Austria – Asylum Court, 28 December 2011, S7 423.367 to 370-1/2011/2E

Country of Decision:
Country of Applicant:
Date of Decision:
S7 423.367 to 370-1/2011/2E
Court Name:
Asylum Court
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This was an appeal against the decision that Poland was responsible for the asylum application of a three-month-old boy with a serious medical condition. The Austrian Federal Asylum Office did not consider the applicant’s medical condition appropriately and therefore risked violating Art 3 ECHR.


The applicant, a three-month-old boy born in Poland, suffers from a life-threatening heart disease and had an operation shortly after his birth. His parents separated because his father’s relatives told his mother she had to return to Chechnya to let her child die there. According to the mother, medical treatment in Poland was insufficient and she therefore came to Austria. In addition to her son with the medical condition, she brought three underage children with her. Her mother and three sisters already lived in Austria for several years – partly as refugees, partly with a residence permit.

The Federal Asylum Office rejected the family’s asylum application because it was deemed Poland was responsible for the procedure on the merits. It was pointed out that medical treatment was available in Poland and that the applicant had already received treatment there. The applicant appealed against this decision to the Asylum Court.

Decision & Reasoning: 

The Asylum Court allowed the appeal on the following grounds:

The child's heart disease is very serious. Medical examinations emphasized that, because of the heart disease, even removal could be life threatening as the child does not get enough oxygen when it is upset. This might be fatal or lead to severe brain damage. The Federal Asylum Office did not consider the applicant’s medical condition appropriately. There might, therefore, be a risk of a violation of Art 3 ECHR.


The appeal was allowed and the case was returned to the Federal Asylum Office for further examination.

Subsequent Proceedings : 

There were no further proceedings under the Dublin II Regulation. In August 2012, the Federal Asylum Office granted the child and his family members subsidiary protection status.



This summary has been reproduced and adapted for inclusion in EDAL with the kind permission of Forum Réfugiés-Cosi, coordinator of Project HOME/2010/ERFX/CA/1721 "European network for technical cooperation on the application of the Dublin II regulation" which received the financial support of the European Refugee Fund.