Austria: Supreme Administrative Court (VwGH), 26. March 2019, Ro 2018/19/0005

Facts:

The appellants are Afghan nationals. The first and second appellant are married to each other and are the parents of the minor third to sixth appellant.

After they entered Greece, the first appellant travelled on to Austria, where he filed an application for international protection. His procedure was admitted in Austria. The other appellants lodged asylum applications in Greece. The Greek authorities then submitted a request to the Austrian authorities based on Art. 10 of the Dublin III Regulation to admit the other appellants for the purpose of family reunification. The Federal Office for Immigration and Asylum (BFA) rejected this request on the grounds that the family unit had existed in Greece and that it had been deliberately separated by the onward journey of the first appellant to Austria The Greek authorities requested that the request for admission be reconsidered twice, but each time the BFA rejected it.

The appellants thereupon applied to the BFA for approval of the Greek application for admission or alternatively the issue of a temporary injunction for provisional approval of the Greek application. The appellants relied upon Art. 7 of the Charter of Fundamental Rights of the European Union (CFREU) and on Art. 8 of the European Convention on Human Rights (ECHR), as well as on the right to an effective remedy under Article 47 CFREU and the effet utile under Union law.

The BFA dismissed the applications finding that the Dublin III Regulation represents a closed system of legal protection, whereby neither the Dublin III Regulation nor national law provides for a subjective right to review an administrative decision on the rejection of a request for admission by the requested Member State. Since the decisions are essentially in the private interest of the appellants, the Court imposed an administrative fee pursuant to Sec. 78 para. 1 AVG.

The appellants lodged the present appeal against this decision.

Decision & reasoning:

The appeal is admissible, but only partially justified.

The VwGH first of all states that neither Austrian law nor the provisions of the Dublin III Regulation provide for an appeal by an applicant against a Member State’s rejection of a request for admission.

The VwGH also relied on the case law of the European Court of Justice, according to which the time limits within the Dublin III Regulation pursue the objective of a fast processing of applications. If the requested Member State refuses to take charge, the requesting Member State is entitled under Art. 5(2) of the Implementing Regulation to require the requested Member State to re-examine the request for admission (remonstration procedure). The expiry of this remonstration period brings the examination procedure to a final conclusion in the form that, in the event of a renewed refusal, the requesting Member State is to be regarded as being responsible for examining the application for international protection. Without final closure at that point, the purpose of the time limits would be undermined.

In the present case, the remonstration period ended on 12 July 2017, whereby Greece was found to be responsible for examining the asylum applications, so that even a subsequent approval of the Austrian authorities of the application for admission could no longer establish Austria's responsibility. The rejection of the applications was therefore justified.

With regard to the costs, the VwGH states that the issuing of decisions on the applications of the appellants constitute official acts directly for the purposes of the Asylum Act within the meaning of Sec. 70 sentence 2 Asylum Act, so that an exemption from administrative charges must be assumed. The appeal against the imposition of administrative charges was therefore granted.

Outcome:

Appeal granted only with regard to the imposition of administrative charges.

Observations/comments:

In VwGH, 13 December 2018, Ra 2017/18/0110 and VwGH, 23 January 2019, Ra 2017/20/0205, the VwGH passed similar judgements regarding the responsibility of a Member State to conduct the asylum procedure after expiry of the remonstration period.

This summary is written by Theresa Richter, LLM student of Queen Mary University, London.

Other sources:

Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26. June 2013 (Eurodac-Regulation) – Art. 14

Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 (Implementing regulation) - Art. 5 para. 2