Aberkennungsbescheid mitsamt Einreiseverbot eines Somaliers vom BVwG aufgehoben
Federal Asylum Court overturns a Somalian's withdrawal decision in conjunction with entry ban.
Mr. M. comes from Somalia and in July 2015 he lodged an asylum application. In its decision from April 2017 the Federal Asylum Office (FAO) rejected the application and granted him subsidiary protection.
In the current proceedingds in February 2018 Mr. M. submitted an application of renewal of subsidiary protection. In its decision from October 2018 the FAO officially withdrew his subsidiary protection, found that his deportation to Somalia was permissible, and issued a five year entry ban against him. The FAO argued, with regards to the withdrawal of subsidiary protection, that Mr. M. engaged in criminal behavior as he was finally convicted by the Regional Court in Salzburg end of Jannuary 2018.
Consequently in November 2018 he lodged an appeal to the Federal Asylum Court (FAC) on grounds that subsidiary protection was not be withdrawn, as he could not be deported, and the withdrawal would hinder his integration. Moreover, according to case law, the actual imposed fine and not criminal penalty was to be considered. As the fine imposed was only two years, the prerequisites for a withdrawal were not met. The temporary residence should also not been revoked for the same reason. Furthermore, the withdrawal of the status of subsidiary protection coupled with the expulsion order in conjunction with the entry ban were not admissible according to European High Court case law.
Thereupon, in its decision from September 2019, the FAC granted the appeal of Mr. M. and suspended the contested decision. The FAC argued that, due to the unchanged situation in the country of origin and in the personal situation of Mr. M., the same grounds that led to the status of subsidiary protection, still remained, whereby a withdrawal of Mr. M. was not feasible. A withdrawal on the grounds mentioned and in consideration of the existing case of the Supreme Administrative Court and the European High Court, was also not given, as there was no severe criminal deed committed. The length of the penalty range with two years suspended prison sentence in relation to up to 10 years prison sentence was viewed as minor. Moreover, the Criminal Court, on hand of the suspended prison sentence, expected a positive future prognosis. Furthermore Mr. M. mentioned that he had committed a mistake and regretted it. Due to the circumstances the appeal was to be granted and the decision suspended.