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Children under the age of 14 cannot be detained. Therefore, families with young children are confined for 72 hours prior to their forced return. In general, children over the age of 14 should not be detained and alternatives to detention should apply for minor
Children under the age of 14 cannot be detained. Therefore, families with young children are confined for 72 hours prior to their forced return. In general, children over the age of 14 should not be detained and alternatives to detention should apply for minors over the age of 14.[1] In 2022, seven unaccompanied minors were detained for an average time of 11.6 days.[2] In 2021, only one minor (accompanied) was detained for four days and was released after applying for asylum.[3] In 2020, 13 minors were kept in deportation centre (between 3 and 17 days, on average 9.4 days),[4] 11 of them were unaccompanied minors.[5]
In 2014, the Federal Administrative Court found the detention order for an asylum seeker from Afghanistan who claimed to be 16 years old to be unlawful. The decision of the BFA was based on the improper opinion of the medical officer according to which he was between 18 and 22 years of age and therefore not treated as a child.[6]
In the case of a child who was arrested by the police and taken to the Zinnergasse centre, the age examinations carried out by the public medical officer resulted in setting an age of 18 years with a fluctuation range of 2 years. The minor was transferred to the detention centre, applied for asylum and authorised Diakonie to act as his legal representative. However, the complaint against detention was dismissed in August 2016, arguing that he could not give power of attorney as a minor.[7] Given that deportation (Schubhaft) was ordered before his application for asylum had been submitted, his legal representative for all further proceedings before the BFA and the Federal Administrative Court were the youth welfare agencies. However, the latter did not wish to join the complaint lodged by Diakonie.
[1] Article 77(1) FPG.
[2] Ministry of Interior, answer to parliamentary request 13098/AB XXVII. GP, 9 March 2023, available in German at https://bit.ly/3ABQ7Aq.
[3] Ministry of Interior, Answer to parliamentary request, 9405/AB XXVII. GP, 28 March 2022, available in German at: https://bit.ly/3KbaS9k.
[4] Ministry of Interior, Answer to parliamentary request, 3051/AB, 6 October 2020, available in German at: https://bit.ly/3qmI5ny.
[5] Ministry of Interior, Answer to a parliamentary request, 4901/AB XXVII. GP, 12 March 2021, available in German at: https://bit.ly/2P4ioeu.
[6] BVwG, Decision W191 2011159-1, 27 August 2014, available at: http://bit.ly/1ALJF7Q.
[7] BVwG, Decision W117 2131589-1, 10 August 2016, available at: http://bit.ly/2lnqwlZ.