Austria – Asylum Court, 28 January 2010, S1 410.743-1/2009/6E
| Country of Decision: | Austria |
| Country of applicant: | Russia (Chechnya) |
| Court name: | Asylum Court |
| Date of decision: | 28-01-2010 |
| Citation: | S1 410.743-1/2009/6E |
Keywords:
| Keywords |
|
Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
|
Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
|
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.” |
|
Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
|
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." |
|
Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
|
Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
|
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:
An expulsion order in relation to an elderly woman with a deteriorating medical condition gave rise to a real risk of a violation of Art 3 and Art 8 ECHR. In light of this risk, the Asylum Court held that the sovereignty clause in the Dublin Regulation should be applied in combination with Article 15 of the same Regulation, even though the latter was not directly applicable in this case.
Facts:
The applicant is an elderly Chechen woman suffering from dementia in its early stages. None of her children remained in Chechnya and one of her daughters has been living in Austria as a refugee for a couple of years.
On her way to Austria the applicant passed through Poland and, unknowingly, applied for asylum. In Austria, the applicant moved in with her daughter as soon as possible. The applicant’s daughter took care of her medical treatment.
The Federal Asylum Office issued an expulsion order to Poland, pointing out that the applicant could get medical treatment in Poland. There was no sign of dependence on her daughter.
The applicant appealed against this decision.
Decision & reasoning:
The Asylum Court allowed the appeal.
The combination of a real risk of a violation of Art 3 and Art 8 ECHR, through the separation from the applicant’s daughter and the fact that the applicant has dementia and will need more and more support in everyday life, leads to the conclusion that Austria must use the sovereignty clause in combination with Art 15 Dublin II regulation.
Although Art 15 is not directly applicable, it is still valid as a model for the use of sovereignty clauses. The Federal Asylum Office cannot reject the application on the basis of the Dublin II regulation.
Outcome:
The Asylum Court allowed the appeal and the case was returned to the Federal Asylum Office.
Subsequent proceedings:
The Federal Asylum Office conducted a procedure on the merits and issued a negative decision as well as an expulsion order to Russia. The applicant appealed against this decision. The appeal is pending at the Asylum Court.
Observations/comments:
There seems to be a problem concerning the awareness of persons applying for asylum in Poland: Most asylum seekers enter Poland by train via Brest and Terespol. At a certain point during this train ride, the Polish police board the train and examine the traveller’s ID's. Travellers who do not have a visa or permission to enter Poland are escorted to an office where they are briefly questioned and their fingerprints are taken. Many asylum seekers are not aware of the fact that this procedure is already an application for asylum. In their opinion it is simply a general registration and necessary for the continuation of their journey.
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.
[[{"type":"media","view_mode":"media_link","fid":"1395","attributes":{"alt":"","class":"media-image","height":"124","style":"width: 182px; height: 124px; ","typeof":"foaf:Image","width":"182"}}]][[{"type":"media","view_mode":"media_large","fid":"1396","attributes":{"alt":"","class":"media-image","height":"94","style":"width: 480px; height: 94px; ","typeof":"foaf:Image","width":"480"}}]]
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Austria - Asylgesetz (Asylum Act) 2005 - § 10 |
| Austria - Asylgesetz (Asylum Act) 2005 - § 41 |