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.
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