Communicated on 6 November 2016

FOURTH SECTION

Application no. 32830/15 A.M. against Austria lodged on 3 July 2015

STATEMENT OF FACTS

The applicant, Mr A.M., is a Somali national, who was born in 1990 and currently lives in the Netherlands. He is rep resented before the Court by Ms N. Jakober , a lawyer practising in Vienna.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was granted subsidiary protection status in Italy in December 2008.

He subsequently travelled to the Netherlands, where he lodged another application for international protection in February 2009. Based on Italy ’ s agreement to take back the applicant in accordance with Council Regulation (EC) No. 343/2003 (“the Dublin II Regulation”), the Netherlands rejected his application in April 2010.

The applicant remained in the Netherlands, where he met his future wife, who lived in Austria and had been entitled to asylum there since 2009, during a wedding in December 2011. They stayed in contact through phone and internet. On 15 January 2013, they got married in a religious ceremony in the Netherlands but continued to live s eparately (the applicant in the Netherlands and his wife in Austria).

On 13 July 2013, the applicant entered Austria and applied for international protection. From then on, he lived together with his wife.

In the course of proceedings, the Federal Asylum Office ( Bundesasylamt ) initiated consultations with Italy and the Netherlands under the Dublin II Regulation. Whereas the Italian authorities refused to do so, the Netherlands agreed to take back the applicant under Article 16 § 1 (e) of the Dublin II Regulation.

While proceedings were pending, the applicant informed the Federal Asylum Office about his wife ’ s pregnancy and about their civil wedding which had taken place on 16 October 2013. The Federal Asylum Office conducted a hearing and informed the applicant about its intention to reject his application and expel him to the Netherlands in accordance with their responsibility for examining his application under the Dublin II Regulation. The applicant argued that he wanted to live in Austria with his wife and child; that his wife needed his support due to her pregnancy; and that he could not return to the Netherlands because he would be returned to Italy.

By decision of 12 December 2013, the Federal Asylum Office rejected the applicant ’ s application, held that the Netherlands were responsible for examining the application and expelled the applicant to the Netherlands. It found that there was no reason to examine the application under Article 3 § 2 of the Dublin II Regulation and that the expulsion did not violate Article 8 of the Convention because there was no family life protected by Article 8 at stake, as the marriage had not yet existed in the country of origin and, in view the applicant ’ s submissions, no considerable family life could have developed; there was no dependency between the applicant and his wife; he must have been aware of his uncertain legal status at the time when the relationship was established; family contacts to Austria could be upheld by phone, personal visits, letters and e-mail; and the relationship to his unborn child was not covered by Article 8 of the Convention.

By decision of 14 February 2014, the Federal Administrative Court ( Bundesverwaltungsgericht ) dismissed the applicant ’ s appeal against this decision. It confirmed that Article 8 of the Convention did not require an examination of his application under Article 3 § 2 of the Dublin II Regulation, noting that he had established family life but that the personal relationship had only existed for a short time, namely half a year, and that before that they had only been in contact via telephone and internet; before the religious wedding ceremony they had only once met in person and afterwards, the applicant had remained in the Netherlands for another half year whereas his wife had returned to Austria. Furthermore, it stressed that the applicant had entered into the relationship at a time when he must have been aware of his unsecure residential status and could not expect to be able to continue family life in Austria. Accordingly, protection of the family life under Article 8 of the Convention would be required only on the basis of exceptional circumstances. The applicant ’ s wife ’ s pregnancy was no such exceptional circumstance, as it was a personal decision of the applicant and his wife while fully aware of the applicant ’ s unsecure residential status. They had met and got married in a religious ceremony in the Netherlands, which proved that the applicant ’ s wife was mobile, had contacts in the Netherlands and could uphold family life by (further) visits to the Netherlands. An overall examination of the development and intensity of family life and the public interest in an orderly enforcement of the responsibility rules of the Dublin II Regulation showed that the interference with family life was justified under Article 8 § 2 of the Convention, keeping in mind that this provision did not protect any rights with regard to unborn children. The Federal Administrative Court further concluded that with regard to the circumstances of the case, the interference with the applicant ’ s private life was justified because public interests in the applicant ’ s expulsion outweighed the applicant ’ s personal interest in staying.

In the end of February 2014, the applicant ’ s expulsion to the Netherlands was enforced.

The applicant complained before the Constitutional Court ( Verfassungsgerichtshof ) against the Federal Administrative Court ’ s decision, claiming inter alia that the different treatment of pre-flight marriages and post-flight marriages violated Article 14 in conjunction with Article 8 of the Convention. In consideration of the Court ’ s judgment in the case of Hode and Abdi v. the United Kingdom , no. 22341/09, 6 November 2012, Austria would have been obliged to examine the applicant ’ s application under the Dublin II Regulation. Furthermore, he claimed that his expulsion violated Article 8 of the Convention because in her present situation, his wife could not reasonably move to the Netherlands and she would lose her right of residence in Austria if she did so. A family reunion under the Settlement and Residence Act ( Niederlassungs - und Aufenthaltsgesetz ) was not possible because they were not able to obtain the necessary minimum income. The Federal Administrative Court had also failed to assess whether family life could reasonably be resumed in another country.

On 6 May 2014, the applicant ’ s son was born. He was granted asylum status as a family member on 11 June 2014.

By decision of 6 June 2014, the Constitutional Court decided not to examine the complaint on the grounds that the alleged violations of rights did not raise constitutional questions and that the Federal Administrative Court ’ s considerations with regard to Article 8 of the Convention could not be objected from a constitutional perspective; as requested by the applicant, the complaint was referred to the Administrative Court ( Verwaltungsgerichtshof ).

By decision of 26 November 2014, the Administrative Court rejected the complaint, pointing out inter alia that Section 46 of the Settlement and Residence Act provided for the non-discriminatory possibility of a family reunion in order to avoid violations of Article 8 of the Convention with regard to family members of persons entitled to asylum.

COMPLAINTS

The applicant complains under Article 8 of the Convention about the rejection of his application for international protection on the ground that the Netherlands are responsible to examine the application under the Dublin II Regulation and his expulsion to the Netherlands, claiming that neither would the establishment of family life be possible in another country nor could the applicant fulfil the requirements for a residence permit in Austria regarding the necessary minimum income. He further complains under Article 14 in conjunction with Article 8 of the Convention about the different treatment of pre-flight spouses and post-flight spouses of refugees with regard to family reunion under the Asylum Act, claiming that he suffered discrimination on the ground of his status as a post-flight spouse.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention?

2. Has the applicant suffered discrimination, contrary to Article 14 of the Convention read in conjunction with Article 8?

(Reference is made to the Court ’ s judg ments in the cases of Hode and Abdi v. the United Kingdom , no. 22341/09 , 6 November 2012 , and Biao v. Denmark [GC], no. 38590/10, 24 May 2016) .