Nigerian authorities informed that no data could be retrieved about the applicant in the national passport database.
The Immigration and Asylum Office rejected the applicant’s claim, concluding that the applicant was ‘likely’ (valószínűsíthetően) a Nigerian national. The decision argued that the applicant was not credible and did not cooperate with the proceeding authority, for which her personal identity could not be established, not allowing, therefore, for establishing her statelessness either.
The applicant submitted an appeal to the Budapest Administrative and Labour Court (Fővárosi Közigazgatási és Munakügyi Bíróság), represented by a staff attorney of the Hungarian Helsinki Committee. The appeal was based mainly on the following arguments:
- Credibility concerns in a previous asylum procedure are not directly relevant for statelessness determination as the two procedures significantly differ in scope. A negative credibility finding on an applicant’s statements regarding their reasons to flee from home does not automatically trigger a similar negative finding as to their personal identity or country of origin. The applicant’s Nigerian origin was not disputed by the asylum authority, proven by the fact that the asylum authority repeatedly assessed the risk of refoulement with regard to Nigeria and concluded that no such risk prevailed if the applicant were to be returned there.
- The fact that the applicant refused to sign a form on one occasion is insufficient to infer that her identity could not be established due to her lack of cooperation. The authority repeatedly approached the Embassy of Nigeria ex officio and received the requested information. The applicant’s single act was, therefore, irrelevant to the outcome of the assessment.
- The applicant made consistent statements about her identity during the asylum procedures and the statelessness determination procedure. The administrative authority could not prove that the applicant had willfully hidden her genuine personal data to thus prevent, in bad faith, the identification of her country of origin.
- It is possible to lose a nationality after birth, once a State no longer considers the person its national. In the present case, this resulted from the applicant’s lack of birth registration and protracted lack of any official personal identity documentation, which conditions cannot be blamed on the applicant.
The defendant maintained its position exposed in the administrative decision.
The Budapest Administrative and Labour Court (Fővárosi Közigazgatási és Munkaügyi Bíróság) granted the appeal, accepting the arguments of the applicant’s legal representative and recognising the applicant as a stateless person. It emphasised that ‘(…) Nigeria does not recognise the applicant as its national, does not ensure her the protection that its nationals are entitled to, does not provide her with a travel document’, for which ‘the applicant substantiated that Nigeria does not consider her as its national under its law and the defendant failed to prove the opposite (…)’. The first-instance court also ruled that ‘[s]tatelessnes can also be established in cases in which someone is born a Nigerian national and only becomes stateless subsequently, during their life, because Nigeria no longer recognises them as its national. In the present case, the applicant has become stateless due to Nigeria’s wilful, conscious activity, because of an administrative shortcoming, namely that her birth was not registered and she does not hold an official document, which is not a consequence of the applicant’s mala fide behaviour and for which, thus, she cannot be blamed’. The judgment finally emphasised that that the fact that ‘on one occasion, the applicant eventually did not cooperate in completing a form, did not obstruct the procedure, (…) as the defendant could also approach the embassy ex officio and the consequently received answers have been attached to the administrative case file’, for which this circumstance cannot be considered to the applicant’s detriment. (all quotes from page 6)
Upon appeal, the second-instance Budapest Regional Court (Budapesti Törvényszék) upheld the first-instance court’s decision and reasoning in its entirety. The second-instance court explicitly confirmed that ‘[t]he defendant’s argument that the applicant’s statelessness cannot be established due to her unproven personal identity is incorrect’. It also reiterated that ‘it cannot be evaluated to the applicant’s detriment that her state of birth did not provide her with documents proving her identity’. The second-instance court pointed out that neither the present case nor the asylum procedures could reveal any indication about the applicant’s previous possession of identity documents or that she would have wilfully got rid of such documents. It also emphasised that ‘[t]he applicant’s declarations about her identity data were consistent and unaltered, while her declarations about her state were adequate’, for which ‘the applicant’s personal identity can be established based on and according to her related statements’. Finally, the second-instance court also rejected the inference concerning the applicant’s lack of cooperation, arguing that ‘[t]he fact that she failed to complete a form lacks relevance also because the Federal Republic of Nigeria refused to recognise her as its national not due to this but because it could not establish the applicant’s identity based on its own documentation’. (all quotes from page 3)
Upon confirmation by the second-instance Budapest Regional Court (Budapesti Törvényszék), the first-instance judgment of the Budapest Administrative and Labour Court (Fővárosi Közigazgatási és Munkaügyi Bíróság) that recognised the applicant as a stateless person became final.