Austria: Supreme Administrative Court upholds exclusion from refugee status of asylum applicant who was convicted of child sexual abuse

Thursday, April 5, 2018

On 5 April 2018, the Supreme Administrative Court of Austria ruled on case Ra 2017/19/05315 concerning an appeal submitted by the Federal Office for Immigration and Asylum (BFA) against a judgment of the Federal Administrative Court that had overturned the BFA’s decision to exclude an asylum applicant from international protection based on Article 6(1)(4) of the Austrian Asylum Act (“[an applicant] has been convicted, by final judgment of an Austrian court, of a particularly serious crime and, by reason of such punishable act, represents a danger to the community”). In January 2017, the asylum applicant was convicted of sexual abuse of minors under Section 207(1) of the Austrian Criminal Code.

Firstly, the Supreme Administrative Court found that convictions under that section fall within the meaning of “particularly serious crime” for exclusion purposes. It is immaterial that under the Austrian Criminal Code a violation of that section is considered an offence (“Vergehen”) rather than a crime (“Verbrechen”). Secondly, it recalled that the CJEU has ruled in C-193/16  E that “sexual exploitation of children is one of the areas of particularly serious crime with a cross-border dimension in which the European Union legislature may intervene” and can be considered as  “a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population”. The Supreme Administrative Court stated that even if that CJEU judgment concerned Directive 2004/38/EC and not the recast Qualification Directive, a similar interpretation as to the seriousness of the offence could be applied. Finally, the Supreme Administrative Court ruled that the Federal Court had not conducted a proper assessment of the danger represented by the applicant.

Based on an unofficial translation by the ELENA Weekly Legal Update.


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.



Exclusion from protection