Austria – Asylum Court, 7 February 2012, S1 424.244-1/2012/3E
Keywords:
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Indirect refoulement
Description
The duty of a State of non-refoulement under Article 33 of the 1951 Convention can include “indirect” or “chain-refoulement” via an alleged “safe third county”. According to the UNHCR,“indirect removal of a refugee from one county to a third country which subsequently will send the refugee onward to the place of feared persecution constitutes refoulement, for which both countries would bear joint responsibility.” |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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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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Request that charge be taken
Description
Formal request by one Member State in which an application for asylum has been lodged, where it considers that another Member State is responsible for examining the application, calling upon that other Member State to take charge of the applicant. It should be made as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2) Dublin II Regulation and subject to the conditions laid down in Articles 17 to 19. |
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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." |
Headnote:
This was an appeal against the decision to transfer the applicant to Hungary on the ground that Hungary would transfer the applicant to Serbia, which would amount to indirect refoulement in violation of Article 3 ECHR. The Asylum Court allowed the appeal and held that, although Hungary can be assumed as a safe country, if an applicant gives individual reasons for why Hungary is not safe these must be examined in detail.
Facts:
The applicant applied for asylum in November 2011. He claimed he came to Europe via Iran, Turkey and Greece, where he stayed for one year. The applicant then crossed the border to Macedonia and Serbia, subsequently arriving in Hungary, where he did not apply for asylum, and, finally, entered Austria. Austria consulted Hungary and the Hungarian authorities agreed to take him back.
The applicant did not know anything about Hungary. However, while in Serbia he had met people who told him they were deported from Austria to Hungary and back to Serbia.
The Federal Asylum Office rejected his application and issued an expulsion order to Hungary. The applicant appealed against this decision to the Asylum Court.
Decision & reasoning:
The Asylum Court allowed the appeal and returned the case to the Federal Asylum Office for further investigation.
The Asylum Court said the Dublin consultations were led correctly. The applicant stated he had travelled through the woods of Subbotica, close to the Hungarian border with Serbia. It is known that asylum applicants often take this route to come to Austria. During his first interview the applicant had already said he passed Hungary. Therefore, it seemed clear that he must have traversed Hungary, which would then be responsible for his asylum procedure.
In its decision, the Federal Asylum Office assured the applicant that he would have a procedure on the merits in Hungary. In principle, the Asylum Court agreed with the decision and said that due to EU law it can be assumed that Hungary is a safe country for asylum seekers. The court stated there are no internal failures in the Hungarian asylum system and, therefore, the potential risk of a violation of Article 3 ECHR due to COI can be ruled out.
However, in this case, the applicant claimed he had met persons who had been deported from Hungary directly to Serbia after their deportation from Austria. The Federal Asylum Office did not ask him any further questions regarding this point, but claimed that he would “surely” have a procedure on the merits in Hungary – although even the country reports state that Hungary regards Serbia as a safe country.
Due to the above facts, a violation of Art 3 ECHR is possible in this particular case and the Federal Asylum Office has to make further investigations concerning the risk of indirect refoulement from Hungary to Serbia.
Outcome:
The appeal was allowed and the case was returned to the Federal Asylum Office for further investigations concerning the risk of indirect refoulement from Hungary to Serbia.
Subsequent proceedings:
Another inadmissibility decision by the Federal Asylum Office followed. The applicant appealed against it once more but no final decision has been reached so far. The applicant absconded and the asylum procedure was terminated.
Observations/comments:
The results and findings of this casedoes not mean that Hungary is seen as an unsafe country from now on. It only means that if a person gives individual reasons why Hungary is not safe, the Federal Asylum Office has to examine them in detail.
It has to be clarified that the Federal Asylum Office as well as the Asylum Court have their own COI, which consists of various reports from different sources. These reports are gathered from NGOs as well as from other countries (especially UK Home Office, reports from German Foreign Ministry etc). Additional sources are the relevant laws of the respective state, reports from Austria’s own diplomatic missions and correspondences with the authorities of the relevant country.
These country reports are used in every asylum procedure. In cases where a special topic arises (for instance, a serious medical condition or another kind of individual threat of a violation of Art 3 ECHR) further investigations have to be undertaken to exclude a risk of a violation of the constitutional rights.
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 - § 8 |
| Austria - Asylgesetz (Asylum Act) 2005 - § 5 |
Cited Cases:
| Cited Cases |
| ECtHR - KRS v United Kingdom (Application no. 32733/08) |
Other sources:
United States Department of State, 2010 Country Reports on Human Rights Practices - Hungary, 8 April 2011.
Hungarian Helsinki Committee, Stuck in Jail: Immigration Detention in Hungary (2010), April 2011.
European Migration Network: Annual Policy Report (2010), October 2011.