The applicant, a Somali national, applied for citizenship on 23 January 2020, and his application was rejected by the authority concerned on 29 August 2022, on the basis that his identity could not be determined. This decision was upheld by the Administrative Court of the Federal State of Salzburg on 25 January 2023.  

In laying out the facts of the case, the Constitutional Court referred to Section 5 Paragraph 3 of the Citizenship Act (StbG), which states that a foreigner must prove his identity through genuine documents or other suitable and equivalent means of proof. If this is not successful, the taking of fingerprints can be ordered. In his application, the applicant submitted a marriage certificate from Somalia as well as a Convention passport (obtained through the asylum procedure). With regards to the marriage certificate, in accordance with Section 9 of the Consular Certification Ordinance (KBegIV), the certification of documents relating to Somalia has been suspended, which implied that the document could not be considered genuine. Furthermore, fingerprints were not ordered to be taken as the fingerprints of the applicant had already been taken in the asylum procedure to form a ‘procedural identity’. However, according to the Supreme Court’s rulings, procedural identities and convention passports do not constitute evidence which represents an unequivocal establishment of identity. As a result, the applicant was unable to prove his identity.

The Administrative Court commented on the situation in Somalia, stating that there is no civil registry, and that it is generally impossible for Somali nationals to obtain genuine evidence to establish their identity, due to the lack of state structures, the fact that genuine documents are issued by the government based on untrue information or on procedural identities (for example by showing a convention passport to a Somali embassy), as well as the widespread availability of fraudulent documents.

In its consideration of the case, the Constitutional Court referred to Section 2 Paragraph 1 of the Citizenship Ordinance 1985, which lists the documents which must be attached to an application for citizenship by a foreigner. The court also referred to section 2 paragraph 2 which states that the submission of documents and evidence enlisted in paragraph 1 can be waived if obtaining them can be proven to be not possible or unreasonable, and the identity of the applicant has been established on the basis of other harmless documents. In the case where a foreigner’s identity has not already been verified, his identity must be proven by means of harmless documents or other suitable and equivalent means of certification, and the authority can order for fingerprints to be taken. The constitutional court argued that section 5 paragraph 3 cannot be interpreted as encompassing only proof of identity that lies outside the procedural identity established in the course of the asylum procedure, as this would mean that people who are objectively unable to provide evidence of their identity that is not in relation to the asylum procedure, would be excluded from being awarded citizenship. The court therefore argued that the Administrative Court would have to reconsider hearing an identity witness of the applicant as well as consider the documents that he obtained during the asylum proceedings. The Constitutional Court concluded that the decision of the administrative court had violated the constitutionally guaranteed right to equal treatment of foreigners in respect of the applicant.