The Federal Agency for Immigration and Asylum (BFA) is a specific department of the Ministry of interior, dealing with asylum matters. From 2014 onwards, the tasks of the Agency are extended to cover some immigration law procedures.
According to the General Administrative Procedures Act (AVG), decisions have to be taken within 6 months after the application has been submitted. Within 20 calendar days, the BFA has to decide whether it intends to reject the application as inadmissible due to the responsibility of another Member State under Dublin, the existence of a safe third country or for being a subsequent asylum application, or to dismiss the application for other reasons. If no procedural order is notified to the asylum seeker within 20 days, the asylum application is admitted to the regular procedure – except in Dublin cases if requests to other Member States to take charge or take back the asylum seeker are made within this time frame. An amendment of Article 22 AsylG, entering into force on 1 June 2016, allows for the extension of the duration of procedures at first instance up to 15 months.
Numbers for asylum applications not decided within 15 months by the Federal Administrative Court are not available. The average duration of the procedure during the first three quarters of 2016 was 8.2 months.1 This represents an increase compared to 5.3 months in September 2015, and 3.3 months in December 2014.2 Former Minister of Interior, Johanna Mikl-Leitner had stated in 2015 that Austria was “the asylum-express” compared to other EU Member States.3 According to experience of NGOs, asylum seekers often wait more than 10 months for an appointment for the first interview.
Whereas the procedure for Syrians and Iraqis seems to be concluded within the 15-month time limit, other nationalities face delays of approximately 3 years for a decision.4
In case of delay of the BFA, the asylum seeker may apply for devolution, upon which the file will be rendered to the Federal Administrative Court for a decision. However, in practice asylum seekers do not frequently apply for such devolution, as they miss a chance of receiving a positive decision at first instance (by the BFA). However, due to the amendments entering into force on 1 June 2016, which have restricted refugees’ right of residence to 3 years (see Residence Permit) and have imposed restrictions on family reunification (see Family Reunification: Criteria and Conditions), such complaints were often introduced in 2016. The Administrative High Court held that applications made in 2015 which had not been decided upon by the BFA did not amount to an infringement, given the impact the sharp increase in asylum applications had on the length of the asylum procedure.5
In the case of a delay of the Federal Administrative Court, an application to request a deadline may be addressed to the Administrative High Court.
The time limit for decisions for the BFA and the Federal Administrative Court are reduced to 3 months in case the asylum seeker is detained pending deportation.6 The same maximum time limit applies to the “procedure for the initiation of a measure terminating residence” (see the section on Accelerated Procedure).
The practice of fast-track processing of cases from certain countries of origin which do not fall within the scope of the “safe countries of origin” list and the accelerated procedure was not observed in 2016. This is due to the fact that the list of safe countries of origin has been extended to countries such as Algeria, Tunisia, Morocco, Georgia and Ghana (see Safe Country of Origin). In the second half of 2016, the BFA concentrated on Dublin procedures to keep the option of sending asylum seekers to other EU Member States.
In relation to refugees from Syria that are resettled in Austria,7 the Ministry of Interior announced that they will be granted asylum immediately upon arrival (asylum ex officio). In 2014 and 2015 most of the resettled refugees received positive decisions within a few days. However, in 2016 the procedures took much longer, and they often had to wait for several months for the interview on their case. Generally, Syrians have faced longer procedures in 2016 compared to previous years.8
All asylum seekers must have one personal interview. Asylum seekers are subjected to an interrogation by the public security service shortly after making the application.9 Such interrogation is conducted in particular with a view to ascertaining the identity of the asylum seeker and the travel route. Such interrogation shall not refer to the specific reasons for fleeing and lodging an asylum application. In practice, statements of the asylum seeker in this part of the admissibility procedure are accorded increased credibility, notwithstanding the fact that the interrogation is conducted by the police and not by the person responsible for the decision. The Constitutional Court ruled that the provision protects asylum seekers who may arrive exhausted and should therefore not be interrogated about their possibly traumatising reasons for flight by uniformed security officers.10
Asylum seekers may be accompanied by a person they trust (person of confidence). Unaccompanied children must not be interviewed without the presence of their legal representative.
If the asylum seeker’s fear of persecution is based on infringement of the right to sexual self-determination, they shall be interviewed by an official of the same sex unless they request otherwise. The authorities must prove that they have informed the asylum seeker of such possibility.11 In practice, this is not consistently applied with regard to interpreters. In the appeal procedure, infringements of the right to sexual self-determination have to be expressed in the written appeal in order to have the hearing at the Court held by a judge of the same sex. The Constitutional Court ruled that UNHCR guidelines have to be applied to male asylum seekers accordingly.12
Interpreters are provided by the BFA. Interpreters are available for most languages of the countries of origin, but interviews may also be conducted in a language the asylum seeker is deemed to understand sufficiently. With regard to countries with higher numbers of asylum seekers this practice is not satisfactory (e.g. Chechen refugees are often interviewed in Russian). Asylum seekers from African countries are often interviewed in English or French, languages they are supposed to understand. Asylum seekers are asked at the beginning of the interview if they understand the interpreter. There are no standards for the qualification of interpreters in asylum procedures. Interpretation is often not done by accredited interpreters; usually persons with the requested language knowledge are contracted on a case-by-case basis.
Article 19(3) AsylG allows for tape recording of the interview, which is, however, rarely used in practice. Video conferencing is not foreseen in law.
The transcript is more or less verbatim. Its content may depend on the interpreter’s summarising the answers, choosing expressions that fit for the transcript or translating each sentence of the asylum seeker. Immediately after the interview, the transcript is translated in a language the asylum seeker understands and the asylum seeker has the possibility to ask for corrections and completion immediately after the interview. By signing the transcript, they agree with the content. If asylum seekers find something incorrect in the transcript after having signed it at the end of the interview, they should send a written statement to the BFA as soon as possible. In practice, asylum seekers do not frequently ask immediately after the interview for correction of the report. Some asylum seekers explain that they were too tired to be able to follow the translation of the transcript. Asylum seekers often realise that mistakes in the translation or the transcript were made when they receive a negative first instance decision and a legal adviser explains them the details of the transcript.
Appeals against a negative first instance decision have to be submitted within 4 weeks of the receipt of the decision and the whole file is forwarded by the BFA to the Federal Administrative Court (BVwG).13
Previously, the time limit was 2 weeks. However, the Constitutional Court ruled on 23 February 2016 that deviation of Article 16(1) BFA-VG from the general 4-week time limit for submitting an appeal to the Federal Administrative Court14 is unjustified, as it is not necessary in the case of a rejection decision which is not connected with an expulsion order and the applicant is still entitled to remain on the territory.15 The BFA-VG was amended to reflect the ruling.
The BFA may make a pre-decision of the appeal within 2 months.16 This pre-decision may change the decision in any direction (annul, reject or change the decision). The BFA, however, may refrain from deciding and forward the appeal to the Court.
In case refugee status or subsidiary protection status is not granted by the BFA, the asylum applicant will be assigned a free legal adviser provided by the state at the time of notification of the first instance decision (see the section on Legal Assistance below).
Article 18(1) BFA-VG provides that suspensive effect may be withdrawn by the BFA where the application is manifestly unfounded, i.e. where:
The applicant comes from a safe country of origin;
Has already been resident in Austria for at least 3 months prior to the lodging of the application;
The applicant has attempted to deceive the BFA concerning their true identity or nationality or the authenticity of their documents;
The asylum seeker has not adduced any reasons for persecution;
The allegations made by the asylum seeker concerning the danger they face clearly do not correspond with reality;
An enforceable deportation order or an enforceable entry ban was issued against the asylum seeker prior to the lodging of the application for international protection; or
The asylum seeker refuses to give fingerprints.
Moreover, the BFA must withdraw the suspensive effect of an appeal where:17
The immediate departure of the third-country national is required for reasons of public policy or public security;
The third-country national has violated an entry ban and has returned to Austrian territory; or
There is a risk of absconding.
The BVwG must grant suspensive effect within 1 week from the lodging of the appeal, where it assumes that return would expose the person to a real risk of a violation of Articles 2, 3 and 8 ECHR or Protocols 6 or 13 ECHR, or to a serious threat to life or person by reason of indiscriminate violence in situations of conflict in line with Article 15(c) of the Qualification Directive.18 Appeals against the rejection of an application with suspensive effect have to be ruled by the Court within 8 weeks.19 The asylum appeal has suspensive effect as long as the case is pending in court.
The BVwG is organised in chambers, each of which is responsible for certain groups of countries. Most of the judges of the BVwG previously worked at the Asylum Court, before it was replaced.
It has only limited competence of review, determined by the content of the appeal. In the view of the Federal Administrative Court and in relation to this link to the grounds and argumentation of the appeal that limits the subject of the appeal, it is necessary to accept an appeal with at least rudimentary grounds during the time-limit, in order to handle the appeal at all. An appeal lacking any argumentation or ground is not to be accepted for a process of improvement and has to be rejected immediately.20
The BVwG can call for another hearing and additional examinations if necessary. The BFA-VG allows exceptions from the principle that a hearing shall take place on the appeal. Such hearing must indeed not be held if the facts seem to be established from the case file and appeal submission or if it is established that the submission of the applicant does not correspond with the facts.21 This provision must be read in light of the restrictions on the submission of new facts in the appeal procedure.
The question whether a personal hearing before the Asylum Court (now replaced by the BVwG) has to take place or not has been brought before the Constitutional Court (VfGH). The Court ruled that not holding a personal hearing in the appeal procedure does not violate Article 47(2) of the EU Charter of Fundamental Rights; Charter rights may be pleaded before the Constitutional Court. The Court stated that Article 41(7) AsylG22 is in line with Article 47(2) of the EU Charter if the applicant was heard in the administrative procedure.23 However, subsequent rulings of the Administrative High Court and the Constitutional Court have conversely specified the obligation of the Administrative Court to conduct a personal hearing. In the case of an Afghan asylum seeker, the Administrative Court had confirmed the first instance decision which found the asylum seeker’s application to be lacking credibility due to discrepancies in statements about his age. The Constitutional Court ruled that, by deciding without a personal hearing, the Administrative Court had violated the right laid down in Article 47(2) of the EU Charter.24 Two rulings to the same effect were delivered by the Constitutional Court in September 2014.25
The Administrative High Court has specified that all relevant facts have to be assessed by the first instance authorities and have to be up to date at the time of the decision of the court.26 According to this Court, it was not necessary to explicitly demand an oral hearing if the facts were not sufficiently clear or if the statements of the applicant in his or her appeal contradicted the statements taken by the first instance authority.27
The possible outcome of this procedure can be the granting of a status, the refusal of status, or a referral by the BVwG back to the BFA for further investigations and a re-examination of the case. Hearings at the Court are public, but the public may be excluded on certain grounds. Decisions of the (former) Asylum Court and BVwG are published on the legal information website of the Federal Chancellery.28
As of 2014, the decision of the BVwG may be appealed before the VwGH. The eligibility to appeal to the VwGH is ruled by the BVwG, but in case the Administrative Court does not allow the regular appeal, the asylum seeker may request for an “extraordinary” revision. For that purpose, the applicant may submit a request for free legal assistance as well as for suspensive effect of the complaint.
In case the asylum applicant seeks to challenge the decision of the BVwG and if he or she claims it is violating a right that is guaranteed by the constitution, he or she can appeal to the Constitutional Court within 6 weeks, after the ruling of the Federal Administrative Court has become final. Asylum seekers are informed of the possibility to address a complaint to the Constitutional Court in writing; the information is translated in a language the asylum seeker understands. In that context, it has to be mentioned that the ECHR is a part of Austria’s constitutional law. Therefore the risk of violation of Articles 2, 3 or 8 ECHR could be claimed at the Constitutional Court, while the refusal of refugee status is not covered by the Court’s competence. The appeal does not have automatic suspensive effect. Only very few decisions of the Asylum Court (now BVwG) have been found unlawful by the Constitutional Court, and in those cases mainly because the decision was found extremely arbitrary to the extent that it amounted to being unlawful.
Asylum seekers encounter difficulties to access constitutional appeals due to a submission fee of about €240. Furthermore, asylum seekers are not heard in person before the Constitutional Court, which rather requests written statements from the BVwG.
Legal assistance at first instance
During the regular procedure at the BFA, asylum seekers are offered free legal advice at the branch offices of the BFA. Asylum seekers have to travel to the BFA, which may be difficult when their place of residence is far away from the office or in remote areas.
This legal advice is funded by the Asylum, Migration and Integration Fund (AMIF) and co-funded by the Ministry of Interior. One association, Verein Menschenrechte Österreich, covers legal advice in 9 out of 10 BFA branch offices. Information on the number of consultation hours financed was not made available by the BFA or the Ministry of Interior, although the legal advisers should be present at the regional offices of the BFA every morning.
This offer of free legal advice does not meet the needs of asylum seekers, however. This organisation, which currently receives 89% of the funding for legal assistance in the first instance procedure,29 is not regarded as very helpful or committed to the protection of the rights of asylum seekers due to its cooperation with the Ministry of Interior. For instance, the call for AMIF proposals mentions that legal advice provision should be organised in cooperation with the authorities. Furthermore, these legal advisers have to inform asylum seekers about voluntary return assistance and send asylum seekers to voluntary return projects (which are provided by the same organisation) during the asylum procedure. This funding framework and the activities of the contracted organisation affect the confidence of asylum seekers in the free legal advice offered. Asylum applicants may also opt to contact an NGO offering free legal advice to asylum applicants, but this resource is limited and may not be accessible for asylum seekers living in remote areas.
The tasks are prescribed in the call for AMIF proposals: providing information or assistance for administrative or legal formalities and providing information or advice on possible outcomes of the asylum procedure including voluntary return. One of the goals of legal advice must also be to avoid asylum applications without positive perspective. The requirement to provide advice on return as a condition for submitting a project for legal advice under AMIF funding, as was the case under the European Refugee Fund (ERF), has been criticised by NGOs.30
Legal advisers are usually not present during interviews at first instance, except where they are authorised by the asylum seeker for legal representation. According to the information available to Asylkoordination, legal advisers of Verein Menschenrechte Österreich do not accept to act as legal representatives due to a strict interpretation of the contract with the government. Only other organisations or lawyers act as legal representatives for asylum seekers during interviews.
Legal assistance and representation at appeal stage
When a negative decision is issued, a decision providing for the assignment of a legal counselling organisation is also issued. Such organisation must advise the asylum applicant for free. Yet the asylum applicant may also opt to contact an NGO offering free legal advice to asylum applicants.
The system of free legal aid for the appeal was introduced by amendment of the Asylum Act in 2011 and entered into effect on 1 October 2011.31 Two organisations, ARGE Rechtsberatung (Diakonie and Volkshilfe) and Verein Menschenrechte Österreich, are contracted by the Federal Chancellery to give legal advice with regard to the appeal procedure.
The task described by law entails the obligation to provide advice in case of dismissal of the application. Following an amendment of the BFA-VG, which came into effect on 20 July 2015, legal advisers shall be present at hearings before the Administrative Court if the asylum seeker wishes so.32 Based on procedural guaranties in accordance with the rule of law and respective EU law, asylum seekers should be able to make effective use of their right to legal advice, according to a ruling of the Higher Administrative Court.33
Although the role of the legal adviser in such a hearing was unclear following the 2015 amendment, the Constitutional Court clarified on 9 March 2016 that legal advisers who are summoned to the hearing at the Court have to represent the asylum seekers before the Court, if applicants wish so.34 Asylum seekers may be represented by NGOs,35 or pay themselves for a private lawyer.
Financial compensation for legal advice ordered by decree seems to be insufficient. The refunding rate per case is €221.55 (excl. VAT) including all other costs (overhead, travel expenses, interpretation). This flat rate is reduced by 25% when the organisation has provided legal advice in asylum and aliens law proceedings in more than 4,001 cases during the year and by 35% when legal advice was provided to more than 7,000 clients.36 This reduction has been justified with reduced overhead expenses, but this argument is not suitable for the main expenses of legal advice, which are staff, interpreter, and travel expenses. Such reduction bears the risk of the organisation avoiding to get in contact with asylum seekers to keep the number of clients below the mark of 4,000 or 7,000. No extra or increased remuneration is granted for cases that are more time-consuming such as unaccompanied children, abused women or other heavily traumatised asylum seekers, negatively affecting the quality of legal counselling provided accordingly. NGOs have long criticised compensation as being too low for providing good standards of legal assistance.37
The Council of Europe (CoE) Commissioner for Human Rights Nils Muižnieks found that:
“[W]hile commending that since the last reform of 2011, free legal aid is in principle available for asylum seekers, noted that quality appears to vary. In this regard the allocated fee appears to be a risk factor as it is rather low taking into account that all costs including transportation and translation services must also be covered and no increase is awarded for cases that are potentially more time consuming. Further efforts would be desirable to ensure that free, independent and confidential legal counselling and representation is ensured during the entire asylum procedure and thereafter, including the deportation procedure.”38
Legal advisers do not need to be lawyers or experienced in refugee and asylum law. 3 years of practical experience in aliens law matters is a sufficient qualification for persons with a University degree other than law, while 5 years of practical experience in aliens law matters suffice for persons without a University degree.
The system of legal advice does not satisfactorily implement the recast Asylum Procedures Directive,39 as it is up to the legal advisers to decide whether to help asylum seekers to write an individual appeal (which must be written in German) and assist them with regard to all procedural requests in the appeal procedure, or to provide information only. Asylum seekers have no choice as to which organisation will be responsible for providing legal assistance to them. Joachim Stern reports the findings of a short evaluation of decisions of the BVwG in the case law database between 1 April 2014 and 1 April 2016. The evaluation found 139 procedures before the Court with legal representation of the asylum seekers by ARGE Rechtsberatung and 4 cases with legal representation by Verein Menschenrechte Österreich.40 This evaluation shows that asylum seekers who are entitled to receive legal advice by Verein Menschenrechte Österreich are in most cases not represented by this organisation.
Even for the judges of the Federal Administrative Court, the nature of free legal advice seems unclear. In one 2014 case, the Court rejected an appeal as inadmissible. The asylum seeker had submitted the appeal without argumentation and announced that the legal adviser would submit an elaborated appeal as quickly as possible. The Court did not allow for an extension of the date to appeal because, in the judge’s view, the asylum seeker had been assisted by a legal representative.41
One project run by Caritas Austria, funded by AMIF, offers assistance during the hearing before the Federal Administrative Court, but this resource is limited and therefore only a certain number of cases can be assisted. AMIF funding for the next period 2017-2019 was not granted any longer but the project continues on a smaller scale with alternative funding. Besides this free legal advice funded by the state, NGOs help asylum seekers lodging appeals and submitting written statements, accompany them to personal hearings at the Administrative Court and may act as legal representative. However, NGOs cannot represent asylum seekers before the Constitutional Court or the Administrative High Court as this can only be done by an attorney-at-law.
A merits test is not foreseen with regard to legal assistance at the appeal stage. With the amendment of the BFA-VG in July 2015, legal assistance free of charge is provided in case of the rejection of a subsequent asylum application on res judicata grounds too.
The Constitutional Court and the Administrative High Court apply a merits test and tend to refuse free legal aid, if the case has little chance of succeeding.
- 1. Ministry of Interior, Reply to parliamentary question 10831/J (XXV.GP), 11 January 2017, available in German at: http://bit.ly/2j56wI6.
- 2. Ministry of Interior, Reply to parliamentary question 6748/J (XXV.GP), 7 December 2015, available in German at: hhttp://bit.ly/2jZMbDl.
- 3. OVP, ‘Mikl-Leitner zu Flüchtlingen: Asylexpress stoppen, Österreich entlasten’, 3 June 2015, available in German at: http://bit.ly/1P0deHS.
- 4. FRA, Monthly data collection on the migration situation in the EU, January 2017, available at: http://bit.ly/2jUsOcI, 20, citing information from Caritas Vienna.
- 5. VwGH, Decision Ro 2016/01/0001-0004, 24 May 2016, available in German at: http://bit.ly/2ktbiM2.
- 6. Article 22(6) AsylG.
- 7. A total 174 refugees were resettled in 2016, compared to 758 in 2015: Ministry of Interior, Asylum Statistics December 2016, available in German at: http://bit.ly/2k2N2Ue, 3.
- 8. FRA, Monthly data collection on the migration situation in the EU, January 2017, available at: http://bit.ly/2jUsOcI, 20, citing information from the Red Cross.
- 9. Article 19 AsylG.
- 10. VfGH, Decision U 98/12, 27 June 2012.
- 11. Article 20 AsylG.
- 12. VfGH, Decision U 1674/12, 12 March 2013 mentions Conclusions Nr. 64 (XLI) and Nr. 73 (XLIV) of the Executive Committee of UNHCR. The Asylum Court decided by a male and female judge and its decision was thus unlawful.
- 13. Article 16(1) BFA-VG, as applicable on 1 June 2016.
- 14. Article 7(4) BVwG-VG.
- 15. VfGH, Decisions G 589/2015-6, G 653/2015-4, G 9/2016-4, 23 February 2016, available in German at: http://bit.ly/2jwOISx.
- 16. Article 14(1) Administrative Court Procedures Act (VwG-VG).
- 17. Article 18(2) BFA-VG.
- 18. Articles 17(1) and 18(5) BFA-VG.
- 19. Article 17(2) BFA-VG.
- 20. BVwG, Decision W208 2007345-1, 22 May 2014, available at: http://bit.ly/1FOK1th.
- 21. Article 21(7) BFA-VG.
- 22. Article 41(7) AsylG corresponds with Article 21(7) BFA-VG.
- 23. VfGH, Decisions U 466/11-18 and U 1836/11-13, 14 March 2012, available at: http://bit.ly/1eLj54J.
- 24. VfGH, Decision U 152/13-12, 21 February 2014, available at: http://bit.ly/1FXmqb6.
- 25. VfGH, Decision U 610/2013, 19 September 2014, available at: http://bit.ly/1RIQrPN; U 2529/2013, 22 September 2014, available at: http://bit.ly/1G4KDfF. See also K Kessler, ‘The right to an oral hearing in Austrian asylum appeal procedures in the light of Article 47(2) of the Charter of Fundamental Rights of the European Union’, EDAL, 14 January 2015, available at: http://bit.ly/1CGfjzK.
- 26. VwGH, Ra 2014/20/0017, 28 May 2014.
- 27. VwGH Ro 2014/21/0047, 22 May 2014.
- 28. Decisions of the Asylum Court are available at: http://www.ris.bka.gv.at/Bvwg/. However, according to the General Administrative Procedures Act, decisions may not be made public if it is necessary for reasons of public order or national security, morality, the protection of children or the private life of the asylum seeker or for the protection of a witness. Decisions of the Federal Administrative Court (BVwG) are also available at: http://www.ris.bka.gv.at/Bvwg/.
- 29. Ministry of Interior, AMIF List of selected projects 2015/2016 (Asylum & Return), available in German at: http://bit.ly/1OqSfsR.
- 30. See S Pferschinger, Unabhängige Beratung von AsylwerberInnen in Österreich?, Diplomarbeit, Wien, August 2011, available at: http://bit.ly/1lHAbnY, S 98.
- 31. Federal Law Gazette (BGBl) I Nr. 38/2011.
- 32. Article 52(2) BFA-VG.
- 33. VwGH, Decision Ro 2016/18/0001, 3 May 2016.
- 34. VfGH, Decision G 447-449/2015-13, 9 March 2016, available in German at: http://bit.ly/2jR9OMi.
- 35. See e.g. the AMIF-funded project of Caritas Austria, ‘Representation at hearings before the Federal Administrative Court’, available in German at: http://bit.ly/1OqSfsR.
- 36. BGBl. II Nr. 320/2011, available at: http://bit.ly/1dL1VE4.
- 37. See e.g. Agenda Asyl, ‘Stellungsnahme zur Änderung des… Asylgesetzes 2005 (Comment on the changes to Asylum Law 2005)’, 28 January 2011, available in German at: http://bit.ly/1NkpgcC; Der Standard, ‘Gute Rechtsberatung wäre doppelt so teuer’ (Good legal assistance would be twice as expensive), 9 November 2011, available in German at: http://bit.ly/1Jp7y6h.
- 38. CoE Commissioner for Human Rights, Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe following his visit to Austria from 4 to 6 June 2012, CommDH(2012)28, 15.
- 39. Article 20 recast Asylum Procedures Directive.
- 40. J Stern, ‘Verfahrenshilfe und Rechtsberatung – Neue Entwicklungen und alte Fragen’ in C Filzweiser and I Taucher (eds), Asyl- und Fremdenrecht Jahrbuch 2016 (NWV 2016), 151-168.
- 41. BVwG, Decision W208 2007345-1, 22 May 2014, available at: http://bit.ly/1FOK1th.