A 11-year-old unaccompanied minor requested legal assistance in order to lodge an appeal against the negative decision of the Federal Administrative Court after the latter rejected the minor's asylum request on 13 December 2023. The Federal Agency for Reception and Support Services (BBU GmbH) represented the minor while he was still in federal care and the representation was not yet transferred to a legal guardian. The minor's request was lodged before the Constitutional Court.

Since the Austrian Code of Civil Procedure does not allow minors under the age of 18 to stand in court, according to Section 10(3) of the BFA Procedures Act (Federal Act on the general rules for procedures at the Federal Office for Immigration and Asylum) on the legal capacity, unaccompanied minor asylum seekers are temporarily represented by the BBU GmbH upon arrival at the initial reception centre. The legal provisions provide a division of representation as after the minor's admission and assignment to a care centre in a federal state, the representation must be transferred to the local child and youth welfare authority within the federal state in question.

The Constitutional Court recalled that the duration of the legal assistance continues, as understood in light of Paragraph 25(2) of the Asylum Act, until the termination of the admission procedure under the condition that the minor was assigned to a care centre.

The Constitutional Court noted that there was no reason for the legislator to create a time gap between the end of the admission procedure and the assignment of the minor to a care facility throughout which the minor would not benefit of legal representation because  the effective access to legal protection would be violated.

Additionally, the court stated that it could not be assumed that the minor was represented by the youth welfare institution of his place of stay during the abovementioned time gap because the representation would be of such a short duration that the minor would end up having three different legal representatives within a short period of time.

For the concerned case, the Constitutional Court found that the minor was not assigned to a care centre and, therefore, until the appointment of a legal guardian, the BBU GmbH remained responsible for representing the minor during the asylum procedure including the procedure before the Constitutional Court.

However, the Constitutional Court ruled that the present case only concerned the correct application of the law and not the legality of the general norm itself and thus, concluded that the case did not fall within its jurisdiction. The request was rejected by the court.