Refusals of entry at the Austrian-Italian border
In 2015, Italy, Germany and Austria agreed to common police controls in trains from Italy to Germany between the train stations Trentino and Brenner. Refugees without valid travel documents had to leave the train in Bozen. The government of South-Tyrol installed a centre for refugees at the railway station at the Austrian-Italian border of Brenner.1 Italy started in June 2015 with border controls, the newspaper Der Spiegel reported. The Italian police reacted to a request from Germany.
Refusals of entry at the Austrian-Slovenian border
At the beginning of 2016, there were a lot of rejections at the Slovenian border. Out of 3,723 rejections, 3,225 concerned Slovenia where 2,246 persons were rejected in January 2016 and 775 in February 2016.2 It turned out that policemen at the border relied on interpreters with poor knowledge of the languages spoken by the people trying to enter.3
There have been two dozen complaints against rejections which were partly upheld by the State Administrative Court (Landesverwaltungsgericht) (LVwG) of Styria. The Court deemed it unlawful for refugees to be turned away despite their declaration of wanting to seek asylum in Germany or Austria, because these decisions were arbitrary.4 According to Article 14(2) of the Schengen Borders Code, a refusal of entry can only be done through a decision on well-founded grounds. Although refusal of entry documents were issued, the reasons for such rejections employed standard wording e.g. “no war area”, “no humanitarian reason”, or “just wants a better life.”
Special provisions to maintain public order during border checks
With the latest legal amendment which entered into force on 1 June 2016, “special provisions to maintain public order during border checks” were added to the Asylum Act.5
The provision (discussed publicly as “emergency provision”), upon activation by a decree of the federal government, entails that asylum seekers no longer have access to the asylum procedure in Austria. Decisive for denying asylum applications is a maximum number, otherwise a ‘quota’, of asylum applications to be examined on the merits. For 2016 this number was set at 37,500 applications and was not reached.6 For 2017 the limit is set at 35,000 applications, yet the government recently proposed a clear reduction.
The possibility of rejection at the border relies on the distinction between “making” and “lodging” an asylum application as per Article 6 of the recast Asylum Procedures Directive. After an application is made before a police officer at the border, or in a registration centre (Registrierstelle) if the person is found to be irregularly on the territory, the Aliens Police will be able to reject the person at the border or to issue a return decision during the initial interview (Erstbefragung).7
Refusal to register an application is not possible where return would be incompatible with the principle of non-refoulement under Articles 2 and 3 ECHR, or with Article 8 ECHR.8
An asylum seeker is not issued a decision ordering return, and cannot appeal against the refusal to have his or her claim examined. In such a case, the asylum seeker has no right to remain on the territory,9 therefore an appeal to the State Administrative Court (LVwG) does not have suspensive effect.10
The amendment has been criticised by UNHCR and civil society organisations,11 as it enables police authorities rather than the BFA to deny a person access to the asylum procedure, without procedural guarantees or legal assistance, while an appeal can only be made after the expulsion has been carried out. The activation of the emergency provision also suspends the application of the Dublin Regulation.
- 1. ORF, ‘Kritik an österreichischen Grenzkontrollen‘, 22 April 2015, available at: http://bit.ly/1ILWXF1.
- 2. Ministry of Interior, Reply to parliamentary question 10544/J (XXV.GP), 9 December 2016, available in German at: http://bit.ly/2jez65e.
- 3. Ö1, ‘Mängel bei Grenzmanagement in Spielfeld’, 10 March 2016, available in German at: http://bit.ly/2jeETaS.
- 4. LVwG Styria, Decision 20.3-918/2016-15, 9 September 2016, available in German at: http://bit.ly/2jRiX7z.
- 5. Articles 36-41 AsylG.
- 6. Out of a total, 42,073 asylum applications registered in 2016, only 27,254 were deemed to be under the responsibility of Austria: Ministry of Interior, Asylum Statistics December 2016, available in German at: http://bit.ly/2k2N2Ue, 3.
- 7. Article 38 AsylG.
- 8. Article 41(1) AsylG.
- 9. Article 39 AsylG.
- 10. Article 41(2) AsylG.
- 11. UNHCR Austria, Kurzanalyse zum Gesamtändernden Abänderungsantrag betreffend eine Änderung des Asylgesetzes durch Sonderbestimmungen zur Aufrechterhaltung der öffentlichen Ordnung und des Schutzes der inneren Sicherheit während der Durchführung von Grenzkontrollen, 21 April 2016, available in German at: http://bit.ly/1MJVVM5; Asylkoordination Österreich et al, Stellungnahme zum Entwurf betreffend ein Bundesgesetz, mit dem das Asylgesetz 2005, das Fremdenpolizeigesetz 2005 und das BFAVerfahrensgesetz geändert werden, 21 April 2016; available in German at: http://bit.ly/2jx6Z29.