Austria – Federal Administrative Court 30 December 2016, W237 2104471-1

Country of Decision:
Country of Applicant:
Date of Decision:
30-12-2016
Citation:
W237 2104471-1/14E
Court Name:
Federal Administrative Court (Bundesverwaltungsgericht)
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 2
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
Council of Europe Instruments > ECHR (Sixth Protocol)
Council of Europe Instruments > ECHR (Thirteenth Protocol)
National / Other Legislative Provisions:
Austria §§ 17
28
58 VwGVG (Fassung 2013) (Federal Act on Procedures at Administrative Courts)
Austria §§ 3
7
8
9 AsylG 2005 (Asylum Act)
Austria § 7 BFA-VG (Fassung 2016) (BFA Procedures Act)
Austria § 6 BVwGG (Federal Administrative Court Act Amendment of administrative litigation)
Austria § 57 FrG (Foreigners Law)
Austria § 25a Abs. 1 VwGG (Federal Act on Procedures at Higher Administrative Courts)
Austria § 133 Abs. 4 B-VG (Federal Constitutional Law)
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Headnote: 

In some cases of severe illness Art. 3 ECHR precludes a deportation even though a treatment in the state of origin is possible. If the appellant cannot bear the costs of the treatment or the necessary concomitant medication the renewed increase of the illness and therefore a real life-threatening risk is probable which precludes the deportation of the applicant. 

Facts: 

The applicant is of Georgian nationality and suffers from cirrhotic kidneys at a terminal stage. He is therefore a dialysis patient and already underwent treatment in Georgia for three months before coming to Austria. He has not tolerated the treatment in Georgia very well. In addition to that he had to pay the costs for the concomitant medication himself. Considering the very low welfare assistance of 55 Euro, he was not able to pay these costs amounting to a three-digit number. Also, he has no viable social network in Georgia and is incapacitated for work so that there is no other financial support. Although a transplantation is medically indicated there is no possibility for the applicant to get a kidney transplant. In Georgia organ transplantations of organs of dead people are prohibited. A transplantation of organs of living relatives is impossible since the applicants only relatives, his grandmother and his aunt who has cancer, are not eligible.

Since the costs of medication are taken by the health insurance in Austria and since there was a prospect of being placed on a transplant patient list as soon as getting a residence permit, the applicant illegally entered Austria on 2 March 2014 and requested subsidiary protection. Since then he lived in Austria with his wife of Russian nationality and their two children who were born in Austria. Furthermore, he underwent treatment at an Austrian hospital. The Austrian Asylum authorities denied the application for asylum, subsidiary protection and a residence permit based on other legitimate factors. Moreover, they issued a decision of removal and stated that a deportation may take place. The authorities based their decision on the fact that a treatment in Georgia was possible. The quality of that treatment is irrelevant. The applicant lodged an appeal before the Federal Administrative Court which reached the court on 23 March 2015.

The applicant criticised the insufficient analysis of his medical condition, his connections in Austria and the situation in Georgia. During the trial the applicant therefore submitted inter alia tables showing the medication needed, medical reports of clinics in Austria and Georgia, documents showing the welfare support he receives in Georgia and a statement of costs of the concomitant medication. 

Decision & Reasoning: 

In its decision the Court enlarges upon the settled case law relating to Art. 3 ECHR which precludes a deportation to the country of origin if there exists an existential threat for the applicant, due to the lack of treatment of a severe illness. Even though an applicant cannot stay in a country for undergoing a treatment if a treatment in the country of origin is possible, there are special situations in which a deportation constitutes a violation against Art. 3 ECHR. Such a situation is given, when there is a real risk for the ill person of suffering a painful death in case of deportation. For the examination of the case the Court used several reports of the European Commission, GeoStat, ÖEZ, the Georgian Association of Transplantologists, the SSA, the WHO, the UNHCR, the UNFPA and other institutions and experts.

The illness of the applicant as such does not constitute a violation of Art. 3 ECHR because there are possibilities for treatment in Georgia, which he even used before coming to Austria. Also, the different quality and sanitary standards are irrelevant.

However, the Supreme Administrative Court of Austria stated in several decisions that the probability of the increase of the illness and its effects on the medical condition as well as the real risk that is resulting therefrom must be considered as well. In this context the access to treatment, especially regarding the costs of medication, must be taken into account. Therefore, the individual financial situation, the geographical distance to the location which offers treatment and the social and familiar network must be examined.

There is no possibility for the applicant to undergo a transplantation in Georgia and he, therefore, would still need to undergo dialysis treatment. This treatment is possible, but the applicant does not have the financial resources to bear the costs of the concomitant medication needed. The lack of taking this medication probably resulted in the applicant’s bad state of health because of which he went to Austria. 

Due to his incapacity to work and the lack of a social or family network in Georgia the applicant can only rely on the welfare support of 55 Euros which cannot cover the expenses. Furthermore, his wife would not be able to work either because she must care for the children, which is not possible for the applicant due to the time-consuming dialysis treatment. In addition to that, his wife being of Russian nationality does not speak Georgian and would need a work permit. And even if she could work, the salary she would get as a hairdresser would not be enough to pay for all the costs.

In conclusion, the applicant would not be able to bear the costs for the concomitant medication needed during his dialysis treatment which is necessary considering the situation in Georgia prohibiting him from getting a transplantation. Without taking the medication there would be a real life-threatening risk for the applicant resulting from the increase of his illness and the bad state of health caused by it. Therefore, a deportation would violate Art. 3 ECHR.

Outcome: 

Appeal granted; the applicant is entitled to subsidiary protection; the applicant receives a residence permit for one year

Observations/Comments: 

This case summary was written by Michael Spath.

Other sources cited: 

EC - European Commission (25 March 2015): Implementation Of The European Neighbourhood Policy In Georgia Progress In 2014 And Recommendations For Actions Accompanying The Document Joint Communication To The European Parliament, The Council, The European Economic And Social Committee And The Committee Of The Regions

http://www.ecoi.net/file_upload/1226_1427816142_georgia-enp-report-2015-..., 17 November 2015 

GeoStat - National Statistics Office of Georgia (o.D.A): Living Conditions: Relative Poverty, Registered Poverty,

http://www.geostat.ge/index.php?action=page&p_id=188&lang=eng, Zugriff 17 November 2015 

GeoStat - National Statistics Office of Georgia (o.D.B): Employment and Unemployment, http://www.geostat.ge/index.php?action=page&p_id=146&lang=eng, access 17 November 2015 

ÖEZ - Österreichische Entwicklungszusammenarbeit (o.D.): Georgien,   http://www.entwicklung.at/laender-undregionen/schwarzmeerraumsuedkaukasu...

IOM - International Organisation for Migration (06.2014): Länderinformationsblatt Georgien 

PD - Public Defender of Georgia (2013): Annual Report of the Public Defender of Georgia, the Situation of Human Rights and Freedoms in Georgia - 2013,  

http://www.ombudsman.ge/uploads/other/1/1934.pdf, 17.11.2015

SSA - Social Service Agency (o.D.a.): Pecuniary Social Assistance (Subsistence Allowance), http://ssa.gov.ge/index.php?lang_id=ENG&sec_id=35, access 17 November 2015 

SSA - Social Service Agency (o.D.a.): Reimbursement of leave for maternity and childcare, as well as for adoption of a new-born child

http://ssa.gov.ge/index.php?lang_id=ENG&sec_id=375, access 17 November2015 

CoE/ECSR - Council of Europe/ European Committee of Social Rights (26.12.2014): 8th National Report on the implementation of the European Social Charter submitted by the Government of Georgia [RAP/RCha/GEO/8(2015)], 26 December 2014

http://www.ecoi.net/file_upload/1226_1422965667_georgia8-en.pdf, access 17 November 2015 

IBZ - Federal Public Service Home Affairs General Directorate Aliens' Office Belgium, Direction Access and Stay, Humanitarian Regularisations, Medical Section, via MedCOI (27 June 2014): Country Fact Sheet Access to Healthcare: GEORGIA, access 17 November 2015 

WHO - World Health Organization, Regional Office for Europe (30.9.2013): This is hepatitis. ... Know it. Confront it, Georgia,    

EC - European Commission (29 October 2014): Report from the Commission to the European Parliament and the Council. First Progress Report on the implementation by Georgia of the Action Plan on Visa Liberalisation [COM(2014) 681 final],

EC - European Commission (8 May 2015): Report from the Commission to the European Parliament and the Council. First Progress Report on the implementation by Georgia of the Action Plan on Visa Liberalisation [COM(2015) 199 final],  

MPC - Migration Policy Centre (06.2013): Migration Profile Georgia. The Demographic-Economic Framework of Migration. The Legal Framework of Migration. The Socio-Political Framework of Migration,  

Liaison officer (VB) of the Federal Ministry for Interior (BM.I) (3 February 2014): Information by the VB per Email 

Information per E-Mail by the UNHCR Regional Office in the South Caucasus (Armenia, Azerbaijan, Georgia), 24 February 2016

United Nations Populations Fund (UNFPA), Population Situation Analysis (PSA), 2014 

http://iset-pi.ge/images/Social_Policy/PSA_FinalReport.pdf 

Schweizer Flüchtlingshilfe (25 February 2016): Schnellrecherche zu Georgien: Dialyse-Behandlung - Zugang und Qualität, mwN 

Letter of the Georgian Association of Transplantologists, XXXX (25 February 2016)

Case Law Cited: 

ECtHR, Paramsothy v. the Netherlands (admissibility decision), Appl.No. 14492/03, 10 November 2005

Austria – Supreme Administrative Court, 30 March 2001, Zl. 97/21/0560

Austria - Administrative Court (VwGH), 31 March 2005, 2002/20/0582

Austria - Administrative Court (VwGH) 19 February 2004, 99/20/0573

Austria - VwGH, 8 June 2000, Zl. 99/20/0203

ECtHR- Fazlul Karim v. Sweden, Application no. 24171/05

ECtHR - Goncharova and Alekseytsev v. Sweden (dec.), no 31246/06

Austria – Supreme Administrative Court, 27 February 2001, Zl. 98/21/0427

Austria – Supreme Administrative Court, 20 June 2002, Zl. 2002/18/0028

Austria – Supreme Administrative Court, 26 June 1997, Zl. 95/21/0294

Austria – Supreme Administrative Court, 25 January 2001, Zl. 2000/20/0438

Austria – Supreme Administrative Court, 14 October 1998, Zl. 98/01/0122

ECtHR, Mahin Ayegh v. Sweden, 7 November 2006, Appl. No. 4701/05

Supreme Administrative Court (VwGH) 08 June 2000, 2000/20/0141;

Supreme Administrative Court 28 August 2008, 2008/22/0043

Supreme Administrative Court 15 March 2005, 2002/21/0056

Supreme Administrative Court 23 September 2004, 2001/21/0137

Supreme Administrative Court 04 August 2016, Ra 2016/21/0162

Constitutional Court (VfGH) 24 November 2016, E 10851088/2016

Constitutional Court 16 September 2013, U 496/2013

Constitutional Court VfSlg. 10 December 2009, 2008/19/0809-0812

Constitutional Court VfSlg. 28 April 2010, 2008/19/0139

ECtHR 22 June 2010, Al-Zawatia v. Sweden, Appl. 50068/08;

ECtHR - N v United Kingdom (Application no. 26565/05)