Austria - Asylum Court, 19 April 2010, S23 412.630-1/2010-2E
| Country of Decision: | Austria |
| Country of applicant: | Russia (Chechnya) |
| Court name: | Asylum Court |
| Date of decision: | 19-04-2010 |
| Citation: | S23 412.630-1/2010-2E |
Keywords:
| Keywords |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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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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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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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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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
Headnote:
In appealing a decision to transfer the wife and children of an asylum applicant to Poland, the applicants relied on the humanitarian provision in Art 15 Dublin Regulation. They also noted Art 3(2) of the Dublin Regulation states separation of family members should be avoided and that such a separation would violate Art 8 ECHR. The Austrian Asylum Court allowed the appeal on the basis of Austrian asylum law, under which family members of an asylum applicant have the right to receive the same status as the applicant.
Facts:
The applicant’s husband entered Austria at the beginning of 2008 and applied for asylum. His application was admitted to the procedure on the merits in the autumn of 2008. The Federal Asylum Office rejected his application and issued an expulsion order to the Russian Federation. He appealed against this decision and since then his procedure is pending at the Asylum Court.
In December 2009 his wife and minor children, the applicants in this case, entered Austria by passing through Poland. When the wife applied for asylum in Austria she said her husband lives in Austria as an asylum applicant and she wanted to live with him. The Federal Asylum Office rejected her application because Poland was held responsible for her asylum procedure and, therefore, expelled her to Poland. In this decision it was argued that the applicant’s husband (and the children’s father) had only a temporary stay in Austria as an asylum applicant and that he and his wife had founded their family at a point where they could not expect to be able to maintain it. Based on these circumstances, the applicant and her children have no right to stay in Austria under Art 8 ECHR. The applicant appealed against this decision, pointing out that the family was founded in the early 1990s, long before they had entered Austria. Under § 34 of the Asylum Law, family members of an asylum applicant have the right to receive the same status as the applicant. The humanitarian clause of Art 15 Dublin II Regulation requires that Austria admit the applicant to the procedure on the merits. Additionally, Art 3(2) Dublin II regulation requires the avoidance of a separation of the family. A separation would, therefore, be a violation of Art 8 ECHR.
Decision & reasoning:
The Asylum Court accepted the appeal. The applicant is a family member of her husband and the husband is an asylum applicant in Austria. In accordance with Austrian national law (§ 34), a family member of an asylum applicant has the right to receive the same status.
Outcome:
The appeal was accepted and the Asylum Court returned the case to the Federal Asylum Office to be admitted to the procedure on the merits.
Subsequent proceedings:
There were no further steps in the Dublin procedure. In 2011 the whole family was granted the status of refugees.
Observations/comments:
The Asylum Court did not base its decision on the Dublin II Regulation but relied entirely on national law. The most important parts of the appeal and its legal reasoning are included.
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 - § 2 |