Austria – Asylum Court, 24 September 2010, S5 317.551-2/2010/2E

Facts:

The applicant entered Austria, coming via Poland, in October 2007 and applied for asylum. His application was, after making an appeal to the Administrative Court, rejected in April 2009. The applicant absconded after receiving an expulsion order to Poland.

In July 2010 he made a subsequent application for asylum in Austria. The reasons given for this application was that the applicant had married under Muslim law and his wife had given birth to their daughter. The applicant’s wife had come to Austria with her parents when she was a child and has been a recognised refugee in Austria for several years. Their daughter was granted refugee status on the basis of the mother’s status. The applicant claimed his former reasons for seeking asylum were still the same, but that he also wanted to stay in Austria because of his newly founded family. The application was rejected on the basis that Poland was still held responsible and his application was considered as a res judicata. He appealed against this decision to the Asylum Court.

Decision & reasoning:

The Asylum Court rejected the appeal and issued an expulsion order to Poland.

Poland agreed to take the applicant back on 28 November 2007. The applicant’s appeal at the Administrative Court had suspensive effect from 14 May 2008 to 16 April 2009. After that he absconded, so the time frame for a deportation to Poland was extended for 18 months, beginning on 16 April 2009. Therefore, at the time of his second application for asylum in Austria, the original acceptance of responsibility by Poland was still valid. No significant changes of his circumstances had occurred since his first application, which meant that Austria did not have a duty to apply the sovereignty clause.

Art 7 Dublin II regulation is not applicable in this case because, although he has a minor daughter in Austria who is a refugee, the applicant’s family life was founded after he first applied for asylum in the European Union. Art 5 Dublin II regulation says that the moment a person first enters the territory of the Dublin II regulation is the only relevant chronological basis for a decision concerning the responsibility of certain states. The court pointed out that Art 15 Dublin II regulation is not applicable directly and that the applicant has to return to Poland. Poland has to apply for family reunification based on Art 15 Dublin II regulation. So the humanitarian clause cannot be used in this case. There is no violation of Art 8 ECHR because the applicant’s family was founded at a moment when he could not be sure whether he would be able to maintain it. Furthermore, the family life was not considered intense enough due to the fact that the applicant and his wife did not live in the same household. Consequently, it was decided that a family life that would be worth protecting does not exist. The applicant’s wife could visit him in Poland and thereby continue their family life.

Outcome:

The appeal was rejected and the applicant was transferred to Poland in September 2010.

Subsequent proceedings:

The applicant appealed the decision to the Constitutional Court. The Court rejected the appeal without a procedure on the merits because there was no violation of rights guaranteed by the constitution. After his return to Poland, the applicant, with the assistance of the Polish Helsinki Committee, applied for family reunification under Art 15 Dublin II regulation. Austria rejected the application. The applicant was not given an explanation for this decision.

Observations/comments:

This case is a good example of how the Dublin II regulation still produces categories of refugees in orbit. Because the time frame of the deportation to Poland was extended by another 18 months, the application was not examined on the merits for almost three years.

Concerning the expression “worth being protected”, in relation to the family life of the applicant, it needs to be considered that this is also a legal expression. § 10 (2) (2) of the Asylum Law states that in the assessment of a violation of Art 8 ECHR the following points have to be taken in 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 in a moment when husband and wife were aware of the fact that they might not be able to continue their life as a family
• whether the long duration of the procedure was caused by the authorities.

These criteria are based on decisions by the ECtHR, concerning Art 8 ECHR, and on decision by 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. Lastly, financial cost is often a practical barrier for family reunification on the basis of a residential permission.

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.