Austria - Constitutional Court, 27 April 2009, U136/08
| Country of Decision: | Austria |
| Country of applicant: | Russia (Chechnya) |
| Court name: | Constitutional Court |
| Date of decision: | 27-04-2009 |
| Citation: | U136/08 |
Keywords:
| Keywords |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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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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Request that charge be taken
Description
Formal request by one Member State in which an application for asylum has been lodged, where it considers that another Member State is responsible for examining the application, calling upon that other Member State to take charge of the applicant. It should be made as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2) Dublin II Regulation and subject to the conditions laid down in Articles 17 to 19. |
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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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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
The fact that Poland agreed to take charge of the asylum procedure of a whole family is, by itself, not a proper basis for an inadmissibility decision. The hierarchy of the criteria for determining the Member State responsible for the procedure on the merits, set out in Art 5(1) Dublin II Regulation, must be respected. In this case the husband and father of the family had already been admitted to the procedure on the merits and, therefore, Art 8 was applicable prior to Art 14.
Facts:
The applicant came to Austria in December 2007. Consultations with Slovakia and France were negative and, therefore, the applicant was admitted to the procedure on the merits in Austria in April 2008. Two weeks later the applicant's wife and children followed him to Austria, passing through Poland on their way. The Austrian Federal Asylum Office re-opened the applicant's admission procedure and held Dublin consultations with Poland for the whole family. Poland agreed to be responsible for their asylum procedures. The Austrian Federal Asylum Office issued an inadmissibility decision and an expulsion order to Poland. The family appealed against this decision. The Austrian Asylum Court did not accept the appeal and confirmed the Federal Asylum Office’s decision, arguing that the principle of family unity is maintained by sending them back to Poland together.The family appealed to the Constitutional Court.
Decision & reasoning:
The Constitutional Court allowed the appeal.
The Asylum Court did not provide reasons as to why Art 14 Dublin II Regulation was used instead of Art 8, although the father of the family was already admitted to the procedure on the merits when the rest of his family arrived in Austria and he has been in Austria for almost four months. According to Art 5(1), there is a hierarchy of the criteria in the Dublin II Regulation that must be respected. Art 8 is, therefore, applicable before Art 14 in this case. The fact that Poland agreed to take charge of the family’s procedure on the merits is, by itself, not a proper basis for an inadmissibility decision in Austria. Unless Poland is responsible for the procedure on the merits under the Dublin II Regulation, the inadmissibility decision would be arbitrary. The Asylum Court’s decision was arbitrary and violated Art 5 (1) Dublin II regulation.
Outcome:
The appeal was allowed and the family was admitted to the procedure on the merits in Austria.
Subsequent proceedings:
The family was granted the status of refugees.
Observations/comments:
The following jurisprudence by the Asylum Court is, in part, contradictory. In several cases the Asylum Court followed the Constitutional Court:
- AsylGH 11.01.2010, S4 410.937-1/2010/2E; and
- AsylGH 19.04.2010, S23 412.628-630-1/2010/2E.
In cases where decisions differed from those of the Constitutional Court, the Asylum Court argued that the time frame of Art 14 of the Dublin Regulation (“simultaneously, or on dates close enough for the procedures for determining the Member State responsible to be conducted together “) is three months. This means that if a person is admitted to the procedure on the merits in Austria, and most of his/her family enters the European Union crossing another member state within three months, there can still be an inadmissibility decision under Art 14:
- AsylGH 05.01.2012, S2 423.086-0891-/2011/3E;
- AsylGH 19.04.2011, S3 418.562-1/2011/2E ;
- AsylGH 20.04.2011, S24 418.405-1/2011/2E.
The three-month time frame has no legal basis in the Dublin II Regulation, yet is partly acted upon in Austria.
One relevant case remains open at the Constitutional Court:
- VfGH U283-286/12 – concerning AsylGH 05.01.2012, S2 423.086-0891-/2011/3E.
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 allowed 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.
