Austria - Constitutional Court (VfGH), 29 June 2013, U1446-1448/2012

Country of Decision:
Country of Applicant:
Date of Decision:
Court Name:
Constitutional Court (VfGH)
National / Other Legislative Provisions:
Austria - Asylgesetz (Asylum Act) 2005 - § 10
Austria - Asylgesetz (Asylum Act) 2005 - § 5
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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Even if an unaccompanied minor refugee has entered the country together with a brother (sister) of full age, Art 6 Dublin II Regulation is applicable to the former and within the meaning of the judgment of the CJEU of 06.06.2013, case C-648/11, the relevant country of the asylum application is responsible. With regard to the accompanying brother (sister) of full age, use should be made of the right to assume the examination owing to the family connection in order to avoid a violation of Art 8 ECHR.


The three Applicants are siblings, who travelled from Hungary to Austria at the age of 13, 15 and 19 without being accompanied by their parents or other family members. They lodged applications for international protection both in Hungary as well as in Austria in February 2012. In Austria, the siblings indicated, amongst other things, that the younger sisters had been held separately in Hungary from the brother of full age.

Austria carried out consultations with Hungary in accordance with Art 16(1)(c) of the Dublin II Regulation; Hungary agreed to take them back. The older brother was declared the person entitled to custody of his sisters who were minors by means of a decision by the District Court in Austria. The applications for international protection were finally refused (during the second legal process) in June 2012 owing to the responsibility of Hungary and an expulsion decision to Hungary was pronounced. The Applicants lodged an appeal against these decisions.

The Asylum Court refused the appeal. The grounds given for this decision were that Hungary had declared itself responsible for conducting the proceedings and had also promised as part of the consultation process to accommodate the siblings together. This therefore violated neither Art 3 nor Art 8 ECHR and Austria was not obliged to assume the right of the examination itself.

The appeal by the Applicants was directed against this finding to the Constitutional Court.

Decision & Reasoning: 

The Asylum Court had exercised arbitrariness through the decision. According to the judgment of the CJEU of 06.06.2013, case C-648/11 (MA and others), the decision of the Asylum Court contradicted the Dublin II Regulation.

The minor Applicants were undisputedly unaccompanied minor refugees within the meaning of Art 2(h) of the Dublin II Regulation. Art 6 of the Dublin II Regulation is to be applied to unaccompanied minor refugees, according to which the relevant Member State responsible is the State in which the minor lodged his asylum application. The CJEU pronounced in the decision of 06.06.2013, C-648/11 that the term "first Member State" in Art 6 is not to be equated with that in Art 13 of the Dublin II Regulation; on the contrary, the “first Member State” within the meaning of Art 6 of the Dublin II Regulation is the country in which the unaccompanied minor is currently residing, after he has lodged an asylum application there.

With regard to both minor sisters, it is without doubt Austria which is responsible for conducting the asylum procedure.

Even if the brother of full age is not a family member within the meaning of Art 2(i) of the Dublin II Regulation, there is nevertheless a protected family life through Art 8 ECHR. According to the latter, Austria should have used the right to assume the examination itself with regard to the brother.


The appeal was upheld and the disputed decision was revoked.

Subsequent Proceedings : 

The Asylum Court revoked the findings and referred them back to the Federal Asylum Agency (AsylGH 16.09.2013, S5 425.301 to 303-2/2012)


Revoked decisions of the Asylum Court: AsylGH 28.06.2012, S5 425.301 to 303-2/2013.

Findings of the Asylum Court to be revoked: AsylGH 16.09.2013, S5 425.301 to 303-2/2012.

Case Law Cited: 

Austria - Constitutional Court (VfGH), 29 June 2013, U 706/2012

Austria - Constitutional Court (VfGH), 29 June 2013, U2465/2012

Austria - Constitutional Court (VfSlg.), 15.448/1999