The case concerns a Nigerian applicant who made unsuccessful applications for international protection in April 2015, January 2017 and May 2018, and decisions to return him were issued. The applicant was arrested on 6 June 2019 in execution of a detention order that had since been issued and, after being questioned, received a notification from the Federal Office for Foreign Affairs and Asylum (BFA) on the same day on detention pending deportation. During detention pending deportation, the applicant filed another application for international protection on 13 June 2019. The court ruled on whether the applicant had delayed the enforcement of a return decision and on how the birth of his daughter in Austria, in May 2019, affected his deportation.
The Court set aside the lower court decision as unlawful because the authorities should have applied the 'right to remain' until a final decision was taken on the subsequent application submitted on 13 June 2019 and to assess again the proportionality of the measure also based on the new application.
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