Austria – Constitutional Court – 26 June 2020, E 810/2020 ua
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Constitutional Court (Verfassungsgerichtshof) |
| Date of decision: | 26-06-2020 |
| Citation: | E 810/2020 ua |
Keywords:
| 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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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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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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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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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
Courts must establish the current situation of the region from which the complainant originates and relate it to the individual situation of the complainant in the grounds of the decision.
In the case of an Afghan family, the lower instance court did not sufficiently consider the security situation in the complainants’ country of origin, in particular with regard to the situation for minors. Thereby the court violated the right to equal treatment among foreigners.
Facts:
The complainants are from Kabul and are citizens of the Republic of Afghanistan. They belong to the Tajik ethnic group and are Sunni Muslims.
By decision of 30 November 2017, the Federal Office for Foreign Affairs and Asylum (Bundesamt für Fremdwesen und Asyl) rejected the complainants’ application for international protection both for asylum and subsidiary protection regarding their state of origin Afghanistan.
The appeal was granted by the lower instance court by decision of 24 October 2018 and the case was referred back to the Federal Office for Foreign Affairs and Asylum. The complainants’ application was again rejected by the Federal Office for Foreign Affairs and Asylum on 13 May 2019. Now the lower instance court dismissed the appeal by decision of 5 February 2020 after an oral hearing. The lower instance court justified the rejection on the basis of a lack of westernisation and due to existing family networks in Afghanistan.
Despite the danger of terrorist attacks, Kabul was considered to be a comparatively safe and easily accessible city where there is no serious threat to the lives or physical integrity of the complainants.
Decision & reasoning:
In its ruling, the Constitutional Court examines whether the lower instance court exercised arbitrariness in issuing the decision not to grant subsidiary protection status. However, the Constitutional Court does not deal with the question of granting asylum status, as this is not a constitutional issue.
Austrian constitutional law contains the prohibition on making objectively unjustifiable distinctions between strangers, that is, a requirement of equal treatment of strangers among themselves. Unequal treatment among strangers is only permissible if and to the extent that there is a reasonable reason for it and the unequal treatment is not disproportionate. A court’s decision violates, inter alia, the principle of equal treatment if the court exercised arbitrariness in its decision. Arbitrary conduct is, among other things, a multiple misjudgment of the legal situation, but also a failure to identify an important circumstance. Such an omission exists, inter alia, in a thoughtless deviation from the content of the files or failure to take the concrete facts of the case into account.
Subsidiary protection must be granted if the return to the country of origin threatens to cause a real violation of Art. 2, 3 ECHR or of Prot. No. 6, 13 of the ECHR or would pose a serious threat to the life or physical integrity of a civilian as a result of arbitrary violence in the context of an international or internal conflict. In particular, when examining applications from minors, information about experience with returned minors in a corresponding security situation has to be taken into account. It is therefore necessary to investigate the concrete return situation for families with minors. It is not sufficient to refer to the protection and care of the parents. It must rather be ascertained whether the family members in the country of origin are willing and able to support the family.
The lower instance court therefore made an arbitrary decision: The good portrayal of the security situation in Kabul does not correspond to the situation described in the UN reports. According to the UN reports, the number of civilian deaths has increased in 2018. Kabul is the province with the highest number of victims. It is precisely civilians, who pursue their economic or social activities in Kabul, that can be victims of the omnipresent danger in the city. The Afghan government does control Kabul. However, in 2019 insurgents, Taliban and other militant groups carried out symbolic attacks, particularly in the capital region, in order to attract media attention, undermine the legitimacy of the Afghan government and create insecurity.
In addition, when examining the specific return situation, the court only refers to the return to the family in Kabul. However, it does not specify whether the family members in Kabul are willing and able to support the family.
Outcome:
Application partially granted; revocation of the decision; otherwise assignment to the Administrative Court
Observations/comments:
This summary was written by Anne Dewey. She is a doctoral student at the University of Bonn and is involved in the research group of the Refugee Law Clinic Cologne.
Cited National Legislation:
| Cited National Legislation |
| Art. 144 Federal Constitutional Act (Bundesverfassungesetz) |
| § 8 Asylum Law 2005 |
| § 64 Civil Procedure Law (Zivilprozessordnung) |
Other sources:
Domestic Case Law Cited
VfSlg. 13.836/1994
VfSlg. 14.650/1996
VfSlg. 16.080/2001
VfSlg. 17.026/2003
VfSlg. 16.214/2001
VfSlg. 14.393/1995
VfSlg. 16.314/2001
VfSlg. 15.451/1999
VfSlg. 16.297/2001
VfSlg. 16.354/2001
VfSlg. 18.614/2008
VfSlg. 15.743/2001
VfSlg. 16.383/2001
VfSlg. 18.749/2009
VfSlg. 19.521/2001
VfSlg. 20.082/2016
VfGH 17.04.2002 – B1147/01
VfGH 28.02.2012 – B825/11
VfGH 21.09.2017 – E2130/2017
VfGH 25.09.2018 – E1463/2018
VfGH 13.03.2019 – E 1480/2018
Other Sources Cited
EASO Country Guidance Afghanistan, available at: https://www.easo.europa.eu/sites/default/files/Country_Guidance_Afghanistan_2019.pdf
UNHCR Guidelines on International Protection No. 8: Child asylum claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 22 December 2009, rn. 74
Austrian “Country information sheet of the state documentation” (Länderinformationsblatt der Staatendokumentation) (database: https://www.staatendokumentation.at/de/).
UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan (https://www.refworld.org/docid/5b8900109.html).