Austria - Administrative Court of the Province of Styria, 9 September 2016, LVwG 20.3-912/2016
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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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Protection
Description
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. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
Headnote:
Asylum seekers cannot be rejected at the border crossing without having the possibility to state reasons for obtaining international protection as well as a precise indication of reasons for the refusal of entry on the entry form. An assessment of the submitted reasons for asylum cannot only depend on an assessment by an interpreter, but must be decided through the responsible authority or court.
Facts:
During the proceedings, the claimant of Syrian nationality and the defendant gave contradictory information, based on which the court assumes the following:
The claimant fled from Syria to Slovenia through the Balkan route. Upon his attempt to enter Austria at the checkpoint “Spielfeld”, the claimant identified himself by passport at the post responsible for questioning. Having indicated his intention to continue his journey to Sweden in order to seek asylum there, the claimant was informed by an interpreter that a transit to Sweden would not be possible. Instead, an application for asylum was possible in Germany or Austria. Following this, the claimant indicated that he would like to seek asylum in Austria. According to the claimant’s statement to the court during the proceedings, a document the claimant intended to show evidencing the destruction of his house in Syria was not accepted and then ripped apart by border control officers. On the entry form, it was noted by handwriting: “no war in the village. Had problems with the police in his home village. Contradictory statements”. The travel document was handed back to the claimant without an entry stamp. He was refused entry and consequently sought asylum in Slovenia.
Decision & reasoning:
As a preliminary point, the court criticised the missing remark on the entry form as to the interpreter’s identity, having regard to the duty of documentation within the meaning of Guidelines Order (Richtlinienverordnung) s10 para1.
1. The rejection (refoulement) of the claimant at the checkpoint was unlawful. Whilst he expressed his intention to seek asylum in Austria, during the questioning he was denied the possibility to state reasons for his international protection in Austria as per s41 para3 of the Aliens’ Police Act (Fremdenpolizeigesetz). By reason of the prejudicial assessment through the interpreter or rather border control authorities, the claimant could not submit an application for asylum.
In addition, it was accepted that the employment of interpreters from private firms, as in this case, is permitted during the questioning as to the admissibility of entry as per s41 para3. However, there is a duty to introduce interpreters to the fundamentals of their work whilst equally officials are to be introduced to their work with interpreters. Furthermore, Art.13 para2 of the Schengen Borders Code requires the precise indication of reasons for the refusal of entry. The transit to Sweden, whilst stated as the reason for refusal by the border control authorities before court, was not mentioned on the entry form. What is more, an assessment of the submitted reasons for asylum cannot only depend on an assessment by an interpreter as was the case here, but must be decided through the responsible authority or court. As per s12 para1 Asylum Law (Asylgesetz), the claimant is entitled to a factual protection against deportation (right to remain pending decision).
2. The request to find the destruction of the claimant’s documents through bodies of public security services as unlawful is to be rejected. This follows from the proceedings, finding that a document was never handed over.
Outcome:
1. The rejection of the claimant through bodies of the Steiermark police was unlawful.
2. The complaint that documents of the claimant were destroyed during the border control by bodies of the public security services is rejected.
Observations/comments:
The decision concerns one of twelve similar cases of complaints (inter alia LVwG 20.3-918/2016 and 21.3-919/2016; LVwG 20.3-873/2016 and LVwG 21.3-874/2016) in which the refusal of Asylum seekers was declared unlawful. Petra Leschanz of the initiative Border Crossing Spielfeld emphasises the “defective basic concept of border management”. She doubts whether following the decision and in light of the possible entry into force of the Emergency Asylum Order, untrained officers could be expected to take decisions concerning Asylum law. (Full comment in German under: http://steiermark.orf.at/news/stories/2795696/)
This case summary was written by Christian Freuling, Graduate Diploma in Law student at BPP Law School.
Cited National Legislation:
Other sources:
Art. 13 of regulation 562/2005 of the European Parliament and of the Council of 15 March 2006 regarding the Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)