The case concerned an Afghan national who was granted subsidiary protection by the BFA on 30 May 2017. On 20 November 2018 the applicant was sentenced by the Regional Court for Criminal Matters in Vienna to three months imprisonment and on 3 June 2019 the Regional Court for Criminal Matters in Vienna ordered the placement in an institution for people with mental disorder who committed a crime. By decision of 16 July 2020, the BFA withdrew the status of subsidiary protection and issued a return decision as well as an unlimited entry ban pursuant to Section 9(2) of the Asylum Act 2005. The BFA further found that the deportation of the applicant to Afghanistan was inadmissible pursuant to Section 9(2) of the Asylum Act 2005 in conjunction with Section 52(9) of the Aliens Police Act.

Upon appeal of the applicant, the Federal Administrative Court upheld the decision to withdraw subsidiary protection but rejected the return decision in relation to Afghanistan as permanently inadmissible pursuant to Section 9(2) of the Asylum Act. It granted the applicant a residence permit pursuant to Section 58(2) in conjunction with Section 55(1) and (2) of the Asylum Act 2005 and rejected the issuance of an entry ban. The BFA lodged an appeal against this decision before the Supreme Administrative Court.

As regards the rejection of the return decision as permanently inadmissible pursuant to Section 9(2) of the Asylum Act and the issuance of the residence permit, the Supreme Administrative Court referred to its decision of 25 July 2023, which was decided following the preliminary judgement of the CJEU, Bundesamt für Fremdenwesen und Asyl v AA, C‑663/21, 6 July 2023. In this judgment it was clarified that according to Union law, a revocation of international or subsidiary protection pursuant to Section 8(3a) sentence 2 and Section 9(2) No 2 of the Asylum Act 2005 should not be combined with a measure to terminate the residence, if it was clear at the time of adopting that the return decision was not permitted for an indefinite period due to the prohibition of refoulement. Instead, the withdrawal decision should only be combined with a statement that a return of the foreigner to his or her country of origin was inadmissible. Consequently, any decision legally dependent on the return decision would also have to be omitted. Based on the above, the Supreme Administrative Court held that since the BFA based its withdrawal decision on Section 9(2) sentence 2 of the Asylum Act and recognised that a return to Afghanistan was not admissible, the return decision was contrary to EU law. As the return decision was unlawful, consequently also the permanent deportation ban and the resident permit were unlawful, as they were dependent on the return decision.

As regards the rejection of the entry ban, the Supreme Administrative Court also decided that as the return decision was unlawful, this also effected decisions which were based on the return decision, such as the issuance of an entry ban. Based on the above the Supreme Administrative Court annulled the return decision as permanently inadmissible and the residence permit and rejected the onward appeal as regards the entry ban.