Austria – Asylum Court, 11 October 2011, S7 421.632-1/2011/2E
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Asylum Court |
| Date of decision: | 11-10-2011 |
| Citation: | S7 421.632-1/2011/2E |
Keywords:
| Keywords |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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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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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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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
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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 a decision to expel a widowed illiterate mother and five of her children who had been granted subsidiary protection in Bulgaria. Austria did not have to apply the sovereignty clause, as the situation in Bulgaria did not give rise to a real risk of a violation of Art 3 ECHR. Although the applicant’s sixth child had entered Austria and applied for asylum as an unaccompanied minor two years earlier, there was no violation of Art 8 ECHR because family reunification was possible in Bulgaria and there is no family life worth protecting.
Facts:
The applicant is a widow, a mother of seven children (three other children had died and a married daughter stayed in Afghanistan) and illiterate. The applicant’s son was an unaccompanied minor who had come to Austria in 2009. He had applied for asylum and when his mother came to Austria his case was reopened at the Asylum Court in a procedure on the merits.
In 2010 the applicant, and five of her underaged children, came to Bulgaria. They applied for asylum and received the status of subsidiary protection. In 2011 the applicant found out that her son lived in Austria and, therefore, she and her five children came to Austria and applied for asylum.
Austria held consultations with Bulgaria and Bulgaria agreed to take them back, confirming they have subsidiary protection status there. Bulgaria also stated family reunification with an underaged child is possible in Bulgaria for persons with subsidiary protection. The Federal Asylum Office therefore rejected their application and expelled them to Bulgaria. The applicant appealed against this decision to the Asylum Court.
Decision & reasoning:
The Asylum Court refused the appeal.
Given the situation in Bulgaria, there is no real risk of a violation of Art 3 ECHR in case of a return to Bulgaria. Austria, therefore, does not have to use the sovereignty clause. Furthermore, there is no violation of Art 8 ECHR. The applicant left Bulgaria and applied for asylum in Austria even though Bulgaria is responsible for conducting her asylum procedure. Additionally, she had the possibility of family reunification in Bulgaria but tried to achieve family reunification in Austria. The family had already been separated for a period of two years due to the fact that the applicant had sent her 13-year-old son to Austria. It was therefore concluded there is no family life that is worth being protected.
Outcome:
The appeal was refused and the expulsion order to Bulgaria was confirmed.
Subsequent proceedings:
The applicant appealed against this decision to the Constitutional Court, which granted the appeal suspensive effect. In July 2012 the Constitutional Court refused to deal with the complaint due to the fact that there was an obvious violation of a right guaranteed by constitutional law. The family, therefore, made a second application for asylum. They were finally admitted to the procedure on the merits because the period specified under Art 19 (4) Dublin II Regulation had expired. The Federal Asylum Office granted the applicants subsidiary protection status. The applicants appealed the parts of the decision concerning asylum. This appeal is currently at the Asylum Court.
Observations/comments:
Concerning the expression “worth being protected”, in relation to the applicant’s family life, it needs to be explained that this is also a legal expression. § 10 (2) (2) Asylum Law says that in the assessment of a violation of Art 8 ECHR the following points have to be taken into consideration:
- duration and legal title of the stay in Austria
- de facto existence of a family life
- whether the private life is worth being protected
- dimension of integration
- bindings to the country of origin
- criminal convictions
- violations of the public order, especially regarding asylum and immigration law
- whether the family was founded at a point when they were aware of the fact that they may not be able to maintain their life as a family
- whether the long duration of the procedure was caused by the authorities.
These criteria are based on decisions of ECHR concerning Art 8 ECHR and the Austrian Constitutional Court (VfGH 29.09.2007, B328/07 and B1150/07-9). Whether the family life is “worth being protected” naturally also includes a certain subjective judgement by the deciding judge.
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.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Austria - Asylgesetz (Asylum Act) 2005 - § 10 |
| Austria - Asylgesetz (Asylum Act) 2005 - § 5 |