Author
In July 2021, the Regional Administrative Court of Styria issued a landmark decision concerning a case of a Moroccan national living in Bosnia. Despite having asked for asylum in September 2020 after crossing the green border from Slovenia to Austria along with a group of other asylum seekers, he was handed over to the Slovenian police based on a readmission agreement who also ignored his claim. He was subsequently returned to Croatia and pushed-back to Bosnia.[1] The Court concluded that the policemen “overheard” the asylum application, i.e. they did not carry out a proper interview; the body search resulted in inhuman treatment and the rejection to Slovenia was unlawful. In the statement of facts, the Court stated that pushbacks are “partly applied as a method in Austria.”[2] The Ministry of Interior denied the fact that an application for international protection had been made and brought in a legal remedy to the High Administrative Court.
In 2020, 514 persons from 48 different countries were handed over to Slovenian authorities based on this ad hoc agreement.[3] This agreement originally focused on the uncomplicated return of Slovenian citizens to Slovenia when crossing the border. No formal procedure is known: when a person identified to be returned on the basis of the agreement the police forces of the two countries interact and organise the transfer. There is no legal remedy foreseen in the process. Persons that have applied for asylum cannot be returned on the basis of this agreement.
In July 2021, a Somali minor was also unlawfully returned to Slovenia on the basis of that readmission agreement, despite the fact that he had articulated the words “asylum” various times when talking to police officers. In February 2022, the Regional Administrative Court of Styria decided that the police measures taken were unlawful and resulted in an illegal push back.[4] In Slovenia, the asylum request was meanwhile accepted, and an asylum status had already been granted.[5]
In both cases, the revision requested by the Regional Police Directorate Styria to the High Administrative Court were rejected in May 2022.[6] As a consequence, the Ministry of Interior by non-public internal Decree GZ: 2022-0.344.927, “Awareness with regard to rejections”, 11 May 2022, regulated on how to proceed with foreigners that apply for asylum when apprehended by the police. The decree explicitly states that, just because the person does not mention the word “asylum”, that does not mean they are not applying for international protection, as the application can be brought in by “conclusive action”. The police officer should thus also come to the conclusion that the person is applying for international protection through their behaviour, actions, etc and the police officer should in such case take appropriate action. A mandatory e-learning tool was developed and is available for all officers that are on duty close to border regions.
As a response to the allegations of illegal push backs and unlawful returns taking place at the Southern border to Slovenia and the fact that the number of persons affected by readmissions to Slovenia almost doubled from 81 to 174 in 2020,[7] the initiative “Push back alarm” was founded by activists. Similar to “Alarm phone”, the initiative offers a phone number where persons that crossed the border can request a follow up with the police and ask whether their asylum application is being accepted.[8] In 2023, the number of persons returned to Slovenia based on the bilateral readmission agreement was 62 (compared to 58 in 2022). Nationalities of the persons returned are not indicated.[9] According to the AIDA report on Slovenia, persons who have been summarily returned back from Austria to Slovenia in 2020 were mostly expelled to Croatia by the Slovenian authorities. After the second judgement concerning pushbacks by Regional Administrative Court of Styria, according to the NGO Push Back Alarm Austria there were no more reports of pushbacks on Austrian territory throughout 2022 and 2023.
Since December 2022, the Austrian police entered a joint police cooperation with Hungarian police called “Operation Fox.” The goal of the joint operation which first lasted until May and then was prolonged until mid-2024 is “combatting illegal migration” and transnational criminal activities such as human smuggling. As of February 2023, there were 29 Austrian police officers deployed to this unit that also operates on Hungarian soil. As there were reports of pushbacks conducted by the Hungarian police especially on the Serbo-Hungarian border, the police operation is controversial. The Ministry of Interior states that on the basis of the Prüm Decision,[10] Austrian officers can apply coercive power on Hungarian territory.[11]
Refusals of entry
Following the German announcement of the prolongation of border controls in October 2019, the Austrian Minister of Interior also prolonged the temporary border controls with Slovenia and Hungary until 14 May 2020.[12] The argumentation of the Austrian Government had slightly changed, however: while it initially argued that the situation was not sufficiently stable, the Minister of Interior argued that “border controls in the heart of Europe have led to a positive effect on migration movements”.[13] These border controls were further prolonged on 11 May 2021, based on the “continuing migration pressure” and “the tense situation resulting from Covid-19”.[14] Border controls with Hungary and Slovenia are currently prolonged until November 2024.[15] Furthermore, since September 2023 border controls to Slovakia and Czech Republic have been regularly prolonged every two months, currently until June 2024.[16] The prolongation of border controls were justified, among others, by the fear of proliferation of weapons from Ukraine[17] and the fight against terrorism.[18] More information on the German-Austrian border controls can be found in the AIDA report on Germany.[19]
Slovenia has reaffirmed its opposition as regards Austrian border controls in recent years. The Slovenian Ministry of the Interior considers border controls unjustified and disproportionate and has stressed that there were no statistics demonstrating a risk of secondary migration nor a threat to Austria’s internal security. In 2019 it added that the border controls are “unnecessary and cause great economic damage”.[20] In 2023, the President of Slovenia complained that Austria has no reason to continue border controls with the country. Slovenia itself however also prolonged its own border controls with Croatia until June 2024.[21] As of 21 December 2023, 384 persons coming from Slovenia were denied entry.[22]
Germany refused entry to 11,461 persons in 2023 (2022: 13,076) at the Austrian border.[23] At the same time, 1,319 persons were transferred from Germany to Austria via bilateral return agreement (2022: 631). Following the ECJ judgement C-143/22 regarding refusals of entry at internal borders where controls have been reintroduced, Austrian officials discussed the situation at the borders with German officials: Germany assured that asylum seekers reaching Germany will not be denied entry or be rejected at the border.[24]
Hungary and Austria engage in a bilateral police cooperation on Hungarian territory in the so-called “Operation Fox”. Since September 2021, Austria deploys police officers to the Hungarian-Serbian and Hungarian-Serbian-Romanian border. At the end of 2023, 40 Austrian police officers supported the Hungarian police. In 2024, this number should increase to 60 police officers.[25] The Ministry of Interior stated that the Austrian police is directly using force, but rather just supporting the Hungarian police in their tasks. The operation costed more than 2 million euros in 2023.[26] Operation Fox was extended until May 2024 and is likely to be prolonged. 180 alleged smugglers were apprehended. In May 2023 the fact that Hungary released hundreds of convicted smugglers due to high costs and lack of detention space caused an uproar in Austria. The Hungarian ambassador was called for a consultation by the Austrian Ministry of Foreign Affairs.[27] Until 2023, 194 persons were denied entry by Austria at the Hungarian border.[28] In September, an alleged pushback was reported to the NGOs asylkoordination österreich and Push-back Alarm Austria. It was observed that Austrian police officers controlled an Afghan national on a train from Budapest to Vienna. The police officers apprehended the person and took him off the train. The brother of the Afghan national residing in Austria told that his apprehended brother wanted to ask for asylum but was pushed back to Serbia without any procedure or decision. These allegations however could not be proven. The person involved decided to not take the case to court.[29]
As there are no border controls from Austria at the borders with Germany, Switzerland, Italy and Liechtenstein, no rejections were made in 2022 at these borders. In 2023, 384 persons coming from Slovenia were denied entry, 1 from Czech Republic, 194 from Hungary and 22 from Slovakia. In the same time 666 persons were denied entry to Austria at the airports.[30]
Special provisions to maintain public order during border checks
With a legal amendment, which entered into force on 1 June 2016, “special provisions to maintain public order during border checks” were added to the Asylum Act.[31]
The provision (discussed publicly as “emergency provision”), which can be activated through a decree of the federal government, foresees that asylum seekers have no longer access to the asylum procedure in Austria when a maximum number, i.e. a ‘quota’, of asylum applications to be examined on the merits, is reached. For 2016 this number was set at 37,500 applications and was not reached.[32] For 2017 the limit was set at 35,000 applications and was not reached either. The limit for 2018 was set at 30,000 applications and was not exceeded. For the year 2019, the maximum was set at 25,000 asylum applications. However, the decree of the federal government was never activated. There are no known plans to activate it in the near future and no further projections of quotas for the upcoming years. Even though more than 112,000 applications were registered in Austria in 2022, no public discussion concerning triggering the ‘emergency provision’ arose. As the number of asylum applications decreased to almost 60,000 in 2023 and the backlog of pending cases decreased by almost 15,000, reaching to 39,000 cases at the end of 2023, it was not possible to argue for the existence of the preconditions for triggering the emergency provisions, such as an existing threat to public security.[33]
The possibility of rejection at the border relies on the distinction between “making” and “lodging” an asylum application as per Article 6 of the recast Asylum Procedures Directive. After an application is made before a police officer at the border, or in a registration centre (Registrierstelle) if the person is found to be irregularly on the territory, the Aliens Police will be able to reject the person at the border or to issue a return decision before the initial interview (Erstbefragung).[34]
Refusal to register an application is not possible where return would be incompatible with the principle of non-refoulement under Articles 2 and 3 ECHR, or with Article 8 ECHR.[35]
An asylum seeker is not issued a decision ordering return and cannot appeal against the refusal to have their claim examined. In such a case, the asylum seeker has no right to remain on the territory.[36] Therefore, an appeal to the State Administrative Court (LVwG) does not have suspensive effect.[37]
Although it has not been activated yet, the amendment has been criticised by UNHCR and civil society organisations,[38] as it enables police authorities rather than the BFA to deny a person access to the asylum procedure, without procedural guarantees or legal assistance, while an appeal can only be made after the expulsion has been carried out. The activation of the emergency provision also suspends the application of the Dublin Regulation.
Border monitoring
There is no border monitoring mechanism in Austria.
Legal access to the territory
From 2013 to 2017, a successful resettlement programme “Humanitarian Admission Programme” was implemented bringing around 1,700 persons to Austria. After the last persons were transferred to Austria, the resettlement programme was terminated and no other programme has been launched since. Austria then announced in 2017 that it would relocate some applicants to Austria, especially young applicants and juveniles. In reality, Austria never received any applicant through the relocation scheme. Furthermore, a humanitarian visa can only be granted if the authority is convinced that the applicant demonstrates a willingness to return to the home country.
Austria did not participate in refugee evacuation programmes from Afghanistan after the takeover of the Taliban regime in August 2021. The Ministry of Foreign Affairs supported Austrian nationals and persons with Austrian residency status to get out of Afghanistan (mainly to Pakistan). In one publicly known case, the Austrian embassy in Islamabad confirmed to an Afghan national that it would issue a visa for Austria, but the embassy then refused to issue it when the latter arrived in Pakistan. The woman was instead issued a visa by Germany .[39]
Following the earthquake in Syria and Türkiye in February 2023, Austria announced that it will not make any visa liberalisation but will prioritise the handling applications for short term visas with a maximum duration of 6 months by persons affected by the earthquake that have relatives in Austria.[40]
In 2023, 16% of all applicants (9,180)[41] arrived in Austria via family reunification procedure. This is a slight increase compared to 2022 (8,294).
Source: Ministry of Interior, diagram by asylkoordination österreich.
[1] Prozess Report, „Beschwerden nach Pushback“, availablte in German at: https://bit.ly/3zaZzd9.
[2] Asylkoordination Österreich, „Gericht bestätigt systematische Menschenrechtsverletzungen durch österreichische Polizei”, 5 July 2021, available in German and English at https://bit.ly/3GJF9cy.
[3] Ministry of Interior, Answer to parliamentary request 4277/AB XXVII. GP, 20 January 2021, available in German at: https://bit.ly/2ZpZCA4.
[4] Kurier, „Gericht bestätigt illegalen Pushback von minderjährigem Somali“, 19 February 2022, available in German at: https://bit.ly/3IHJLmv.
[5] Standard, “Wieder dokumentierter Pushback von Österreich nach Slowenien”, 7 September 2021, available in German at: https://bit.ly/3GzS54M.
[6] VwGH Ra 2021/21/0274-6, 5 May 2022; VwGH Ra 2022/21/0074-6, 19 May 2022 available in German at: https://bit.ly/3miz1nc.
[7] Slovenian police, Illegalne migracije na obmocju Republike Slovenije, December 2020, available in Slovenian: https://bit.ly/3szYyqe, 4.
[8] Push back Alarm Austria, see: https://bit.ly/3asuo1z.
[9] Slovenian police, Illegalne, migracije na obmocju Republike Sloenije, November 2023, available in Slovenian: https://bit.ly/3P29RVq.
[10] Decision 2008/616/JI, 23 June 2008, available in German at: https://shorturl.at/mJYpd.
[11] Ministry of Interior, Answer to parliamentary request 13697/AB, 14 April 2023, available in German at: https://tinyurl.com/mr3mbyk8.
[12] Ministry of Interior, Answer to parliamentary request 40AB/XXVII, 12 December 2019, available in German at: https://bit.ly/3aDEhXq.
[13] Der Standard, ‚Österreich kontrolliert weiterhin Grenze zu Slowenien und Ungarn‘, 8 October 2019, available in German: https://bit.ly/2uI59pu.
[14] Kurier, ‘Österreich verlängert Grenzkontrollen zu Slowenien und Ungarn erneut’, 14 October 2020, available in German at: https://bit.ly/2Nr4xOd.
[15] To see current reintroductions: European Commission, ‘Temporary Reintroduction of Border Control’, available at: http://bit.ly/40dSdRT.
[16] Kurier, Österreich verlängert Grenzkontrollen zu Slowenien und Ungarn, 11 November 2023, available in German at: https://bit.ly/49wmmkj and internal information of Ministry of Interior (not published).
[17] Kurier, ‚Österreich verlängert Grenzkontrollen zu Ungarn und Slowenien‘, 11 May 2022, available in German at: https://bit.ly/3J97Rbv.
[18] Ministery of Interior, ‚Innenministerium verlängert Grenzkontrollen zu Ungarn und Slowenigen‘, 12 November 2023, available in German at: https://bit.ly/3wxW42l.
[19] AIDA, Country Report on Germany – Update on the year 2023, June 2024, available here.
[20] Der Standard, ‚Österreich kontrolliert weiterhin Grenze zu Slowenien und Ungarn‘, 8 October 2019, available in German: https://bit.ly/2uI59pu.
[21] Vienna.at, „Wien hat ‚kein Argument‘ für Grenzkontrollen zu Slowenien, 25 April 2023, available in German at: https://bit.ly/49wmu3h.
[22] Ministry of Interior, Internal information, December 2023, not publicly available.
[23] Ministry of Interior, Answer to parliamentary request 16365/AB XXVII. GP, 16 January 2024, available in German at: https://bit.ly/4b0slP2.
[24] Ibid.
[25] Ministry of Interior, Answer to parliamentary request 16290/AB XXVII. GP, 27 December 2023, available in German at: https://bit.ly/49AsmIE.
[26] Ministry of Interior, Answer to parliamentary request 13071/AB XXVII. GP, 15 February 2023, available in German at: https://bit.ly/41IKmxa.
[27] Der Standard, ‚Ungarns Botschafter in Wien verteidigt Schlepper-Freilassungen‘, 24 May 2023, available in German at: https://bit.ly/49AFi1c.
[28] Ministry of Interior, Internal Information, December 2023, not publicly available.
[29] Push-back Alarm Austria, 14. September 2023, available at: https://bit.ly/3wurF52.
[30] Ministry of Interior, December 2023, not publicly available.
[31] Articles 36-41 AsylG.
[32] Out of a total, 42,073 asylum applications registered in 2016, only 27,254 were deemed to be under the responsibility of Austria: Ministry of Interior, Asylum Statistics December 2016, available in German at: http://bit.ly/2k2N2Ue, 3.
[33] Ministry of Interior, Asylum statistics December 2023, available in German at: https://bit.ly/3wEfXVF.
[34] Article 38 AsylG.
[35] Article 41(1) AsylG.
[36] Article 39 AsylG.
[37] Article 41(2) AsylG.
[38] UNHCR Austria, Kurzanalyse zum Gesamtändernden Abänderungsantrag betreffend eine Änderung des Asylgesetzes durch Sonderbestimmungen zur Aufrechterhaltung der öffentlichen Ordnung und des Schutzes der inneren Sicherheit während der Durchführung von Grenzkontrollen, 21 April 2016, available in German at: https://bit.ly/3VEjtrH; Asylkoordination Österreich et al, Stellungnahme zum Entwurf betreffend ein Bundesgesetz, mit dem das Asylgesetz 2005, das Fremdenpolizeigesetz 2005 und das BFA Verfahrensgesetz geändert werden, 21 April 2016; available in German at: http://bit.ly/2jx6Z29.
[39] Oberösterreichische Nachrichten, „Deutschland nahm afghanische Astronomin auf, Österreich nicht“, 10 January 2022, available in German at: https://bit.ly/3j0a7E7.
[40] Der Standard, „Visa für Erdbebenopfer aus der Türkei und Syrien – wie geht das?“, 14 February 2023, available in German at: https://bit.ly/3Ygx9J0.
[41] Ministry of Interior, Answer to parliamentary request 17222/AB, 5 April 2024, available in German at: https://shorturl.at/cuBCE.