Austria – Constitutional Court, 11 June 2012, U653/12

Country of Decision:
Country of Applicant:
Date of Decision:
11-06-2012
Citation:
U653/12
Court Name:
Constitutional Court
Printer-friendly versionPrinter-friendly versionPDF version of SummaryPDF version of Summary
Headnote: 

The decision to expel an orphaned minor to Poland when he had a legal guardian in Austria gave rise to a real risk of a violation of Art 8 ECHR. The Asylum Court made its decision without providing clear reasons. The applicant’s family ties in the home country and in Austria must be considered, regardless of the duration of the applicant’s stay in Austria. The sovereignty clause must be applied when there is a real risk of a violation of Art 8 ECHR.

Facts: 

The applicant, a minor and orphan, entered the European Union via Poland. He had an aunt in Austria, who had already been granted refugee status and immediately took over full custody. The applicant stayed with his aunt in her apartment. When he applied for asylum in Austria, his application was rejected and the applicant received an expulsion order to Poland. The Asylum Court agreed with this decision. The applicant then appealed to the Constitutional Court.

Decision & Reasoning: 

The Constitutional Court allowed the appeal.

The Court stated there is a real risk of a violation of Art 8 ECHR. On the date of the Asylum Court’s decision the applicant was still a minor. His parents had already died and he had no other legal guardian in his home country. The applicant had relatives in Austria, namely an aunt who was his legal guardian, an uncle and some cousins. By the time the Asylum Court came to a decision, the aunt had already been confirmed as the applicant’s legal guardian. The Constitutional Court stated it was necessary to verify whether an expulsion would constitute a violation of the right to an undisturbed private and family life. Furthermore, it stated the Asylum Court made its decision without providing clear reasons. According to the Constitutional Court, the Asylum Court disregarded the applicant’s relation to his family in Austria and ignored the fact that the aunt had, meanwhile, become the legal guardian of the applicant. The Constitutional Court also claimed that neither the applicant’s status as an orphan without a legal guardian in his home country, nor the Sovereignty Clause were considered by the Asylum Court. Due to these reasons the Constitutional Court found the decision by the Asylum Court violated the right to an undisturbed private and family life. The Constitutional Court held the sovereignty clause must be applied when there is a real risk of a violation of Art 8 ECHR. It further held Austrian asylum authorities must consider the family ties in the home country as well as in Austria, regardless of the duration of the applicant’s stay in Austria.

Outcome: 

The appeal was allowed.

Subsequent Proceedings : 

The Asylum Court annulled its previous decision and admitted the applicant to the procedure on the merits through the sovereignty clause.

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.