The case concerned a stateless Palestinian from Gaza who applied for asylum in Austria on 4 September 2018. By decision of 2 January 2019, the Federal Office for Aliens and Asylum (BFA) rejected the asylum application and issued a return decision. The applicant appealed against this decision before the Federal Administrative Court, which partly upheld the appeal insofar as it found that the return decision was inadmissible on a permanent basis and granted the applicant a “residence permit plus" pursuant to section 55(1) of the Asylum Act 2005. In the context of the balancing of interests in return decisions pursuant to Section 9 of the BFA Procedure Act, the Federal Administrative Court had concluded that the applicant’s private interests in remaining in Austria outweighed the public interest in terminating his residence because he had lived for more than four years in Austria and has successfully practiced a profession. The BFA lodged an onward appeal on grounds that the Federal Administrative Court had deviated from the established case law of the Supreme Administrative Court with its decision.

The Supreme Administrative Court referred to its previous case law on the balancing of interests in return decisions pursuant to Article 8 of the ECHR and stated that residence period of less than five years did not in itself constitute a decisive factor in the balancing of interests and that in cases of short residence the level of integration had to be exceptional. Based on the above, the Supreme Administrative Court decided that although the Federal Administrative Court conducted a balancing of interests, it did not weigh the public interest in the termination of residence in accordance with the case-law of the Higher Administrative Court.