Case summaries

The asylum applicant who, in the case of a supervised departure, does not appear at the boarding of his/her flight where his/her pre-transportation to the airport was not ensured, cannot be considered as having absconded.

Right to remain arises the moment an alien indicates he would like to be granted asylum. This means that an alien, from that time onwards, cannot be refused access to the territory; he may be refused only 'further access', in other words 'actual further entry' to the territory.

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.

Legality of detention in the event of imminent deportation to Greece, if the detention was imposed before the judgment by the ECtHR in the case M.S.S. v Belgium and Greece (application no. 30696/09) and there is an enforceable expulsion decision.

The Council of State addressed a request for a preliminary ruling to the CJEU regarding the application of the Reception Conditions Directive to asylum applicants to whom the Dublin II Regulation applies.

With this judgment, the General Assembly of CALL is trying to bring its case law in line with the M.S.S. judgment of the ECtHR.

The CALL set the conditions under which an appeal for suspension against an enforceable decision (an order to leave the territory) has automatic suspensive effect.

After a prima facie examination (in extreme urgency), the CALL decided that the applicant in this casehas a reasonable ground of appeal on the basis of Article 3 of the ECHR, as he gave sufficient indications of the concrete problems he was experiencing in Poland. The CALL derived from this a duty of investigation on the part of the Aliens Office. This was sufficient for the CALL, furthermore, to provisionally suspend enforcement of an agreement with Poland to take back the applicant, pending the processing of an appeal for revocation.

This was an appeal against the decision to transfer an asylum applicant to Poland. The Council of State rejected the applicant’s claim that he was not informed about the Dublin procedure in a language intelligible to him, as the applicant had indicated he understood Russian and an interpreter had been provided. Moreover, the circumstances necessary to apply Art 3(2) Dublin Regulation had not been met.

A transfer to Greece within the framework of the Dublin Regulation was stopped due to the conditions for asylum seekers in the country.

The failure of an asylum applicant to appear with her children (systematically or repeatedly) when summoned in relation to a transfer order under the Dublin Regulation is considered as absconding and results in the extension of the transfer deadline to 18 months. In this case, the applicant never appeared with her children despite receiving several notifications and, according to the Council of State, she was aware that the presence of her children was crucial in order to proceed with her transfer.

After the applicant absconded the time frame for a deportation was extended by 18 months and, therefore, Poland’s original acceptance was still valid at the time of the second application. Art 7 Dublin II Regulation is not applicable because the applicant’s family life was established after his first application for asylum. There is no violation of Art 8 ECHR because the applicant’s family life was formed at a moment when the applicant did not know whether he would be able to maintain it.