Update from June 2022:
On 23 March 2022, the Austrian Parliament amended the Austrian Citizenship Act so that people born in Austria who would otherwise be stateless may apply for nationality over a three-year period, bringing the provision in line with the minimum requirement of the 1961 Convention. While a welcome step, Austria’s safeguards to prevent childhood statelessness still lag behind other European countries.
In a landmark case JY v Wiener Landesregierung in January 2022, the Court of Justice of the European Union found that Austria’s decision to revoke an assurance to grant nationality was not compatible with the principle of proportionality because it led to the permanent loss of EU citizenship and statelessness and was based on administrative traffic offences. The case also illustrates the limitations of Austria’s ‘single nationality’ approach, which requires applicants for naturalisation to renounce all other nationalities before acquiring Austrian nationality.
Austria received a recommendation during the third cycle of the Universal Periodic Review to establish an efficient procedure for determining statelessness and approve residence permits on the basis of statelessness.
New resources on Austria now available include:
- Workshop on Statelessness in Austria during the Asylforum 2022 (July 2022)
- SOS Mitmensch and ENS, Joint Press Release (March 2022)
- ENS news update, New Austrian law safeguards stateless children (March 2022)
- ENS blog, The Austrian naturalisation procedure - disproportionate and in violation of international law (March 2022)
- ENS news update, New CJEU judgment (C-118/20) on preventing statelessness in renunciation of nationality (January 2022)
- Court of Justice of the European Union, JY v Wiener Landesregierung (C-118/20) (January 2022)
Austria’s accession record to relevant human rights treaties is generally good, but it retains several significant reservations to statelessness-specific instruments, which impact on the right to a nationality. Some data on the stateless population in Austria is available, but different nationality categories are applied inconsistently by different authorities, so its reliability is limited.
Austria lacks a definition of a stateless person and a procedure to determine statelessness in domestic law, although there are other administrative procedures through which statelessness may be identified. However, none of these lead to legal residence status nor rights solely on grounds of statelessness, and there are gaps in procedural safeguards and protection. There are also gaps in the framework to prevent the arbitrary detention of stateless people, including a lack of consideration of statelessness in the decision to detain, and issues with the implementation of procedural safeguards.
On the prevention and reduction of statelessness, Austrian law establishes some partial safeguards. The Austrian Citizenship Act was amended in March 2022 to allow children born stateless in Austria to apply for nationality over a three-year period, bringing the provision in line with the 1961 Convention. However, there are still significant gaps in safeguards to prevent childhood statelessness. Foundlings only acquire Austrian nationality up to the age of six months and jus sanguinis provisions for children born to Austrian nationals abroad are discriminatory. While the legislation largely prevents statelessness as a result of loss and deprivation of Austrian nationality, some gaps exist in line with Austria’s reservations to the 1961 Convention and the European Convention on Nationality. A landmark judgment from the Court of Justice of the European Union in January 2022 highlighted the limits of Austria’s ‘single nationality’ approach. Birth registration law and practice are generally good and do not create a risk of statelessness. However, legal and practical barriers exist for stateless people to access late birth registration.
Information below by theme was last updated in March 2021.
Leonhard Call, ENS Individual Member