Austria – Asylum Court, 29 July 2010, S3 403.581-3/2010/2E

Country of Decision:
Country of Applicant:
Date of Decision:
29-07-2010
Citation:
S3 403.581-3/2010/2E
Court Name:
Asylum Court
National / Other Legislative Provisions:
Austria - Asylgesetz (Asylum Act) 2005 - § 8
Austria - Asylgesetz (Asylum Act) 2005 - § 10
Austria - Asylgesetz (Asylum Act) 2005 - § 41
Austria - Asylgesetz (Asylum Act) 2005 - § 5
Printer-friendly versionPrinter-friendly version
Headnote: 

In this case, the Austrian Asylum Court held the decision of the Federal Asylum Office not to grant refugee status to the applicant’s child was a violation of Austrian asylum law since the child’s father had been granted refugee status. The Court also held a separation of the newborn child from its mother violates Art 8 ECHR and, therefore, the applicant’s asylum application has to be admitted to the procedure on the merits.

Facts: 

The applicant entered Austria, via Poland, in November 2008. She applied for asylum and said she came to Austria because her boyfriend lived there. The applicant had known her boyfriend since she was a child and followed him now, four years after he had left home. Her application was rejected on the basis of the Dublin II regulation and the applicant was issued an expulsion order to Poland. However, the applicant and her boyfriend married in Austria when she arrived in January 2009. The applicant also moved into his apartment. She was finally deported to Poland in February. The Asylum Court rejected the applicant’s appeal shortly afterwards.

The applicant’s asylum application in Poland was also rejected because the only reason she had left Chechnya was to live with her husband. She was, therefore, ordered to leave Poland.

In November 2009, the applicant applied for asylum in Austria for the second time. Poland agreed to take her back shortly after her new application. As an additional reason for her subsequent application, the applicant claimed to be pregnant by her husband. He had frequently visited the applicant since her deportation to Poland. The Federal Asylum Office rejected her application once more and expelled her to Poland. However, the transfer to Poland could not be carried out as the applicant absconded.

In May 2010, the applicant applied for asylum in Austria for the third time because her child had been born. She also applied for asylum for her child. In accordance with the national law in Austria, the applicant’s child has the right to receive the status of a refugee through its father. The Federal Asylum Office again rejected the applications because of the Dublin II regulation and issued an expulsion order for her and her child to Poland.

The applicant appealed against these decisions to the Asylum Court.

Decision & Reasoning: 

The Asylum Court accepted the appeal and admitted the applicant and her child to the asylum procedure on the merits.

According to § 34 of the Asylum Law (2005), a family member of a person who is considered a refugee, has to receive the same status. The claimant's child, therefore, has the right to be granted the same status as its father. A separation of the newborn child from its mother violates Art 8 ECHR, so the wife’s asylum application has to be admitted to the procedure on the merits.

Outcome: 

The appeal was accepted.

Subsequent Proceedings : 

The applicant’s child was granted refugee status through its father, in accordance with § 34 Asylum Law (2005). The applicant received a residential permission as a family member.

Observations/Comments: 

 


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.