Austria – Asylum Court, 29 July 2010, S3 403.581-3/2010/2E
| Country of Decision: | Austria |
| Country of applicant: | Russia (Chechnya) |
| Court name: | Asylum Court |
| Date of decision: | 29-07-2010 |
| Citation: | S3 403.581-3/2010/2E |
Keywords:
| Keywords |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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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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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. |
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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 member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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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. |
Headnote:
In this case, the Austrian Asylum Court held the decision of the Federal Asylum Office not to grant refugee status to the applicant’s child was a violation of Austrian asylum law since the child’s father had been granted refugee status. The Court also held a separation of the newborn child from its mother violates Art 8 ECHR and, therefore, the applicant’s asylum application has to be admitted to the procedure on the merits.
Facts:
The applicant entered Austria, via Poland, in November 2008. She applied for asylum and said she came to Austria because her boyfriend lived there. The applicant had known her boyfriend since she was a child and followed him now, four years after he had left home. Her application was rejected on the basis of the Dublin II regulation and the applicant was issued an expulsion order to Poland. However, the applicant and her boyfriend married in Austria when she arrived in January 2009. The applicant also moved into his apartment. She was finally deported to Poland in February. The Asylum Court rejected the applicant’s appeal shortly afterwards.
The applicant’s asylum application in Poland was also rejected because the only reason she had left Chechnya was to live with her husband. She was, therefore, ordered to leave Poland.
In November 2009, the applicant applied for asylum in Austria for the second time. Poland agreed to take her back shortly after her new application. As an additional reason for her subsequent application, the applicant claimed to be pregnant by her husband. He had frequently visited the applicant since her deportation to Poland. The Federal Asylum Office rejected her application once more and expelled her to Poland. However, the transfer to Poland could not be carried out as the applicant absconded.
In May 2010, the applicant applied for asylum in Austria for the third time because her child had been born. She also applied for asylum for her child. In accordance with the national law in Austria, the applicant’s child has the right to receive the status of a refugee through its father. The Federal Asylum Office again rejected the applications because of the Dublin II regulation and issued an expulsion order for her and her child to Poland.
The applicant appealed against these decisions to the Asylum Court.
Decision & reasoning:
The Asylum Court accepted the appeal and admitted the applicant and her child to the asylum procedure on the merits.
According to § 34 of the Asylum Law (2005), a family member of a person who is considered a refugee, has to receive the same status. The claimant's child, therefore, has the right to be granted the same status as its father. A separation of the newborn child from its mother violates Art 8 ECHR, so the wife’s asylum application has to be admitted to the procedure on the merits.
Outcome:
The appeal was accepted.
Subsequent proceedings:
The applicant’s child was granted refugee status through its father, in accordance with § 34 Asylum Law (2005). The applicant received a residential permission as a family member.
Observations/comments:
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.
