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26/03/2019
AT: Supreme Administrative Court Asylum rules that asylum seekers are not entitled as parties to a consultation procedure based on Art. 10 of the Dublin III Regulation

ECLI
ECLI:AT:VWGH:2019:RO2018190005.J00
Input Provided By
EUAA Asylum Report
Other Source/Information:
Referral to the CJEU
No
Original Documents
Type
Decision
Relevant Legislative Provisions
Dublin Regulation III (Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for IP);
Reference
Austria, Supreme Administrative Court [Verwaltungsgerichtshof - VwGH], R., R.R, M.M.R., S.R., M.HR., F.R. v Federal Administrative Court (Decisions of May 29, 2018), Ro 2018/19/0005 Joint Cases Ro 2018/19/0006, Ro 2018/19/0007, Ro 2018/19/0010, Ro 2018/19/0009 Ro, 2018/19/0008, ECLI:AT:VWGH:2019:RO2018190005.J00, 26 March 2019. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
https://caselaw.euaa.europa.eu/pages/viewcaselaw.aspx?CaseLawID=932
Case history
Related cases:
Abstract

The case concerns a take charge request from Greece to Austria which was rejected by Austria. The Federal Office reasoned that the Dublin consultation procedure is a process between the Member States. In case the requesting Member State is not satisfied with the rejection, the requesting Member State may submit a request for re-examination in accordance with Art 5.2. of the Implementing Regulation. The Federal Administrative Court and the Supreme Administrative Court confirmed this position.

The appellants were a family from Afghanistan with four children, who together had entered Greece in March 2016. The first appellant travelled on to Austria where, on 22 January 2017, he filed an application for international protection, which was admitted. The other family members filed their applications for international protection in Greece on 27 January 2017. In April, June and July 2017, Greek authorities directed requests to Austrian authorities to take charge of the family members based on Art. 10 of the Dublin III Regulation, in accordance with the family’s written request for reunification with the first appellant.

The Federal Office for Immigration and Asylum refused the requests on grounds that the appellants had been united as a family when they entered Greece and their separation had been intentional. It was further argued that it was not the intention of family reunification under Art. 10 of the Dublin III Regulation to allow a family unit to separate and continue travel to another Member State of their own choosing. On 11 August 2017 the appellants jointly submitted a formal document to the Federal Office for Immigration and Asylum, requesting among other things decisions to be issued ascertaining the authority’s refusals and declaring that the authority had not consented to take charge of the second to sixth appellants because, based on Art. 10 of the Dublin III Regulation, Austria was not responsible for examining their applications for international protection. The Federal Office for Immigration and Asylum largely refused those requests on the grounds that the consultation procedure under the Dublin III Regulation was solely a bilateral procedure between the requesting and requested Member States. In accordance with the Federal Administrative Court, the court of second instance, the Supreme Administrative Court ruled that no Austrian legislation, including the Asylum Act 2005, required a decision to be issued ascertaining whether Austria was the Member State responsible for examining an application for international protection under the Dublin III Regulation and was correspondingly obliged to consent to or refuse a request to take charge of or take back an applicant. Asylum seekers are not entitled as parties to a consultation procedure based on Art. 10 of the Dublin III Regulation. 

Country of Decision
Austria
Court Name
AT: Supreme Administrative Court [Verwaltungsgerichtshof - VwGH]
Case Number
Ro 2018/19/0005 Joint Cases Ro 2018/19/0006, Ro 2018/19/0007, Ro 2018/19/0010, Ro 2018/19/0009 Ro, 2018/19/0008
Date of Decision
26/03/2019
Country of Origin
Keywords
Afghanistan
Dublin procedure
Personal Interview/ Oral hearing
Vulnerable Group