Why did Indians reject the Citizenship Act
On July 6, 2000, the complainant applied for Austrian citizenship.
With the decision of the authorities concerned of November 25, 2003, the complainant was granted Austrian citizenship in accordance with Section 20 (1) of the 1985 Citizenship Act, Federal Law Gazette No. 311 in the version of Federal Law Gazette I No. 124/1998 (StbG) assured that he will provide evidence of the resignation from the Croatian state association within two years of delivery of this notification.
On October 31, 2005, the complainant submitted a confirmation from the Ministry of Internal Affairs of the Republic of Croatia dated September 19, 2005, according to which he would be dismissed from the Croatian State Association for the purpose of granting Austrian citizenship.
With the contested decision of June 22, 2007, the authority in question rejected the complainant's application for Austrian citizenship in accordance with Section 10 (1) (2) StbG "in the version of the 2005 amendment to the citizenship law, Federal Law Gazette I No. 37/2006 ", from.
As a justification, she essentially stated that the preliminary investigation had revealed that after the letter of assurance had been issued, certain specified obstacles to the award of the award occurred.
The complainant first lodged a complaint against this decision with the Constitutional Court. The latter refused to deal with the complaint by decision of January 30, 2009, B 1456 / 07-9, and submitted it to the Administrative Court for a decision.
The complainant supplemented the complaint with a brief dated March 4, 2009. The authority in question submitted the files of the administrative proceedings and submitted a counter-response requesting that the complaint be dismissed for a fee.
The administrative court has considered:
Section 20 of the StbG (last amended by Federal Law Gazette I No. 124/1998) reads in extracts:
"(1) The granting of citizenship must first be guaranteed to an alien in the event that he can prove that he has left the association of his previous home country within two years, if
he is not stateless;
neither § 10 Paragraph 6 nor §§ 16 Paragraph 2 or 17 Paragraph 4 apply and
3. The assurance enables or could make it easier for him to leave the association of his previous home state.
(2) The assurance is to be revoked if the alien no longer fulfills even one of the requirements necessary for the granting of citizenship.
(3) The citizenship, the granting of which has been assured, is to be conferred as soon as the alien
1. has left the association of his previous home country or
2. proves that the actions required to leave his previous state association were not possible or unreasonable for him.
With the ruling of September 29, 2011, G 154/10, announced on November 30, 2011 in Federal Law Gazette I No. 111/2011, the Constitutional Court has ruled § 20 Paragraph 2 StbG in the version of Federal Law Gazette I No. unconstitutional repealed (I.). Furthermore, the Constitutional Court has ruled that the repeal will come into force at the end of October 31, 2012 (II.), The provision will no longer apply to the cases pending at the Administrative Court on September 29, 2011 (III.) And earlier legal provisions not come into force again (IV.).
The authority in question rejected the complainant's application to be granted Austrian citizenship on the basis of a judicial conviction following the guarantee of citizenship for the elimination of the conditions for the award, without previously revoking its notification of guarantee of November 25, 2003 in accordance with Section 20 (2) StbG.
In the case at hand, the amended legal situation is to be applied due to the case effect extended by the Constitutional Court in accordance with Art. 140 Para. 7 B-VG. The application of the provision of § 20 Abs. 2 StbG in the present complaint case is therefore excluded, so that there is no legal basis for a revocation of the assurance.
According to the recitals of the cited ruling by the Constitutional Court, which the Administrative Court agrees with in this respect (cf. the ed. Findings from today, Zl. 2007/01/0226 and Zl. 2008/01/0584), it is the authority after the adjusted Legal situation denied to agree again on the already affirmed awarding prerequisites if a letter of assurance is available. The Constitutional Court stated (in margin nos. 30 and 31 of the above-mentioned decision) "that Section 20 (3) StbG, according to which the citizenship that has been granted is to be conferred as soon as the alien has left the association of his previous home state or proves that the actions required for leaving his previous state association were not possible or reasonable for him, according to the adjusted legal situation, can now be read in such a way that the date of issue of the letter of assurance is decisive for the assessment of the award requirements Due to the clarified legal situation after the repeal of § 20 Abs. 2 StbG is refused to agree again on the already affirmed prerequisites, it only has to discuss when granting the citizenship whether the citizenship applicant meets the requirements according to § 20 Abs. 3 StbG Fulfills".
The (subsequent) rejection of the complainant's application for the award thus proves to be illegal in terms of content, which is why the contested decision had to be annulled in accordance with Section 42 (2) (1) VwGG.
The decision on the reimbursement of expenses is based on §§ 47 ff VwGG in conjunction with the VwGH Expense Compensation Ordinance 2008, Federal Law Gazette II No. 455.
Vienna, December 14, 2011
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