Case summaries
The words "2, 4 and" and the sentence "This shall also apply in the cases of Section 3 para. 2 no. 1, if the decision is connected with the adoption of a measure terminating the stay". in Section 16 para. 1 BFA-Procedural Act (Bundesamt für Fremdenwesen und Asyl Verfahrensgesetz-BFA-VG), violates Article 136 para. 2 B-VG. The provision was repealed by the Constitutional Court as unconstitutional.
The Immigration and Asylum Office unlawfully rejected the claimant’s application for international protection. The court found that the authorities did not objectively assess the evidence and country information provided by the claimant, a Coptic Christian from Egypt. They also failed to correctly interpret the definition of a refugee in accordance with international law and disregarded the special status of the claimant who was an underage applicant.
The benefit of the doubt benefits the minor.
Family unity and the best interests of the child are high priorities when applying the Dublin III Regulation. A child who has applied for international protection in Germany but has members of his family in Greece is entitled to family unity with them in Germany. The Dublin III Regulation specifies that this transfer should be carried out within six months of a Member State’s acceptance of the take charge or take back request. The time period to transfer starts from the Member State’s acceptance of the request. The right of the asylum seeker to be transferred within said time-limit is a subjective right. Whilst Germany had accepted the take charge request they had only planned to transfer the applicants at a time after the six month deadline. An interim injunction was therefore necessary in order to ensure that the rights of the applicant were respected.
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 right to be heard entails the obligation of the court to take note of the arguments put forward by the parties and to take these arguments into consideration when taking its decision. While this does not require the court to explicitly address every single fact put forward by the parties, the grounds of the decision have to refer to the essential issues raised by such facts.
In case of a single mother and her four minor children facing deportation to a country where beneficiaries of international protection had to live under difficult conditions, these personal circumstances of the applicants are of key importance to the legal evaluation. Independently of the question, whether deportations to Bulgaria were, in light of the current conditions, generally permissible, the provisions of Art. 21 et seqq. of the Reception Conditions Directive clearly stipulated that the concerns of families with children had to be given particular consideration.
Consequently, under such circumstances a court was required to specifically set out why it assumed that the family would be guaranteed suitable accommodation that excluded the possibility of health risks and met the needs of a family with children. Otherwise, the decision amounts to an infringement of the applicant’s right to be heard under Art. 103 (1) of the Basic Law.
A lack of the State authorities’ fulfilment of obligations under article L.223-2 of the Code of Social Action and Families can create serious harm to a fundamental right.
The obligation by the applicant to put in place emergency accommodation is reinforced when a child’s health, security or morality is put in danger.
An asylum applicant who was a victim of previous persecution in their country of origin can be granted refugee status under article 1, C 5) of the Geneva Convention. This is because, due to the severity of the treatment applied, the applicant’s fear is exacerbated to such an extent that, even if the persecution has ceased to exist, a return to the country of origin would be unthinkable.