Austria - Constitutional Court, 27 April 2009, U136/08

Country of Decision:
Country of Applicant:
Date of Decision:
Court Name:
Constitutional Court
National / Other Legislative Provisions:
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991 - § 67
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 18 Abs 1
Austria - BVG über die Beseitigung rassischer Diskriminierung (Implementation of the International Convention on abolishment of all forms of racial discrimination) - Art I (1)
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The fact that Poland agreed to take charge of the asylum procedure of a whole family is, by itself, not a proper basis for an inadmissibility decision. The hierarchy of the criteria for determining the Member State responsible for the procedure on the merits, set out in Art 5(1) Dublin II Regulation, must be respected. In this case the husband and father of the family had already been admitted to the procedure on the merits and, therefore, Art 8 was applicable prior to Art 14.


The applicant came to Austria in December 2007. Consultations with Slovakia and France were negative and, therefore, the applicant was admitted to the procedure on the merits in Austria in April 2008. Two weeks later the applicant's wife and children followed him to Austria, passing through Poland on their way. The Austrian Federal Asylum Office re-opened the applicant's admission procedure and held Dublin consultations with Poland for the whole family. Poland agreed to be responsible for their asylum procedures. The Austrian Federal Asylum Office issued an inadmissibility decision and an expulsion order to Poland. The family appealed against this decision. The Austrian Asylum Court did not accept the appeal and confirmed the Federal Asylum Office’s decision, arguing that the principle of family unity is maintained by sending them back to Poland together.The family appealed to the Constitutional Court.

Decision & Reasoning: 

The Constitutional Court allowed the appeal.

The Asylum Court did not provide reasons as to why Art 14 Dublin II Regulation was used instead of Art 8, although the father of the family was already admitted to the procedure on the merits when the rest of his family arrived in Austria and he has been in Austria for almost four months. According to Art 5(1), there is a hierarchy of the criteria in the Dublin II Regulation that must be respected. Art 8 is, therefore, applicable before Art 14 in this case. The fact that Poland agreed to take charge of the family’s procedure on the merits is, by itself, not a proper basis for an inadmissibility decision in Austria. Unless Poland is responsible for the procedure on the merits under the Dublin II Regulation, the inadmissibility decision would be arbitrary. The Asylum Court’s decision was arbitrary and violated Art 5 (1) Dublin II regulation.


The appeal was allowed and the family was admitted to the procedure on the merits in Austria.

Subsequent Proceedings : 

The family was granted the status of refugees.


The following jurisprudence by the Asylum Court is, in part, contradictory. In several cases the Asylum Court followed the Constitutional Court:

  • AsylGH 11.01.2010, S4 410.937-1/2010/2E; and
  • AsylGH 19.04.2010, S23 412.628-630-1/2010/2E.

In cases where decisions differed from those of the Constitutional Court, the Asylum Court argued that the time frame of Art 14 of the Dublin Regulation (“simultaneously, or on dates close enough for the procedures for determining the Member State responsible to be conducted together “) is three months. This means that if a person is admitted to the procedure on the merits in Austria, and most of his/her family enters the European Union crossing another member state within three months, there can still be an inadmissibility decision under Art 14:

  • AsylGH 05.01.2012, S2 423.086-0891-/2011/3E;
  • AsylGH 19.04.2011, S3 418.562-1/2011/2E ;
  • AsylGH 20.04.2011, S24 418.405-1/2011/2E.

The three-month time frame has no legal basis in the Dublin II Regulation, yet is partly acted upon in Austria.

One relevant case remains open at the Constitutional Court:

  • VfGH U283-286/12 – concerning AsylGH 05.01.2012, S2 423.086-0891-/2011/3E.

The Constitutional Court in Austria is only allowed to assess the points of law based on the information given during the procedure before the lower authorities. It is not allowed to introduce new facts or circumstances before the Constitutional Court.

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.