Austria - Constitutional Court (VfGH), 27 September 2013, U1233/2013

Country of Decision:
Country of Applicant:
Date of Decision:
Court Name:
Constitutional Court (VfGH)
National / Other Legislative Provisions:
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991 - § 73
Austria - Allgemeines Verwaltungsverfahrensgesetz (General Administrative Procedure Act) 1991 - § 13
Austria - Asylgesetz (Asylum Act) 2005 - § 17
Austria - Asylgesetz (Asylum Act) 2005 - § 25
Austria - Asylgesetz (Asylum Act) 2005 - § 34
Austria - Asylgesetz (Asylum Act) 2005 - § 35
Austria - Asylgesetz (Asylum Act) 2005 - § 61
Austria - Asylgesetz (Asylum Act) 2005 - § 75
Austria - Asylgesetz (Asylum Act) 1997 - § 7
Austria - Bundes-Verfassungsgesetz (Federal Constitutional Law) - Art 83 Abs 2
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 Asylum Court violated the right of access to the courts by rejecting an appeal in a case where an application for family reunification had been submitted at an Embassy. The asylum authorities acted arbitrarily in assuming that there was no legal entitlement to a formal notification of the decision in writing on such an application.


The Applicant is the mother of two children entitled to asylum in Austria, including a son who was a minor at the time asylum was granted in 2006. In January 2007, the Applicant lodged an application at the Embassy in Addis Ababa for the same protection as her children (therefore the granting of entry documents). In March 2007, the Federal Asylum Agency informed the Embassy that granting asylum was unlikely. The Embassy therefore refused the application for the issuing of entry documents. An appeal against this to the Administrative Court was rejected.

The Applicant therefore applied again in July 2008, this time by means of written submissions directly to the Federal Asylum Agency in Austria for the granting of the same protection. The Federal Asylum Agency pointed out in a letter of September 2008 that the application should be submitted at the Embassy because she could not lodge a visa application in person without actually being in Austria. The Applicant then applied on the same day to the Federal Asylum Agency to compel an administrative decision. There was no reaction to this application on the part of the Federal Asylum Agency. Attempts to challenge the letter in the Asylum Court or at the Federal Ministry for Internal Affairs were without effect because the letter was not a formal decision.

The Applicant therefore lodged an appeal to the Asylum Court in March 2010 on grounds of a violation of the obligation to decide because the application to the Federal Asylum Agency of September 2008 to compel an administrative decision  had gone unanswered. The Asylum Court refused the application as unlawful. The reasons stated were, amongst other things, that the Federal Asylum Agency had no obligation to decide because legislation requires that family members residing abroad make an entry application at the Embassy.

The Applicant lodged an appeal against this decision to the Constitutional Court and alleged violations of the right to equal treatment of foreigners, the right to access to the courts and the right to respect for her family life.

Decision & Reasoning: 

The Federal Asylum Agency had initially rejected as void the Applicant’s January 2007 application for the same protection. By the application for the continuation of the proceedings in the written submission of July 2008, however, the Applicant had– in line with the legal opinion represented to her by the decision of the Administrative Court – sufficiently expressed the view that she insisted on compelling an administrative decision on the application for the same protection. This was based on the entitlement under the original version of § 35 Asylum Act 2005, which was applicable at the time, to compel an administrative decision by the Federal Asylum Agency in all cases. The six-month period for a decision applicable to this under § 23 Para. 1 of the Asylum Court Act therefore started on 22.09.2008.

Whether there has been a possible disregard for the rules for submitting such a claim to compel a decision is irrelevant to the claim. The latter exists regardless of whether the application is to be acted on procedurally or on the merits and in all cases where a claim to compel an administrative decision is asserted. The Applicant was in any case entitled to insist on compelling an administrative decision on her application which was dismissed as void because otherwise there would be no possibility of ruling on the application for family reunification in a constitutionally sound manner and not merely on standards of likelihood.

The Asylum Court therefore acted arbitrarily by refusing the application. In addition, this also violated the right to access to the courts as the Asylum Court incorrectly refused to rule on the facts of the case.


The appeal was upheld and the findings of the Asylum Court revoked.


Constested findings of the Asylum Court: AsylGH 19.04.2013, A1 402.021-3/2010.

Findings of the Administrative Court with which the appeal against the refusal of entry documents by the Embassy was rejected: VwGH 19.06.2008, 2007/21/0423.

Other sources cited: 

Walter/Kolonovits/Muzak/Stöger: Verwaltungsverfahrensrecht (Law on Administrative Procedures), 9th edition (2011)

Case Law Cited: 

Austria - Administrative Court (VwGH), 29 March 2004, 2004/17/0024

Austria - Administrative Court (VwGH), 14 June 2005, 2005/18/0123

Austria - Constitutional Court (VfSlg.), 9240/1981

Austria - Constitutional Court (VfSlg.), 17.033/2003

Austria - Administrative Court (VwGH), 19 June 2008, 2007/21/0423

VfSlg. 9538/1982

VfSlg. 8628/1979

VfSlg. 16.737/2002

VfSlg. 16.079/2001

VfSlg. 15.858/2000

VfSlg. 15.482/1999

VfSlg. 16.717/2002

VfSlg. 16.298/2001

VfSlg. 16.066/2001

VfSlg. 15.738/2000

VfSlg. 15.372/1998