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AT: The Constitutional Court ruled on criteria to assess internal flight alternative for return to Afghanistan

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Referral to the CJEU
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Relevant Legislative Provisions
Revised Qualification Directive (Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as BIP for a uniform status for refugees or for persons eligible for subsidiary protection- recast)/or QD 2004/83/EC;
Austria, Constitutional Court [Verfassungsgerichtshof Österreich], Applicant (Afghanistan) v Federal Administrative Court (Bundesverwaltungsgericht - BVwG), E3446/2019, AT:VFGH:2020:E3446.2019, 25 February 2020. Link redirects to the English summary in the EUAA Case Law Database.
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In this case the Austrian Constitutional Court ruled on criteria to assess internal flight alternative for return to Afghanistan.

The court held that in order to assess Section 8 (1) AsylG 2005, sufficiently up-to-date country reports must be used and this applies in particular to countries with rapidly changing security situation. Furthermore, in the context of the examination of an internal flight alternative, Article 8 (2) of the Qualification Directive requires accurate and up-to-date information to be obtained from relevant sources, such as UNHCR guidelines or EASO reports.

The lower court, the Federal Administrative Court (BVwG) assumed that the applicant, who has lived outside Afghanistan for a long time, could have an internal flight alternative in Herat or Mazar-e Sharif in Afghanistan, as he grew up in Iran, is single, young and able to work, without a family network in Afghanistan. The lower court based its decision largely on the 2018 UNHCR Guidelines and, in part, on EASO's June 2018 report "Country-Guidance: Afghanistan - Guidance note and common analysis." 

The Constitutional Court noted that although the UNHCR guidelines do not conflict with the Federal Administrative Court's legal view of single men without a support network in the resettlement area, the UNHCR guidelines do not include asylum applicants who have lived outside Afghanistan for a long time. On the other hand, it is clear from EASO's report that an internal flight alternative is not possible for this group of persons if there is no support network at the destination that could assist them in meeting basic existential needs and that an assessment is needed on a case-by-case basis using the following criteria: support network, local knowledge of the person concerned or links with Afghanistan and social and economic background (in particular, educational and professional experience), self-preservation outside Afghanistan.

The Constitutional Court noted that, in this way, the Federal Administrative Court did not deal in any way with the applicant belonging to that group, who, according to the findings of the contested decision, left Afghanistan at the age of about 2 years old and lived in Iran until he left Austria. Thus, the court concluded that in view of the reporting situation presented and the country of origin reports, it is necessary in the continuing proceedings to state reasons as to the exceptional circumstances to consider that the applicant might be able to return to Afghanistan without being subjected to risk of violations of Article 2 (right to life) and Article 3 ECHR (prohibition of torture, degrading or inhuman treatment or punishment).

Country of Decision
Court Name
AT: Constitutional Court [Verfassungsgerichtshof Österreich]
Case Number
Date of Decision
Country of Origin
Country of Origin Information
EUAA COI Reports
Internal protection alternative/ flight alternative
Torture or inhuman or degrading treatment or punishment