Austria - Constitutional Court, case E 761-766/2018-18

The case concerned the rejection of the asylum applications submitted by a single mother and her five minor children, who are stateless Palestinians from the Gaza Strip and were registered with UNRWA. The Constitutional Court found a violation of equal treatment among foreigners and held that the Federal Administrative Court had failed to recognise the applicants’ right to ipso facto protection as refugees, disregarded UNHRC’s assessment criteria for the Gaza Strip, and did not give sufficient consideration of the vulnerability of a mother mother and her five minor children.

Case status
Case number
E 761-766/2018-18
Date of decision
Court / UN Treaty Body
Austrian Constitutional Court (Verfassungsgerichtshof, VfGH)
Language(s) the decision is available in
Applicant's country of residence
Relevant Legislative Provisions

International Law

  • European Convention on Human Rights (ECHR)
  • Geneva Convention on Refugees (the Refugee Convention)

EU Law

  • Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJ L 337/2011, 9-26 (the Qualification Directive)

The applicants (a mother and her five minor children) are registered as stateless Palestinian refugees from the Gaza Strip with United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). They have fled the Gaza Strip and applied for international protection after entering Austria.

The Austrian Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl, BFA) rejected the applications. The appeals filed against this decision were rejected by the Austrian Federal Administrative Court (Bundesverwaltungsgericht, BVwG). Subsequently, the parties filed a complaint with the Constitutional Court to request the annulment of the Federal Administrative Court’s judgment.

Decision & Reasoning

Palestinians, such as the applicants, would enjoy ipso facto protection under the Refugee Convention and the Qualification Directive if the protection or assistance of an organisation such as UNRWA is no longer granted “for any reason”. This ipso facto protection means that no persecution for the reasons mentioned in Article 1(A) of the Refugee Convention must be established for the granting of refugee status, but only (i) that they had received protection or assistance from UNRWA and (ii) that this assistance has ceased “for any reason”.

By referring to the case law of the ECJ, the Constitutional Court reasoned that the first condition is fulfilled by the presentation of a UNRWA registration card (see ECJ, Case C-31/09 Bolbol point 52). The second condition requires an examination of “whether the departure of the person concerned may be justified for reasons beyond his control and independent of his volition which force him to leave the area in question and thus prevent him from receiving UNRWA assistance” (ECJ, Case C-364/11 El Kott point 61). According to the ECJ, a person is forced to leave the area of operation of a UN organ or agency, within the meaning of the Qualification Directive, if “that person’s personal safety was at serious risk and it was impossible for that organ or agency to guarantee that his living conditions in that area would be commensurate with the mission entrusted to that organ or agency” (ECJ, Case C-585/16 El Kott point 65; also see Case C-585/16 Alheto point 86).

According to the Constitutional Court, the Federal Administrative Court completely disregarded the following circumstances when examining the applicants’ applications. In February 2015, UNCHR published a position coordinated with UNRWA requesting states to refrain from returning Palestinian refugees to the Gaza Strip until there is a tangible improvement in living conditions or a significantly improved humanitarian situation. The ban on deportations serves as a minimum standard and must remain in place “until such time as the situation in Gaza has improved sufficiently”. UNHCR also referred to its request for a “non-removal policy” from 2015 and thus does not seem to assume that the situation has improved sufficiently. UNHCR's assessments are to be given significant weight in the given context, given the role conferred on the UNHCR by the Refugee Convention.

The Federal Administrative Court, without referring to the position taken by UNHCR since 2015, relied on the fact that the applicants did not belong to a particularly vulnerable social group and that their relatives in Gaza received support services from UNRWA. The Federal Administrative Court also referred to country reports according to which “no current significant deterioration of the general situation and the security situation” could be identified. According to the Federal Administrative Court, it was rather notorious that the Palestinian organisations Hamas and Fatah had reconciled in October 2017, which was accompanied by a “gradual improvement” of the security situation in the Palestinian territories.

According to the Constitutional Court, the Federal Administrative Court not only disregarded the special vulnerability of a single mother and her minor children, but also deviated from the assessment criteria that UNHCR has established with regard to the possibility of Palestinian refugees returning to the Gaza Strip. The country reports referred by the Federal Administrative Court do not support the assumption of a noticeable improvement in living conditions or a significantly improved humanitarian situation as requested by UNHCR, nor does it support the "gradual improvement" that the Federal Administrative Court considers to be relevant for the decision at hand.

As a result, the Constitutional Court held that the decision of the Federal Administrative court was arbitrary and therefore needs to be annulled. According to the Constitutional Court, it was not necessary to address the alleged violation of the right to respect for private and family life under Article 8 of the ECHR.


The Constitutional Court ruled that the the rejection of the applicant's claims for international protection and issuance of return decisions violated the applicants’ right to equal treatment among foreigners.