Verwaltungsgerichtshof hebt Einreiseverbot einer minderjährigen Usbekin auf
Supreme Administrative Court suspends entry ban of minor Usbek
Ms. D is a usbek national und lodged an asylum application, which by decision of March 2017, was rejected in all points and an expulsion ordered.
The appeal lodged against it together with those of her parents were rejected by the Federal Asylum Court (FAC)'s decision of April 2017.
In November, her parents and her, applied for a humanitarian visa according to § 55 Asylum Law, on grounds of the acquired integration in Austria. Consequently the Federal Asylum Office (FAO) in its decisions from January 2019, rejected the applications and again issued expulsion orders in connection with a two year entry ban and the establishment of the admissability of the deportation to Usbekistan.
The FAC, in its decision from February 2019, granted the appeal only concerning the entry ban, which it reduced to 15 months. In all other points the appeal was rejected.
Consequently Ms. D lodged a high court appeal to the Supreme Administrative Court (SAC) in April 2018. In its decision from Mai 2019, the SAC granted the appeal concerning the issuance of an entry ban and suspended the contested decision due to unlawfullness in the aforementioned scope.
The SAC argued that the FAC did not explicitly make any statements that lead to an assessment where the appellant presentedd a danger to public order and safety. The FAC did not make any mention of personal behavior that the appellant could be assigned blame. She was a female minor, that lived with her parents in Vienna, attended school (high school) and did not know that she was not allowed to stay here. Her parents kept her in ignorance.
According to SAC case law regarding the entry ban's obglitaroy threat assessement, the behavior of the foreigner had to be considered in its entirety and then based on concrete statements undertake an assessement, which circumstances constituted a threat or endangerment.
By not respecting the age and the circumstances of the twelwe year old appellant and justifying the entry ban generally as it applied to the whole family, these demands were not met. The FAC did not take into account that behavior shown up to this point had to constitute a threat, so that Ms. would not be allowed to reenter Austria and reside here. The justification of a current threat could not be inferred from the statement of the FAC. According to the content of the justification, the entry ban was iussed by both the FAO and the FAC also a fine for the illegal residence and not leaving Austria.
That raised the questions, why the illegal residence of a 12-year old person, who attended school and was well integrated and not having left Austria could point to future misconduct towards alien law.
Moreover, unlawful residence per se-aside from issuance of an expulsion order-did not always justify the issuance of an entry ban. The objective illegal residence of a child as Ms. D could not be held against her subjectively to the same degree as against her parents. That clearly spoke against a future threat assessment for Ms. D, as she could not leave Austria and go to Usbekistan without her family.
The FAC did not undertake the legally mandatory solitary case examination with regards the circumstances of Ms. D. In summary, the entry ban issued against Ms. did not have a basis, which was why the decision, in the aforementioned scope ,was suspended due to unlawfulness.