Case summaries
The applicant, an ethnic Kurd and Sunni Muslim from Kirkuk, Iraq, became aware of his sexual orientation when he was 20/22 years of age and has since had relations with several men and during a longer period worked as a prostitute.
The Refugee Appeals Board accepted the applicants account and found that the applicant as a Kurd from Northern Iraq, according to country of origin information, would risk persecution if he was to return to Iraq and live openly as a homosexual. Consequently, the applicant was granted refugee status under the Danish Aliens Act art. 7 (1).
The detention conditions, to which the applicants had been subjected to in police stations, while being under protective custody as unaccompanied minors, violated Article 3 ECHR. Violation of Article 3 in conjunction with Article 13 on account of the applicants’ inability to bring a complaint against the detention conditions.
Their placement in protective custody was an unlawful detention measure under Article 5, as there were no time limits, no vulnerability assessment and no consideration of this form of custody as one of last resort. The applicants had no possibility to exercise their rights under Article 5 (4), as they could not establish contact with their lawyer and the lack of official detainee status would have raised practical obstacles in any attempt to challenge their detention.
The Federal Administrative Court changed its jurisprudence concerning those competence provisions of the Dublin-III-Regulation that can be challenged with a complaint against a decision not to take charge. The Court follows the approach taken by the CJEU in Ghezelbash (C-63/15) and Mengesteab (C-670/16) and allows complaints based on missing the term to request another Member State to take charge (Article 21(1) Dublin-III-Regulation). If successful, the Member State responsible for requesting to take charge will, itself, be in charge to deal with the asylum application.
The Court also held that notifications by the Swiss Ministry for Migration (SEM) stating that the Dublin-procedure has been terminated are considered to be interim acts that can be reviewed until the closing of the complete procedure, if the acting authority provides objective grounds and acts in respect of the principle of good faith.
The ECtHR reviewed if the detention of a family with three children in a border police’s detention facility would be considered as a breach of Article 3 ECHR.
Concerning the criteria of “filing the application” in § 75 S. 2 VwGO, the informal request for asylum according to § 13 AsylG must be taken into consideration as the relevant date and not the formal lodging of the application according to § 14 AsylG when the Federal Office fails to provide an opportunity to lodge an application. Otherwise, the work overload that the Federal Office is facing, would be a detriment for the applicant, both concerning the scheduling for the formal application and concerning the examination of the application.
Unaccompanied minor asylum seekers must always be provided with a legal representative. The transfer of custody by administrative bodies and not by a Court is not sufficient. Thus, the first-instance decision rejecting the asylum application of an Iraqi minor is invalid.
The situation in Iraq may be considered as being an internal armed conflict thus justifying the grant of subsidiary protection.
On top of the usual conditions, the tribunal takes into consideration climate conditions and the consequences on the population in its examination of a subsidiary protection application.
The Constitutional Court ruled that Section 5(3) Nr. 4 NÖ MSG, which excludes beneficiaries of subsidiary protection from benefiting from social assistance out of the means-tested minimum income scheme when the person already receives social assistance covered by NÖ GVG is compatible with constitutional rights. It held that it does not constitute a violation of the principle of non-discrimination amongst foreigners. Given the provisional character of residence rights for beneficiaries of subsidiary protection such a legal rule falls within the wide margin of appreciation of the legislator.
A waiver to file an appeal against custody prior to deportation is only possible under strict conditions. Particularly there has to be a qualified legal representation when signing the waiver.
The risk of absconding in the sense of Art. 76a Residence Act cannot be assumed because of the mere fact that another state is responsible for the asylum procedure of that person.