Austria – Asylum Court, 28 January 2010, S1 410.743-1/2009/6E

Country of Decision:
Country of Applicant:
Date of Decision:
28-01-2010
Citation:
S1 410.743-1/2009/6E
Court Name:
Asylum Court
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Headnote: 

An expulsion order in relation to an elderly woman with a deteriorating medical condition gave rise to a real risk of a violation of Art 3 and Art 8 ECHR. In light of this risk, the Asylum Court held that the sovereignty clause in the Dublin Regulation should be applied in combination with Article 15 of the same Regulation, even though the latter was not directly applicable in this case.

Facts: 

The applicant is an elderly Chechen woman suffering from dementia in its early stages. None of her children remained in Chechnya and one of her daughters has been living in Austria as a refugee for a couple of years.

On her way to Austria the applicant passed through Poland and, unknowingly, applied for asylum. In Austria, the applicant moved in with her daughter as soon as possible. The applicant’s daughter took care of her medical treatment.

The Federal Asylum Office issued an expulsion order to Poland, pointing out that the applicant could get medical treatment in Poland. There was no sign of dependence on her daughter.

The applicant appealed against this decision.

Decision & Reasoning: 

The Asylum Court allowed the appeal.

The combination of a real risk of a violation of Art 3 and Art 8 ECHR, through the separation from the applicant’s daughter and the fact that the applicant has dementia and will need more and more support in everyday life, leads to the conclusion that Austria must use the sovereignty clause in combination with Art 15 Dublin II regulation.

Although Art 15 is not directly applicable, it is still valid as a model for the use of sovereignty clauses. The Federal Asylum Office cannot reject the application on the basis of the Dublin II regulation.

Outcome: 

The Asylum Court allowed the appeal and the case was returned to the Federal Asylum Office.

Subsequent Proceedings : 

The Federal Asylum Office conducted a procedure on the merits and issued a negative decision as well as an expulsion order to Russia. The applicant appealed against this decision. The appeal is pending at the Asylum Court.

Observations/Comments: 

There seems to be a problem concerning the awareness of persons applying for asylum in Poland: Most asylum seekers enter Poland by train via Brest and Terespol. At a certain point during this train ride, the Polish police board the train and examine the traveller’s ID's. Travellers who do not have a visa or permission to enter Poland are escorted to an office where they are briefly questioned and their fingerprints are taken. Many asylum seekers are not aware of the fact that this procedure is already an application for asylum. In their opinion it is simply a general registration and necessary for the continuation of their journey.

 


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.