Austria – Asylum Court, 6 December 2011, S16 422.756-1/2011-5E; S16 422.757-1/2011-5E; S16 422.758-1/2011-5E; S16 422.759-1/2011-5E; S16 422.760-1/2011-5E
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Asylum Court |
| Date of decision: | 06-12-2011 |
| Citation: | S16 422.756-1/2011-5E; S16 422.757-1/2011-5E; S16 422.758-1/2011-5E; S16 422.759-1/2011-5E; S16 422.760-1/2011-5E |
Keywords:
| Keywords |
|
Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The Asylum Court allowed an appeal against the decision to transfer the applicants, a family with both physical and psychological medical conditions, to Italy. Given the applicants’ exceptional circumstances and the problems Italy has with capacity, the lack of reliable assurances from the Italian authorities in relation to medical treatment and accommodation gave rise to a risk of a violation of Art 3 ECHR.
Facts:
The applicants were a family from Afghanistan, including two parents and three children (one 18-year-old daughter and two minor children aged 16 and 14). Both parents had serious physical problems. The mother and two children also suffered from psychological conditions (post-traumatic-stess disorder, social phobia, fear disorder, adjustment disorder). During their procedure a psychologist examined the applicants. The psychologist deemed medical treatment to be necessary and that a transfer from Austria would aggravate their condition. On their way to Austria the family had crossed Italy, where they felt threatened by the number of people living in the accommodation. Other asylum seekers had also harassed the applicants. Italy did not respond to the inquiries made by the Austrian authorities during the consultation procedure. The Austrian Federal Asylum Office issued an expulsion order to Italy. The applicants appealed against this decision.
Decision & reasoning:
The Asylum Court allowed the appeal and returned it to the Federal Asylum Office. The decision of the Asylum Court was based on the findings that the Federal Asylum Office did not react properly to the psychologist’s medical reports and advice. There was no reliable assurance by the Italian authorities concerning medical treatment and accommodation. This would have been necessary because the applicants are especially vulnerable and Italy has serious problems with capacity.
Outcome:
The appeal was allowed and the decision returned to the Federal Asylum Office.
Subsequent proceedings:
The Federal Asylum Office conducted further medical examinations, after which it rejected the family's application for a second time by deeming it inadmissible. This time the Asylum Court did not allow the appeal (see AsylGH 24 April 2012, S6 422.756 to 760-2/2012/2E).
Observations/comments:
It is not generally unlawful to transfer asylum seekers to Italy. However, this is a very exceptional case where a violation of Art 3 ECHR could not be excluded.
This summary has been reproduced and adapted for inclusion in EDAL with the kind permission of Forum Réfugiés-Cosi, coordinator of Project HOME/2010/ERFX/CA/1721 "European network for technical cooperation on the application of the Dublin II regulation" which received the financial support of the European Refugee Fund.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Austria - Asylgesetz (Asylum Act) 2005 - § 10 |
| Austria - Asylgesetz (Asylum Act) 2005 - § 5 |
| Austria - Asylgesetz (Asylum Act) 2005 - § 41 |