Austria - Constitutional Court (VfGH), 27 September 2013, U1233/2013
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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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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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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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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Visa
Description
"The authorisation or decision of a Member State required for transit or entry for an intended stay in that Member State or in several Member States. The nature of the visa shall be determined in accordance with the following definitions: (i) ‘long-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that Member State of more than three months; (ii) ‘short-stay visa’ means the authorisation or decision of a Member State required for entry for an intended stay in that State or in several Member States for a period whose total duration does not exceed three months; (iii) ‘transit visa’ means the authorisation or decision of a Member State for entry for transit through the territory of that Member State or several Member States, except for transit at an airport; (iv) ‘airport transit visa’ means the authorisation or decision allowing a third-country national specifically subject to this requirement to pass through the transit zone of an airport, without gaining access to the national territory of the Member State concerned, during a stopover or a transfer between two sections of an international flight. Note: For some third countries (specifically, and as of December 2011, Albania, Bosnia and Herzegovina, FYR of Macedonia, Georgia, Moldova, Montenegro, Serbia, Russian Federation and Ukraine) there are Visa Facilitation Agreements which facilitate, on the basis of reciprocity, the issuance of visas for an intended stay of no more than 90 days per period of 180 days to the citizens of the European Union and the third country party to the agreement. These are often concluded at the same time as Re-admission Agreements." |
Headnote:
The Asylum Court violated the right of access to the courts by rejecting an appeal in a case where an application for family reunification had been submitted at an Embassy. The asylum authorities acted arbitrarily in assuming that there was no legal entitlement to a formal notification of the decision in writing on such an application.
Facts:
The Applicant is the mother of two children entitled to asylum in Austria, including a son who was a minor at the time asylum was granted in 2006. In January 2007, the Applicant lodged an application at the Embassy in Addis Ababa for the same protection as her children (therefore the granting of entry documents). In March 2007, the Federal Asylum Agency informed the Embassy that granting asylum was unlikely. The Embassy therefore refused the application for the issuing of entry documents. An appeal against this to the Administrative Court was rejected.
The Applicant therefore applied again in July 2008, this time by means of written submissions directly to the Federal Asylum Agency in Austria for the granting of the same protection. The Federal Asylum Agency pointed out in a letter of September 2008 that the application should be submitted at the Embassy because she could not lodge a visa application in person without actually being in Austria. The Applicant then applied on the same day to the Federal Asylum Agency to compel an administrative decision. There was no reaction to this application on the part of the Federal Asylum Agency. Attempts to challenge the letter in the Asylum Court or at the Federal Ministry for Internal Affairs were without effect because the letter was not a formal decision.
The Applicant therefore lodged an appeal to the Asylum Court in March 2010 on grounds of a violation of the obligation to decide because the application to the Federal Asylum Agency of September 2008 to compel an administrative decision had gone unanswered. The Asylum Court refused the application as unlawful. The reasons stated were, amongst other things, that the Federal Asylum Agency had no obligation to decide because legislation requires that family members residing abroad make an entry application at the Embassy.
The Applicant lodged an appeal against this decision to the Constitutional Court and alleged violations of the right to equal treatment of foreigners, the right to access to the courts and the right to respect for her family life.
Decision & reasoning:
The Federal Asylum Agency had initially rejected as void the Applicant’s January 2007 application for the same protection. By the application for the continuation of the proceedings in the written submission of July 2008, however, the Applicant had– in line with the legal opinion represented to her by the decision of the Administrative Court – sufficiently expressed the view that she insisted on compelling an administrative decision on the application for the same protection. This was based on the entitlement under the original version of § 35 Asylum Act 2005, which was applicable at the time, to compel an administrative decision by the Federal Asylum Agency in all cases. The six-month period for a decision applicable to this under § 23 Para. 1 of the Asylum Court Act therefore started on 22.09.2008.
Whether there has been a possible disregard for the rules for submitting such a claim to compel a decision is irrelevant to the claim. The latter exists regardless of whether the application is to be acted on procedurally or on the merits and in all cases where a claim to compel an administrative decision is asserted. The Applicant was in any case entitled to insist on compelling an administrative decision on her application which was dismissed as void because otherwise there would be no possibility of ruling on the application for family reunification in a constitutionally sound manner and not merely on standards of likelihood.
The Asylum Court therefore acted arbitrarily by refusing the application. In addition, this also violated the right to access to the courts as the Asylum Court incorrectly refused to rule on the facts of the case.
Outcome:
The appeal was upheld and the findings of the Asylum Court revoked.
Observations/comments:
Constested findings of the Asylum Court: AsylGH 19.04.2013, A1 402.021-3/2010.
Findings of the Administrative Court with which the appeal against the refusal of entry documents by the Embassy was rejected: VwGH 19.06.2008, 2007/21/0423.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Walter/Kolonovits/Muzak/Stöger: Verwaltungsverfahrensrecht (Law on Administrative Procedures), 9th edition (2011)