Austria – Asylum Court, 16 January 2012, S22 423.415-1/2011-3E
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Asylum Court |
| Date of decision: | 16-01-2012 |
| Citation: | S22 423.415-1/2011-3E |
Keywords:
| Keywords |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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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 rejected an appeal against the decision to expel the applicant, who has a medical condition, and her daughter to Italy. The situation in Italy was assumed to be in accordance with the Reception Conditions Directive and there was, therefore, no real risk of a violation of Art 3 ECHR. There was no violation of Art 8 ECHR as the applicant’s son had been living in Austria for 10 years, which meant there was no family life worth protecting.
Facts:
The applicant is a single mother, whose adult son has been living in Austria as an asylum seeker for ten years. The applicant came to Austria, with her minor daughter, by passing through Italy. In Italy they had bad experiences with overcrowded refugee camps. The applicant wanted to be closer to her son and also has osteoporosis. Austria held consultations with Italy and Italy agreed to take the applicants back. The Federal Asylum Office rejected their application and issued an expulsion order to Italy. The applicant appealed against this decision to the Asylum Court.
Decision & reasoning:
The Asylum Court refused the appeal as the Reception Conditions Directive is applicable in Italy. As there is no procedure on a possible violation of the directive pending at the European Court of Justice, the Asylum Court assumes that the situation for refugees in Italy is in accordance with the Reception Conditions Directive. It can, therefore, be assumed that the applicants will receive medical care and accommodation. In case of a return to Italy there is no real risk of a violation of Art 3 ECHR because the applicant will receive medical treatment in Italy. The country of origin information does not indicate that the rights guaranteed by the Reception Conditions Directive will be violated. There is no risk of a violation of Art 8 ECHR. The applicant’s son has been living in Austria for 10 years and, therefore, there is no family life that is worth being protected.
Outcome:
The Asylum Court refused the appeal and the expulsion order to Italy was confirmed.
Subsequent proceedings:
The applicant applied for legal aid to appeal against the Asylum Court's decision. The Constitutional Court denied legal aid for lack of reasonable prospects of success.
Observations/comments:
Concerning the expression “worth being protected” regarding the family life it needs to be explained that this is also a legal expression. § 10 (2) (2) Asylum Law says that in the assessment of a violation of Art 8 ECHR the following points have to be taken into consideration:
- duration and legal title of the stay in Austria
- de facto existence of a family life
- whether the private life is worth being protected
- dimension of integration
- bindings to the country of origin
- criminal convictions
- violations of the public order, especially regarding asylum and immigration law
- whether the family was founded at a point in time, when they were aware of the fact that they might not be able to maintain their life as a family
- whether the long duration of the procedure was caused by the authorities.
These criteria are based on decisions of ECHR concerning Art 8 ECHR and the Austrian Constitutional Court (VfGH 29.09.2007, B328/07 and B1150/07-9). Whether the family life is “worth being protected” naturally also includes a certain subjective judgement by the deciding judge.
It has to be clarified that the Federal Asylum Office as well as the Asylum Court have their own COI, which consists of various reports from different sources. These reports are gathered from NGOs as well as from other countries (especially UK Home Office, reports from German Foreign Ministry etc). Additional sources are the relevant laws of the respective state, reports from Austria’s own diplomatic missions and correspondences with the authorities of the relevant country. These country reports are used in every asylum procedure. In cases where a special topic arises (for instance, a serious medical condition or another kind of individual threat of a violation of Art 3 ECHR) further investigations have to be undertaken to exclude a risk of a violation of the constitutional rights.
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 |