Austria: Constitutional Court, 11. June 2015, E 602-60372015-9
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Constitutional Court |
| Date of decision: | 11-06-2015 |
| Citation: | E 602-60372015-9 |
Keywords:
| Keywords |
|
Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
|
Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
|
Education (right to)
Description
PerArt. 10 RCD Member States must grant minor children of asylum seekers and asylum seekers who are minors access to the education system under similar conditions as nationals of the host State for so long as an expulsion measure against them or their parents is not actually enforced. Per Art. 27 QD Member States must grant full access to the education system to all minors granted refugee or subsidiary protection status, under the same conditions as nationals . Adultsgranted protection status are entitled to access to the general education system, further training or retraining, under the same conditions as third country nationals legally resident |
Headnote:
A decision refusing refugee status is unlawful and arbitrary, if it is solely based on the lack of a “western orientated” lifestyle of the applicants in the country of residence and disregards the lack of educational opportunities in the country of origin. Furthermore, such determination violates the right to equal treatment of foreigners with each other.
Facts:
Both complainants are nationals of Afghanistan and have applied for international protection in Austria. The first complainant is the mother of the second complainant. When filing the application, the second complainant stated that her husband had to flee from the Taliban and that, as a single woman, she was constantly living in fear of the Taliban. Out of fear she could only let her daughter go to school for about half a year. Both could only leave the house very rarely.
The Federal Asylum Office rejected the application for recognition of asylum but granted them subsidiary protection status. Both complainants appealed the decision. During the oral hearing it emerged that the two complainants lived in Austria of their own free will according to traditional ways of life. The lower court dismissed the appeal therefore as unfounded. The complainants did not present any "Western orientation" on which they could base a claim for asylum. Furthermore, none of the complainants had claimed a situation of persecution.
Both complainants challenge the judgment of the lower court and claim that it violates their rights under Art. 1 of the Federal Constitutional Act on the Rights of Children and their right to equal treatment of foreigners with each other. Both complainants base their complaint on the fact that women-specific situations were not taken into account and that they lead their lives according to traditional values out of their own free will.
Decision & reasoning:
With regard to the second complainant, the Court ruled that the judgment of the lower court was arbitrary and violated her right to equal treatment of foreigners with each other as guaranteed by the constitution (Article I. 1 of the Federal Constitutional Act implementing the International Convention on the Elimination of All Forms of Racial Discrimination). This results from the fact that the lower court only examined the asylum claims regarding any “Western orientation". The lower court also disregards the lack of educational opportunities in the home province in Afghanistan and country reports according to which there have been "repeated gas attacks on girls’ schools" in Afghanistan. The second complainant's appeal was therefore successful.
The court refused to deal with the appeal of the first complainant, as the clarification of a constitutional question was not relevant there.
Outcome:
Appeal granted
Observations/comments:
This summary was written by Theresa Richter, LLM-student at Queen Mary University (London).
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
ICERD - International Convention on the Elimination of All Forms of Racial Discrimination