Austria - Constitutional Court, 15 December 2011, U760/11

Country of Decision:
Country of Applicant:
Date of Decision:
15-12-2011
Citation:
VfGH 15.12.2011, U760/11 ua
Additional Citation:
VfSlg 19.612
Court Name:
Constitutional Court
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Austria - Asylgesetz (Asylum Act) 1997 idF BGBl. I 101/2003 - § 8
Austria - Asylgesetz (Asylum Act) 1997 idF BGBl. I 126/2002 - § 7
Austria - Asylgesetz (Asylum Act) 2005 idF BGBl. I 29/2009 - § 10
Austria - Asylgesetz (Asylum Act) 2005 idF BGBl. I Nr. 122/2009 - §75
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 144a
Austria - BVG über die Beseitigung rassischer Diskriminierung (Implementation of the International Convention on abolishment of all forms of racial discrimination) - Art 1 ff
Austria - Fremdenpolizeigesetz (Aliens Police Act) 2005 - § 50
Austria - Verfassungsgerichtshofgesetz (Constitutional Court Act) - § 88
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Headnote: 

After six and a half years of single asylum proceedings, the Applicants, a family with three children who were well-integrated in Austria, , were expelled by the Asylum Court to Armenia. The Constitutional Court revoked this decision on the grounds of a violation of Art 8 of the European Convention on Human Rights. The reasons for this were primarily that the integration of the children was given insufficient weight.

Facts: 

The Applicants (a family consisting of a married couple and three children) submitted applications for asylum in Austria on 11.09.2004 and 30.08.2004 respectively. They had previously lived in Germany for a long time. The Federal Asylum Agency denied the applications with regard to the granting of asylum and subsidiary protection and expelled the Applicants to Armenia. The appeals lodged against this were also denied by the Asylum Court with decisions on 07.03.2011 after proceedings had lasted for six and a half years  (reference numbers of these decisions: E13 257.593, E13 257.587, E13 257.592, E13 257.591, E13 257.589). The reasons given for the permissibility of the expulsion by the Asylum Court were principally as follows: despite their various activities, the Applicants who were minors were not involved in Austria’s social life in such a way that they would leave a gap in Austria that could no longer be filled if they returned to Armenia. The consideration of their interests had not shown that the interests of the Applicants to remain in Austria would outweigh the public interests in them leaving the country.   

Here the Asylum Court considered the nature and, related to the age of the Applicants, the relatively short duration of their stay to date, whereby the stay could have been temporarily regularised only by the illegal entry and submission of asylum applications that were unjustified from the outset. Furthermore, it considered the lack of the existence of a family life and the lack of entitlement to protection of private life, the level of integration determined and the assumed continued connections to the country of origin on the one hand against, in particular, infringements of public order through the entry supported by smugglers and the emergence of private life during the uncertain stay.

The Applicants lodged an appeal against these decisions by the Asylum Court to the Constitutional Court. Amongst other things they pleaded in the latter that their right to private life guaranteed in accordance with Art 8 of the European Convention on Human Rights had been violated.

Decision & Reasoning: 

The Constitutional Court came to the conclusion that the Asylum Court had considered the public interests in the field of foreigners compared with the personal interests of the Applicants in an unconstitutional manner. It gave the following detailed reasons for this:

The Asylum Court had disregarded the fact that the integration of the Applicants did not take place during aperiod of uncertain residence status justified through subsequent applications, but during single asylum proceedings lasting for six and a half years in Austria. The long duration of the asylum proceedings was also not attributable to a culpable delay by the Applicants.

By giving insufficient weight to the integration of the Applicants who were minors, the Asylum Court had overlooked the fact that proceedings take over six years without extraordinarily complex legal issues and without culpability of the Applicants. Although it was correct that the Applicants had always only had a temporary residence entitlement, this was however not attributable to the Applicants who were minors, who had accompanied their parents as minors to Austria to the same extent as the persons with custody of them.

The Applicants who were (previously) minors had entered Austria at the ages of 14, 13 and six, had previously lived with their parents in Germany from 1997 to 2002, where the youngest Applicant was born. Therefore the Applicants who were aged 21, 20 and 13 at the time of the decision by the Constitutional Court had spent 11 1/2 (or ten) years and therefore most of their lives in German-speaking countries. The Applicants who had formerly been minors had completed almost their entire education in German-speaking countries, which was of particular importance against the background of their ages (also in view of the language barrier existing in Armenia).

With the finding by the Asylum Court, according to which the involvement of the Applicants (who had formerly been minors) in Austria's social life and therefore their level of integration, had not reached a level that they wouldleave a gap in Austria that could no longer be filled if they returned to Armenia, the Asylum Court had based its consideration on a measurement incompatible with Art 8 ECHR. The Asylum Court had misjudged in an unconstitutional manner the level of integration of these Applicants, although intensive social activities (in particular permanent and successful attendance at school, voluntary social work to a noteworthy extent and over a long period of time, limited employment permits and permanent involvement in sport at club level with some excellent performances) were documented in the administrative and court files.

Comparing all these circumstances in favour of the protection of their private life solely against the illegal entry and their unauthorised applications for asylum and as a result assuming  over-riding public interests in their departure, represented a violation of the right to private life of the Applicants, who had formerly been minors, in accordance with Art 8 ECHR. With regard to the parents, the Asylum Court had misjudged that, at least as far as the youngest Applicant is concerned, there is a family life.  

Therefore the right granted to the Applicants under constitutional law arising from the rights in Art 8 ECHR had been infringed, insofar as the appeals against expulsion from the Federal territory of Austria had been rejected through the contested decision of the Asylum Court.

Outcome: 

The decision of the Asylum Court that was challenged was partly revoked (regarding expulsion from the Federal territory of Austria to Armenia).

Subsequent Proceedings : 

The Asylum Court subsequently declared the expulsion of all the Applicants as inadmissible (see Asylum Court (AsylGH) 02.01.2012, E13 257.587, E13 257.592, E13 257.591, E13 257.589). The Applicants were granted a residence permit by the responsible settlement authority on the basis of the above-mentioned findings of the Asylum Court.

Observations/Comments: 

At present (an amendment to legislation to this effect will enter into force as of 01.01.2014) the settlement authorities with local responsibility must as of right grant a residence permit in accordance with the Settlement and Residence Act to Applicants whose expulsion has been declared permanently inadmissible by the Asylum Court or the Federal Asylum Agency on the basis of Art 8 ECHR. The decision of the Asylum Court, according to which the expulsion is permanently inadmissible, does not yet constitute a residence permit in itself.

Case Law Cited: 

VfSlg. 15.372/1998

VfSlg 13.837/1994

VfSlg 18.407/2008

VfSlg 17.586/2005

VfSlg 16.384/2001

VfSlg 15.026/1997

VfSlg 13.897/1994

VfSlg 14.998/1997

VfSlg 14.119/1995

VfSlg 18.862/2009

VfGH 07 Oktober 2010, B950/10

VfSlg 19.086/2010

VfSlg 16.657/2002

VfSlg 15.400/1999

VfSlg 15.051/1997

VfSlg. 11.638/1988

VfGH 10 März 2011, B1565-1567/10

VfGH 12 Juni 2010, U613/10

ECtHR - Hilal v United Kingdom, Application no. 45276/99