Verwaltungsgerichtshof hebt Schubhaftbescheid eines Uzbeken auf
Federal Administrative Court suspends pre-deportation detention decision of an Usbek
Mr. Y. comes from Usbekistan and in December 2018 traveled with a Lithuanian visa to Austria. On the day of his entry he was apprehended by police officers at a control in Vienna and taken into custody. Subsequently in December 2018 he lodged an asylum application and was taken into pre-deportation detention to for securing his transfer.
In its decision from January 2019, the Federal Asylum Office (FAO) dismissed the asylum application and found Lithuania to be responsible for reviewing the asylum application, and concluded that the deportation there was admissable. In effect, Mr. Y. lodged an appeal to the Federal Administrative Court (FAC) in January 2019.
In addition, he filed a complaint to the FAC against the pre-deportation detention in January 2019. In its decision from January 2019 the Federal Asylum Court (FAC) rejected the appeal, and concluded that the conditions for the continuation of detention, at the time of decision, were met.
Subsequently, the FAC, in its decision from January 2019, granted the appeal in the asylum case and suspended the decision of the FAO. In effect, Mr. Y was released from detention in January 2019.
Later on, end of February 2019, Mr. Y. lodged a high court appeal to the Supreme Administrative Court (SAC) against the negative decision of the FAC in his dentention matter. This was found to be successful, which is why the SAC, in its decision from April 2019, suspended the decision of the FAC from January 2019 due to unlawfullness.
The SAC argued that, according to Dublin Regulations, if an visa applicant possessed a visa to enter a EU member state that had been expired for more than six months, the Member State, in which the applicant lodged an asylum application became responsible for the proceeding.
Thereupon the authority of the Member State that issued the visa, lapsed if the visa had lot its effectivity after six months.
This was the case in the current constellation from the time of apprehension of Mr. Y. in Austria in the beginning of December 2018, as the
effectivity of the visa he received from the Embassy of the Republic of Lithuania ended in May 2018. Therefore the transfer of the appellant to Lithuania, within a proceeding according to Dublin Regulation, could not be considered from the outset, whereby the grounds of the assigned pre-deportation detention were unlawful from the beginning.
In its decision of July 2019, the FAC granted the appeal against the the detention decision from January 2019 und found the detention and the pre-deportation detention from December 2018 until end of January 2019 to be unlawful.