Author
The concept of “first country of asylum” is established in Article 4a AsylG. An application will be rejected as inadmissible, if the applicant has found protection in an EEA country state or Switzerland and asylum or subsidiary protection status was granted.
A law amendment that entered into force on 1 September 2018 deleted the 3 months deadline if the person cannot be deported. As a consequence, the inadmissibility decision does no longer cease to be valid and deportation can still be undertaken at a later date.
Rejections for existing protection in another EU state are also issued regularly by the BFA concerning countries such as Greece or Hungary where Dublin responsibilities are denied, even though the appeal is regularly granted suspensive effect. In a case of a Syrian national who has received subsidiary protection status in Hungary in 2015 and applied for asylum in Austria in 2020, the BVwG rejected the applicant’s appeal.[1] Even though the applicant brought forward that he had no access to support from the state, had to live on the street and was assaulted the Court came to the conclusion that there exist support possibilities from the government and from NGOS and that there is no real-risk of a Art 3 ECHR violation.
Applications by beneficiaries of international protection in Greece have risen since 2020. While the first instance authority initially admitted vulnerable cases to the asylum procedure, a change of strategy was observed throughout 2021. In June 2021, the Constitutional Court suspended the decision of the Federal administrative court which had rejected an appeal from an Afghan woman who received asylum status in Greece in 2019 and applied for asylum in Austria in 2020. Looking at the recently updated AIDA country report on Greece, the Constitutional Court considered that the applicant may face a risk of violation of Art 3 ECHR violation and ordered further examinations on the access to food, shelter and sanitary facilities.[2] The decision set out a benchmark as it was done in plenary of the Constitutional Court. Following this decision, the BVwG reconsidered several first instance decisions based on insufficient information on the situation in Greece.[3] A project called “Tetraa” was initiated by asylkoordination together with Diakonie Flüchtlingsdienst and lawyer Christian Schmaus. In this project, strategic litigation is being conducted focusing on asylum procedures of beneficiaries of International protection in Greece coming to Austria applying for asylum because of dire living conditions in Greece.[4]
There is also some case-law regarding beneficiaries of international protection in Bulgaria who come to Austria to lodge a new application. In 2016, a Syrian mother with 3 children gave birth after she arrived in Bulgaria where she suffered from prenatal depression. She was granted subsidiary protection in Bulgaria shortly after moving to Austria. The Bulgarian authorities denied responsibility under the Dublin system, but were ready to take over as a result of the readmission agreement. The BVwG considered the deportation to Bulgaria as not permissible because of the PTSD from which the children were suffering and which was triggered, among other things, by experiences during the imprisonment in Bulgaria at the end of September 2015, as well as the intensive family relationship with relatives living in Austria.[5]
The BVwG has also accepted an appeal of an Afghan family in 2017 who had received subsidiary protection in Hungary, due to the need to clarify whether the current situation of beneficiaries of protection in Hungary raises a risk of violation of Article 3 ECHR.[6] In the case of a single Syrian who obtained subsidiary protection in Bulgaria, however, the BVwG found no real risk on the ground that he did not belong to a vulnerable group.[7]
In a case ruled by the Federal Administrative Court in 2015, the rejection of the application as inadmissible of a Chechen refugee who was registered in Azerbaijan as “person of concern” to UNHCR was considered as insufficient. The court did not adequately assess whether the status is similar to the status of a recognised refugee nor whether the protection from refoulement was ensured.[8]
As mentioned in Safe Third Country, inadmissibility may be ordered when a person has obtained status in another EU Member State.
[1] BVwGH, Decision W235 2238204-1/10E, 26 April 2021, available in German at: https://bit.ly/3sBERzt.
[2] VfGH, Decision E 599/2021, 25 June 2021, available in German at: https://bit.ly/3HLVKxZ.
[3] BVwG, Decisions W235 2244837-1/8E, 21 September 2021, available in German at: https://bit.ly/409ialm and W144 2244839-1/8E, 14 September 2021, available in German at: https://bit.ly/3ZQc7SR.
[4] Asylkoordination österreich, TETRAA, available in German at: https://bit.ly/41SC2dQ.
[5] BVwG, Decision W192 2131676, 8 September 2016.
[6] BVwG, Decision W205 2180181-1, 21 December 2017, available in German at: https://bit.ly/3lcwISB.
[7] BVwG, Decision W233 2166376-1, 18 September 2017, available in German at: https://bit.ly/3Jgb7R4.
[8] BVwG, Decision L518 2109232-1, 6 August 2015, available at: http://bit.ly/2jUv9oc.