Skip Ribbon Commands
Skip to main content
22/12/2021
CH: The FAC recognised stateless status and clarified the interest in the proceedings

ECLI
Input Provided By
EUAA IDS
Other Source/Information
Type
Judgment
Relevant Legislative Provisions
National law only (in case there is no reference to EU law/ECHR)
Reference
Switzerland, Federal Administrative Court [Bundesverwaltungsgericht - Tribunal administratif fédéral - FAC], A v State Secretariat for Migration (Staatssekretariat für Migration – SEM), F-1297/2017 , 22 December 2021. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
https://caselaw.euaa.europa.eu/pages/viewcaselaw.aspx?CaseLawID=2210
Case history
Other information
Abstract

According to the Press Release:


The applicant was born in the al-Hasakah province of Syria as a member of the Ajanib minority (or “foreigner”) and fled his country of birth in 2011 in a context of civil war. In August 2015, he filed an application for asylum in Switzerland which was rejected in June 2016. In 2018, the applicant was included in the refugee status granted to his spouse who had arrived in Switzerland after him and obtained asylum in 2017. In the meantime, A had applied to be granted statelessness status. The SEM denied his application principally on the ground that he could have acquired Syrian nationality before leaving the country in 2011.


In its prior case-law, the Federal Administrative Court (FAC) had ruled that a refugee had an interest worthy of protection in obtaining a decision on an application for the recognition of statelessness. This was justified by the fact that the waiting period for a residence permit in the case of stateless persons was five years and that they were thus in a privileged position compared with refugees who had to wait ten years. A legislative amendment abolished this distinction as of 1 January 2018, and the time limit is currently ten years in both cases. As a result, the FAC had ruled that there was no practical interest for a refugee to be recognised as stateless and that it was, therefore, no longer necessary to consider such applications.


In this, the Court found that a distinction must be made in this regard between the precarity of the applicant’s derived refugee status, acquired through his wife, and that obtained on an individual basis. In the first case, it cannot be denied that the applicant has an interest in the statelessness recognition procedure.


Moreover, the Court stated that any applicant who appears to have no nationality must in principle be recognised as having an interest worthy of protection in a decision on an application for recognition of statelessness status. According to the FAC, recent developments in the case-law of the ECtHR, notably in its judgment Hoti vs Croatia, seem to tie the issue of statelessness to social identity, which is protected by the right to a private life (Article 8 ECHR). To deny access to a procedure designed to clarify this issue constitutes an unjustifiable interference with this right.


On the merits of the case, the Court found that the applicant had no nationality, and that he has never had one. Considering his refugee status, he cannot reasonably be expected to apply to the Syrian authorities for naturalisation under the presidential decree granting Syrian Arab nationality to those registered as Ajanib in the al-Hasakah province. Nor, considering the situation in Syria at the time, can he be deemed to have acted abusively in not applying for naturalisation during the four months he was in Syria after the decree was promulgated. As a result, the FAC granted him the status of a stateless person.


This judgment may be appealed to the Federal Supreme Court.


Country of Decision
Switzerland
Court Name
CH: Federal Administrative Court [Bundesverwaltungsgericht - Tribunal administratif fédéral - FAC]
Case Number
F-1297/2017
Date of Decision
22/12/2021
Country of Origin
Syria
Keywords
Assessment of Application
Country of Origin Information
Refugee Protection
Statelessness
Syria
Original Documents
RETURN