Austria - Constitutional Court (VfGH), 27 September 2013, U701/2013
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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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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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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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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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
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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." |
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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. |
Headnote:
The rules on safe third countries, according to which applications for international protection in the event of a threatened violation of Art 8 ECHR must not be refused on the basis of formal safety in another country, is to be applied similarly to the Dublin II Regulation. If the Applicant already has subsidiary protection in one Member State, in accordance with the Dublin II Regulation his application in a different State in which his son, who is a minor and entitled to asylum, is living, (in addition to the Applicant’s pregnant wife) must not be refused. On the contrary, this State must make use of the right to assume responsibility for the examination.
Facts:
Since 2009, the Applicant has had subsidiary protection status in the Netherlands. In November 2012, he lodged an application for international protection in Austria. He stated that he wanted to live in Austria as his wife – a Somali national with refugee status in Austria – and their son, born in 2011 with the same status, lived there. They had married traditionally, his wife was pregnant for the second time and needed his support.
As part of the consultation proceedings, the Netherlands declared that they were prepared to take back the Applicant in accordance with Art 16(2) of the Dublin II Regulation. The Federal Asylum Agency refused the application on the grounds of responsibility and issued a decision for expulsion to the Netherlands.
The Applicant lodged an appeal against this decision. The Asylum Court refused the appeal, but granted a postponement of implementation owing to the pregnancy of the partner. The grounds stated were that there was no private or family life deserving protection. The Applicant had not cohabited with his partner in a joint household before his arrival in Austria and there were no indications of longer visits by either side, in particular as he was not entered as the father on the birth certificate of the first son. The Applicant could also attempt to lead a joint family life in the Netherlands or seek family reunification in Austria in accordance with the provisions on legal establishment. With regard to Art 15(2) of the Dublin II Regulation, it was stated that this was not applicable as there were no indications of any vulnerability: the partner was merely expecting a child and there were no indications of a problem pregnancy.
The Applicant lodged an appeal against this finding to the Constitutional Court. He stated, amongst other things, that the rules on safe third countries in § 4 of the Asylum Act and the measures relating to the impermissibility of sending back the Applicant owing to family ties in accordance with § 5 Asylum Act are to be applied in the same manner as the Dublin II Regulation. Austria should have applied Art 15 of the Dublin II Regulation as there was a dependent relationship. Different treatment of refugees, who had married only after fleeing, is not justified factually.
Decision & reasoning:
A Member State must exercise the right to assume responsibility for the examination if it would otherwise lead to a violation of fundamental rights – therefore also Art 8. ECHR.
The rules in § 4 Asylum Act relating to refusal of an asylum application on the grounds of a safe third country prohibit refusal if the spouse, the registered partner or a minor unmarried child of the asylum seeker has been granted the status of entitlement to asylum or subsidiary protection in Austria.
In order to avoid objectively unjustified unequal treatment, in the event of the examination of the legality under § 5 of the Asylum Act of sending back, these criteria are however also – in the context only of the wording for sending back under § 4 of the Asylum Act – to be applied according to a Constitutionally-compliant interpretation. There is namely no evidence of an objective justification for a differentiation between those applicants whose asylum application is to be sent back because another State is responsible for examining the application undera treaty or on the basis of the Dublin II Regulation, and those who can find protection against persecution in a (different) safe third country and whose application lodged in Austria is to be rejected for this reason.
The Asylum Court did not investigate sufficiently whether the minor son was actually the child of the Applicant. This information would however be of considerable importance for grounding its decision with regard to the (possibly required) exercise of the right to assume responsibility for the examination in accordance with Art 3(2) of the Dublin II Regulation.
The Applicant’s right to the equal treatment of foreigners was therefore violated.
Outcome:
The appeal was upheld and the contested decision revoked.
Subsequent proceedings:
The Asylum Court decided on 14.11.2013 (AsylGH 14.11.2013, S6 432.058-1/2013/15E) that Austria must use the right to assume responsibility for the examination, permitted the procedure and referred it to the Federal Asylum Agency in order to implement asylum proceedings on the merits.
Observations/comments:
Revoked decision by the Asylum Court: AsylGH 30.01.2013, S6 432.058-1/2013/2E.
Replacement findings of the Asylum Court: AsylGH 14.11.2013, S6 432.058-1/2013/15E.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-245/11 K v Bundesasylamt |
| ECtHR - Keegan v Ireland, Application no. 16969/90 |
| ECtHR - GÜL v. Switzerland, Application No. 23218/94 |