Austria - Constitutional Court, 27 June 2012, U 330/12

Facts:

The applicant applied for asylum in Austria in November 2011. When asked about his route to Austria during the preliminary interview, the applicant said he left Pakistan three months earlier, travelled via Iran and Turkey to the European Union and arrived in Austria passing unknown countries. Based on this information, the Federal Asylum Office held consultations with Hungary. Hungary accepted to take responsibility for his asylum procedure. In an interview, the applicant was confronted with the fact that Austria intends to transfer him to Hungary. He said, he does not know Hungary, has never been there and does not understand why he has to go there. The Federal Asylum Office issued an inadmissibility decision and an expulsion order to Hungary.

The applicant appealed against this decision. The Asylum Court refused the appeal. Based on the above-mentioned information the applicant seemed to have travelled through Greece, Macedonia, Serbia and Hungary to Austria. The Asylum Court stated that the “sequence of detection” in an EU Member State was interrupted when the applicant left Greece for Macedonia (which is not an EU Member State). Moreover, Hungary accepted to take him back and, therefore, Hungary is considered to be the responsible Member State. The applicant appealed against this decision on the basis that the Asylum Court's argument that Greece’s responsibility was interrupted has no basis in either the Dublin II Regulation itself or in international jurisprudence.

Decision & reasoning:

The Constitutional Court accepted the appeal.

The Asylum Court must initiate a proceeding for preliminary ruling at the Court of Justice for the EU. The CJEU’s rulings in C-411/10 and C-493/10, which the Asylum Court referred to, do not take into consideration the applicant's situation. The key issue, whether Greece is still formally responsible although the asylum applicant left the EU for a short term, is not answered.

The argument of an “interrupted detection sequence” in an EU Member State has no legal basis and is contrary to Art 16 (3) Dublin II Regulation. This question has to be dealt with by the CJEU, which has not decided about a similar case thus far. The Asylum Court should have initiated proceedings for a preliminary ruling at the CJEU. Another question which needs to be addressed in the initiation proceedings for the preliminary ruling is that of the systemic failure of the asylum system in Greece, the risk of a violation of Art 3 ECHR and whether this results in a different Member State being responsible for the asylum procedure.

Outcome:

The appeal was accepted.

Subsequent proceedings:

The case was returned to the Asylum Court to initiate proceedings for a preliminary ruling at the CJEU.

Observations/comments:

This decision is the result of changes in legal practice in relation to illegal border crossing in 2011. Before the decision MSS vs. Belgium and Greece, Austria deported many asylum applicants to Greece without fingerprints or a residential permission. In these cases, Austria started a consultation procedure based on the police’s experiences with the most common routes of refugees or the information the asylum applicant provided. Although Greece usually did not respond to these requests, the asylum applicant was expelled to Greece.

This practice changed after MSS. If an asylum applicant says he crossed the border to Greece illegally, was registered by the Greek authorities but did not apply for asylum, the Austrian Federal Asylum Office and Asylum Court no longer assume a theoretical responsibility of Greece. The next Member State they cross illegally, and often without being registered by the state’s authorities, is usually Hungary (coming from Greece via Macedonia and Serbia), which is then considered to be the responsible Member State. The Constitutional Court's decision recquires clarification of the situation by the CJEU.

The Constitutional Court in Austria is only allowed to assess the points of law based on the information given during the procedure before the lower authorities. It is not permitted to introduce new facts or circumstances before the Constitutional Court.

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.