A woman and her three underage children from Syria requested entry permits provided in Section 35(1) of the Asylum Act 2005 (AsylG) from the Austrian Embassy in Amman on 20 November 2023, to apply for family reunification with the husband and father as the sponsor, who was a beneficiary of international protection in Austria. Their requests were rejected on 22 September 2024.

On 27 September 2024, the family appealed the decision before the Federal Administrative Court (BVwG), which dismissed the appeal on 18 November 2025. The BVwG held that an asylum revocation procedure was pending regarding the sponsor under Section 7 AsylG and therefore an entry permit cannot be issued under Section 35(4)(1) AsylG. The court stated that since the applicants can submit new applications for family reunification at any time in the event of the termination of the revocation proceedings regarding the sponsor, there is no disproportionate interference with the right to respect for private and family life under Article 8 of the ECHR.

The applicants lodged a constitutional complaint before the Constitutional Court (VfGH), alleging a violation of the right to respect for private and family life under Article 8 of the ECHR and of equal treatment of foreigners amongst themselves under Article I(1) of the Federal Constitutional Law.

The VfGH recalled its previous judgment of 16 December 2025 (E1209-1210/2025, E1211/2025) in which it confirmed that there are no constitutional concerns against Sections 34 and 35(4)(1) AsylG, because they are accessible to a constitutional interpretation. Therefore, the BVwG must make its own independent assessment of the likelihood of protection being granted in Austria and must verify whether the conditions set out in Section 35(4) AsylG are met.

In light of this case law, the Constitutional Court stated that the BVwG cannot confine itself to examining whether the Federal Office for Migration and Asylum has initiated revocation proceedings but must rather assess whether it is not even probable that there are grounds for revocation under Section 7 AsylG. The VfGH held that the BVwG must examine whether the revocation proceedings are being conducted within a reasonable timeframe, and whether, in the light of Article 8 of the ECHR, there has been no undue delay in the decision on family reunification. Concerning the length of proceedings, consideration must also be given to whether any delay is predominantly attributable to the competent authority or to the family member entitled to asylum.

The court concluded that, by assuming that the pending revocation proceedings constitute a mandatory ground for rejection of the family reunification request, the BVwG failed to carry out an independent assessment of the criteria set out by the Constitutional Court in its judgment of 16 December 2025 (E1209-1210/2025, E1211/2025) and attributed a content to the national law which would violate Article 8 of the ECHR.

Thus, the Constitutional Court overturned the decision of the BVwG due to the violation of private and family life.