The applicant, an Iraqi national, requested international protection in Austria. On 14 May 2022, the Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl‚ BFA) dismissed the request as inadmissible, considering that Lithuania was the responsible Member State to examine the application in accordance with Article 18(1)(b) of the Dublin III Regulation. The applicant argued that he had a family life with a wife and minor daughter who were provided international protection in Austria.

On appeal, the Federal Administrative Court (BVwG) dismissed the action lodged by the applicant.

On a further appeal, the High Administrative Court ruled in favour of the applicant and noted that Article 9 of the Dublin III Regulation, contains a special jurisdiction for family members of beneficiaries of international protection. It observed that if the applicant has a family member who is a beneficiary of international protection and has the right to reside in a Member State, that Member State is responsible for examining the application for international protection, provided that the persons concerned express this wish in writing. In the particular case, the court noted that the applicant had family ties in Austria so that the Federal Administrative Court would have been required to carry out further examination in order to be able to assess the state’s jurisdiction under the Dublin III Regulation.

In particular, the Federal Administrative Court should have clarified whether and when the daughter of the applicant received subsidiary protection, if she had already obtained this protection status at the time of the (first) application for protection made by the applicant in a Member State of the EU, if the desire to conduct the proceedings in Austria was made in writing. With regard to the mother of the child, the Federal Administrative Court did not deal with whether the alleged marriage with the woman took place in Turkey and whether, as the appeal put forward, was valid according to the formal requirements there, and it should also have been determined whether the wife had already obtained subsidiary protection in Austria at the time of the (first) application by the applicant in the EU. Since the lower court did not carry out these necessary test steps, the court annulled the appealed judgment.