Austria - Administrative Court (VwGH), 24 March 2011, 2008/23/1134
Keywords:
| Keywords |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification 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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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
Headnote:
The expulsion of relatives providing care can breach Art. 8 ECHR, particularly if the foreigner requiring care and who is resident here is not removed from the country himself, but only the relative providing care.
Facts:
The female Applicant applied for international protection on 08.11.2005. She had no accommodation and no work in Georgia and in the event of her return would have to live on the streets there. In Austria she had been caring for her seriously ill son (born in 1976), who was living in Austria with subsidiary protection status. As a dialysis patient, he required constant care, a special diet and treatment. In addition, he was deaf and could only lip-read, which he found extremely difficult in German. Moreover, he suffered from a range of associated illnesses, physical weakness and a particular risk of infection as well as mental health reactions and auto-aggression.
The Federal Asylum Agency refused this application for asylum and expelled the Applicant to Georgia. The appeal lodged against this was also refused by the Independent Federal Asylum Board. It was stated that the grounds for this were, amongst other things, that the son of the Applicant had already entered the country before his mother arrived and his financial support would be guaranteed by the benefit of basic services.
The Applicant lodged an appeal to the Administrative Court against this decision.
Decision & reasoning:
The appeal was upheld.
The Administrative Court had already stated in its previous case law referring to the jurisprudence of the European Court of Human Rights, that, concerning the question of whether there could also be family life in accordance with Art. 8 ECHR outside the area of the nuclear family, the actual circumstances should be taken into consideration in each case; when examining the extent of the close personal relationship, the intensity and duration of co-habitation may also be of significance. The Independent Federal Asylum Board had assumed here that the relationship of parents to their adult children could also come under the term of family life within the meaning of Art 8 ECHR and had assumed the existence of such a family life between the Applicant and her son.
Interference with the right to a family life within the meaning of Art. 8 ECHR can exist if the foreigner requiring care and resident in Austria is not expelled himself, but his continued care is made impossible by the expulsion of the relatives assuming care.
The Independent Federal Asylum Board had, however, not carried out the balancing of interests according to Art. 8(2) ECHR in the sense of a case-specific balancing of the legal rights concerned and the public interest. Instead, when assessing the legality of the intervention in family life alongside the illegal entry, the Independent Federal Asylum Board had regard solely to the fact that his care would have been assured before her arrival, and drawn from this the conclusion that it would also be possible for the necessary care to be provided without the Applicant in future. Correctly, the responsible authority should however have made findings regarding the actual care situation of the Applicant’s son and subsequently considered the private interests of the Appellant in remaining with her son against the public interest of ending residency.
Outcome:
The contested decision was annuled with regard to the order of expulsion of the Appellant to Georgia.
Observations/comments:
Contested decision of the Independent Federal Asylum Board: UBAS 21.07.2007, 310.955-1/4E-XVIII/59/07
The Independent Federal Asylum Board was the appellate court in asylum proceedings against the Federal Asylum Agency between 01.01.1998 and 30.06.2008.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Austria - Asylgesetz (Asylum Act) 1997 - § 7 |
| Austria - Asylgesetz (Asylum Act) 1997 - § 8 Abs 1 |
| Austria - Asylgesetz (Asylum Act) 1997 - § 8 Abs 2 |