Author
Refugee status is withdrawn where the refugee should have been excluded under the exclusion clauses,[1] or is convicted of a criminal offence.[2] Subsidiary protection is withdrawn if the exclusion clauses in Article 1F Geneva Convention apply, or the beneficiary poses a threat to public order or national security, or has been convicted of a serious crime.[3] A withdrawal procedure shall be initiated by the BFA where a beneficiary of the subsidiary protection is under prosecution for a serious crime, and the provisions on withdrawals are likely to be applied.[4] To that end, the BFA as well as the BVwG receive information on the prosecution from the Prosecutor’s Office and the Court.
An appeal challenging a withdrawal decision has suspensive effect. The Court has to decide upon the appeal within 3 months.[5]
Article 7(2) AsylG, as amended by the alien law reform (FrÄG 2017), further allows that withdrawal proceedings are initiated where the beneficiary is suspected of having committed a criminal offence.[6]
As mentioned in Cessation, there is no systematic distinction between the two procedures. When initiating a withdrawal procedure following a conviction, the BFA must weigh the individual situation of the beneficiary upon return against the implications of their continued residence for public order and security. The same procedural guarantees are applied as for the Regular Procedure for granting protection. Since 1 September 2018, young offenders are no longer protected from losing their protection status.
The VwGH referred a preliminary ruling to the CJEU regarding the interpretation of Article 19(1) of Directive 2011/95 on the possibility of revocation of subsidiary protection status without a change in the relevant factual circumstances, but rather only where the knowledge of the authority has changed, and the person concerned cannot be accused of having misled the Member State. The CJEU found that where the Member State has new information which establishes that, contrary to its initial assessment based on incorrect information, that person never faced a risk of serious harm, within the meaning of Article 15 of that Directive, that Member State must conclude that the circumstances underlying the granting of subsidiary protection status have changed in such a way that retention of that status is no longer justified. That this error was not attributable to the applicant does not alter the fact that the applicant is not eligible for subsidiary protection.[7]
[1] Article 7(1)(1) AsylG.
[2] Article 7(2) AsylG.
[3] Article 9(2) AsylG.
[4] Article 9(3) AsylG.
[5] Article 21 (2a) BFA-VG.
[6] For a critique, see Diakonie, Stellungnahme der Diakonie Österreich zum Entwurf betreffend ein Fremdenrechtsänderungsgesetz 2017, 18 January 2017, available in German at: https://bit.ly/3yKXMLC.
[7] CJEU, Bilali, Case C-720/17, 23 May 2019, available at: http://bit.ly/3Fu83zB.