Austria - Constitutional Court, 18 June 2012, U713/11
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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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.” |
Headnote:
The expulsion of an asylum seeker after asylum proceedings lasting approximately eight years without any culpable delay by the Applicant, during which he established a family and also integrated well in other respects, infringes his right to a private and family life.
Facts:
The Applicant entered Austria in 2003 and applied for asylum.
After his entry he married an Austrian national in 2006. Their daughter was born in 2007, whom he looked after during the day because his wife was working. He became involved in the local football club as well as in the local church. He learnt German and has been promised a job. He was once given a prison sentence of 12 months (of which 9 months were suspended) during his stay in Austria on the basis of an offence under the Narcotic Substances Act.
The application for asylum was finally rejected by the Asylum Court in 2011 and the Applicant was expelled to Nigeria.
With regard to the expulsion decision, it was stated by the Asylum Court with reference to the case law of the ECtHR that family life was established at a time when the Applicant and his wife should have been aware of their uncertain residence status and family life with his wife and daughter could be maintained through their visits to Nigeria.
Decision & reasoning:
The appeal was granted with regard to the expulsion decision.
The judgment by the Asylum Court infringed Art 8 ECHR. A high level of integration as well as an existing family life had already been determined by the Asylum Court. However, the Asylum Court mistakenly assumed that a private and family life were established when the Applicant should have been aware of the uncertainty of his residence.
Contrary to other cases, a private and family life were established during single asylum proceedings lasting eight years. The Applicant looks after his daughter every day, as his wife works. A separation of the daughter from her father would be contrary to the best interest of the child.
The Applicant did not culpably delay the proceedings, such as through subsequent applications. The long duration of the proceedings is therefore attributable to the Austrian authorities.
With regard to the sentence owing to an offence under the Narcotic Substances Act, the Constitutional Court emphasised the positive prospects for the future, which are assumed through the suspended prison sentence. As part of the consideration of interests, despite this sentence, an expulsion is inadmissible on the basis of the intensive private and family life.
Outcome:
The appeal was granted and the decision by the Asylum Court regarding the expulsion to Nigeria revoked.
Observations/comments:
Similar decision:
Constitutional Court (VfGH) 14.06.2010, B236/08
VfGH 07.10.2010, B950-954/10
VfGH 08.06.2010, B78/10 and B82/10
VfGH 02.05.2011, B350/09
VfGH 28.02.2012, B1644/10
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Hilal v United Kingdom, Application no. 45276/99 |
| ECtHR - Rodrigues da Silva and Hoogkamer v. Netherlands, Application No. 50.435/99 |
| ECtHR - Nunez v. Norway, Application No. 55.597/09 |
| ECtHR - Omoregie and others v Norway, Application No. 265/07 |
| ECtHR - Useinov v. Netherlands, Application No. 61292/00 |