Case summaries

Even if an unaccompanied minor refugee has entered the country together with a brother (sister) of full age, Art 6 Dublin II Regulation is applicable to the former and within the meaning of the judgment of the CJEU of 06.06.2013, case C-648/11, the relevant country of the asylum application is responsible. With regard to the accompanying brother (sister) of full age, use should be made of the right to assume the examination owing to the family connection in order to avoid a violation of Art 8 ECHR.

The case refers to an administrative appeal before the Supreme Court brought by the Appellant against the High National Court’s judgment denying the right to asylum and subsidiary protection.

The Appellant is a Cameroonian national.In the application he claims to be a minor and that the grounds for persecution was his sexual orientation.

The Supreme Court upheld the appeal and reversed the challenged judgment.Furthermore the Court ordered a reconsideration of the administrative procedure from the beginning, in order to provide the asylum seeker with legal assistance.

Owing to a violation of the right to respect for private life, the expulsion of the Applicants was declared permanently unlawful. On the grounds of Art 8 of the ECHR, the Asylum Court emphasised the significance of illnesses and their treatment (outside the context of Art 3 of the ECHR) in the host country and in doing so also referred to the disadvantagouss effects of the discontinuation of  psychotherapy by the applicant mother on the child. With reference to the best interest of the child, the Asylum Court made it clear that, in the case of children, roots to the host country could be developed more quickly than for adults, in particular if especially formative parts of childhood and young adolescence were spent in the host country.

Neither the Applicant, who was approximately nine years old at the time of the decision, nor her parents had submitted reasons for persecution specifically relevant to the Applicant in the proceedings at the court of first instance or in the appeal. Despite this, the Asylum Court reached the conclusion – amongst other things after a personal hearing of the Applicant – that the Applicant would be persecuted directly by the state or privately in Afghanistan owing to her membership of a particular social group and the religious-political attitude to which she would be subjected. In doing so the Asylum Court applied child specific considerations.

In addition, the Court stated that group persecution was to be assumed with regard to Afghan women.

In this case the applicants argued unsuccessfully that the decision of the UK designated authority for determining asylum claims (the Secretary of State for the Home Department) regarding an applicant’s age should be accepted by other government bodies.

When assessing the application for international protection the Ministry of Interior (MI) did not take into account the Applicant’s youth, lack of education and background. The MI did not conduct the procedure and pose questions in a manner that was suitable to the Applicant’s age and personality.

The country of origin information that the Applicant submitted only in his appeal against the decision should be accepted as this is generally available information that MI could have obtained on its own.

The age of the child and the mental state of the Applicant as well as the ban on more detailed questioning on the reasons for fleeing in the initial police interview should have been taken into account to a greater extent when assessing the assertion of flight. The lack of discussion of these aspects represents a failure to investigate several decisive points, which made the decision by the Asylum Court arbitrary and therefore unconstitutional

The decision to expel an orphaned minor to Poland when he had a legal guardian in Austria gave rise to a real risk of a violation of Art 8 ECHR. The Asylum Court made its decision without providing clear reasons. The applicant’s family ties in the home country and in Austria must be considered, regardless of the duration of the applicant’s stay in Austria. The sovereignty clause must be applied when there is a real risk of a violation of Art 8 ECHR.

This case concerns the State’s obligation to attempt to trace the family members of unaccompanied minor asylum seekers.

Under Austrian Asylum law, if a minor age cannot be excluded following an age assessment and doubts still exist in favour of the applicant, the authorities have to treat him or her as a minor. In this case, the age of the applicant had not been confirmed as being the age of maturity with absolute certainty and the applicant should therefore have been treated as a minor. The fact that only a copy of the birth certificate was submitted is not a sufficient basis to doubt its authenticity.