Austria - Constitutional Court, 15 December 2011, U760/11
Keywords:
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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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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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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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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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Integration measures
Description
Member Statemeasures intended to further the integration of immigrants into their host communities. Per Art. 7(2) FRD Member States may require third country nationals to comply with integration measures, in accordance with national law. |
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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:
After six and a half years of single asylum proceedings, the Applicants, a family with three children who were well-integrated in Austria, , were expelled by the Asylum Court to Armenia. The Constitutional Court revoked this decision on the grounds of a violation of Art 8 of the European Convention on Human Rights. The reasons for this were primarily that the integration of the children was given insufficient weight.
Facts:
The Applicants (a family consisting of a married couple and three children) submitted applications for asylum in Austria on 11.09.2004 and 30.08.2004 respectively. They had previously lived in Germany for a long time. The Federal Asylum Agency denied the applications with regard to the granting of asylum and subsidiary protection and expelled the Applicants to Armenia. The appeals lodged against this were also denied by the Asylum Court with decisions on 07.03.2011 after proceedings had lasted for six and a half years (reference numbers of these decisions: E13 257.593, E13 257.587, E13 257.592, E13 257.591, E13 257.589). The reasons given for the permissibility of the expulsion by the Asylum Court were principally as follows: despite their various activities, the Applicants who were minors were not involved in Austria’s social life in such a way that they would leave a gap in Austria that could no longer be filled if they returned to Armenia. The consideration of their interests had not shown that the interests of the Applicants to remain in Austria would outweigh the public interests in them leaving the country.
Here the Asylum Court considered the nature and, related to the age of the Applicants, the relatively short duration of their stay to date, whereby the stay could have been temporarily regularised only by the illegal entry and submission of asylum applications that were unjustified from the outset. Furthermore, it considered the lack of the existence of a family life and the lack of entitlement to protection of private life, the level of integration determined and the assumed continued connections to the country of origin on the one hand against, in particular, infringements of public order through the entry supported by smugglers and the emergence of private life during the uncertain stay.
The Applicants lodged an appeal against these decisions by the Asylum Court to the Constitutional Court. Amongst other things they pleaded in the latter that their right to private life guaranteed in accordance with Art 8 of the European Convention on Human Rights had been violated.
Decision & reasoning:
The Constitutional Court came to the conclusion that the Asylum Court had considered the public interests in the field of foreigners compared with the personal interests of the Applicants in an unconstitutional manner. It gave the following detailed reasons for this:
The Asylum Court had disregarded the fact that the integration of the Applicants did not take place during aperiod of uncertain residence status justified through subsequent applications, but during single asylum proceedings lasting for six and a half years in Austria. The long duration of the asylum proceedings was also not attributable to a culpable delay by the Applicants.
By giving insufficient weight to the integration of the Applicants who were minors, the Asylum Court had overlooked the fact that proceedings take over six years without extraordinarily complex legal issues and without culpability of the Applicants. Although it was correct that the Applicants had always only had a temporary residence entitlement, this was however not attributable to the Applicants who were minors, who had accompanied their parents as minors to Austria to the same extent as the persons with custody of them.
The Applicants who were (previously) minors had entered Austria at the ages of 14, 13 and six, had previously lived with their parents in Germany from 1997 to 2002, where the youngest Applicant was born. Therefore the Applicants who were aged 21, 20 and 13 at the time of the decision by the Constitutional Court had spent 11 1/2 (or ten) years and therefore most of their lives in German-speaking countries. The Applicants who had formerly been minors had completed almost their entire education in German-speaking countries, which was of particular importance against the background of their ages (also in view of the language barrier existing in Armenia).
With the finding by the Asylum Court, according to which the involvement of the Applicants (who had formerly been minors) in Austria's social life and therefore their level of integration, had not reached a level that they wouldleave a gap in Austria that could no longer be filled if they returned to Armenia, the Asylum Court had based its consideration on a measurement incompatible with Art 8 ECHR. The Asylum Court had misjudged in an unconstitutional manner the level of integration of these Applicants, although intensive social activities (in particular permanent and successful attendance at school, voluntary social work to a noteworthy extent and over a long period of time, limited employment permits and permanent involvement in sport at club level with some excellent performances) were documented in the administrative and court files.
Comparing all these circumstances in favour of the protection of their private life solely against the illegal entry and their unauthorised applications for asylum and as a result assuming over-riding public interests in their departure, represented a violation of the right to private life of the Applicants, who had formerly been minors, in accordance with Art 8 ECHR. With regard to the parents, the Asylum Court had misjudged that, at least as far as the youngest Applicant is concerned, there is a family life.
Therefore the right granted to the Applicants under constitutional law arising from the rights in Art 8 ECHR had been infringed, insofar as the appeals against expulsion from the Federal territory of Austria had been rejected through the contested decision of the Asylum Court.
Outcome:
The decision of the Asylum Court that was challenged was partly revoked (regarding expulsion from the Federal territory of Austria to Armenia).
Subsequent proceedings:
The Asylum Court subsequently declared the expulsion of all the Applicants as inadmissible (see Asylum Court (AsylGH) 02.01.2012, E13 257.587, E13 257.592, E13 257.591, E13 257.589). The Applicants were granted a residence permit by the responsible settlement authority on the basis of the above-mentioned findings of the Asylum Court.
Observations/comments:
At present (an amendment to legislation to this effect will enter into force as of 01.01.2014) the settlement authorities with local responsibility must as of right grant a residence permit in accordance with the Settlement and Residence Act to Applicants whose expulsion has been declared permanently inadmissible by the Asylum Court or the Federal Asylum Agency on the basis of Art 8 ECHR. The decision of the Asylum Court, according to which the expulsion is permanently inadmissible, does not yet constitute a residence permit in itself.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Hilal v United Kingdom, Application no. 45276/99 |