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AT: Supreme Court on interpretation of subsidiary grounds in accordance with EU Law

ECLI: AT: Administrative Court: 2019: RO2019190006.J00
Input Provided By
EUAA Asylum Report
Other Source/Information:
Referral to the CJEU
Original Documents
Relevant Legislative Provisions
European Convention on Human Rights; National law only (in case there is no reference to EU law/ECHR); Revised Qualification Directive (Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as BIP for a uniform status for refugees or for persons eligible for subsidiary protection- recast)/or QD 2004/83/EC;
Austria, Supreme Administrative Court [Verwaltungsgerichtshof - VwGH], A.A. v Federal Administrative Court (Decision of December 5, 2018 , I403 2143815-1 / 17E), Ro 2019/19/0006 , ECLI: AT: Administrative Court: 2019: RO2019190006.J00, 21 May 2019. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
Case history
Related cases:

The case examines whether deficiencies in the health system or in the supply situation in the country of origin could lead to an infringement of ECHR. The Federal Administrative Court (BVwG) dismissed the applicant's appeal regarding the application for international protection, issuing the return decision and setting a deadline for voluntary departure.

The Supreme Administrative Court also dealt with the question of how to interpret Art. 8 para 1 of the Asylum Act 2005 in accordance with EU law, an issue previously unresolved by case law. Here the Supreme Administrative Court adhered to its previous rulings, according to which the granting of subsidiary protection as set out in Art. 8 para 1 of the Asylum Act 2005 can be based on the real risk of violating Art. 2 and 3 of the European Convention on Human Rights (ECHR) as a result of rejecting a foreigner at the border or forcibly returning or removing that individual to the person’s country of origin. Such a risk need not result from the conduct of third parties or from a threat arising in an armed conflict. Thus, the Supreme Administrative Court did not concur with the opinion of the Federal Administrative Court, which had ruled that the decision to grant such status was to be based exclusively on the Qualification Directive, without applying the provision in Art. 8 para 1 of the Asylum Act 2005.  

Country of Decision
Court Name
AT: Supreme Administrative Court [Verwaltungsgerichtshof - VwGH]
Case Number
Ro 2019/19/0006
Date of Decision
Country of Origin
Assessment of Application
Country of Origin Information
Medical condition