On 14 April 2022 a Somali national belonging to the Gabooye clan and originating from the Togdheer region requested international protection in Austria. On 9 August 2023, the Federal Office for Immigration and Asylum (BFA) rejected his application, declined to issue a residence permit on humanitarian grounds, and issued a return decision. By judgment of 16 October 2025, the Federal Administrative Court dismissed the applicant's appeal. It found that he had failed to establish a well-founded fear of persecution and concluded that he could reasonably relocate to Mogadishu, where, as a young, healthy and employable person, he could support himself and rely on family assistance. The applicant subsequently lodged a constitutional complaint against that judgment.

The Constitutional Court found the constitutional complaint to be well founded. It held that, in refusing to grant subsidiary protection, the Federal Administrative Court had acted arbitrarily, violating the applicant's constitutional right to equal treatment of foreigners. The court observed that the Federal Administrative Court had considered that the applicant, who was young, healthy and had completed seven years of schooling, could reasonably be expected to return to Somalia. It further established that the applicant's mother and siblings were living in a refugee camp outside Burco in difficult circumstances and that his father was deceased. However, the Constitutional Court noted that the judgment contained no further assessment of the security and humanitarian situation in the applicant's region of origin or of the specific circumstances in which he would find himself upon return. In particular, it failed to address its own finding that the applicant's family members living in the region of origin were in poor circumstances. According to the Constitutional Court, such a general assessment of the security and humanitarian situation in Somalia did not satisfy the requirements of an assessment of the return situation under Articles 2 and 3 ECHR in countries where security and humanitarian conditions are unstable and vary from one province to another. 

The Constitutional Court also observed that the Federal Administrative Court had held that the applicant could easily settle in another city in Somalia, given the absence of a population registration system. It further found that Mogadishu was under the control of the Somali Government and that the applicant had an aunt living there. That assessment was based on extracts from the Country Information Report of the State Documentation on Somalia, Version 7 (16 January 2025). However, the Constitutional Court pointed out that those extracts related predominantly to the Somaliland region rather than to Mogadishu, which is located in the Banaadir region. Moreover, the Constitutional Court noted that, by the time the Federal Administrative Court delivered its judgment, a more recent version of the Country Information Report, Version 8 (7 August 2025) was already available but had not been taken into account.

The Constitutional Court further held that, apart from noting that the applicant belonged to the Gabooye clan, the lower court had failed to assess his individual circumstances in the event of return to Mogadishu. Its judgment therefore lacked an individualised assessment of the conditions that a person in the applicant's situation would face there. The Constitutional Court referred to the EUAA Country Guidance: Somalia (2 October 2025), which states that an internal protection alternative in Mogadishu may be considered reasonable only in exceptional cases, having regard to the general situation in Mogadishu and the individual's personal circumstances, such as where the person is an able-bodied man or part of a childless couple without additional protection needs, belongs to a local majority clan, possesses an educational or professional background facilitating access to employment, has a support network capable of assisting with access to basic needs, or otherwise has sufficient financial resources. The Constitutional Court noted that the Federal Administrative Court found no obstacles to the applicant's return to Mogadishu, even though he neither belonged to a local majority clan nor had a support network there. It held that the lower court had failed to consider the EUAA Country Guidance in its reasoning, or explain on the basis of which country information it had reached a different assessment from that of the EUAA.

The Constitutional Court therefore held that the Federal Administrative Court had failed to carry out a substantive assessment of whether the applicant would face a risk of a violation of his rights under Articles 2 and 3 of the ECHR if returned either to Burco in the Togdheer region or to Mogadishu. It concluded that, to that extent, the lower court had acted arbitrarily, thereby violating the applicant's constitutional right to equal treatment of foreigners under Article I(1) of the Federal Constitutional Law. Accordingly, it set aside the judgment insofar as it concerned the refusal to grant subsidiary protection, the refusal to issue a residence permit on humanitarian grounds, the return decision, the finding that the applicant's removal to Somalia was lawful, and the determination of a 14-day period for voluntary departure. As regards the remainder of the appeal, concerning the refusal to grant refugee status, the court declined to consider the complaint and referred it to the Administrative Court.