Austria: Supreme Administrative Court (VwGH), 24. March 2015, Ro 2014/21/0080
Keywords:
| Keywords |
|
Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
|
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." |
Headnote:
Detention pending Dublin transfer can only be ordered on the basis of Article 28 Dublin-III-Regulation, which contains autonomous provisions on the detention of foreigner. Additional criteria laid down by national laws are required in order to specify the condition of "risk of absconding". A deportation detention order that does not even refer to Art. 28 Dublin-III-Regulation is unlawful.
Facts:
The appellant is a national of Algeria and has applied for international protection in Austria. The Federal Office for Foreigners and Asylum (BFA) rejected the application on the grounds that Switzerland was responsible under the Dublin III Regulation and ordered the appellant to leave the country. The appeal lodged against this decision was dismissed as unfounded.
One month later, the appellant was arrested in Vienna and detained in deportation custody in accordance with national law and Article 28 of the Dublin III Regulation.
The appellant filed a complaint against the detention order. The Federal Administrative Court (BVwG) stated, that pursuant to §22 para 3 of Federal Office for Migration and Asylum - Procedural Act (BFA-VG), the relevant preconditions for continuing deportation detention at the time of the decision were met. The present appeal is directed against this decision.
Decision & reasoning:
The Court found that the contested judgment is unlawful and must therefore be set aside.
The Court states that the BVwG only assessed the deportation detention on the basis that the conditions for continuing deportation detention were met. The Court based this exclusively on the procedural provisions of §22a para 3 BFA-VG. The material reasons were not given. A reference to Article 28 Dublin III of the Regulation is completely missing.
Due to previous case law, deportation detention ensuring transfers according to the Dublin III Regulation must only be ordered on the basis of Article 28 Dublin III Regulation. Article 28 Dublin III Regulation contains autonomous provisions on the detention of foreigner for the purpose of a Dublin transfer. Furthermore, additional criteria laid down by national laws are required in order to specify the condition of "risk of absconding" pursuant to Article 28 para 2 Dublin III Regulation. Article §76 para 1 FPG merely refers in abstract terms to the necessity of deportation detention without classifying circumstances justifying the risk of absconding. This criterion does not meet the requirements as set out in the Dublin III Regulation. As the BVwG did not make concrete remarks regarding the risk of absconding, the contested judgment is unlawful.
Outcome:
Appeal granted
Observations/comments:
In a previous decision (VwGH, 19 February 2015, Zl. Ro 2014/21/0075), the Court had already recognised that an examination of deportation detentions ensuring Dublin transfers under the Dublin-III-Regulation must refer to Art. 28 Dublin III Regulation.
The summary was written by Theresa Richter, LLM-student at Queen Mary University (London).
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Austria – Supreme Administrative Court, February 19th 2015, Zl. Ro 2014/21/0075-5 |