Austria – Supreme Administrative Court, 08 September 2015, Ra 2015/18/0113

Country of Decision:
Country of Applicant:
Date of Decision:
Ra 2015/18/0113
Court Name:
Supreme Administrative Court of Austria
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The Austrian asylum authorities have to consider every possible breach of Art. 3 ECHR (or Art. 4 CFREU respectively) when examining a Dublin transfer. A possible breach can be linked to personal circumstances of the asylum seeker and does not necessarily have to be caused by a systemic failure of the asylum system in the receiving country. A Dublin transfer is forbidden if there is a real risk of a breach of Art. 3 ECHR.

A single mother and her five minor children must be considered as particularly vulnerable and cannot be transferred from Austria to Hungary.


The applicants are a single mother and her five minor children and the husband of the oldest daughter from Afghanistan. They had travelled from Iran via Turkey to Greece, continued through Macedonia and Serbia before illegally entering Hungary, where they applied for international protection in September 2014.

They did not wait for the outcome of the Hungarian asylum procedure but moved on to Austria and filed another asylum request there in October 2014. In March 2015 the Austrian Asylum Authority (Bundesamt für Fremdenwesen und Asyl, BFA) rejected their application as inadmissible since Hungary was competent according to Art. 18 I lit. b Dublin-III-Regulation. The BFA thus ordered the transfer of the family to Hungary. The Hungarian authorities accepted the request to take back the applicants according to the Dublin regulation.

The applicants filed a complaint against the transfer decision to the Federal Administrative Court (Bundesverwaltungsgericht, BVwG) which was not successful. In the legal reasoning the BVwG stated that there were no particular reasons supporting a real risk of persecution of the applicants in Hungary. The applicants do not suffer from a life-threatening disease and they have neither family nor other close personal relationships in Austria. Although minors, the children are not infants anymore that need special care. Regarding the situation of asylum seekers in Hungary the BVwG consulted sources not later than from summer 2014. Only concerning the prison conditions, it took a more recent report from March 2015 into account. Based on these reports the court stated that Dublin-returnees are normally not accommodated in overcrowded reception camps, they receive necessary medical care in conformity with European standards. It pointed out that the ECtHR decided in the case Mohammadi/Austria that there is no systemic failure of the Hungarian asylum system. A Dublin transfer to Hungary therefore does not constitute an inhuman treatment contrary to Art. 3 ECHR. Austria is thus not required to exercise the sovereignty clause of Art. 17 I Dublin-III-Regulation.

The applicants filed an appeal against the decision of the BVwG at the Supreme Administrative Court (Verwaltungsgerichtshof, VwGH). They reasoned that they had to be considered as particularly vulnerable persons due to several diseases they suffered from. They also claimed that there were several legal questions of fundamental significance at stake since the BVwG had differed from settled case law of the VwGH. Turning to the situation in Hungary, they relied on a recent report of EASO stating that asylum seekers would not receive food, accommodation and medical care and that Dublin returnees are systematically imprisoned, which leads to an additional breach of Art. 6 EUCFR.

Decision & Reasoning: 

The complaint at the Supreme Administrative Court was successful.

The ECHR is classified at the same level as the constitution in Austria. This means that the current Austrian Asylum Law (AsylG 2005) has to be interpreted according to the provisions of the ECHR. If there are substantial grounds for a real risk of a breach of Art. 3 ECHR Austrian asylum authorities are required to make use of the sovereignty clause of Art. 17 I Dublin-III-Regulation and examine the asylum request themselves.

§ 5 III AsylG 2005 contains a legal presumption that all states participating in the Dublin system can be considered as safe states. This presumption is rebuttable if there are particular reasons that suggest that the asylum seeker has to fear a real risk of lacking protection against persecution in the receiving state.

Basically, the applicant has to prove that there are such particular reasons. Only if the claimed reasons are obvious (“offenkundig”), no prove is needed. The applicant has to provide sufficiently specific information in order to support his claim. But the authority also has to consider the special situation of asylum seekers, that often have no means to gather evidence.

According to the case law of the CJEU there is a presumption that asylum seekers are treated in conformity with the CFREU, the Geneva Convention on Refugees (GCR) and the ECHR in every Member State. This presumption is rebuttable, if there are systemic flaws in the asylum system of the receiving state that lead to a breach of Art. 4 CFREU (which corresponds with Art. 3 ECHR).

According to the UK Supreme Court and the ECHR in the case of Tarakhel the reason for a real risk of a breach of Art. 3 ECHR is irrelevant, also individual circumstances of the applicant can be considered.

The VwGH concludes from this case law that the Austrian asylum authorities have to consider every possible breach of Art. 3 ECHR (or Art. 4 CFREU respectively). If there is a real risk of such a violation, a Dublin transfer is prohibited. This ensues from the absolute nature of Art. 3 ECHR (or Art. 4 CFREU respectively) and the Austrian obligation to respect fundamental rights.

The case Mohammadi/Austria of the ECtHR shows that there are no systematic detentions of asylum seekers in Hungary anymore and that prison conditions have improved. In this case the ECtHR decided that a Dublin transfer of a single young man from Austria to Hungary does not constitute a breach of Art. 3 ECHR.

The VwGH stated that the BVwG failed to examine if the reasoning in Mohammadi v. Austria (71932/12) was comparable to the present case, despite being obliged to do so in the previous instance.

The applicants in the present case are a single mother and her minor children that have to be considered as particularly vulnerable. Whereas their claimed diseases intensify the vulnerability, taken alone, they are not sufficiently severe in order to justify a particular vulnerability.

The past experiences of the applicants in the receiving state can only be considered as an indication of the future treatment there. The treatment the applicants could possibly face in the receiving state has to be drawn from recent reports about this state and from the individual circumstances of the persons concerned. The BVwG did not use the most current reports and did not adequately consider the situation of the applicants.


Appeal granted.


The question of whether only systemic flaws in the asylum system of the receiving country are relevant or if the individual situation of the applicant should also be considered while examining a Dublin transfer, is highly controversial. Referring to the judgements of the CJEU, German Administrative Courts only consider systemic flaws in the asylum system of the receiving state to prohibit Dublin transfers to that country. In order to ensure a comprehensive protection of human rights and respect the judgements of the ECtHR, one should – like the Austrian Supreme Administrative Court in the present case – also consider the individual situation of the applicant as a mean to prevent Dublin transfers.

This case summary was written by Lisa-Marie Lührs, PhD-student at Cologne University.

Other sources cited: 

Domestic Case Law Cited

Austria – VfGH, 15.10.2004, G 237/03

Austria – VwGH, 23.01.2007, 2006/01/0949

Austria – VwGH, 12.12.2007, 2006/19/1022

Austria – VwGH, 26.05.2009, 2006/20/0237

Austria – VwGH, 10.12.2009, 2008/19/0809

Austria – VwGH, 19.05.2010, 2008/23/0413

Austria – VwGH, 21.06.2010, 2008/19/0163

Other Member States' Case Law

United Kingdom - Supreme Court, 19.02.2014, R vs. Secretary of State for the Home Department (2014) UKSC 12

Germany – Bundesverwaltungsgerichtes, 19.03.2014, 10 B 6.14

Germany – Bundesverwaltungsgericht, 06.06.2014, 10 B 35.14

Germany – Bundesverwaltungsgericht, 14.07.2014, 1 B 9.14

Other Sources

Hailbronner/Thym, Vertrauen im europäischen Asylsystem, NVwZ 2012, 406ff.

Marx, Solidarität im grundrechtskonformen europäischen Asylsystem, NVwZ 2012, 409ff.

Bank/Hruschka, Die EuGH-Entscheidung zu Überstellungen nach Griechenland und ihre Folgen für Dublin-Verfahren (nicht nur) in Deutschland, ZAR 2012, 182ff.

Thym, Zulässigkeit von Dublin-Überstellungen nach Italien, ZAR 2013, 331ff.

Lübbe, "Systemische Mängel" in Dublin-Verfahren, ZAR 2014, 105ff.

Bergmann, Das Dublin-Asylsystem, ZAR 2015, 81ff.