Austria: Estonian citizen becomes stateless after retraction of an assurance of naturalisation

Edward W. Daigneault (lawyer representing the case).

A European Union citizen by birth and nationality has found herself stateless at the request of the Republic of Austria. She was a national of Estonia when she applied for Austrian citizenship in December of 2008. Almost six years later in March of 2014 she was informed by the competent provincial authorities of Lower Austria that her request would be granted upon her relinquishing her right of Estonia citizenship within 2 years. She duly complied in March 2015 and, at this moment, became stateless and immediately forfeited all of the multitude of rights granted her as a European Union citizen.

As she changed her residency to the city of Vienna, the now competent Viennese provincial authorities decided in July 2017 to revoke her right of Austrian citizenship due to six administrative driving offences occurring between 2008 and 2013 – which had been known to the Lower Austrian authority when it decided to grant her naturalisation application in March 2014 on the condition of renunciation of her Estonian citizenship – and, in addition, two administrative offences occurring after the grant both in November 2015. These latter offences involved owning a vehicle without an up-to-date vehicle inspection sticker (fine of 112 EUR and no removal of the licence plates as the vehicle had not been unsafe to operate) and, on another date, driving under the influence of alcohol (the minimum fine of 300 EUR and no withdrawal of the driving licence as the excess over the limit for alcohol was minimal).

An appeal was lodged with the Vienna Administrative Court on the basis that neither the administrative offences occurring before or after the grant were of such a serious nature as to result in the revocation of the grant of citizenship which in effect confirmed the stateless status of the woman. She argued that she was entitled to rely on the decision in Rottmann (see CJEU 2.3.2010; Rs C-135/08) that as a European Union citizen loss of citizenship would require demonstration of ‘fraudulent deception’ in her application and even then the principle of proportionality would have to be observed. On this argument, the court ruled that the Rottmann decision did not apply as she was stateless at the time of revocation.

Further, she argued the applicability of the Convention on the Reduction of Statelessness, which Austria has incorporated into national law, and that it needed to be shown that she had been found guilty of a criminal offense against national security or sentenced to a prison term of at least five years for a crime. She has, of course, not been subject of such an offence or penalty. It is to be noted that by assenting to this international treaty, Austria accepted that it has to follow not only the general interpretation of the Convention but also its spirit in that only serious crimes should result in citizenship not being granted to stateless persons. The court ruled that, despite the intention in the Convention to avoid statelessness, the administrative offences were ‘serious crimes’, which is why the revocation of the assurance and the rejection of the application for the award of Austrian citizenship were proportionate.

The matter now lies with the Austrian Federal Administrative Court and, through its reference, the Court of Justice of the European Union for a preliminary ruling.

It is hoped that the Court of Justice of the European Union would consider in its ruling, among other things, the avoidance of a European Union citizen being stripped of all rights associated with being an EU citizen in similar situations by negating the necessity of relinquishment of a European Union citizenship before the actual grant of a new European Union citizenship. Ironically, Austrian law allows such under its Citizenship Act (see Staatsbürgerschaftsgesetz 1985, § 20(3)) which allows the waiver of such a requirement when it has been shown to be unreasonable.

The cover picture of this blogpost is entitled: Leipzig, Bundesverwaltungsgericht am Simsonplatz.

You can read a related blogpost bu David de Groot entitled CJEU asked to rule on acquisition of nationality in light of EU citizenship: The fundamental status on the horizon?