Austria - Constitutional Court (VfGH), 25 February 2013, U2241/12
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.” |
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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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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." |
Headnote:
The Constitutional Court revoked the decision by the Asylum Court, as it violated the right of the Applicant to respect for his family life in accordance with Art 8 of the ECHR. In particular, the reference by the Asylum Court to the possibility of maintaining the relationship with his one-year old child (with asylum status in Austria) by means of modern media (Internet, Skype, telephone,…) was incomprehensible.
Facts:
The Applicant travelled to Austria in December 2007 and lodged an application for international protection. This application was refused by the decision of the Federal Asylum Agency in August 2008 and a decision for expulsion to the Russian Federation was issued against the Applicant. The Applicant lodged an appeal against this to the Asylum Court. He informed the Asylum Court in writing in April 2011 about his marriage to a Russian national entitled to asylum in Austria as well as the birth of their son in January 2012. Since January 2012 the Applicant had been living in the same accommodation as his wife and son. After an oral hearing was held, the Asylum Court refused the appeal by the Applicant in full and confirmed the expulsion decision. The grounds given by the Asylum Court with regard to the expulsion decision were that the interference in the right to respect for family life was lawful in view of the consideration of interests undertaken. Here it carried weight to the detriment of the Applicant that the family life was established only during the on-going asylum proceedings and therefore at a time when he must have been aware that his continued residence in Austria was uncertain. A joint household had been established only recently, he had already been convicted of criminal offences twice (for assault, coercion and smuggling) and it was not possible to give a positive forecast for the future. The Applicant could also reasonably be expected to continue his relationship with his wife and son in the Russian Federation temporarily by using modern media (Internet, Skype, telephone…).
The Applicant lodged an appeal to the Constitutional Court.
Decision & reasoning:
As the wife and son of the Applicant had asylum status in Austria with regard to the Russian Federation, a continuation of family life in the country to which the Applicant was expelled, was ruled out. This resulted in particularly intensive interference in private and family life.
Even if a person had established their family life at a time when they must have been aware of the uncertainty of their residence status, a possible expulsion could represent interference in the right to respect for family life. The Asylum Court had assumed a reduction in the entitlement to protection of the interests of the Appellant on the basis of the time when family life was established. This meant that there had been a failure to take into account that the refusal of the application for internal protection by the court of first instance had already taken place in August 2008 and the Asylum Court subsequently – without the existence of any unusually complex legal issues and without the Applicant being responsible for the long duration of the asylum proceedings – required more than four years to reach the decision on the appeal. It was disproportionate to expect the Applicant not to enter into any personal relationships during this time, which might subsequently also lead to the establishment of family life entitled to protection.
In its consideration of interests, the Asylum Court had also failed to take into account that the crimes had already in part taken place a long time previously and had been committed as a young adult, the sentences imposed had been mild and the Applicant had since established a family, with whom he was living.
In the final analysis, the view of the Asylum Court was incomprehensible to the Constitutional Court, according to which the Applicant could temporarily continue the relationship with his son by using modern media (Internet, Skype, telephone…) in the Russian Federation. This is because it is out of touch with everyday life to assume that the normal methods of communication in connection with the relationship between a father and a one-year old child, namely above all physical proximity and non-verbal interaction, could be replaced by electronic media.
Therefore, when weighing up between the subjective interest of the Applicant in maintaining his family life and the public interest of ending residency, the Asylum Court had used unlawful assessment criteria, failed to consider the required criteria and on the other hand weighted others incorrectly. Overall, the Asylum Court had not given sufficient consideration to the special seriousness of the interference. As a result, the Asylum Court had violated the right of the Applicant granted by constitutional law to respect for his family life within the meaning of Art 8 of the ECHR.
Outcome:
The appeal was upheld and the disputed finding of the Asylum Court was revoked.
Subsequent proceedings:
Subsequently the Asylum Court (AsylGH 28.08.2013, D17 401613-1/2008) declared the expulsion as permanently unlawful and followed that of the Constitutional Court on the merits.
Observations/comments:
Revoked decision of the Asylum Court:
Asylum Court (AsylGH) 01.10.2012, D17 401613-1/2008
Current findings of the Constitutional Court, cited in the following other decisions, in which expulsion was declared permanently unlawful:
AsylGH 09.10.2013, E 13 244217-3/2011
AsylGH 23.05.2013, D9 260834-2/2011 and D9 260840-2/2011