Austria - Asylum Court (AsylGH), 27 July 2010, S8 413923-1/2010
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Asylum Court (AsylGH) |
| Date of decision: | 27-07-2010 |
| Citation: | AsylGH S8 413923-1/2010 |
Keywords:
| Keywords |
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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First country of asylum
Description
"A country can be considered to be a first country of asylum for a particular applicant for asylum if: (a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or (b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement; provided that he/she will be re-admitted to that country." Member States may consider an application for asylum as inadmissible if a country which is not a Member State is considered as a first country of asylum for the applicant. |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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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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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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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 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. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
In a decision on whether the return of an unaccompanied minor to Hungary under the Dublin Regulation is unlawful in light of Art. 3 ECHR and therefore the sovereignty clause should be used, Art. 24(2) of the Charter of Fundamental Rights of the European Union(CFRU – best interest of the child as a primary consideration for authorities) is significant.
Facts:
The minor Applicant submitted an application for asylum in Hungary on 16.03.2010 and an application for international protection in Austria on 08.04.2010.
The Applicant put forward the following against his expulsion to Hungary: that he had not been cared for sufficiently in Hungary and that the proceedings there were not fair. Owing to a lack of sufficient understanding with an interpreter, it had been assumed in error in Hungary that he had reached full age. As a result he had been accommodated in an adult camp (Debrecen). The conditions were reported to be terrible there. He had been raped in the camp and he was afraid that if he returned to Hungary he would be raped again. As a result of these incidents, he did not want to return to Hungary.
A specialist for neurology and psychiatry came to the conclusion that it would be advisable for the Applicant to receive therapeutic, medical or medicinal treatment. A transfer to Hungary without appropriate therapy or treatment could in particular lead to an exacerbation of the symptoms with the danger of permanent damage or breakdown.
The legally appointed representative for the Applicant therefore applied for the substantive proceedings to take place in Austria owing to the risk of a breach of Art. 3 ECHR.
The Federal Asylum Agency made inquiries via the Austrian Embassy in Hungary with the Hungarian authorities regarding accommodation at a different location than the Debrecen refugee camp as well as the possibility of therapeutic treatment. The first part of the inquiry was answered to the effect that the Austrian asylum authorities could contact the Hungarian partner organisations directly. With regard to the second question, it was stated that this could be answered by the Hungarian authorities only after an inquiry by the Applicant, namely when the age of the Appellant could be confirmed with certainty and he could in fact be classified as a minor.
The Federal Asylum Agency rejected the application for international protection made by the Applicant owing to the responsibility of Hungary to conduct the asylum proceedings and determined that the expulsion of the Applicant was lawful.
The Applicant lodged an appeal against this through his legally appointed representative.
The Asylum Court granted the appeal suspensive effect.
Decision & reasoning:
In principle, the Asylum Court agreed with the Federal Asylum Agency’s acceptance of the responsibility of Hungary. The Federal Asylum Agency had not used the option of exercising the sovereignty clause in accordance with Art. 3(2) of the Dublin Regulation.
Referring to earlier decisions of the Constitutional and Administrative Courts, the Asylum Court maintained that in principle it is generally to be presumed that the Member States are safe and the mere possibility of treatment contrary to Art. 3 ECHR in a Member State is not sufficient to make deportation to a Member State unlawful. On the contrary, this would require circumstances specific to the foreigner in question which would make such a danger likely especially in his case in the event of his deportation. The submission of general reports will not usually replace this requirement, nor does a submission with regard to a low recognition rate, possible arrest in the event of a transfer or a possible shortfall in procedural standards the standards of Art. 13 ECHR. On the other hand, representations related, for example, to special legal positions in a Member State which are indefensible under the Geneva Convention on Refugees or the existence of a procedure which is substantially unlawful in the individual case when the asylum application has already been refused in the responsible Member State are relevant. An express declaration of responsibility by the other Member State should be taken into consideration, as well as other assurances by European partner countries. With a corresponding accumulation of the use of the sovereignty clause, the effet utile of Union law is jeopardised. However, it was lawful under Union law to review the effects of a transfer in an individual case from the perspective of fundamental rights and, in the event of affirmation, the use of the sovereignty clause is absolutely required. Union law therefore requires an argument which is substantiated to a particular degree and the existence of special exception circumstances of which evidence is provided by the Applicant in order to dislodge the fundamental presumption under European law of the “safety” of partner countries of the European Union as a community of law in an individual case. This is not altered by the fact that applicants for asylum often actually have no opportunity to submit evidence.
Furthermore the Asylum Court in applying Union law should take the CFRUinto account. In accordance with Art 24 (2) CFRU, all public agencies or private institutions must give primary consideration to the best interest of the child when taking measures concerning children.
According to the current status of proceedings, it should be assumed that the Applicant is a minor. According to the opinion of the specialist for neurology and psychiatry, in the event of a transfer there would be a risk of permanent damage or breakdown, unless it is ensured that appropriate therapy or treatment are provided. According to the response of the Hungarian asylum authorities, it is not however certain that the Appellant would be accommodated in a camp for minors and that he would receive appropriate treatment.
The Federal Asylum Agency should therefore conduct supplementary investigations with regard to the examination of a possible requirement to apply the sovereignty clause. At present it does not seem certain that the Applicant would receive appropriate accommodation and treatment for his special protection needs in Hungary as the fact he is a minor will not be assumed there.
Outcome:
The appeal was upheld and the contested decision was annuled.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99 |
Other sources:
Filzwieser, Subjective legal protection and enforcement of the Dublin II Regulation – Community Law and Human Rights, migraLex, 1/2007
Filzwieser/Sprung, Dublin II Regulation, 3rd edition