Austria – Asylum Court, 20 January 2012, S23 242.800-3/2010/4E
| Country of Decision: | Austria |
| Country of applicant: | Russia (Chechnya) |
| Court name: | Asylum Court |
| Date of decision: | 20-01-2012 |
| Citation: | S23 242.800-3/2010/4E |
Keywords:
| Keywords |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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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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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
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Residence document
Description
“any authorisation issued by the authorities of a Member State authorising a third-country national to stay in its territory, including the documents substantiating the authorisation to remain in the territory under temporary protection arrangements or until the circumstances preventing a removal order from being carried out no longer apply, with the exception of visas and residence authorisations issued during the period required to determine the responsible Member State as established in this Regulation or during examination of an application for asylum or an application for a residence permit” |
Headnote:
An acceptance by Poland to take back the applicants was invalid because the Austrian Federal Asylum Office failed to inform Poland of the fact that the applicants have the status of subsidiary protection in Austria. As long as the applicants have this status a Dublin procedure is impossible because they have a legal stay in Austria and cannot be expelled.
Facts:
The applicants are a family with four minor children. They entered Austria for the first time in 2004 and received the status of subsidiary protection. In 2010 they returned to the Russian Federation to start a new life. However, they were unable to find work and struggled with harsh living conditions, which is why they returned to Austria in 2011. On their way to Austria, they crossed Poland and had to apply for asylum to cross the border.
Back in Austria the family applied for asylum once again. They still had the status of subsidiary protection from their first application, although the Federal Asylum Office had started a procedure to revoke this status. The Federal Asylum Office started consultations with Poland in relation to the applicants’ second asylum procedure. Poland agreed to take them back. The Federal Asylum Office rejected the applications and issued an expulsion order to Poland.
The applicants appealed against this decision.
Decision & reasoning:
The Asylum Court accepted the appeal and returned the case to the Federal Asylum Office.
The Court held the consultation procedure was led in an arbitrary way. The Federal Asylum Office did not inform the Polish “Dublin authorities” that the applicants have the status of subsidiary protection in Austria. This lack of information renders the consultation procedure illegitimate because it is a breach of trust between the Member States of the Dublin II Regulation. Based on that breach of trust, Poland's acceptance of the applicants’ return is not valid.
As long as the applicants have the status of subsidiary protection a Dublin procedure is impossible because they have a legal stay in Austria and cannot be expelled.
Outcome:
The appeal was accepted and the case was returned to the Federal Asylum Office.
Subsequent proceedings:
The procedure at the Federal Asylum Office is still pending.
Observations/comments:
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 |