Austria - Administrative Court (VwGH) 24 January 2013, 2012/21/0230
Keywords:
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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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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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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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." |
Headnote:
Failure to integrate into the country, which is typically the case, does not constitute grounds for protection. Behaviour a long time previously in relation to the entry is not significant when assessing security requirements. Aggressive behaviour in the Federal Support Centre does not alone represent a need for security which justifies detention (deportation detention). Despite removal from the Federal Support Centre owing to this behaviour, this must not lead to an asylum seeker losing his entitlement to basic services.
Facts:
In August 2012, the Applicant entered Austria via Hungary, where he had already sought international protection. In Austria, he was arrested by the police directly on arrival and then applied for international protection. He was brought to the Initial Reception Centre and was accommodated there. Subsequently, Dublin consultations were held with Hungary and the Applicant was made aware of this in accordance with legislation by a corresponding notification.
After aggressive behaviour when under the influence of alcohol in the Support Centre, a barring order from the Centre was issued against the Applicant, the Applicant was arrested and taken into detention (deportation detention). The grounds for the decision were essentially that the Applicant had already resided in Hungary before his application was lodged in Austria, he was therefore not able to legalise his residence and a return decision should therefore be made by the Federal Asylum Agency. He was not integrated in Austria and his aggressive behaviour had shown that he “was under no circumstances” willing to “adapt to the law”. The Applicant lodged an appeal against this decision, in which he primarily argued against any security requirements made statements on the lack of a requirement for security because he had been contactable in the Support Centre. There continued to be an entitlement to basic services. Any (alleged) misbehaviour should not provide grounds or a reason for detention. Less severe measures would have been sufficient for the purpose of ensuring the expulsion proceedings or deportation.
The Independent Administrative Board as the authority of second instance confirmed the decision of detention for the most part. The extremely aggressive and uncooperative behaviour of the Applicant allowed conclusions to be drawn about a negative attitude towards legally protected values; although this situation alone did not represent a reason for imposing detention pending deportation, it did however complete the “overall image of the Appellant” from which further breaches of law could be expected, in particular in connection with proceedings to end his stay.
The Applicant lodged an appeal against this decision with the Administrative Court.
Decision & reasoning:
Insufficient grounds were given in this case for the existence of a security need. The fact that the Applicant did not contact the authorities himself after entering the country, but lodged the application for international protection only after his arrest could indicate a lack of willingness to cooperate or an increased risk of absconding. However, if several weeks have already passed since arrival and submission of the application – as in the appeal case – then behaviour during the progress of the asylum proceedings should also be taken into account. The responsible authority, apart from describing the aggression of the Appellant demonstrated on the evening before detention pending deportation, did not make any findings thereon.
With regard to the lack of social integration of the Appellant, the Administrative Court has already ruled several times that as far as asylum seekers (who have not been in Austria for a long time) who are entitled to basic services are concerned, this is not a sustainable argument for the existence of a security need.
With regard to the argument that the Appellant has no accommodation options, it should moreover be pointed out that regardless of the eviction order and order prohibiting entry to the Centre in accordance with § 38a of the Law on the Security Police, he was entitled to accommodation as part of basic services as long as these had not been withdrawn from him by the Federal Asylum Agency by means of a decision in accordance with § 2, Para. 4 of the Federal Act on Basic Services 2005.
In addition, there was a failure to hold an oral hearing, which could not be justified by the short (one week) period for delivering a judgment.
Outcome:
The contested decision was annuled.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Austria - Constitutional Court, 11 June 2008, B2024/07 |