The Loss of Austrian Citizenship and Statelessness - Austrian Citizenship

Statelessness as a worst-case scenario - Loss of citizenship in Austria and worldwide

"Nationality" or "citizenship" generally refer to the legal bond between a state and an individual. This bond between the nation state and the individual encompasses political, economic, social and other rights and obligations of the state and the citizen.

A stateless person, according to the United Nations Convention on the Stateless of 28 September 1954, is "a person whom no State considers as its national by virtue of its legislation." In simple terms, a stateless person is a person without citizenship who is not protected by any state.

Worldwide, an estimated 10 million people have no citizenship. In Europe, it is estimated that there are around 600,000.

With regard to this issue of stateless persons, the UNHCR Austria has presented an inventory of statelessness in Austria. However, the number of stateless people in Austria can only be estimated; in 2016, Statistik Austria listed a total of almost 12,000 people as stateless or with unclear or unknown citizenship.

Stateless persons often have massive problems in everyday life and especially when crossing borders. For stateless persons, the simplest things are often impossible; they are often not allowed to work, open a bank account, travel or marry due to a lack of documents.

How does statelessness happen? - Unfortunate chain of circumstances

Around the world, people can become stateless through a number of different unfortunate concatenations. These can be political, legal or state-related. These cases can range from territorial transfers of states leading to statelessness, to arbitrary deprivation of citizenship, to procedural errors and procedural problems in related proceedings, or deprivation of citizenship upon marriage or divorce, etc., to the birth of a child by stateless parents.

In those states that pursue high standards with regard to the rule of law, it is often particularly unfortunate constellations and also errors or ignorance of the often complex laws of the persons concerned that can lead to statelessness.

With regard to statelessness, there are also very unfortunate cases in Europe in which, for example, a legal representative has assumed a second or third citizenship for his or her minor children, which leads to the loss of a previous citizenship, e.g. Austrian citizenship. Errors or very unfavourable overlaps in time can lead in such constellations and the need to retain the previous e.g. Austrian citizenship to other citizenships being given up prematurely without considering that the Austrian citizenship may already have been lost ex lege. The result can then be the extremely regrettable statelessness.

Loss of Austrian citizenship in the Austrian Citizenship Act - Possibilities of losing citizenship

According to the Austrian Citizenship Act, there are various ways of losing Austrian citizenship, as set out in Section III. § 26 of the Austrian Citizenship Act lists four possibilities to lose citizenship as follows:

Acquisition of a foreign citizenship (§§ 27 and 29)
Entry into the military service of a foreign state (§ 32)
Deprivation (§§ 33 to 36) (for example, damage to the reputation of the Republic)
Renunciation (§§ 37 and 38)

This provision contains an exhaustive list of offences that can lead to a loss and therefore there may be further circumstances outside this list that cause the loss of citizenship.

The offences of loss listed in § 26 of the Citizenship Act are then defined in more detail in §§ 27-38 of the Citizenship Act. Section 33 can be cited as particularly relevant here, which then foresees for withdrawal if the person significantly damages the interests or reputation of the Republic through his or her conduct. This can also be the case if he voluntarily takes an active part in hostilities abroad.

The renunciation of citizenship requires a declaration of renunciation by the citizen, the withdrawal of citizenship is decided in officially initiated withdrawal proceedings.

In practice the most relevant offence of loss of citizenship is regulated in § 27 of the Citizenship Act, which will be dealt with in detail below.

The loss of Austrian citizenship under section 27 StbG (CA) - Loss of citizenship

Section 27 Citizenship Act and the loss of citizenship

Statelessness or the loss of Austrian citizenship can also occur in Austria. This is particularly the case since the Austrian Citizenship Act provides for a particularly strict regulation in Section 27.

Section 27. (1) Citizenship is lost by anyone who acquires a foreign citizenship on the basis of his or her application, declaration or express consent, unless he or she has previously been granted retention of citizenship.

The loss extends to minor legitimate children and children of choice and can therefore also occur if legal guardians - possibly unknowingly - accept a foreign citizenship for themselves and their also minor children. Section 27 (2) of the Citizenship Act therefore regulates the matter for minors or children as follows:

§ 27. (2) A citizen who is not fully capable of acting loses citizenship only if the declaration of intent (para. 1) aimed at acquiring the foreign citizenship is made on his behalf either by his legal representative or, with his express consent, by himself or a third person. [...]

On the basis of this very strict provision in section 27 of the Citizenship Act, any person who acquires a foreign nationality on the basis of his or her application, a declaration or express consent thus loses Austrian citizenship. The only exception is minors who have reached the age of 14, who have a more extensive right of co-determination and in this case the consent of the minor must be obtained before the acquisition of the foreign citizenship.

Due to these rigorous provisions, it is strongly advised: The person wishing to acquire a foreign citizenship must first and in advance - before acquiring the foreign citizenship - have the retention of the Austrian citizenship (dual citizenship) in Austria approved.

Ignorance of the law and error in granting foreign citizenship do not help

The Austrian Citizenship Act is rigorous with regard to errors or "mistakes" concerning dual citizenship or multiple citizenship.

According to the will of the legislator, every act aimed at acquiring a foreign citizenship should be covered by this offence of loss of Austrian citizenship.
The legal consequence of the loss occurs irrespective of whether the loss of citizenship was intended. It is therefore irrelevant whether the person concerned intended to retain Austrian citizenship. A mistake shall also cause the loss of Austrian citizenship.

The Administrative Court has ruled here, inter alia, as follows:

"An error about the effects of the intended acquisition of a foreign nationality cannot - even if it were not the fault of the person concerned - eliminate the legal effectiveness of an application for the acquisition of a foreign nationality within the meaning of section 27 (1) StbG 1985 [...]. The loss of citizenship occurs irrespective of whether it was intended [...]."

The loss of Austrian citizenship thus occurs when the citizen acquires the foreign citizenship on the basis of his or her declaration of intent in this regard. The one-time loss of Austrian citizenship is permanent, so that even the subsequent loss or relinquishment of the foreign citizenship does not lead to the revival of Austrian citizenship.

Once the loss of Austrian citizenship has occurred, a person may become stateless.

What to do in case of (imminent) loss of Austrian citizenship? - Steps in the Proportionality or Reacquisition Procedure

The procedure in the case of loss of Austrian citizenship

Since the loss of Austrian citizenship occurs ex lege, as mentioned above, i.e. automatically by law at the time of the acceptance of the foreign citizenship, no procedure is necessary in principle for the deprivation of citizenship. The citizenship then simply no longer exists.

The person concerned may therefore often not even notice the loss of Austrian citizenship for a long time. It is therefore not uncommon for the person concerned to learn that a loss of citizenship may have occurred only when applying for a new Austrian passport. Subsequently, the authorities initiate a corresponding procedure, which decides on the issuance of the passport or the possession or loss of Austrian citizenship.

However, as the Administrative Court in Austria has stated, the authority cannot make things too easy for itself in this procedure. In the declaratory proceedings under section 27(1) StbG, the Administrative Court is obliged to ascertain the facts relevant at the time of its decision (cf. Administrative Court 28.2.2019, Ra 2019/01/0042, para. 13; 12.3.2020, Ra 2019/01/0484, para. 34, with further references).

Moreover, there is also a corresponding duty of cooperation of the party concerned in the proceedings as follows:

The party's duty to cooperate is all the greater compared to the duty to conduct official research into the relevant facts pursuant to section 27(1) StbG, as it is impossible for the authority or the administrative court to obtain personal information about an affected party and it is therefore necessary for the affected party to cooperate (cf. on all this Administrative Court 25.9.2018, Ra 2018/01/0364, with further references).

According to the case law of the Administrative Court, section 27(1) StbG does not require "one hundred percent security". In this context, the principle of free assessment of evidence, as standardised in section 45(2) AVG, applies, according to which the authority or, in accordance with section 17 VwGVG, the administrative court is not bound by fixed rules of evidence when assessing evidence, but must assess the value of the evidence taken to the best of its knowledge and belief according to its intrinsic truth content (cf. on all this Administrative Court 12.3.2020, Ra 2019/01/0484, with further references).

The Administrative Court focuses on a point in time and not on a period of time for the determination of the loss of Austrian citizenship pursuant to section 27 (1) StbG. This corresponds to the requirement of sufficient certainty, but also, in view of the legal consequences of a determination of loss of citizenship, to the requirement of legal certainty for the person concerned. Therefore, the loss of Austrian citizenship pursuant to section 27(1) StbG is to be determined at a point in time specified in more detail (cf. on all this Administrative Court 12.3.2020, Ra 2019/01/0484, with further references).

Due to the complexity of this matter and the decisions of the highest courts, as well as the pitfalls in the course of such administrative proceedings, it is strongly recommended to seek legal assistance from specialised lawyers without delay. In particular, errors in the procedure can lead to the fact that even positive arguments and arguments against the loss can no longer be effectively put forward.

"Positive declaration of intent" to obtain foreign citizenship required, hardship as a reason for excuse

Although Section 27 of the Citizenship Act is extremely rigorous with regard to the loss of Austrian citizenship ex lege, not every acquisition of a foreign citizenship always automatically leads to the loss of Austrian citizenship. In fact - as is so often the case in legal matters - the pitfall here is in the detail and the respective facts must be analysed precisely in order to be able to determine whether a loss of Austrian citizenship ex lege has actually occurred.

The Administrative Court in Austria has also clarified that, for example, a declaration of intent primarily aimed at another goal (e.g. a marriage), which results in the acquisition of a foreign citizenship, does not lead to the loss of Austrian citizenship. Nor does the loss ex lege of Austrian citizenship occur if someone acquires a foreign citizenship without the "will to acquire" as a result of a unilateral act of a foreign state (i.e. without really being able to prevent the acquisition of the foreign citizenship).

Therefore, according to the case law of the Administrative Court in the interpretation of the Citizenship Act, it must be assumed that the acquisition of foreign citizenship must in principle be associated with an "active act" or a "positive declaration of intent" to acquire foreign citizenship in order to cause the loss of Austrian citizenship.

There are also certain extraordinary situations or massive emergencies that can call into question this voluntariness in acquiring foreign citizenship. In any case, this can only be invoked if this emergency situation or state of emergency has not been triggered by an act of the person concerned.

Proportionality in the case of imminent loss of citizenship in Austria and EU Union law

Recent decisions of the highest courts in Austria and the EU have significantly mitigated the practice of loss of Austrian citizenship ex lege.

According to the decision of the Constitutional Court of 17.06.2019, E 1302/2019, the Administrative Court considers a proportionality test according to the criteria of the European Court of Justice in the Tjebbes et al. case to be required under Union law. Such an examination, required under Union law, requires an overall consideration, taking into account the respective circumstances of the individual case.

The authorities in Austria must therefore carry out the overall assessment required under EU law as to whether case-related circumstances exist that lead to the withdrawal of Austrian citizenship being considered disproportionate (VwGH 18.02.2020, Ra 2020/01/0022).

Furthermore, as a rule, the private interests of the applicant must be weighed against the public interests (VwGH 18.02.2020, Ra 2020/01/0022). In terms of Art. 8 ECHR, the best interests of the child or respect for private and family life according to Art. 8 ECHR must also be weighed against public interests.

In the course of a proportionality test, therefore, the unity of nationality within the family must also be considered (ECJ of 12.03.2019, Tjebbes and others, C-221/17).

A loss of Austrian nationality can lead to a division of nationalities and, from the perspective of EU law, this would not be compatible with the best interests of the child as recognised in Article 24 of the Charter and can therefore be considered unacceptable for the family in terms of family unity (ECJ, 12.03.2019, Tjebbes and others, C-221/17).

Other legal protection for persons affected by loss of nationality or statelessness - Statelessness and loss of nationality

The problem of statelessness is still only marginally recognised and dealt with. The media focus on the issue of refugees and asylum, which dominates in terms of numbers.

In fact, both problems can collide. For example, a stateless person may well be considered a refugee and enjoy protection in this regard. However, most stateless persons are not subject to the fear of persecution, but the problem of statelessness often results from different chains of circumstances.

Various international and regional conventions contain important passages relating to statelessness and its rights:

Universal Declaration of Human Rights of 1948 underlines that "Everyone has the right to a nationality." This may not be arbitrarily taken away from him.
Draft Geneva Refugee Convention of 1951 or Protocol on Statelessness of 1954: This obliges signatory states to issue identity documents to stateless persons and, under certain circumstances, to allow them to reside legally on their territory.
Convention on the Reduction of Statelessness of 1961 concerning the prevention of statelessness of newborn children.
Regional agreements such as the American Convention on Human Rights of 1969, the African Charter on the Rights and Welfare of Children of 1990 and the European Convention on Nationality of 1997 emphasise the right of every person to their own citizenship.

> Find more information about Austrian Citizenship & Residence Permits & Residence Permits and Dual Citizenship Applications here.

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