Dublin Regulation: Ruling on humanitarian clause obliges Austria to examine asylum claim to allow applicant to provide care for a dependent relative

by zoejardiniere

09.11.2012 The Grand Chamber of the Court of Justice of the European Union (CJEU) this week issued a ruling on the Case C-245/11 concerning an asylum applicant in Austria, who had previously applied for asylum in Poland. Under the Dublin Regulation, the Austrian authorities requested that Poland readmit the person and examine her claim. However, the Court ruled that in this case, the Austrian authorities must apply Article 15 (2), the humanitarian clause, to allow the asylum seeker to stay with and provide care for her daughter-in-law, who is dependent on the applicant.

The circumstances of the case are that the claimant’s daughter-in-law already has refugee status in Austria, along with her husband. The daughter-in-law suffers from a serious illness and handicap following a traumatic occurrence which took place in a third country, leaving her unable to care for her children. The daughter-in-law cannot rely on her husband for care as, if what happened to her were to become known, it is believed that she would risk violent treatment at the hands of male members of the family.

The court ruled that where there is a situation of dependence, the Member State is normally obliged to keep those persons together. According to the Court, derogations from this obligation are only justified in exceptional circumstances but no such circumstances were found in this case.  Also, the Court interpreted that the person seeking asylum does not have to be the dependent person to trigger the application of the ‘humanitarian clause’.

Usually, the ‘humanitarian clause’ has been used to bring a dependent person to the country where the carer already resides. In this case, the Court underlined that that the ‘humanitarian clause’ may be used not only to ‘bring’ families together, but also to ‘keep’ them together, as the claimant and her relative are both already in the same country.

In an analysis of the case prior to the CJEU ruling, Professor of Law Steven Peers argues: “Of course, this case should never have arisen at all, because the Austrian officials concerned should have seen the obvious human problems at stake in this case and applied the humanitarian clauses in the law as they were always intended to be used. Even in purely economic terms, ignoring the human misery involved entirely, the cost of dealing with the mother-in-law’s asylum application is probably less than the cost of putting three children in care! The underlying problem is that the Dublin rules themselves allow this to happen in the first place and the revised Regulation will still not prevent further cases like these from happening in future”.