Grounds for detention

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Asylum seekers who apply for international protection at the police may be detained for up to 48 hours, without a detention order for safeguarding the first steps of the procedure and a security check.[1] This detention period is reaches up to 1 week in the context of the border procedure, as asylum seekers are de facto detained in the airport facility.[2]

With the exception of the border procedure which is not formally recognised as detention in law, the detention of asylum seekers is regulated by the Aliens Police Act (FPG), which has been amended several times to specify the grounds for detention. The last amendment entered into force on 1 September 2018. Detention may be ordered by the BFA to secure a return procedure, for example if a “risk of absconding” exists and detention is proportionate. Furthermore, the FPG allows detention according to the Dublin III Regulation.

Since September 2018 asylum seekers can further be detained if they are considered as a threat to the public order or security. The recast Article 76 (2) FPG states: “Detention may only be ordered to enable the issuing of a measure terminating residence, provided that detention is appropriate and that the foreigner’s stay endangers public order or security in accordance with Article 67, and that there is a risk of absconding.”

Article 76 FPG defines the “risk of absconding” on the basis of a number of wide-ranging criteria, namely whether:[3]

1. The person has avoided or hampered a deportation order;

1a. The person has not complied with the obligation to obtain a travel document for their removal;[4]

1. The person has violated a travel ban;
2. An enforceable expulsion order exists and the person has absconded during the asylum procedure or during the removal procedure;
3. The person makes a subsequent application without right to remain;
4. The person is in pre-deportation detention at the time they lodges the application;
5. It is likely that another country is responsible under the Dublin Regulation, namely as the person has lodged multiple applications, tried to travel to another member state, or it can be assumed that, based on past behaviour they intends to travel on to another member state;
6. The person does not comply with alternatives to detention;
7. The person does not comply with residence restrictions, reporting duties and designated accommodation or similar instructions;[5]
8. There is a sufficient link with Austria such as family relations, sufficient resources or secured residence.

The FPG does not refer to a “serious” risk of absconding in line with Article 28(2) of the Dublin III Regulation. However, the long list of criteria in Article 76(3) is non-exhaustive, thereby unduly granting the authorities the discretion to identify a “risk of absconding” and to proceed to detention.

The law foresees three different grounds for detention: While § 76 Abs 1 and 2 FPG are applied in cases where detention is deemed necessary to secure the asylum and return decision proceedings in cases of threats to public security (Abs 1) or to secure return decision proceedings or deportation (Abs 2), § 76 Abs 3 foresees detention in Dublin cases when the conditions of Art 28 (1) and (2) of the Dublin directive are met.

Source: Data referring to Jan-Aug 2023; Ministry of Interior, answer to parliamentary request 15846/AB XXVII. GP, 21 November April 2023, available in German at. https://shorturl.at/Ng89b.

Arrest (i.e. detention without official order) is almost systematic during the 72 hours preceding the transfer of an asylum applicant to the responsible Member State under the Dublin Regulation.[6]

In the detention centres of Vordernberg and Vienna, the numbers of detentions doubled in 2017 and further increased in 2018.[7] Observations from NGOs in 2019 show that the number of EU citizens from Eastern Europe (e.g. Slovakia, Hungary) held in detention centres have grown significantly over the past years. Even during the pandemic in 2020, more than 20% (810) of all 3,910 detainees were from EU countries and another 879 persons from the Balkans (mainly Serbia with 450 nationals).[8] In 2023, 79% of all deportation detainees were nationals from EU member states and Balkan countries (excluding Dublin transfers).[9]

[1] Article 40 AsylG.

[2] Article 33 AsylG.

[3] Article 76(3) FPG.

[4] Article 76(3)(1a) FPG, in force as of 1 November 2017, citing Article 46(2)-(2a) FPG.

[5] Article 76(3)(8) FPG, in force as of 1 November 2017.

[6] Report from Diakonie Flüchtlingsdienst to asylkoordination österreich, November 2023.

[7] Ministry of Interior, Answer to a parliamentary request, 15 November 2018, available in German at: https://bit.ly/2tPKUm6.

[8] Ministry of Interior, Answer to a parliamentary request, 4901/AB XXVII. GP, 12 March 2021, available in German at: https://bit.ly/2P4ioeu.

[9] Ministry of Interior, BFA-Detailstatistik 2023, available in German at: https://shorturl.at/9XfUQ.