Austria has no land border with third countries. All neighbouring states are Schengen Associated States and Member States, party to the Dublin Regulation.
Asylum seekers who apply for international protection at the airport are transferred after the interview by the police to the building of the police station with the EAST and the rejection zone. On the basis of the first interview, the BFA decides whether the procedure shall be processed under the special regulations of the airport procedure, or if the case should be considered under the regular procedure and the asylum seeker should be summoned by the BFA.1
If the BFA intends to reject the application in the airport procedure, UNHCR has to be informed within one week, a time limit which is generally respected.2 In the context of Dublin procedures at the airport, UNHCR is not involved.
Under Article 33(1) AsylG, an asylum application lodged at the airport can only be rejected as inadmissible or dismissed on the merits on two grounds:
(a) Inadmissible by reason of existing protection in a safe third country; or
(b) Dismissed on the merits if there is no substantial evidence that the asylum seeker should be granted protection status and:
i. the applicant tried to mislead the authorities about their identity, citizenship or authenticity of their documents and they were previously informed about the negative consequences of doing so;
ii. the applicant’s claims relating to the alleged persecution are obviously unfounded;
iii. the applicant did not claim any persecution at all; or
iv. the applicant comes from a safe country of origin.
For procedures in the initial reception centre of the airport, one interview is regarded as sufficient. Furthermore, the rejection decision has to be approved by UNHCR, otherwise the application is admitted to the regular procedure and the asylum seeker is allowed entry.3
Detention measures – more precisely the measures which require the asylum seeker to stay in the EAST at the airport, limiting their freedom of movement – which are ordered to implement rejection at the border can only be maintained for a maximum duration of six weeks. During the asylum procedure at the airport, the assumption that the asylum seeker is not entitled to enter applies and a rejection of the asylum seeker at the border is conducted automatically. Therefore, at this stage, a decision rejecting the asylum application on the merits or as inadmissible is issued without expulsion order. Rejection at the border may be enforced only after a final decision on the asylum application.
Most cases processed at the airport were Dublin procedures. Most decisions as manifestly unfounded claims at the airport are appealed. The BVwG rejected 11 appeals of asylum seekers,4 most of them from India and China.
In 2016, a reform entered into force to allow for special measures at the border for the maintenance of public order during border checks, which will effectively enable police authorities to deprive asylum seekers of access to the asylum procedure (see Access to the Territory).
In procedures at the airport, only one personal interview is conducted.5 There are no other differences compared to the system for personal interviews under the regular procedure.
The time-limit for lodging appeals against a decision by the BFA in procedures at the airport is 2 weeks.6 The BVwG must render its decision within 2 weeks from the submission of the complaint.7 A hearing in the appeal proceedings must be conducted at the EAST at the airport,8 yet this rarely happens in practice.
In all other cases the same system for appeals applies as described in the section on Regular Procedure: Appeal. In practice, the short time limit for lodging an appeal creates the same obstacles for asylum seekers as in the Admissibility Procedure: Legal Assistance.
The same system for legal assistance applies as described under the regular procedure. One NGO, Caritas, was present at the airport and assisted asylum seekers until recently. The contract of Caritas was ended after 13 years by the end of 2016. The Swiss company ORS, which is contracted by the Ministry of Interior for provision of basic care in the reception centres of the Ministry, will be responsible for caring for asylum seekers in the airport special transit centre.9 This will have an impact on the extent of care and advice, namely legal advice during the first instance procedure that has been provided by Caritas until now.
- 1. Article 31(1) AsylG.
- 2. Article 32(2) AsylG.
- 3. Article 33(2) AsylG.
- 4. Information obtained through the legal information system (RIS), Decisions of the BVwG.
- 5. In procedures at the airport, only one personal interview is conducted. There are no other differences compared to the system for personal interviews under the regular procedure.
- 6. Article 33(3) AsylG.
- 7. Article 33(4) AsylG.
- 8. Article 33(4) AsylG.
- 9. Der Standard, ‘Aus für Caritas-Flüchtlingsbetreuung am Flughafen’, 13 January 2017, available in German at: http://bit.ly/2kmxmsn.