Case summaries

M’s detention pending deportation, for over 2 years and 8 months, was processed without sufficient safeguards against arbitrariness and delay, resulting in four separate violations of the Convention.

Subsidiary protection was granted to the applicant due to the lack of his family ties in Afghanistan on the basis of the risk of serious harm (torture and inhuman treatment).

This was an appeal against a decision to expel a widowed illiterate mother and five of her children who had been granted subsidiary protection in Bulgaria. Austria did not have to apply the sovereignty clause, as the situation in Bulgaria did not give rise to a real risk of a violation of Art 3 ECHR. Although the applicant’s sixth child had entered Austria and applied for asylum as an unaccompanied minor two years earlier, there was no violation of Art 8 ECHR because family reunification was possible in Bulgaria and there is no family life worth protecting.

Prior to the ECtHR’s decision in MSS v Greece and Belgium, the Austrian Asylum authorities generally only used the sovereignty clause in relation to “Dublin cases” concerning Greece and vulnerable persons. The Constitutional Court refused the appeal on the basis that the applicant did not fall within a vulnerable group and because the Asylum Court’s decision was taken prior to MSS v Greece and Belgium.

The applicant was eligible for subsidiary protection as an internal armed conflict is taking place in Logar. The applicant, in case of return to Afghanistan, could not relocate to Kabul, since he could not secure his livelihood there. In order to secure his livelihood, he could not rely on property which his family had possessed in the province of Logar.

Refugee status was granted to the applicants (parents) because of their advocacy in Afghanistan for democracy, separation of state and religion, equality between men and women, and their membership of and support for the party “Comprehensive movement for democracy and progress in Afghanistan”. Refugee status was granted to their children because of their membership of a particular social group of “family”.

Threats by political opponents are to be considered as imminent persecution by non-State actors according to Art. 60 (1) sentence 4 (c) of the Residence Act in conjunction with Art. 6 (c) of the Qualification Directive. The Afghan State is unwilling and unable to grant protection against such persecution by non-State actors (Art 7 of the Qualification Directive).

Inadequate care and unlawful detention of an unaccompanied minor seeking asylum: the case concerned the conditions in which a minor from Afghanistan, who had entered Greece illegally, was held in the Pagani adult detention centre on the island of Lesbos.

The applicant was recognised as a refugee because of a threat of forced marriage in Afghanistan. The court found that rights violations resulting from forced marriage, including the use of physical and psychological violence, constitute severe violations of basic human rights according to Art. 9 (1) (b) of the Qualification Directive. The applicant belonged to the particular social group of "unmarried women from families whose traditional self-image demands a forced marriage." The Afghan State is neither willing nor able to protect women against persecution in case of forced marriage. Internal protection was not available to the applicant.

It is in principle possible for men to be persecuted on account of their gender. However, classifying the punishment for extramarital sex in Afghanistan as persecution on account of both membership of the group of men and the group of women would cover the entire society and renders the definition meaningless. Therefore, the applicant was not granted refugee status but his deportation was prohibited under Section 60 (2) of the Residence Act / Art 15 (b) of the Qualification Directive.

The Constitutional Court did not unreservedly uphold the judgment of the  Supreme Court. The Appellant in the case sought protection of his rights under Article 3 of the ECHR (and fundamental rights under Article 16(2) of the Constitution), which, in comparison with the other human rights and fundamental freedoms defined in the Convention, is characterised by an absolute and collective guarantee. In view of this, the Constitutional Court found that the standards of protection arising from Article 3 of the Convention (and Article 16(2) of the Constitution) should have been applied in the proceedings, even if such an obligation is not explicitly set out in the legislation, because these secure a greater range of constitutional rights and freedoms within the meaning of Article 154c(1) of the Constitution, and therefore take precedence over the law.