Austria – Supreme Administrative Court, February 19th 2015, Zl. Ro 2014/21/0075-5
Keywords:
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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." |
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First country of asylum
Description
"A country can be considered to be a first country of asylum for a particular applicant for asylum if: (a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or (b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement; provided that he/she will be re-admitted to that country." Member States may consider an application for asylum as inadmissible if a country which is not a Member State is considered as a first country of asylum for the applicant. |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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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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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. |
Headnote:
Art. 2 lit. (n) of the Dublin III Regulation requires objective criteria defined by domestic law for the ‘risk of absconding’, which is a necessary requirement for the imposition of detention pending transfer according to Art. 28 (2) of the Dublin III Regulation.
The domestic legal provision of § 76 (2) FPG lacks the necessary objective criteria defined by law for the ‘risk of absconding’ according to the Dublin III Regulation and is therefore not a sufficient legal basis for detention pending deportation in a transfer procedure according to Art. 28 (2) Dublin III Regulation.
Facts:
The applicant, an Eritrean citizen, travelled from Italy to Austria on June 20 of 2014. He was arrested immediately afterwards, and he then applied for international protection.
By decision issued on the same day, the applicant was detained in order to secure transfer procedures according to Art. 28 Dublin III Regulation in conjunction with § 76 (2) Sec. 4 Fremdenpolizeigesetz 2005 (FPG).
On the 27th of June 2014, Austria requested Italy to take back the applicant and then initiated measures to terminate the residency of the applicant according to § 27 (1) Sec. 1 in conjunction with § 29 (3) Sec. 4 Asylum Act 2005.
The applicant then appealed the order of detention pending deportation.
Decision & reasoning:
Unlike the Dublin II Regulation, the Dublin III Regulation, which has been in effect since the 1st of January 2014, now contains provisions for the detention of applicants for the purpose of transfer and deportation.
However, according to Art. 28 (1) of the Dublin III Regulation, Member States shall not hold a person in detention for the sole reason that he or she is subject to the procedure established by this Regulation.
According to Art. 28 (2) of the Dublin III Regulation, when there is a significant risk of absconding, Member States may detain the person concerned in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive measures cannot be applied effectively.
According to Art. 2 lit. (n) of the Dublin III Regulation the ‘risk of absconding’ means the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third-country national or a stateless person who is subject to a transfer procedure may abscond.
In the present case, the Federal Administrative Court based its assumptions of the risk of absconding on the fact that the applicant reiterated his wish to travel to Germany where his uncle is living. The legally relevant question in this case was whether the domestic legal provisions laid down in § 76 (2) FPG can be seen as a sufficient statutory definition of objective criteria for the assesement of the ‘risk of absconding’ as required by Art. 2 lit. (n) of the Dublin III Regulation.
The Supreme Administrative Court has ruled on several occasions that the Austrian authorities on asylum procedures are bound by the principle of proportionality in the case of § 76 (2) FPG and that detention pending deportation is a measure of last resort. Furthermore, the different sections 1, 2 and 4 of § 76 (2) FPG encompass various stages of the asylum procedure, taking into account the chronological order of the asylum procedure by containing a graduated system of different detention possibilities. The reason for detention laid down in section 4 of § 76 (2) FPG regulates the earliest stage of the of the asylum procedure and requires exceptional circumstances which indicate a risk of absconding in this early stage. However, the provisions of section 2 and 4 of § 76 (2) FPG, which were considered applicable in the present case, permit to hold a person in detention for the sole reason that the applicant is subject to the procedure established by the Dublin III Regulation which is contradictory to Art. 28 (1) of the Dublin III Regulation.
Also, and this is crucial, they do not contain a sufficient statutory definition of objective criteria for the assumption of the ‘risk of absconding’ as required by the clear wording of Art. 2 lit. (n) of the Dublin III Regulation. Therefore, as long as the circumstances, which underline and specify the assumption of the risk of absconding, are not determined by (national) law, detention pending deportation cannot be issued against applicants who are subject to a procedure established by the Dublin III Regulation.
Outcome:
The appeal was successful. The order of detention pending transfer was unlawful and was annulled by the Supreme Administrative Court.
Relevant International and European Legislation:
Cited National Legislation:
Follower Cases:
| Follower Cases |
| Austria: Supreme Administrative Court (VwGH), 24. March 2015, Ro 2014/21/0080 |
Other sources:
Domestic Case Law
Supreme Administrative Court, 28 August 2013, Zl. 2013/21/0008
Supreme Administrative Court, 20 February 2014, Zl. 2013/21/0170
Supreme Administrative Court, 30 August 2007, Zl. 2007/21/0043
Supreme Administrative Court, 7 February 2008, Zl. 2007/21/0402
Supreme Administrative Court, 8 July 2009, Zl. 2007/21/0093
Supreme Administrative Court, 22 October 2009, Zl. 2007/21/0068
Supreme Administrative Court, 30 August 2011, Zlen. 2008/21/0498 bis 0501
Supreme Administrative Court, 19 March 2014, Zl. 2013/21/0225
Supreme Administrative Court, 24 October 2007, Zl. 2006/21/0045
Supreme Administrative Court, 2 August 2013, Zl. 2013/21/0054
Supreme Administrative Court, 25 March 2010, Zl. 2008/21/0617
Other Member States' Case Law
German Federal Court of Justice, 26 June 2014, V ZB 31/14