Austria – Constitutional Court, Decision dated 23 September 2016, E 1200/2016-12
Keywords:
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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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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
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Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
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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:
A general circular letter send by Italian authorities is not a sufficient individual guarantee regarding a Dublin Transfer of a man suffering from various serious diseases.
Facts:
The applicant is a 58-year-old man from Iran. He had travelled to Italy with a visa for the Schengen area before moving on to Austria, where he applied for international protection in October 2015. In December 2015 the Italian authorities accepted the request to take back the applicant under the Dublin regulation.
The applicant suffers from Parkinson’s disease, depression and arterial hypertension. Additional to that, he received a stent for his coronary vessels. Because of his state of health, the Austrian authorities asked their Italian counterparts for an individual guarantee confirming the supervision of the applicant before the return and enclosed a list of medicine, the applicant needed.
In their answer, the Italian authorities did not give an individual guarantee, but only attached a general circular letter of the Italian Interior Minister which included a list of accommodations that were known to treat vulnerable persons consistent with human rights. The Austrian asylum authorities (“Bundesamt für Fremdenwesen und Asyl“) thereupon rejected the application for international protection, declaring Italy as the competent country to review the asylum application and ordering the return of the applicant to Italy.
The Austrian Federal Administrative Court dismissed the complaint of the applicant against this decision, stating that he would not have to fear a human rights violation when returned to Italy. The court justified its decision by finding that there is no real risk of a violation of Art. 3 ECHR for asylum seekers in Italy. Dublin returnees have access to the Italian asylum system, legal protection, accommodation and utility services. The Italian asylum systems does not contain any systemic deficiencies. Additionally, the Court stated that the applicant is not a vulnerable person because he is a “young man travelling alone without suffering from any serious diseases”. The guarantee given by the Italian authorities was considered to be sufficient. In its reasoning, the Federal Administrative Court referred to the Tarakhel decision of the ECtHR which finds that the general situation of asylum seekers in Italy is sufficient. Lastly, the Court states that also Art. 8 ECHR is not breached, despite the fact that the applicant entered Austria with his life partner who was granted asylum there.
Decision & reasoning:
The complaint at the Constitutional Court was successful.
The Austrian Constitution prohibits a differentiation of foreigners for non-objective reasons. This requires an equal treatment of foreigners. Unequal treatment of foreigners is only permitted when it is justified by a reasonable cause and proportionate.
This subjective right of equal treatment is breached, when a legal decision is arbitrary. Especially the following reasons are considered as arbitrary: misjudgment of the legal situation, refraining from any investigative activities in a decisive point, ignoring arguments of the parties, recklessly differing from the facts documented in the files or ignoring the specific facts of the case.
The Constitutional Court found that the Federal Administrative Court made such mistakes in the case at hand. Its assumption that the applicant is a young man travelling alone without suffering from any serious diseases poses a striking contradiction to what is documented in the files. The applicant is 58 years old, accompanied by his life partner and suffering from Parkinson’s disease inter alia. Furthermore, the circular letter sent by the Italian authorities does not constitute a sufficient individual guarantee, because it does not in any way take the concrete facts into account.
Outcome:
Appeal granted; annulment of the prior decision
Observations/comments:
This case summary was written by Lisa-Marie Lührs, PhD-student at Cologne University.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Tarakhel v. Switzerland, Application no. 29217/12 |
Other sources:
Domestic Case Law
Austria – VfSlg. 13.836/1994
Austria – VfSlg. 14.393/1995
Austria - VfSlg. 14.650/1996
Austria – VfSlg. 15.451/1999
Austria – VfSlg. 15743/2000
Austria – VfSlg. 16.080/2001
Austria – VfSlg. 16.214/2001
Austria – VfSlg. 16.297/2001
Austria – VfSlg. 16.314/2001
Austria – VfSlg. 16.354/2001
Austria – VfSlg. 16.383/2001
Austria – VfSlg. 17.026/2003
Austria – VfSlg. 18.614/2008
Austria – VfGH 30.6.2016, E 449-450/2016