The case concerns the unlawfulness of the deportation of a mother and her two daughters from Austria to Georgia. A reassessment from the court (at the time of the execution of the deportation) leads to the result that the circumstances in favour of the applicants have changed to such an extent that the deportation must be considered disproportionate.
- European Convention on Human Rights (ECHR)
- Federal law regulating the general provisions on the procedure before the Federal Office for Immigration and Asylum for granting international protection, issuing residence titles for reasons worthy of consideration, deportation, toleration and for issuing measures terminating residence, as well as for issuing Austrian documents for aliens (BFA-Verfahrensgesetz – BFA-VG).
- Foreign Police Act (Fremdenpolizeigesetz – FPG)
- Federal Constitutional Law (Bundes-Verfassungsgesetz – B-VG)
The case concerns the deportation of a mother and her two daughters (twelve and five years old at the time of deportation) from Austria to Georgia. After two unsuccessful asylum procedures, the mother and her older, then only, daughter returned to Georgia voluntarily in compliance with the deportation issued against them. After their re-entry, the mother again filed repeated applications for international protection for herself and her elder daughter, and after the birth of the second daughter for her as well.
The applications were rejected by the Austrian Federal Administrative Court (Bundesverwaltungsgericht, BVwG) in September 2019 (due to “decided matter”). At the same time, the Federal Administrative Court issued return decisions (requiring the mother and her daughters to leave the country).
In January 2021, the mother and her two daughters were deported to Georgia. A complaint against the deportations was filed with the Federal Administrative Court, which granted the complaint and declared the deportations unlawful. The Federal Administrative Court concluded that the circumstances had changed since the return decisions were issued in such a way that the effectiveness of the return decisions was no longer sufficiently ensured at the time of the deportations and that the deportations were therefore disproportionate.
The Austrian Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl, BFA) filed an appeal against the decision of the Federal Administrative Court. In this appeal, the Federal Office for Immigration and Asylum objected to the weighing of interests under Article 8 of the ECHR.
The Federal Office for Immigration and Asylum argued that the mother’s misconduct (repeated applications for international protection and various acts to thwart current deportation) was so serious that the public interests in the deportation should be given higher weight.
In summary: The Supreme Administrative Court ruled that the unlawfulness of the deportation assumed by the Federal Administrative Court was justifiable due to its disproportionality. According to the Federal Administrative Court the circumstances in favour of the applicants have changed to such an extent that the deportation must be considered disproportionate.
The Supreme Administrative Court stated that even if all requirements are met, it is at the discretion of the authorities whether a foreigner is to be deported. There is no unconditional obligation to deport.
The lawfulness of the deportation must be assessed at the time it is carried out. On the one hand, the return decision – as the basis for the deportation – can lose its effectiveness if, in the meantime, the weighing of interests under Article 8 of the ECHR (respect for private and family life) turns out in favour of the applicants. This is the case if the private interests of the foreigners in remaining in Austria outweigh the opposing public interests in the deportation. On the other hand, the deportation, which is subject to the general principle of proportionality, may be unlawful if the circumstances in favour of the foreigners have changed to such an extent that the deportation must be considered disproportionate.
According to the case law of the Supreme Administrative Court, the weighing of interests under Article 8 of the ECHR must also consider whether a foreigner should have been aware of his/her insecure residence status (which would be against his/her interests). However, the best interests of the children must also be taken into account, in particular the degree of difficulties the children face in the home state, as well as the social, cultural, and family ties to both the state of residence and the home state.
The decisive question before the Federal Administrative Court was whether the grossly abusive misconduct of the mother (repeated thwarting of deportations) or the best interests of the older daughter were more important.
In the case at hand, the Federal Administrative Court decided on a case-by-case basis and assumed that the twelve-year-old daughter had continued to integrate and socialize in the 16 months between the issuance of the return decision and the deportation. She had no longer been at an “adaptable” age. Taking due account of the best interests of the child, the factual situation had therefore changed to such an extent that it had not been sufficiently certain whether the return decision issued against the older daughter had still been effective. Therefore, the deportation was disproportionate.
The review of this ruling by the Supreme Administrative Court is only admissible if it involves legal questions of fundamental importance. A legal issue is considered to be of fundamental importance if the contested Federal Administrative Court ruling departs from relevant past decisions of the Supreme Administrative Court, or if there is no – or no consistent – case law on the issue in question. Individual case-related assessments such as the present one, can only be reviewed by the Supreme Administrative Court if the weighing of interests is grossly erroneous and thus carried out in an unjustifiable manner that impairs legal certainty.
The Supreme Administrative Court held that this assessment was justifiable, especially since the twelve-year-old daughter was born in Austria, lived here for more than ten years and shows excellent integration, also at school. The decision in turn also affects the mother and the younger sister.
The Supreme Administrative Court ruled that the unlawfulness of the deportation assumed by the Federal Administrative Court was justifiable due to its disproportionality. As a result, the appeal against this decision was rejected since in this individual case there was no gross misjudgement by the Federal Administrative Court and the Federal Office for Immigration and Asylum thus failed to demonstrate a legal question of fundamental importance.
VwGH 18.12.2019, Ra 2019/14/0542; VwGH 21.12.2017, Ra 2017/21/0179 - 0182; VwGH 29.6.2017, Ra 2017/21/0089; VwGH 8.4.2021, Ra 2021/21/0005; VwGH 22.8.2019, Ra 2019/21/0172; VwGH 25.3.2021, Ra 2020/21/0285; VwGH 20.10.2011, 2010/21/0056; VwGH 29.6.2017, Ra 2017/21/0089; VwGH 13.11.2018, Ra 2018/21/0205 - 0210; VwGH 13.11.2018, Ra 2018/21/0205 - 0210; VwGH 30.8.2017, Ra 2017/18/0070 - 0072; VwGH 15.3.2022, Ra 2021/21/0286; VwGH 12.11.2019, Ra 2019/21/0096; VwGH 8.9.2021, Ra 2021/20/0166 bis 0170; VwGH 21.12.2021, Ra 2019/21/0411; VwGH 11.5.2017, Ro 2017/21/0006; VwG; 27.4.2020, Ra 2020/21/0121; VwGH 23.1.2020, Ra 2019/21/0250; VwGH 25.4.2019, Ra 2018/22/0251 - 0256; VwGH 26.1.2017, Ra 2016/21/0305 - 0310; VwGH 28.5.2020, Ra 2019/21/0336