Asylum seekers and other persons who cannot be expelled are not entitled to the same social benefits as citizens. In 2004, the Basic Care Agreement between the State and the federal provinces entered into force and has been implemented at national and provincial level. The agreement sets out the duties of the Federal State and the states and describes material reception conditions such as accommodation, food, health care, pocket money, clothes and school material, leisure activities, social advice and return assistance, by prescribing the amount for each.
Asylum seekers are entitled to Basic Care immediately after submitting the asylum application until the final decision on their asylum application in all types of procedures. Since the last legal amendment in July 2015, however, the provision of Basic Care may violate Article 17(1) of the recast Reception Conditions Directive. Contrary to the Directive, Basic Care is foreseen as soon as the person requesting international protection is regarded as asylum seeker. An asylum seeker is an alien whose request is formally submitted, which is the case after the BFA gives an instruction about the next steps to the public security officer.
Since the amendment of the Asylum Act in July 2015, the registration of the application and the provision of Basic care has changed. Asylum seekers do not submit the application in the EAST, but request for asylum at a police station. As long as the application is not regarded as submitted, the person is not an asylum seeker in the sense of Article 2(14) AsylG. Different entitlements are foreseen in the Basic Care Agreement and the Basic Care Act (GVG-B). While the Agreement declares in Article 2(1) as target group asylum seekers who have requested for asylum, the Basic Care Act of the Federal State defines the responsibility of the Federal State for asylum seekers after having submitted the application during the admissibility procedure in a reception facility of the Federal State.1 However, Basic Care conditions do not apply in detention or where alternatives to detention are applied.2 While an alternative to detention is being applied, the asylum seeker is entitled to reception conditions that are more or less similar to Basic Care (accommodation, meals and emergency health care). Some NGOs have contracts to care for asylum seekers and other aliens.3
Asylum seekers subject to Dublin procedures are entitled to basic care provisions until their transfer to the Member State responsible for the examination of the asylum application is executed. This general rule is not applicable if the asylum seeker is detained or ordered less coercive measures, however. In both cases they are not covered by health insurance but have access to necessary urgent medical treatment. In contrast to asylum seekers subject to the Dublin procedure but accommodated in one of the reception facilities in Austria, those undergoing Dublin procedures whilst in detention or less coercive measures do not receive monthly pocket money (€40). This distinction in the reception conditions available to applicants detained or subject to alternatives to detention does not respect the recast Reception Conditions Directive, which should remain applicable in all Dublin procedures.4
If the suspensive effect of an appeal was denied, basic care is terminated after the first instance decision. Asylum seekers receive basic care in the case the court has awarded suspensive effect or if they wish to leave Austria voluntarily until their departure.5
A precondition for Basic Care is the need for support. This is defined by law as applicable where a person is unable to cover subsistence by their own resources or with support from third parties.6 Asylum seekers arriving in Austria with a visa are thus not entitled to Basic Care due to the precondition of having “sufficient means of subsistence” for the purpose of obtaining a Schengen visa.7 This exclusion clause is applied very strictly, even when the sponsor is unable to care for the asylum seeker. Exception may be made if the asylum seeker has no health insurance and gets seriously ill and needs medical treatment. Although the amount of material reception conditions is specified in the Basic Care Agreement,8 the level of income or values relevant to assessing the lack of need for Basic Care is not specified by law. Legislation does not lay down the amount of means of subsistence below which a person is entitled to Basic Care, even though the amounts for subsistence and accommodation are prescribed by law. In practice, an income beyond 1.5 times the amount of Basic Care benefits (€547) are deemed to be without need of Basic Care. In Salzburg, the regulation for Basic Care in force from 1 July 2016 sets out that income up to €110 is not taken into account; for any family member in a household, a further €80 of income should not lead to a reduction of basic care support; for an apprentice the respective amount is € 150.9
Furthermore, EU and EEA (European Economic Area) citizens are excluded from Basic Care.
Special documents for the entitlement to Basic Care are not foreseen. All asylum seekers and other persons who cannot be deported are registered in a special database, the Grundversorgungssystem. National and local authorities, as well as contracted NGOs, have access to the files. Asylum seekers returned to Austria from other Member States may face obstacles to getting full Basic Care after arrival. Sometimes free places in the Federal province they are assigned to are not available. Therefore it happens that they stay in the transit zone of the airport (Sondertransit) voluntarily and wait for the renewal of their entitlement to Basic Care, although they stay in a closed centre in the meantime.
After a final negative decision on the asylum application, the law provides for Basic Care until departure from Austria, if the rejected applicant cannot leave e.g. due to inability to obtain a travel document. Usually, rejected asylum seekers remain in the same reception facility. While in Vienna, Basic Care after a negative decision is usually prolonged, other federal provinces cease support. Depending on available places, rejected asylum seekers may stay in the reception centre on the basis of a private agreement with the landlord or NGO.
By the end of November 2016, 63,740 asylum seekers received Basic Care, out of whom 86% with applications pending in first instance, 9.5% waiting for the outcome of the Dublin procedure.
- 1. Articles 1(1) and 2(1) GVG-B.
- 2. Article 2(2) Basic Care Agreement; Article 2(3) GVG-B. Note that this not in conformity with Article 3 recast Reception Conditions Directive.
- 3. E.g. Verein Menschen.Leben, available at: http://bit.ly/1QuetAe.
- 4. Recital 11 Dublin III Regulation. See also CJEU, Case C-179/11 Cimade & GISTI v Ministre de l’Intérieur, 27 September 2012, para 46.
- 5. Artice 2(7) GVG-B.
- 6. Article 2(1) Basic Care Agreement (GVV)-Art 15a.
- 7. Article 5(1)(c) Schengen Borders Code.
- 8. Articles 6, 7 and 9 Grundversorgungsvereinbarung (GVV); Art. 15a B-VG.
- 9. Salzburg Basic Care Regulation LBGl. 57/2016, available in German at: http://bit.ly/2kGpqma.