A married couple with a 5-year-old son, all Afghan nationals, requested international protection in Greece on 28 November 2023, where they were granted refugee status on 10 January 2024 and a residence permit until 9 January 2027. The 5-year-old was born with one kidney. The applicants then entered Austria and requested international protection on 20 February 2024. On 24 September 2024, the Federal Office for Immigration and Asylum (BFA) rejected their applications as inadmissible pursuant to Section 4a of the Asylum Act 2005 and declared that they had to return to Greece, ordered the removal of the applicants from Austria and determined that their return to Greece was permissible. BFA determined that the applicants were entitled to international protection and residence in Greece and could not establish that they would be exposed to systematic abuses or persecution in the event of being returned to Greece. BFA found no violation of the right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR). It acknowledged that the minor was born with one kidney but found that there was no indication of an urgent need for medical treatment. The applicants lodged an appeal against this decision before the Federal Administrative Court. 

On 27 November 2024, the Federal Administrative Court dismissed the appeal. The court held that the applicants would not be in a situation of material emergency if they were returned to Greece. The court found that the applicants were previously provided with accommodation and medical care in Greece and the fact that the minor, who had one kidney, would be removed from Austria would not result in any symptoms of illness according to a medical expert opinion issued by the BFA. The court held that there was no violation of Article 8 of the ECHR since the applicants had resided in Austria for a short period (9 months). The applicants lodged a constitutional complaint against the decision of the lower court, alleging a violation of constitutionally guaranteed rights. The applicants argued that the Federal Administrative Court did not correctly assess the guarantee of basic livelihood in Greece and failed to carry out an individual examination of their particularly vulnerable situation and the availability of medical care, in particular with regards to the medical condition of the minor son, who lacking a kidney, was exposed to an increased health risk. The applicants argued that it had already been shown that the necessary medical treatment was not guaranteed in Greece, and that their minor son was dependent on strict monitoring of his health because complications could quickly lead to serious health risks.  

The Constitutional Court acknowledged that the constitutionally guaranteed right to equal treatment of aliens among themselves would be infringed if the decision were made arbitrarily, including by omitting essential investigative steps. It held that, since the applicants were particularly vulnerable insofar as the family included a 5-year-old minor who was born with one kidney, the lower court should have applied a special standard of care in its examination of whether the applicants faced a real risk of a violation of their rights under Articles 2 (right to life)and 3 (prohibition of torture) of the ECHR in the event of their transfer to Greece. The court held that in view of the submissions of the applicants, the lower court should have taken a closer look at the medical expert opinion issued by the BFA which refers to the need for a low-threshold access to healthcare and avoidance of cold environments posing infection risks or at least discussed it with the applicants in an oral hearing. Furthermore, it noted that the lower court did not explain from which country of origin report it considered that the minor had access to medical care in accordance with the requirements of the medical expert opinion. Based on these considerations, it determined that the lower court's decision was arbitrary. 

The Constitutional Court upheld the constitutional complaint and set aside the Federal Administrative Court's decision due to infringement of the constitutionally guaranteed right to equal treatment of aliens among themselves.