Austria – Asylum Court, 13 November 2009, S11 408.911-1/2009/3E
| Country of Decision: | Austria |
| Country of applicant: | Russia (Chechnya) |
| Court name: | Asylum Court |
| Date of decision: | 13-11-2009 |
| Citation: | S11 408.911-1/2009/3E |
Keywords:
| Keywords |
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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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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." |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
This was an appeal against the decision by the Federal Asylum Office to transfer the first applicant to Poland and the second applicant, including their two children, to the Czech Republic. The Asylum Court allowed the appeal and found the consultations with other Member States and the decisions of the Federal Asylum Office to be arbitrary, ignoring national legislation requiring one procedure for the whole family and violating the Dublin II Regulation’s emphasis on the necessity of maintaining family unity as well as Article 8 of the ECHR.
Facts:
The first applicant entered Poland in October 2008. He travelled to Ukraine in November 2008 to April 2009, where he met his wife and two children who had come from Chechnya to Ukraine. Together they illegally entered Austria by truck on 12 May 2009.
The Austrian Federal Asylum Office rejected their asylum applications and issued an expulsion order to Poland for the first applicant and an expulsion order to the Czech Republic for the second applicant and their children. One of the children was two years old and severely mentally and physically disabled.
In relation to the first applicant, Austria consulted Poland, which agreed to take him back. In relation to the second applicant and the children, Austria consulted Poland, Slovakia and the Czech Republic. Poland refused to take them back because the first applicant had not mentioned his wife and children when he initially entered Poland. The Czech Republic agreed to take the second applicant and her children because they had a valid visa for that State until 1 May 2009, which the applicant denied to have.
The Federal Asylum Office did not accept as credible the applicants’ claim that they were a family or their account of their journey to Austria. The separation of the family was therefore in accordance with Art 8 ECHR; they could try to reunify the family from Poland and the Czech Republic by relying on Art 15 Dublin II Regulation or maintain their family life through visits.
The applicants appealed to the Asylum Court.
Decision & reasoning:
The Asylum Court found that the consultations were led in an arbitrary way. On the one hand, the Federal Asylum Office doubted the very existence of a family. On the other hand, the second applicant is often mentioned as the first applicant’s wife. The Federal Asylum Office separated the family and therefore ignored § 34 Asylum Law, concerning the state’s duty to have one procedure for the whole family. The procedure also violates the Dublin II Regulation, which highlights the necessity of maintaining family unity.
Although Poland agreed to take the first applicant back, and the Czech Republic seems responsible for the second applicant under Art 9(4) Dublin II Regulation, this does not indicate that the separation of the family is justified. The separation of the family is itself a violation of Article 8 ECHR. The jurisprudence the Federal Asylum Office relied on was not related to cases of families who were sent to different states under the Dublin II Regulation. Moreover, mutual visits were held not to be possible because the applicants would have to leave the responsible member state, which would be another violation of the Dublin Regulation.
Additionally, the Asylum Court pointed out that the request to the Czech Republic itself seemed to be arbitrary because the second claimant arrived in Austria on 12 May 2009, while the visa for the Czech Republic expired on 1 May 2009.
The Asylum Court allowed the appeal and returned the case to the Federal Asylum Office for further investigation concerning which member state was to be responsible for the whole family. The decision of the Federal Asylum Office not to define the two applicants and their children as a family needs to be revised. Moreover, detailed research is needed on whether expulsion is in accordance with the two-year-old child’s human rights, considering her medical condition.
Outcome:
The appeal was accepted and the case was returned to the Federal Asylum Office.
Subsequent proceedings:
Following the decision of the Asylum Court, the Federal Asylum Office conducted another interview with the first applicant. Due to contradictions in the applicant’s initial statements, the Federal Asylum Office claimed he was not part of the family and ordered the applicants to take DNA-tests. However, their applications were rejected because they did not have enough money to pay for the results of the tests in time. The applicants appealed but the Asylum Court did not give their appeals suspensive effect and the second applicant and the children were accordingly deported to the Czech Republic. Once the applicants had enough money to receive the results of the DNA-test, which were positive, the Asylum Court gave their appeals suspensive effect. The second applicant and the children returned to Austria and the Asylum Court allowed the appeals.
Following the last decision by the Asylum Court in August 2010 there were no further steps in the Dublin procedure by the Federal Asylum Office but a procedure on the merits, which ended with a negative decision. The family contested the decision.
In the summer of 2012 they were finally recognised as refugees in Austria by the Asylum Court.
Observations/comments:
The Dublin procedure took 16 months in total. During the admission procedure a total of 8 interviews were held, a DNA-test that cost about € 1000 was requested, there were two appeals written, eight decisions by the Federal Asylum Office and eight by the Asylum Court (two for each family member). Ultimately, this led to very high costs until the procedure in merits started.
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.
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