Regular procedure

Author

Asylkoordination Österreich Visit Website

 General (scope, time limits)

The regular asylum procedure is regulated in the AsylG (predominantly material law) and AVG and BFA-VG (predominantly procedural law).

As already mentioned, the BFA is a specific department of the Ministry of interior, dealing with asylum matters. In 2014, the tasks of the BAF were further 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 for international protection has been lodged.[1] 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 the Dublin Regulation, the application of the safe third country concept or in case of subsequent asylum applications, or to dismiss the application for other reasons.[2] Since 2018, the admissibility procedure may be prolonged by lifting the 20 days deadline in manifestly unfounded cases.[3] However, if no information about the intention to reject the application is issued within 20 calendar days, the application is automatically admitted into the regular procedure. Thus, the asylum-seeker should receive the preliminary residence permit as asylum seeker and be allocated to the reception system of a federal province.[4] On the contrary, if the asylum application is deemed inadmissible the asylum-seeker receives legal assistance and has to be heard in presence of they lawyer. There is no legal remedy against this procedural order.

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.

In case of delay from the BFA, the asylum seeker may request that the case be referred to the Federal Administrative Court for a decision (Säumnisbeschwerde).[5] However, in practice asylum seekers do not frequently make such requests, as they miss a chance of receiving a positive decision at first instance (by the BFA). In 2023, several asylum seekers and counselling organisations reported that one lawyer based in Vienna filed Säumnisbeschwerde in around 1,000 asylum cases. In case of delay from the Federal Administrative Court, a request for the establishment of a deadline may be addressed to the Administrative High Court.

In 2023 the average duration of the asylum procedure at first instance amounted to 5.5 months,[6] compared to 3.5 months in 2022 and 3.2 months in 2021.[7] The sharp drop after 2017 (average duration of 14 months) is a result of the broader application of fast track procedures. In 2020, 807 applications were fast tracked,[8] out of which 405 were rejected within 72 hours by the BFA. In 27 cases the decision was appealed but the rejection was then upheld by the BVwG.[9] The average length of the fast-track procedure was 22.7 days in 2020.

In 2023, the number of decisions taken in the fast-track procedure decreased compared to the record number of 2022. 8,121 decisions were taken in the fast-track procedures (compared to 22,109 in 2022 and 2,581 in 2021). The average length of the fast-track procedure in the first half of 2023 was 34.5 days (2022: 24.7 days).[10] The accelerated procedure led to 300 decisions in 2023, and in 88.5% of the cases the decision was issued within 72 hours (2022: 67%).

The decisions in both fast-track and accelerated procedures mainly concerned applicants from countries listed as safe countries of origin and manifestly ill-founded applications from applicants from India. In the accelerated procedure, 59% of the decisions concerned applicants from Morocco, 16% from India and 9% from Pakistan. In fast track procedures, 84% concerned Moroccan applicants, 4% applicants from Pakistan and 3% from Tunisia.[11]

Source: Ministry of Interior, Answer to parliamentary request 13740/AB XXVII. GP, 20 April 2023, https://bit.ly/41P9e67 and internal information by the Ministry of Interior (not published)

In recent years, the Austrian Ombudsman has received numerous complaints on the length of asylum procedures at first instance. It received 1,500 complaints in 2016; 2,000 complaints in 2017 and 320 complaints in 2018. Out of the 320 complaints received in 2018, a violation of the duty to take a decision within the set limit was confirmed in 248 cases. Moreover, in 2018, 220 complaints were filed concerning length of procedures at second instance, and in 176 cases a violation was identified.[12] In 2020, the Austrian Ombudsman concluded in 197 cases that the BVwG violated its obligation to make a decision and did not take any steps in the asylum complaint procedure, reiterating that organisational deficiencies and increasing asylum applications are not a legally relevant justification. The Ombudsman suggested that the procedure should be concluded quickly in the cases brought forward. Numerous complaints were filed concerning deficiencies in the first instance proceedings.[13] In 2021, the Austrian Ombudsman Board received 14 complaints concerning the length of first-instance asylum procedures and 151 complaints mainly about the length of second-instance asylum procedures from 1 January to 17 September 2021.[14] After a decrease in the number of complaints over several years, there was a significant increase in the summer of 2022. 418 persons lodged a complaint concerning the length of the procedure, of which 284 were decided by the Ombudsperson. In 195 cases, the complaints were justified; in 95 cases the BFA decided after the complaint was lodged.[15] In 2023, 771 persons lodged a complaint concerning the BFA, and 489 complaints were deemed justified. 527 complaints concerned applicants from 2022, mostly from Syria (455). 69 cases concerned the family reunification process, of which 25 complaints concerning the length of procedures were justified. In one case the embassy had sent the file to the BFA in October 2022 and the BFA had not undertaken any procedural step in a whole year.[16]

At the end of 2023, 38,921 (2022: 53,107) cases were pending, out of which 30,258 (2022: 46,811) at first instance and 8,663 (2022: 6,296) at second instance.[17] The second instance backlog slightly increased after decreasing for several years. The number of pending cases at first instance decreased by 34% (from 46,000 to 30,000) compared to 2022.[18] Given that the number of recipients of Basic Care increased only by 4,500 over the year (January 17,000 in January to 21,500 in December) and the high number of discontinued cases (42,000), it is to be expected that the number of applicants actually still residing in Austria is much lower than the number of pending cases. The BFA files a case as discontinued three months after not being able to reach the applicant.

Source: Ministry of Interior, Annual statistics 2023, available in German at: https://bit.ly/3wEfXVF; https://shorturl.at/jrHS8.

Prioritised examination and fast-track processing

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.^[19] The same maximum time limit applies to the “procedure for the initiation of a measure terminating residence” (see Accelerated Procedure).

In 2023, the practice of fast-track processing focused on applicants coming from countries listed as “safe countries of origin” and on manifestly ill-founded applications. In second instance, there is also a focus on applicants who have already been sentenced by a criminal court. The great majority of fast-track processing deals with cases from applicants originating from so called safe countries of origin (see Safe Country of Origin). This was also due to the high number of applications from Morocco at the start of 2023.

Personal interview

All asylum seekers must undergo a personal interview, provided that they have legal capacity to do so. At the start of each interview, asylum seekers are asked whether they feel physically and psychologically fit for the interview. If not, the interview will be postponed. In practice, a postponement is not requested by the applicants.

Asylum seekers are further subject to an interrogation by security services shortly after lodging the application for the purposes of the Dublin and Admissibility Procedure.^[22] These interrogations are carried out with a view to establish the identity and the travel route of the asylum seeker. They should not, however, refer to the merits of the application such as specific reasons for fleeing and lodging an asylum application. Despite the fact that the first interrogation is conducted by the police and not by caseworkers of the BFA,[23] the statements made by the asylum seeker at this stage of the admissibility procedure have an important impact on the asylum procedure as they are accorded particular importance by the BFA.[24] The Constitutional Court confirmed in a judgement of 2012 that reasons for applying for international protection shall not be in the focus of the first interview conducted by police services.^[25]

Asylum seekers may be accompanied by a person they trust (i.e. person of confidence) and unaccompanied children cannot be interviewed without the presence of their legal representative.[26]

The law further provides for a choice of interviewer according to gender considerations in cases where the asylum seeker’s fear of persecution is related to sexual self-determination.^[27] The authorities must demonstrate that they have informed the asylum applicant of the possibility to be interviewed by an official of the same sex.^[28] In practice, however, this is not consistently applied with regard to interpreters.[29] 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.^[30]

Interpretation

Interpreters are provided by the BFA and cover most of the languages, but interviews may also be conducted in a language the asylum seeker is deemed to understand sufficiently.[31] The provision of interpreters has been reported as not satisfactory with regard to certain languages, even in cases where a significant number of asylum seekers may be concerned (e.g. Chechen refugees are often interviewed in Russian).[32] 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. UNHCR has published a training manual for interpreters in asylum procedures.^[33]

The Federal Law on the Establishment of the Federal Agency for Care and Support Services Limited Liability Company (BBU-G) passed in June 2019 foresees that a federal agency annexed to the Ministry of Interior should be responsible for the provision of interpreters for the purpose of asylum procedures as of 1 January 2021. This includes the provision of interpreters both at first and second instance, but also in case of oral hearings in front of the BVwG as well as in procedures concerning basic support. The law lists a wide range of areas in which interpreters should be provided by the federal agency, inter alia for interviews related to the making of an application for international protection; for measures relating to the termination of the right to stay as well as for the granting or limitation of basic services. As of January 2021, nine interpreters (five full time equivalent) were employed by the BBU GmbH.[34] In practice, the service provided by internal interpreters were not of great relevance but is to be seen as a test phase for a possible expansion of the department in future. The state-run agency took over the existing system established by the NGOs. In most cases, external interpreters were hired throughout 2023.

Videoconferencing, recording and transcript

Article 19(3) AsylG allows for tape recording of the interview, which is, however, rarely used in practice.

Video conferencing was introduced in 2018. The BFA in Burgenland held interviews to assist the BFA in Vienna and in Vorarlberg in this context.^[35] This new practice is based on Art. 51a of the General Administrative Act, which allows the use of technical facilities for word and image transmission – unless a personal interview is necessary for economical or personal reasons.

There are concerns about the practice of conducting interviews through video conferencing as there is no standard procedure to handle these new tools and they raise issues of confidentiality and procedural rights. Lawyers reported an increase in videoconferencing by the BFA and BVwGH during 2020. In most cases, it is up to the applicant and the legal representative to arrange the necessary technical equipment. Issues reported in certain cases include: a judge turning off the video during a court session; the impossibility to see the translator on video; the fact that in certain cases the judges did not allow the legal representative to sit in the room as the applicant; or the fact that in certain cases a protocol was sent without encryption. The Ministry of Interior reported if there are statistics as to in how many interviews videoconferencing tools were applied in 2022 and 2023.[36]

It should be noted that, as part of its BRIDGE project, UNHCR Austria has produced a checklist “Self-check for interviews and negotiations using technical equipment for word and image transmission in the asylum procedure” for videoconferences in asylum procedures.[37]

The transcript is more or less verbatim. Its content may depend on the caseworkers’ and interpreter’s summarising the answers, choosing expressions that fit the transcript or translating each sentence of the asylum seeker.[38] Immediately after the interview, the transcript is translated by the same interpreter 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 its 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.[39] 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.[40] The OHCHR stated in its report on the mission to Austria from October 2018 that many caseworkers of the BFA are not adequately trained in using techniques that fit the needs of asylum applicants. In a number of cases monitored by the OHCHR, negative decisions of the BFA were based on personal views and involved biased questioning during interviews as well as stereotypes on gender and race.[41]

Appeal

Appeal before the BVwG

Appeals against a negative first instance decision generally have to be submitted within 4 weeks of the receipt of the decision and the whole asylum file is forwarded by the BFA to the Federal Administrative Court (BVwG).^[42] However, following an amendment that came into effect on 1 September 2018, the time limit has been set at 2 weeks for appeals in inadmissibility procedures and in cases of status withdrawals that were initiated along with a return decision.^[43]

Within 2 months following the lodging of an appeal, the BFA may decide to modify the decision that is being challenged.^[44] This means that it can decide either to annul, reject or change its initial decision. However, where the BFA refrains from modifying its decision, it forwards the appeal to the Court. In practice, there are not many cases known where the BFA decides to modify its own decision.

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. Since January 2021, legal assistance is provided by a new federal agency, however (see Legal Assistance).

Article 18(1) BFA-VG provides that the suspensive effect of the appeal 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.

The BFA uses this possibility to withdraw the suspensive effect especially when there is an enforceable deportation order or when there are no reasons for persecution stated, NGO counselling organisations told asylkoordination.

Moreover, the BFA must withdraw the suspensive effect of an appeal where:^[45]

• 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 automatic suspensive effect within 1 week from the lodging of the appeal, where it assumes that return would expose the concerned person to a real risk of a violation of Articles 2, 3, 8 and 13 ECHR or Protocols 6; 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 recast Qualification Directive.^[46] The reasons must be set out in the main complaint. In cases where there is an enforceable deportation order and no reason for persecution stated, the BVwG does not grant suspensive effect.[47]

Appeals against the rejection of an application with suspensive effect have to be ruled by the Court within 8 weeks.^[48] 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. In recent years, the Court processed appeals on asylum cases as follows:

Source: Ministry of Justice, Answer to parliamentary request 9532/AB XXVII GP, 11 April 2022, available in German at: https://bit.ly/3O7TwfH; Ministry of Justice, Answer to parliamentary request 14054/AB, 16 May 2023, available in German at https://shorturl.at/abnFR.

Following the increase of appeals and backlog of cases at second instance, judges from different fields of law have gradually been assigned to decide upon asylum procedures since 2017; despite their lack of expertise on asylum-related matters. In 2022, the BVwG concluded 13,300 procedures in which 20,500 decisions were taken. 9,700 decisions of the BFA were cancelled/annulled or amended by the BVwG, while 7,900 decisions of the BFA were confirmed.[49] 6,500 court hearings were conducted in 2022 and 4,550 in the first half of 2023. In the first half of 2023, in 4,320 first instance cases the appeal was sustained and the decisions were cancelled/annulled or amended. In 5,070 cases the decisions of the first instance were confirmed.[50]

Note: JH refers to the first half of the year (January to June)

By 2023, more than 40% of all decisions challenged were dismissed or amended by the BVwG. This confirms the trend of the last years, with consistently at least one third of decisions being overturned. Moreover, the first instance authority now evaluates whether the reason why a decision was annulled or amended were external or internal. External factors are e.g. a change of situation in the country of origin since the first instance decision took place or if new evidence was brought in. Internal factors are e.g. inaccurate investigations, (legal) interpretation mistakes or formal errors committed by the authority. In 2022, 11,049 challenged decisions (2021: 15,353) were decided upon by the BVwG. 4,662 (2021: 5,852) first instance decisions were confirmed, while 5,364 (2021: 8,146) decisions were annulled or amended. The rest were neutral decisions.

According to the analysis tool BERT, 2,803 decisions were annulled or amended because of internal reasons. This means more than 52% were annulled or amended for internal reasons such as mistakes of the authority.[51]

The BVwG can request another hearing and additional examinations if necessary. Conversely, the BFA-VG also allows for exceptions to a personal hearing on an appeal; i.e. a hearing must not be held if the facts seem to be established from the case file or if it is established that the submission of the applicant does not correspond to the facts.^[52] This provision must be read in light of the restrictions on the submission of new facts in the appeal procedure.

It should be further noted that video conferencing tools are available at a small scale at the Courts, but they are rarely used.

The question whether a personal hearing before 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) AsylG,^[53] is in line with Article 47(2) of the EU Charter if the applicant was heard in the administrative procedure.^[54] 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.^[55] Two rulings to the same effect were delivered by the Constitutional Court in September 2014.^[56]

The Administrative High Court has specified that all relevant facts have to be assessed by the determining authority and have to be up to date at the time of the decision of the court.^[57] It further stated that it was not necessary to explicitly request an oral hearing if the facts were not sufficiently clear or if the statements of the applicant in their appeal contradicted the statements taken by the first instance authority.^[58]

The possible outcome of an appeal can be the granting of a status, the refusal of a 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 BVwG are published on the legal information website of the Federal Chancellery.^[59]

As regards the average processing time for the appeal body to make a decision, the Ministry of Justice indicated that 22.4% of appeals challenging decisions of the BFA in asylum procedures were concluded within 6 months in 2020, while 17.4% took longer than 3 years.[60] 409 Dublin cases were decided in 2020, of which 353 were decided within 6 months (86%).[61] Disaggregated data on the average processing time at second instance were shared in 2020 as follows. Data from July 2022 show the processing time of pending cases during the first half of the year:

Onward appeal before the VwGH

Decisions of the BVwG may be appealed before the VwGH. The eligibility to appeal to the VwGH is determined by the BVwG, but in case the Administrative Court declares a regular revision as inadmissible, the asylum seeker may lodge an “extraordinary” revision.[62] For that purpose, the applicant may submit a request for free legal assistance as well as for the suspensive effect of the complaint.

Out of 1,027 (2021: 2,130 2020: 1,633) revisions conducted in 2022, 29 (2021: 18, 2020: 35) were regular revisions and 998 (2021: 2,112,2020: 1,598) were extraordinary revisions. In 2022, out of the 29 regular revisions, 9 were requested by the determining authority and 20 by applicants. Out of the 998 extraordinary revisions, 66 were requested the determining authority and 932 by applicants.[63]. In 2021, 268 revisions were granted and the decision of the BVwG was cancelled. Corresponding data for 2023 is not available.

In case the asylum applicant seeks to challenge the decision in front of the BVwG and if they claim it is violating a constitutional right, they can lodge an appeal 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 and this information is translated in a language the asylum seeker understands. In that context, it has to be mentioned that the ECHR is part of Austria’s constitutional law. Therefore the risk of violation of Articles 2, 3 or 8 ECHR can be challenged in front of the Constitutional Court, while the rejection of an application for international protection does not fall under the Court’s competence. The appeal does not have automatic suspensive effect, however. Around 97 decisions of the BVwG, in which the decision was considered arbitrary, have been ruled unlawful by the Constitutional Court in 2019.[64] In 2020, 107 decisions were considered arbitrary and ruled unlawful by the Constitutional Court.[65] No data was available for 2021-2023 at the time of writing.

Asylum seekers face difficulties to access constitutional appeals as the payment of a fee of € 240 is required to that end. Furthermore, asylum seekers are not heard in person before the Constitutional Court, which rather requests written statements from the BVwG.

Legal assistance

Legal assistance at first instance

In June 2019, the Austrian Parliament adopted a law establishing a Federal Agency for Care and Support Services (Bundesagentur für Betreuungs- und Unterstützungsleistungen, BBU GmbH) which is in charge inter alia of providing legal assistance to asylum seekers at first and second instance since 1 January 2021. The new law has been criticised by several organisations, as it raises concerns over the risk of arbitrary access to free legal assistance. In its Legal note on the Austrian law, ECRE demonstrated that while access to legal assistance at first instance was the general rule under the previous Article 49(1) BFA-VG, it becomes the exception under the new law. With the exception of unaccompanied minors, legal assistance at first instance shall now only be provided according to the “available possibilities”, and does not constitute a right, except in specific cases listed in the Asylum Act. In other words, access to free legal assistance at first instance is only granted when existing resources are available (e.g. staff and funding), and is not a right for all.[66]

Moreover, the reform introduces a new threshold which grants the asylum applicant the right to free legal assistance by the Agency only if an appointment – during which the applicant exercises their right to be heard – is scheduled within 72 hours (3 days) after having been notified by the BFA of the intention to reject the asylum application. This means that, if the BFA grants the asylum applicant the right to be heard at a later stage (e.g. in 4 or 5 days), free legal assistance by the Agency will only be available if resources so allow. Consequently, there is a risk of arbitrary access to free legal assistance at first instance which will largely depend on the BFA’s goodwill allowing the asylum applicant to be heard in due time.

The BBU GmbH has some AMIF funded capacities in first instance and provides open counselling in first instance as long as “possibilities are available”. The counselling services are provided at the buildings of the regional directorates of the BFA. There is no funding for transportation costs for persons willing to receive counselling at this stage. At first instance, the BBU GmbH has the legal obligation to provide legal counselling in all procedures where the first interview by the BFA is conducted within 72 hours. In these procedures, the counsellors of the BBU also have to take part in the interviews carried out with the BFA. At the time of writing, this concerned mainly subsequent applications, fast-track procedures and procedures at the airport. The BBU GmbH is not being appointed in Dublin cases by the BFA and therefore is not involved in interviews in these procedures in general in first instance.

It should be noted, however, that the previous legal aid-system in place until the end of 2020 did not meet the needs of asylum seekers either. VMÖ, which received most of the funding for legal assistance in the first instance procedure,^[67] was criticised for not being very helpful nor committed to the protection of the rights of asylum seekers due to its cooperation with the Ministry of Interior.^[68]

While the BBU GmbH is a federal agency owned by the Ministry of Interior, the head of legal counselling (and the counsellors themselves) are not bound by directives of the CEO of the BBU GmbH. The head of legal counselling is appointed by the Ministry of Justice and has the technical supervision, while administrative/disciplinary supervision lies under the responsibility of the CEO of BBU GmbH. This fairly complex construction should prevent pressure and interference from the Ministry of Interior (which is also the head of the BFA) on the legal counselling unit.

Even though some improvements were achieved in comparison to the previous dysfunctional legal aid system (e.g. trainings of legal advisors, legal aid in front of the High Courts, setting up quality standards), the centralised legal aid system under the BBU GmbH is very fragile from a fundamental rights perspective. The Ministry of Interior still has the right to nominate half of the members of the supervisory board, even if it only appointed two external experts in 2020. An expert board was founded to establish counselling standards.

In December 2023, the Constitutional Court issued a decision declaring the central legislative act of the BBU-G not in accordance with the Austrian constitution. The independence of legal advice for asylum seekers and aliens by the Federal Care Agency is only laid out in the form of a contract between the Agency and the Ministry, but not adequately guaranteed by law, which is why the right to an effective legal remedy is violated. The corresponding provisions in the BBU Establishment Act (BBU-G) and the BFA Procedural Act (BFA-VG) are repealed as unconstitutional. The Constitutional Court has ruled that the legislative bodies have until July 1, 2025 to introduce new legal regulations, otherwise the central legislative act of the BBU-G will be out of force by this date and hence the BBU GmbH will no longer be allowed to conduct legal assistance.

Indeed, due to several complaints from asylum seekers against the findings of the Federal Administrative Court (BVwG), the Constitutional Court had concerns as to whether the provisions regarding the provision of legal advice and representation by the Federal Agency for Care and Support Services (BBU GmbH) complied with the constitutional requirements of Article 47 of the EU -Fundamental Rights Charter (right to an effective remedy) and Article 20 B-VG (administration of bodies that are fundamentally bound by instructions).

In the view of the Constitutional Court, the prerequisite for effective legal protection is that the BBU’s legal advisors are not subject to instructions and are independent, particularly from the Minister of the Interior, who is responsible for enforcing immigration law. The independence of legal advisors is enshrined in law. However, the position of the legal advisors in the BBU and in relation to the Minister of the Interior, who acts as the owner’s representative in the BBU under company law, is spelled out in more detail in a contract. But, by concluding this framework agreement, the management of the BBU is bound to instructions from the Minister of the Interior (together with the Minister of Justice) in terms of corporate law. The contractual regulation is therefore not sufficient to effectively implement the independence of legal advice.

Conversely, the private law structure of BBU GmbH as such is found to be constitutional. The legal advice and representation designed in this way does not represent functional state administrative management within the meaning of Article 20 Paragraph 1 B-VG. The legislature does have a legal entity controlled by the state to provide legal advice and representation. However, this activity is a service for the affected asylum seekers and aliens to enforce their rights in asylum and alien law procedures, which can also be provided (and is also provided) by private individuals. The provisions regarding legal advice and representation by the BBU therefore do not violate Article 20 Paragraph 1 and Paragraph 2 B-VG.[69]

Legal assistance in appeals

Legal aid provided by the new BBU GmbH since 2021

The BBU GmbH counselling unit is now composed of former employees of Diakonie Flüchtlingsdienst and VMÖ. The BBU GmbH was obliged to offer jobs to all employees of the latter organisations. As of September 2023, a total of 140.2 full time equivalents of counselling staff was employed by the BBU GmbH.[70] While in the past legal advisers did not have to meet specific qualifications or training standards, all future advisors must hold a degree in law from an Austrian University and have completed a compulsory internship at a court. These requirements do not apply, however, to all previous staff already employed at VMÖ and ARGE organisations.[71]

As opposed to the previous legal aid system where the contract between the service providers and the government did not foresee quality standards for the provision legal aid, the new contract between the BBU GmbH and the government has improved this aspect.[72] A particular concern was the fact that the quality of legal aid provided by VMÖ largely depended on the individual counsellor. The head of the counselling unit established a formation and training process consisting of three stages. In the third stage new counsellors work under supervision and receive permission to counsel on their own after positive evaluation. The formation and training course partly involves external experts and judges from Court and was also evaluated by the Qualitätsbeirat, an advisory council of the BBU GmbH.[73]

The tasks of the BBU GmbH include counselling, representation and explanation of judgements. The law requires counselling to be ‘objective’. The advisors will have to explain the perspective the applicants have. If the applicants request representation, the advisors have to act in favour of partisan interests. The main tasks will consist in writing appeals as legal representatives and representation in court sessions. The mandate prescribed by law ends upon receipt of the final decision of the Court, although the BBU GmbH must then still explain the content of the judgement and explain the perspectives. As the provision of legal aid must also meet the conditions of Article 47 of the EU Charter, it must ensure an effective access to the High Courts. Upon request by the applicants in cases where the judgement has chances to be overruled by the High Courts, the BBU GmbH must support the applicants in obtaining free legal aid from the normal legal aid system.

One project run by Caritas Austria 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 is no longer guaranteed but the project continues on a smaller scale with alternative funding. It also worked on a very small scale during 2022.[74]

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 Federal Administrative Court and may act as legal representatives. 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.

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. The BBU-G introduces a worrying change in this regard. The law only includes an obligation to inform applicants of the prospects of success of their appeal without stipulating any consequences. However, the approach suggested by the impact assessment of the law, if applied in practice by the Federal Agency, is extremely problematic. Whereas the recast APD does not specify which other authorities could be considered competent to apply a merits test, entrusting the Federal Agency with that task will create an obvious conflict of interest. Moreover, where another authority than a court or tribunal carries out a merits test, the applicant must have the right to an effective remedy before a court or tribunal against that decision, according to Article 20(3) recast Asylum Procedures Directive. If in practice the Federal Agency were to refuse free legal assistance and representation on that basis without the applicant having an effective opportunity to challenge that decision before a court or tribunal, there would be a clear breach of the recast Asylum Procedures Directive.

The centralisation of legal aid and founding of the BBU GmbH significantly restricts the potential role for and funding of civil society organisations. Since the beginning of 2021, only 10% of the staff of Diakonie Flüchtlingsdienst were still employed as a result of the contract cancellation in 2020. Funding remains a difficult topic for non-governmental counselling organisations. As of December 2023, there are still several NGOs such as Diakonie Flüchtlingsdienst, Caritas (active in Lower Austria, Vienna, Vorarlberg), Integrationshaus Wien, Deserteurs- und Flüchtlingsberatung, Queer Base, ZEBRA (Graz), Fluchtpunkt Tirol and tralalobe (Vienna) offering legal counselling to asylum seekers.[75]

Considering the fact that the BBU GmbH represents most applicants in the second instance procedure and the continued high rate of overturned decisions, a backsliding compared to the work of its predecessors which used to be responsible for state-provided legal assistance cannot be observed.

In 2023, BBU GmbH provided 21,633 counselling sessions (2022: 17,052) and supported applicants in 8,660 cases (2021: 5.273) to bring an appeal against negative decisions. They represented applicants in 4,917 court hearings (2022: 3,044).[76]

In practice, there is a constant exchange on general topics between the BBU GmbH and NGOs working in the field. There is broad acknowledgement of the well-established practice of counselling performed by the BBU GmbH, but the criticism on the general structure and possible influence by the Ministry of Interior remains. Even the so-called ‘Qualitätsbeirat’, a group responsible for evaluating, observing and providing recommendations to the legal counselling department, stated in its report for 2021 that the current positive development is strongly related to the personalities of the director of the institution and the head of legal counselling, who values and fosters independence in the provision of legal counselling. Nevertheless, the Qualitätsbeirat recommends to take further legislative measures to strengthen the independence of the legal counselling department.[77] In 2022, the Qualitätsbeirat focused on the assessment and improvement of the quality of the counselling provided by the BBU GmbH and on the translation services. It underlined the good quality of the services provided and the good cooperation of the BBU GmbH with the Qualitätsbeirat. Nevertheless it stressed again that legislative changes are necessary to strengthen the independence of the legal counselling department of the BBU GmbH from the Ministry of Interior.[78]  The Constitutional Court`s decision[79] (see Legal assistance at first instance) underlined all this criticism of the structural deficits of the BBU GmbH and found the legislative acts to be unconstitutional. At the time of writing, the government is negotiating a possible amendment of legal counselling within the structure of the BBU GmbH.

[1] Article 73 (1) AVG.

[2] Article 28 AsylG.

[3] Article 28 (2) AsylG.

[4] Article 28 (3) AsylG

[5] Article 130 (1) (3) B-VG

[6] BFA, Detail-Statistik – Kennzahlen BFA 2022 – 1.-4. Quartal, January 2023, available in German at: https://bit.ly/3mmaxt4.

[7] Ministry of Interior, Answer to parliamentary request 9531/AB XXVII. GP, 11 April 2022, available in German at: https://bit.ly/3LmbufH.

[8] Ministry of Interior, Answer to parliamentary request 4887/AB, XXVII. GP, 12 March 2021, available in German at: https://bit.ly/3s0YBLx.

[9] Kurier.at, “Nehammer: Neue Asyl-Schnellverfahren ‘verlaufen erfolgreich’, 23 February 2021, available in German at: https://bit.ly/2OK2Tse.

[10] Ministry of Interior, Answer to parliamentary request 15847/AB XXVII. GP, 21 November 2023, available in German at: https://shorturl.at/fiG89.

[11] Ministry of Interior, Internal information, 22 February 2024 (not published).

[12] Report of the Ombudsman Board to the National Council and the Federal Council 2018, available in German at: https://bit.ly/31OvJdd, 108.

[13] Volksanwaltschaft, Findings of grievances and actions taken by the Ombudsman 2020 Federal Administration, available in German at: https://bit.ly/3cJPQyP.

[14] Fundamental Rights Agency, Migration: Key Fundamental Rights Concerns, Quarterly Bulletin, 30 September 2021, available at: https://bit.ly/3xoyxPQ.

[15] Report of the Ombudsman Board of the National Council and the Federal Council 2022, available in German at: https://shorturl.at/qxyBR.

[16] Ibid.

[17] Ministry of Interior, Annual statistics 2022, available in German at: https://bit.ly/3Zsdx5e.

[18] Ministry of Interior, Preliminary asylum statistics December 2023, available in German at: https://bit.ly/3wEfXVF.

[19] Article 22(6) AsylG.

[20] However, the official conducting the interview is no longer responsible for the decision.

[21] Article 20 (1) AsylG foresees that an asylum seeker whose fear of persecution is founded on violations of sexual self-determination is to be questioned by an officer of the same sex unless the asylum seekers requests the opposite. In general, requests can be made but there is no legal right to get an interviewer and interpreter of a specific gender. The requests in other cases than Article 20 (1) are usually not respected by the BFA.

[22] Article 19 AsylG.

[23] Article 19 AsylG.

[24] Kainradl, „Die spontanen Angaben bei der Erstbefragung kommen der Wahrheit am nächsten. Kein Asylwerber würde wohl eine Gelegenheit ungenützt lassen, zentrales Vorbringen zu erstatten.”, 20 June 2022, available in German at: https://bit.ly/3uPsXHv.

^[25] VfGH, Decision U 98/12, 27 June 2012, available in German at: https://bit.ly/3llHTIr.

[26] Article 19 (5) AsylG.

[27] Article 20 AsylG.

[28] Article 20 Austrian Asylum Act.

[29] OHCHR, Report on the mission to Austria focusing on the human rights of migrants, particularly in the context of return, October 2018, available at: https://bit.ly/2u4JoQE.

^[30] VfGH, Decision U 1674/12, 12 March 2013, available in German at: https://bit.ly/3mSPpez 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.

[31] VwGH, Decision 91/01/0047, 18 September 1991.

[32] Reports by NGOs, lawyers and counselling organisations to asylkoordination österreich in meetings 2023.

[33] UNHCR, “Training manual for translators in asylum procedures”, 2015, available in German at: https://bit.ly/2XYPzQC.

[34] Ministry of Interior, Answer to a parliamentary request 4145/AB, 14 January 2021, available in German at: https://bit.ly/37hzoE3.

[35] Information provided by the RD Burgenland.

[36] Ministry of Interior, Answer to parliamentary request 13740/AB XXVII. GP, 20 April 2022, available in German at: https://shorturl.at/gjABZ.

[37] UNHCR Austria, Self-check for interviews and negotiations using technical equipment for word and image transmission in the asylum procedure, May 2020, available in German at: https://bit.ly/3s2YUoI.

[38] Article 14 AVG.

[39] Article 14 (3) AVG.

[40] Reports from counselling organisations to asylkoordination österreich in meetings in September 2021 and February 2024.

[41] OHCHR, Report on the mission to Austria focusing on the human rights of migrants, particularly in the context of return, October 2018, https://bit.ly/2u4JoQE.

[42] Article 16(1) BFA-VG.

[43] Article 16 (1) BFA-VG.

[44] Article 14(1) Administrative Court Procedures Act (VwG-VG).

[45] Article 18(2) BFA-VG.

[46] Articles 17(1) and 18(5) BFA-VG.

[47] Practice-based observation by asylkoordination and partners, January 2024.

[48] Article 17(2) BFA-VG.

[49] Ministry of Justice, Answer to parliamentary request 14054/AB, 16 Mai 2023, available in German at: https://shorturl.at/abnFR.

[50] Ministry of Justice, Answer to parliamentary request 15793/AB, XXVII. GP, 04 December September 2023, available in German at: https://bit.ly/3Wl2nRF.

[51] Ministry of Interior, Answer to parliamentary request, 15314/AB XXVII. GP, 19 September 2023, available in German at: https://shorturl.at/aegFH.

[52] Article 21(7) BFA-VG.

[53] Article 41(7) AsylG corresponds with Article 21(7) BFA-VG.

^[54] VfGH, Decisions U 466/11-18 and U 1836/11-13, 14 March 2012, available in German at: https://bit.ly/3JlPMG0.

[55] VfGH, Decision U 152/13-12, 21 February 2014, available at: http://bit.ly/1FXmqb6.

[56] 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.

[57] VwGH, Ra 2014/20/0017, 28 May 2014, available in German at: https://bit.ly/3le6VJx.

[58] VwGH Ro 2014/21/0047, 22 May 2014, available in German at: https://bit.ly/42iAuuq.

^[59] Decisions of the Federal Administrative 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.

[60] Ministry of Justice, Answer to parliamentary request 4933/AB, XXVII. GP, 12 March 2021, available in German at: https://bit.ly/3s2qRgF.

[61] Ibid.

[62] In case of regular revision, it is a precondition that the BVwG believes that there is no clear jurisdiction by the high courts yet. The VwGH is not bound to that classification by the BVwG. In practice, the difference it that free legal aid is granted automatically only in cases where the BVwG classified a possible revision as regular. Since one must be represented by a lawyer in front of the VwGH, this can make a difference in a person’s possibility to be assisted for the appeal.

[63] Ibid.

[64] The cases are available in German at: https://bit.ly/377YZfZ.

[65] The cases are available in German at: https://bit.ly/3aoymrK.

[66] ECRE, Reforming legal assistance in Austria: an end to independent provision?, June 2019, available at: https://bit.ly/3FrmxAx, 3.

[67] Answer to parliamentary request 14100/J (XXV.GP), 8 November 2017, available in German at: http://bit.ly/2EiMLDx.

[68] Asylkoordination österreich, ‘Kritik am VMÖ reißt nicht ab. Was steckt eigentlich dahinter und warum ändert sich nichts?’, 22 May 2017, available in German at: http://bit.ly/2Ej7kzI.

[69] Constitutional Court (VfGH), G 328/2022, 22 December 2023, available in German at: https://bit.ly/44q8aHF.

[70] Ministry of Justice, Answer to parliamentary request 15973/AB XXVII. GP, 4 December 2023, available in German at: https://shorturl.at/eJV04.

[71] Framework contract between BBU GmbH and Ministry of Interior and Ministry of Justice, Detailvereinbarung Rechtsberatung (Art 2 (1) (2) BBU-G), not available for public.

[72] Framework contract between BBU GmbH and Ministry of Interior and Ministry of Justice, Detailvereinbarung Rechtsberatung (Art 2 (1) (2) BBU-G), not available for public.

[73] Reports of the advisory council Qualitätsbeirat 2022 and 2023, available in German at: https://shorturl.at/rHKU4.

[74] Caritas, BVwG-Projekt, available in German at: https://bit.ly/3EQAyr9.

[75] List of non-state-organised legal counselling organisations, https://shorturl.at/klzNQ, last update 3 May 2024.

[76] Ministry of Justice, information not published.

[77] Qualitätsbeirat BBU GmbH, Jahresbericht 2021, available in German at: https://bit.ly/38FyDbr.

[78] Qualitätsbeirat BBU GmbH, Jahresbericht 2022, available in German at: https://bit.ly/40FoMrC.

[79] VfGH, G328-335/2022, 14 December 2023, available in German at: https://shorturl.at/hkyZ7.