The Austrian naturalisation procedure – disproportionate and in violation of international law

In its judgement of 18 January 2022 in the case of JY vs. Wiener Landesregierung (C‑118/20), the Court of Justice of the European Union (CJEU) extended the existing case law on the fundamental status of EU citizenship and clarified the obvious: minor traffic offences cannot justify permanent loss of EU citizenship, rendering a person stateless. Austria needs to reform its domestic legislation and raise awareness among state authorities on Austria‘s obligations to reduce statelessness.

Facts of the case – hypothetical no longer

In 2008, after having resided in Austria for 15 years, JY, then national of Estonia, applied for Austrian nationality. In 2014, she finally received the assurance by the authorities that she would be granted Austrian nationality, provided she would renounce Estonian nationality first. As a consequence of Austria‘s strict “single nationality” policy, the Austrian Citizenship Act requires a person to relinquish all former nationalities before acquiring Austrian nationality. JY acted accordingly and thus lost EU citizenship and became stateless in 2015. Two years later – as naturalisation procedures in Austria are often unduly lengthy – her statelessness became permanent, when the authority revoked the once given assurance and refused to grant Austrian nationality. On what grounds? JY was qualified to present a threat to public security, because she had committed two road traffic offences since 2014 (in addition to eight similar offences earlier), both of which did not justify the withdrawal of her driver’s license and involved mere administrative fines (EUR 412 in total for failure to display a vehicle inspection disc and driving under the influence of alcohol).

It is ironic that AG Mengozzi gave an almost identical example in his general opinion in Tjebbes and Others (88) when describing neglect of the principle of proportionality in naturalisation procedures. He highlighted the obvious discrepancy between the dramatic consequences of a state measure compared to its justification: permanent loss of EU citizenship and statelessness justified by traffic offences that only resulted in administrative fines. In such an “extreme” case, which Mengozzi had hoped to be “hypothetical”, a proportionality test would not even be required to consider the individual situation of the person concerned because of the evident lack of proportion. Unfortunately for JY, he was proven wrong.

New legal shores and clarifying the obvious

In its judgment of 18 January 2022 in the case of JY vs. Wiener Landesregierung (C‑118/20), the CJEU extended the existing case law on the fundamental status of EU citizenship and clarified the obvious: minor traffic offences cannot justify permanent loss of EU citizenship, rendering a person stateless. Austria needs to reform its domestic legislation and raise awareness among state authorities on Austria‘s obligations to reduce statelessness.

The case of JY is the third judgment of the CJEU on questions relating to statelessness, following the cases of Rottmann and Tjebbes and Others. It contains two novelties, some clarification of the obvious and, unfortunately, "shuts its eyes“ to the most pressing questions and inconsistencies underlying the case at hand and Austrian legislation (as outlined by Dimitry V. Kochenov and David de Groot in their analysis of the JY case on Verfassungsblog, as well as by David de Groot in his earlier article; for brief summaries see ENS’ Statelessness Index and Globalcit).

• Novelty #1: Other than in the cases of Rottmann and Tjebbes and Others, the applicant in the case of JY was effectively stateless when her case was referred to the CJEU.
   
• Novelty #2: Although JY was no longer an EU citizen at the time of referral, the CJEU still concluded that her case falls within the scope of EU law by reason of its nature and consequences. According to the CJEU, both Article 20 and, as outlined by AG Szpunar and David de Groot, also Article 21 TFEU are applicable, since (a) JY did not renounce her Estonian nationality and thus did not renounce her EU citizenship voluntarily, but because this was required by the Austrian naturalisation procedure; and (b) because she exercised her free movement rights, by leaving Estonia and settling in Austria, where she applied for naturalisation.

• Clarifying the obvious: The CJEU clarified that minor traffic offences related to road traffic, punishable by mere administrative fines, cannot justify permanent loss of EU citizenship and render a person stateless, as it would not respect the proportionality principle. the decision to revoke the assurance as to the grant of Austrian nationality was not proportionate.

• Inconsistency: First, the CJEU held that it is legitimate for a Member State to avoid cases of multiple nationality by requiring a person to relinquish all previous nationalities before acquiring the host Member State’s nationality (para. 52). Then the Court stated that an EU citizen, seeking to acquire another Member State’s nationality, shall not lose EU citizenship by the mere fact of the implementation of that procedure, not even temporarily (para. 47). Unfortunately, in practice, this is exactly what the Austrian Law on Citizenship requires: applicants for naturalisation first have to renounce all other nationalities (unless they are unable to do so) before acquiring Austrian nationality. In the meantime, they receive a conditional assurance of grant of Austrian nationality, that can be revoked. This means that applicants for naturalisation are routinely rendered stateless in the period between renouncing previous nationality(ies) and acquiring Austrian nationality. It is therefore inconsistent for the CJEU to conclude that the provisions on the acquisition of Austrian nationality comply with the Court’s position that an EU citizen should not even temporarily lose EU citizenship when acquiring the nationality of another Member State. The provisions on acquisition of Austrian nationality generally require the loss of all former nationalities, including of an EU Member State, and a change in practice by the Austrian authorities to purportedly avoid individuals becoming stateless (as stated by the Austrian Government at the hearing before the CJEU, see AG Szpunar’s opinion, Fn 42) is not sufficient to address the issue. The provisions are not in line with the rule of law and anecdotal evidence shows that regional authorities across Austria do not follow this approach consistently.

Stateless as result of the Austrian naturalisation procedure

Both Austrian courts involved in the procedure of JY concluded that the case would, prima facie, not fall under the scope of EU law (see the decisions, in German, of the Administrative Court of Vienna and the Supreme Administrative Court, short version in English), in spite of the fact that JY became stateless and thus stripped of her EU citizenship as a direct “result of the Austrian naturalisation procedure, taken as a whole” (opinion of AG Szpunar, 76). Both courts did not see any issues of consistency or proportionality in the decision to revoke the assurance as to the grant of nationality and the legal provisions underlying this decision. The case was referred to the CJEU merely to double check this thinking.

It is difficult to understand how the authorities and the courts couldn’t see this evident disparity. How could they not see issues of rule of law (protection of legitimate expectations of JY and mutual trust between Austria and Estonia), and of JY’s rights under the Austrian constitution, in particular her right to private and family life in view of her potential statelessness? Last but not least, how did the Austrian courts not address the issue of proportionality both under domestic and EU law? The answer here lies in the deficiencies of Austria’s nationality law and decision-making practice when faced with questions of statelessness.

Deficiency #1: Austria’s strict and unbalanced “single nationality” approach

Austria and the Netherlands are the only two remaining countries who still apply the strict ‘single-nationality’ approach according to Chapter I of the Convention on the Reduction of Cases of Multiple Nationality. The case of JY is a living example of how this policy is (1) anachronistic, (2) against the letter and spirit of EU free movement law, and (3) in violation of international law, if not balanced properly with international obligations to prevent statelessness. Not to mention that there are also constitutional questions at stake, such as infringement of the right to private and family life and the principle of the best interest of the child.

Deficiency #2: provisions on the acquisition of Austrian nationality are not in line with international law

Austria is State Party to all four statelessness-specific conventions (ENS Statelessness Index). As the case of JY demonstrates, the principle of ‘single nationality’ is translated into domestic law and effectively, yet often disproportionately, implemented by decision-makers. However, Austria’s international obligations relating to the prevention and reduction of statelessness are not adequately transposed into domestic law (a list of Austria’s blind spots in this regard was published on this blog).

Article 20(2) of the Austrian Law on Citizenship allows the assurance of a grant of Austrian nationality to be revoked if the person concerned no longer satisfies any one of the conditions laid down for that grant (apart from the income requirement), even though this could render the person permanently stateless. Because of its conditional character, this provision is not only at odds with the rule of law and the principle of mutual trust, but in clear violation of international law (Article 7(2) of the 1961 Convention on the Reduction of Statelessness as interpreted by UNHCR’s 2013 Tunis Declaration and the European Convention on Nationality). This was indicated by AG Szpunar in his opinion (para. 95) and outlined in more detail by David de Groot. Unfortunately, the CJEU did not follow this thinking.

Deficiency #3: Lack of awareness about legal framework on statelessness among decision makers

Another systemic deficiency evident in the case of JY is that the decision makers involved in Austrian naturalisation procedures lack knowledge of the legal framework on the prevention of statelessness. The Administrative Court of Vienna only used one sentence to “assess” whether the decision to revoke the already given assurance to grant Austrian Nationality is proportional and in line with the 1961 Convention. The 1961 Convention does not have direct effect in domestic law in Austria, but Austria is still bound to respect its international obligations as it acceded to the convention. It should therefore ensure that domestic law and practice respect the principle of proportionality and assess possible infringements of a person’s constitutional rights (e.g. the right to private and family life under Article 8 ECHR)., particularly where this would render them stateless.

Deficiency #4: Restrictive domestic legislation and decision practice

Austria‘s nationality law is among the strictest in Europe and beyond in terms of access to nationality, with Austria ranking last after Bulgaria in the 2020 Migrant Integration Policy Index 2020 (for a detailed overview see Rainer Bauböck’s and Gerd Valchars’ recently published book “Migration & Staatsbürgerschaft”). The legal framework’s restrictive and exclusionary nature, together with political discourses of right-wing populism on being tough on migration and naturalisation lays the groundwork for an ever more restrictive application of the law. Consequently, already little known international obligations and norms move even further out of sight of decision-makers. Had the authorities involved in the case of JY referenced Estonian nationality law, they would quickly have reached the following conclusion: renouncing her Estonian nationality would not have been necessary in order to comply with the principle of single nationality, because Estonian nationality automatically expires upon voluntary acquisition of another nationality.

Suggested solutions

The following steps need to be taken in order to prevent further cases like the one of JY in the future:

1. Domestic legislation on the acquisition of Austrian nationality needs to be amended and effective safeguards against statelessness introduced by
   1. making the assurance of the grant of Austrian nationality unconditional;
   2. at minimum,  including an exception from the duty to relinquish all former nationalities as far as nationals of another EU Member State are concerned.
2. The duty to conduct a proportionality test in all cases concerning the deprivation of nationality should be introduced into domestic statutory law i.e. the Austrian Citizenship Act. The ever-growing domestic case law, following the Rottmann, Tjebbes and Others and now JY-cases, in this regard is highly welcome. But for matters of legal certainty and preventing inconsistent decision practice, codification is needed.
3. Establish training courses on the legal framework of the reduction of statelessness and the rights of stateless people for decision-makers of all state institutions involved in procedures regarding naturalisation.

In view of the current political landscape in Austria, legal amendments are not very likely to happen soon. Also, the CJEU’s judgement in JY is not of great help to ensure a systemic change in domestic law, since it supports the interpretation that the problem underlying the case at hand could be solved merely by applying the principle of proportionality. It is therefore all the more important to start now with raising awareness of existing legal instruments on the prevention of statelessness among all relevant stakeholders.

The author would like to thank Florian Lehne, Victoria Reitter and Lioba Kasper for their very useful comments.