Police Directorate Vienna should have obtained supplementary reports in order to clarify the practice of the Hungarian asylum authorities. It should have addressed the potential violations of fundamental
rights with greater care.
Additionally, the AOB repeated its suggestions to include information
about possible judicial protection remedies before the European Court
of Human Rights in the information summary about the purpose of
detention pending deportation (see Annual Report 2011, p. 149 et
seqq.)
Individual case: VA-BD-I/0012-C/1/2012, BMI-LR2240/0169-II/3/2012
Federal Asylum Office disregards the right to private and family
life
In several family proceedings under the Asylum Act, the Federal Asylum Office refused and/or prevented entry into Austria of
family members and intervened in the right guaranteed by the
Constitution of private and family life being respected pursuant
to Section 8 of the European Convention on Human Rights.
Duty to protect on the
part of the State
Section 8 of the European Convention on Human Rights obligates the
state to effectively respect family life (Austrian Constitutional Court
dated 27.6.2008, case no. 246/07). “Family” includes all family members connected by way of blood relationship, marriage or adoption
who are actually living together or whose relationship consists of a
dependent relationship.
The Asylum Act enables family members of persons who are eligible
for asylum or beneficiaries of a subsidiary protection to file an application for entry into Austria at an Austrian embassy or consulate
abroad. Family members must be given visas for entry if the Federal
Asylum Office informs the embassy that family members will probably be given the same protection as the reference person.
Pursuant to the Asylum Act, only the wife or husband, unmarried, minor children and parents of a minor, illegitimate child fall under the
term “family members". With regard to spouses, the marriage must
have already existed in their home country.
86
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