The statelessness of displaced persons from Nagorno-Karabakh (Artsakh) from the perspectives of international law and German administrative law

Stateless people and refugee status in Germany

Statelessness occurs when an individual is not recognised as a citizen by any State. The 1954 Convention Relating to the Status of Stateless Persons defines a stateless person as someone "who is not considered as a national by any State under the operation of its law."

Under German asylum law, stateless individuals can be recognised as refugees if they are outside their country of habitual residence and cannot return due to a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group. Recognition as a refugee entitles the individual to a residence permit valid for three years and the issuance of travel documents for stateless persons, facilitating international movement.​

In asylum cases, the burden of proof for establishing statelessness lies with the applicant. German courts have ruled that while full evidence is ideal, plausibility proof—demonstrating a high degree of probability—is often sufficient. This approach acknowledges the challenges applicants face in providing comprehensive documentation, especially when official records are inaccessible or non-existent.​ For more information on statelessness in Germany see the ENS Statelessness Index.

Germany’s approach to asylum claims from former residents of Nagorno-Karabakh

The Federal Office for Migration and Refugees (BAMF) has sometimes rejected asylum applications from former Nagorno-Karabakh residents, incorrectly assuming they are Armenian citizens due to their possession of Armenian passports or the potential to acquire Armenian citizenship. While Armenian law allows ethnic Armenians to acquire citizenship through a simplified process, there is no legal obligation for them to do so. German courts have ruled that the mere possibility of naturalisation in another country does not negate an individual's statelessness status nor their eligibility for refugee recognition.​ As emphasised by UNHCR in its 2014 Handbook on Protection of Stateless Persons, the (future) potential for naturalisation in another country does not alter the current state of being determined to be stateless under the 1954 Convention definition of a stateless person. In other words, even if there exists a legal route to acquire nationality, the individual remains stateless until that process is actually completed.

Recent policy measures taken by the Armenian Government indicate that it does not consider former Nagorno-Karabakh residents to be Armenian citizens. On 26 October 2023, Armenia granted temporary refugee protection to those displaced from Nagorno-Karabakh, issuing certificates of temporary refugee protection. Under a 1999 agreement between Armenia and Nagorno-Karabakh on the organisation of the passport system, Armenia issued passports (with the code’070’) to residents of Nagorno-Karabakh in certain circumstances, but this was primarily to facilitate travel and did not equate to citizenship (see Chiragov & Ors v. Armenia ECtHR, 2015).  In practice, when individuals from Nagorno-Karabakh apply for confirmation of non-possession of Armenian citizenship, Armenian authorities often recognise them as refugees.

The Kassel Court's recent decision

On 16 September 2024, the Administrative Court of Kassel ruled in two cases that the individuals in question are not Armenian citizens, despite holding Armenian passports bearing the issuance code '070'. Consequently, the court recognised them as stateless persons. The Court, having recognised that Azerbaijan exercises effective control over Nagorno-Karabakh since September 2023 and the systematic discrimination against ethnic Armenians in Azerbaijan, granted them refugee status under § 3 of the German Asylum Act (AsylG).

The Kassel court's decision sets a significant precedent for similar cases across Germany and potentially other European countries. It underscores the importance of thorough legal examination in determining the citizenship status of displaced persons from Nagorno-Karabakh. Currently, there are ongoing cases in various German administrative courts, including Würzburg, Hamburg, Trier, Minden, Münster, Gelsenkirchen, Karlsruhe, Schleswig, and Gießen, addressing the statelessness and asylum claims of former Nagorno-Karabakh residents. The outcomes of these cases may further influence the legal landscape concerning statelessness and refugee recognition in Germany.

The recognition of statelessness for displaced persons from Nagorno-Karabakh by German courts highlights the complexities of and interplay between nationality and refugee law. It emphasises the need for nuanced legal approaches to protect individuals who, due to geopolitical conflicts and shifting borders, find themselves without a recognised nationality and at risk of persecution.