Austria: Supreme Administrative Court (VwGH), 22 February 2018, Ra 2017/18/0131
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Supreme Administrative Court (VwGH) |
| Date of decision: | 22-02-2018 |
| Citation: | Ra 2017/18/0131 |
Keywords:
| Keywords |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
In the case of doubts about family relationships, both the Federal Office for Immigration and Asylum (BFA) and the Austrian embassy abroad must for the purpose of family reunification enable applicants to have a DNA-analysis carried out at their request and inform them of this possibility. The purpose of this DNA-analysis is to enable the applicant to eliminate existing doubts about a family relationship and thus to achieve family reunification.
Facts:
The appellants are Afghan nationals and submitted applications to the Austrian embassy in Islamabad for the granting of an entry permit pursuant to Sec. 35 of the Asylum Act 2005 (AsylG). They asserted that the husband of the first applicant and the father of the second and third minor applicant had been granted subsidiary protection status in Austria.
The BFA sent a notice pursuant to Sec. 35 (4) AsylG to the Embassy in Islamabad to be given to the applicants. According to the notice the granting of a residence status was not likely, since a valid marriage as alleged in the present case could not be verified. Therefore, they did not have the status of family members as defined by Sec. 35 (5) AsylG. The reasons for the negative finding were not given to the applicants. In their response the applicants stated that all marriage documents had been submitted and resubmitted them. The applicants also declared their willingness to prove their family status by means of a DNA expert opinion pursuant to Sec. 13 (4) BFA - Procedural Act (BFA-VG) if there were doubts as to the paternity of the first applicant in Austria to applicant 2 and 3. The applicants requested to be informed accordingly pursuant to Sec. 13 (4) BFA-VG.
The BFA adhered to its negative probability finding, justifying its decision by pointing out that a comparison of the data on family relationships revealed serious contradictions and didn’t refer to the possibility of a DNA-analysis.
In the extraordinary appeal, the complainants stated that the contradictions in the information on the marriage were first brought to light in the previous decision of the Federal Administrative Court (BVwG), so that the prohibition of surprise and their right to be heard had been violated.
Decision & reasoning:
Firstly, the Supreme Administrative Court (VwGH) stated that the possibility of DNA-analysis pursuant to Sec. 13 (4) BFA-VG (now) explicitly refers to the procedure pursuant to Sec. 35 AsylG, so that the DNA-analysis is to be applied in the procedure pursuant to Sec. 35 AsylG. In case of doubts regarding the existence of a relationship, not only the BFA and the BVwG are responsible, but also the Austrian embassy, as this is the competent authority in procedures concerning the granting of entry titles according to Sec. 35 AsylG.
Sec. 13 (4) BFA-VG applies if an applicant is unable to prove his or her alleged family relationship by unobjectionable documents or other means of certification. It follows that the authority or the BVwG must notify the applicant of any alleged doubt. The authorities must enable the applicant to have a DNA-analysis carried out at his or her request and must inform him or her of this possibility. The provision therefore clearly pursues the purpose of enabling an applicant, at his or her request, to easily remove existing doubts about a family relationship by means of DNA analysis, provided that the applicant agrees to bear the costs.
The Court concluded, that the dismissal of the complainant’s application on the ground of doubts about a family relationship was unlawful due to the fact that the authorities didn’t provide organisational assistance to conduct a DNA-analysis pursuant to Sec. 13 (4) BFA-VG.
Outcome:
Appeal granted.
Observations/comments:
This summary is written by Theresa Richter, LLM student of Queen Mary University, London.