Austria: Statutory presumption that Hungary is safe for asylum seekers rebutted in an individual case

The Federal Administrative High Court of Austria  (VwGH), which is Austria’s Supreme Court in administrative matters, ruled on 8 September 2015 (Ra 2015/18/0113) that the legal presumption that Hungary is safe for asylum seekers does not exist for this specific case. The case relates to a single female Afghan asylum seeker who had five minor children and suffered from depression. Two of the minor applicants also suffered from medical conditions (insomnia, tremors, nephrothiliasis, and pain in one leg). They had applied for asylum in Hungary in September 2014 and subsequently claimed asylum in Austria without having awaited the outcome of their asylum procedure in Hungary. The Austrian Federal Office for Immigration and Asylum rejected their claim as inadmissible and ordered their transfer to Hungary under the Dublin III Regulation. The Hungarian Dublin Unit had responded positively to the ‘take back’ request by the Austrian authorities.

Upon appeal, the Federal Administrative Court (BVwG) found that deportation to Hungary would not create a real risk of Article 3 violation, on the basis that returnees under the Dublin Regulation would not face bad reception conditions since they would be brought to the overcrowded reception centres, it was not sufficiently proven that the applicants would face mistreatment again upon return, the applicants would not suffer from medical conditions reaching the threshold of Article 3 ECHR and sufficient medical care was available. Relying on the ECtHR decision of Mohammadi v Austria and country reports dating until summer 2014 (except for reports concerning detention which ware dated March 2015), it considered there were no systematic shortcomings of the Hungarian asylum system.

Permission to appeal to the VwGH was extraordinarily granted. The applicants argued that the Austrian authorities should have made use of Art 17(1) of the Dublin III Regulation because of the risk of a violation of Article 3 ECHR, and the presumption of Member States being safe was a rebuttable one. They had put forward substantiated claims concerning deficiencies in Hungary, which they themselves had experienced and which were confirmed by recent reports. Since they were a particularly vulnerable group of five minor children they were in danger of destitution, ending up on the street with no meals, shelter, or medical care and could even be liable to detention upon return to Hungary as Dublin returnees on return to Hungary.
 
The Court cited a decision of the Administrative Court of Berlin in January 2015 which stated that the Hungarian asylum procedure was suffering from systemic deficiencies. It also considered the findings of EASO on the reception capacity of Hungary and problems caused by the significant increase in asylum applications, as well as the request by the Hungarian Dublin Unit dated 29 May 2015 that Dublin transfers to Hungary should stop as it was at full capacity.

In light of the ECtHR ruling in Tarakhel v. Switzerland  it considered that the applicants were particularly vulnerable given the special needs of the minor children, and the illness of their mother. The Federal Administrative High Court concluded that the legal presumption that a Member State is safe was rebutted given the notoriously changed situation in Hungary in conjunction with the substantiated criticism put forward by the applicants. The Federal Administrative Court should have examined the current situation in Hungary based on up to date reports taking into account the latest developments; on this basis the Federal Administrative Court should have assessed whether systemic deficiencies existed and/or if Austria should have made use of Art 17(1) in order to avoid a violation of Art 3 ECHR or Art 4 of the Charter. As such it annulled the contested decisions.
 

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.