Austria - Asylum Court (AsylGH), 2 May 2013, D20 300128-1/2011/24E, D20 307779-1/2011/27E, D20 307778-1/2011/22E, D20 426616-1/2012/7E

Facts:

The Applicants, a Chechen family with two minor children, one of whom was born in Austria, lodged applications for asylum or international protection in Austria on 22.11.2005 and 27.08.2006 respectively. The father of the family pleaded persecution, imprisonment and torture by the Russian military authorities as reasons for fleeing. The Federal Asylum Agency refused the applications and expelled the Applicants to the Russian Federation. The Applicants lodged an appeal against these dismissed decisions, which were however confirmed by the Independent Federal Asylum Board.

The Applicants lodged an appeal against this to the Administrative Court. The latter revoked the decisions of the Independent Federal Asylum Board with findings on 13.12.2010 and 18.02.2011 respectively regarding the non-recognition of subsidiary protection and the expulsion. In April 2012 the Federal Asylum Agency again issued dismissive decisions against the family, and the Applicants lodged an appeal to the Asylum Court. Finally an oral appeal hearing took place in March 2013 at the Asylum Court, which was primarily focussed in particular on the integration of the family, which had already resided in Austria for about seven and a half years (first Applicant) and for six and a half years (second and third Applicants). The Applicants submitted a large number of items of evidence on the state of health, integration in Austria (confirmations of school attendance, school reports, statement by the class teacher, evidence of language, statement by the landlord, and promise of a job) as well as a supplementary submission on Art 8 of the ECHR. 

Decision & reasoning:

In its decision, the Asylum Court emphasised the high willingness and efforts to integrate by the family and considered it to be firmly integrated in Austria. The family of the Appellants had very good contact with Austrian nationals and were described by their circle of friends as extremely friendly, helpful, making plenty of effort and cooperative. With the exception of the illegal entry and the conviction of the first Applicant owing to driving a vehicle with a forged driving licence, the Asylum Court could find no violations of public order. The mother suffered from a rare skin disease as well as chronic rheumatoid arthritis, which had an extremely adverse effect on her quality of life. In addition, episodes of depression occurred. The second Applicant was being treated with highly concentrated cortisone amongst other things and was also undergoing psychotherapy. Independently of her assessment from the perspective of Art 3 of the ECHR, these illnesses and their treatment should be taken into account with regard to the right to respect for private life and in the consideration required in accordance with Art 8(2) of the ECHR of public and private interests as part of an overall assessment. During the last few years the psychotherapy had had a decisively positive influence on her and she would not have been able to cope with the enormous detrimental effect of the illnesses on her quality of life and difficult living conditions without continuous psychotherapy. Discontinuing the psychotherapy in Austria or changing the social environment of the mother entrusted with the care of the small child would lead to a deterioration in her state of health or set back the progress that had already been achieved. This could subsequently also have a negative effect in particular on the development of the child, who was just over a year old.

Furthermore, the interest and well-being of the children should also be incorporated into the assessment, whereby children under some circumstances can already develop stronger roots in the Federal territory earlier than their parents. This also had an influence on the assessment of a reintegration into the country of origin. The third Applicant, who was eight and a half years old at the time of entry into Austria, had no special connections to Chechnya, apart from relatives. Although the socialisation, which starts at about the age of three, of the third Applicant had first taken place in Chechnya, she had spent large and particularly formative parts of her childhood and adolescence in Austria, where she was in the meantime to be regarded as socially and educationally well-integrated. Socialisation that was very important for personal development had taken place through the attendance at school of the older child and the involvement in the school association and the social environment in the Federal territory. It was therefore to be expected that the daughter, who was a minor, would face considerable difficulties in the event of a return to the Russian Federation in view of the teaching language and the lack of connections to the home country.

The Asylum Court came to the conclusion that in this case the private interests of the Applicants in their entirety outweighed the public interests of an end to residency in favour of an orderly system for foreigners. The expulsions were disproportional within the meaning of Art 8(2) of the ECHR.

Outcome:

The appeals were upheld and the expulsion was declared permanently unlawful.

Observations/comments:

Dismissed decisions of the Independent Federal Asylum Board (UBAS):

UBAS 01.10.2007, 307.779-C1/8E-XV/52/06 and 307.778-C1/7E-XV/52/06

Partially revoked findings of the Administrative Court (VwGH):

Administrative Court (VwGH) 13.12.2010, 2008/23/0976-10

VwGH 18.02.2011, 2011/01/0051 to 0052-8

Other sources:

ECHR 14.3.1980, B 8986/80

Feßl/Holzschuster, Asylum Act 2005

Chvosta, Die Ausweisung von Asylwerbern und Art. 8 MRK (the expulsion of asylum seekers and Art. 8 ECHR), in Austrian law Gazette (ÖJZ) 2007, 852ff.