Austria - Constitutional Court, 7 March 2012, U1558/11
| Country of Decision: | Austria |
| Country of applicant: | Afghanistan |
| Court name: | Constitutional Court |
| Date of decision: | 07-03-2012 |
| Citation: | U1558/11 |
Keywords:
| Keywords |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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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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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
Under Austrian Asylum law, if a minor age cannot be excluded following an age assessment and doubts still exist in favour of the applicant, the authorities have to treat him or her as a minor. In this case, the age of the applicant had not been confirmed as being the age of maturity with absolute certainty and the applicant should therefore have been treated as a minor. The fact that only a copy of the birth certificate was submitted is not a sufficient basis to doubt its authenticity.
Facts:
The applicant first entered the European Union via Italy and subsequently entered Austria. He applied for asylum in Austria, claiming to be 17 years old. The Federal Asylum Office ordered a multifactorial age assessment, the result of which was that a minimum age of 17 could not be excluded.
Following a EURODAC hit an information request was sent to the Italian authorities. Italy replied to the request, stating the applicant was registered with the date of birth 1 January 1992. As a result of receiving that information, the Austrian Federal Asylum Office sent a request to Italy to take charge of the applicant. Italy did not respond to the request within the time limit.
The Austrian Federal Asylum Office rejected the application for Dublin Regulation reasons and issued an expulsion order to Italy. A few days later the Magistrat Graz, as legal guardian, sent a copy of the applicant’s birth certificate, which confirmed he is a minor, to the Austrian Federal Asylum Office. The Asylum Court rejected the appeal and agreed with the decision of the Austrian Federal Asylum Office. The applicant appealed to the Constitutional Court.
Decision & reasoning:
The Constitutional Court allowed the appeal.
The decision of the Asylum Court was arbitrary by violating the right to equal treatment of foreigners. Furthermore, the Asylum Court ignored § 15 (1) Z 6 Asylum Law (Asylgesetz 2005). This states that, if a minor age cannot be excluded following an age assessment and doubts still exist in favour of the applicant, the authorities have to treat him or her as a minor. In this case, the age of the applicant had not been confirmed as being the age of maturity with absolute certainty and the applicant – based on the rule mentioned above – should therefore have been treated as a minor. Furthermore, the Asylum Court did not examine the submitted birth certificate. The fact that only a copy of the birth certificate was submitted is not a sufficient basis to doubt its authenticity. Judicial decisions concerning custody (and the finding that he is a minor) are binding and cannot be ignored.
Outcome:
The appeal was allowed.
Subsequent proceedings:
The Asylum Court annulled its decision and returned the case to the Austrian Federal Asylum Office (see B1 428.257-1/2012/4E from 22 August 2012).
Observations/comments:
Under Austrian Asylum Law, if there exist doubts regarding an applicant’s age and these doubts are in favour of the applicant, the authorities have to treat him or her as a minor. In this case the authorities should at least have asked the applicant to submit the original birth certificate or name other circumstances that would prove his age.
This summary has been reproduced and adapted for inclusion in EDAL with the kind permission of Forum Réfugiés-Cosi, coordinator of Project HOME/2010/ERFX/CA/1721 "European network for technical cooperation on the application of the Dublin II regulation" which received the financial support of the European Refugee Fund.
Relevant International and European Legislation:
Cited National Legislation:
Follower Cases:
| Follower Cases |
| Austria - Federal Administrative Court, 19 October 2017, I403 2173192-1 |