Author
The Asylum Law has no definition of vulnerable groups. However, it provides special provisions for victims of harassments, of sexual self-determination (Article 20 Asylum Act) of violence (Article 30 AsylG), as well as for unaccompanied minors (e.g. family tracing Article 18, legal representation Article19 Asylum Law). Only a few federal states such as Burgenland, Vorarlberg or Upper Austria have included definitions of vulnerable asylum seekers in their basic care laws.
Screening of vulnerability
There is no effective system in place to identify asylum seekers in need of special procedural guarantees and the law does not foresee any mechanism to that end. During the admissibility procedure in the initial reception centre, asylum seekers are informed through written leaflets about the necessity to report psychological problems to the doctor and the legal adviser. At the beginning of the interview, they are asked whether they have any health or mental problems that could influence their ability to cooperate during the asylum procedure. Psychologists in initial reception centre are requested by the BFA to assess if the asylum seeker is suffering from mental disorders as a result of torture or another event which may prevent them from defending their interests during the procedure or entails for them a risk of permanent harm or long-term effects.[1]
The report published by the OHCHR in October 2018 following a mission in Austria indicates that interviews conducted by the police and the BFA take place in an atmosphere of mistrust, whereby the authorities focus on the identification of Dublin cases rather than on the identification of vulnerability. The report also stated that there was generally little cooperation among different actors, including governmental entities and a broad range of civil society organizations working with migrants in vulnerable situations.[2] In 2021, the exchange between the first instance authority and NGOs remained difficult. There is however an exchange between NGOs, second instance Court and the BBU GmbH on a regular basis.
Victims of trafficking
In the Austrian system, there is no systematic identification of victims of trafficking. However, an Austrian authority’s assessment of an individual as a (potential) trafficked person has concrete consequences in status determination procedures and criminal prosecution; meaning that a person can be identified as a victim of trafficking in accordance with the criminal procedures act. A type of formal classification of an individual as a “victim” and the procedural consequences this entails is only regulated in the Austrian Code of Criminal Procedure.
The OHCHR further encouraged the Austrian authorities to provide for a reflection and recovery period in the law in order to strengthen identification practices, but this was not implemented. During its visit in 2018, the OHCHR was informed that potential victims of trafficking, particularly women were being returned back to the countries they had fled. This mainly concerned Dublin cases and “safe third country” cases.[3] In practice, there are still no systematic identification of victims of trafficking in place. In November 2021, the Ministry of Foreign Affairs presented the 6th national action plan to combat trafficking in human beings for 2021 to 2023, consisting of 109 measures ranging from prevention and awareness raising to improving law enforcement measures.[4]
In practice, if an Austrian official, such as a caseworker of the BFA, identifies a potential trafficked person, the official is requested to contact the criminal police office of the respective federal province. If the latter confirms the suspicions of the official, criminal investigations are initiated. The individual concerned as well as a specialised NGO will be contacted and informed, a reflection period may be granted, and certain victims’ rights relevant to criminal proceedings are provided. There are no current statistics, however, on the number of victims of human trafficking in Austria.
Access to specialised care and support through NGOs is not necessarily dependent on informal identification by the police or the presence of criminal or civil proceedings. In the identification process, a central role is given to the Federal Criminal Intelligence Service. Together with its offices in the federal provinces, it is responsible for investigating cases of trafficking in Austria. This authority mainly cooperates with the organisation “LEFÖ-IBF”, which is formally contracted by the Austrian Ministry of Interior and the Women’s Department of the Federal Chancellery to provide support and protection to victims of trafficking across Austria.
Age assessment of unaccompanied children
Most age assessments are ordered by the EAST during the admissibility procedure, as special safeguards apply to unaccompanied children in accordance with the Dublin III Regulation. When the Dublin Unit starts consultations with other EU Member States it thus informs the latter that there is an ongoing age assessment procedure. In the meantime, the concerned unaccompanied children are admitted to the regular asylum procedure.
In practice, it seems that age assessments are ordered systematically. While the BFA had ordered 1,355 carpal x-rays in 2017 and 2,552 age assessments in 2016; resulting in the recognition of minority of 61% and 59% respectively.[5] In 2022, 461 (2021: 428) multifactorial age assessments and 951 (2021: 1,170) wrist X-rays were conducted by the BFA. As a result of age assessments, in 233 cases (2021: 200) the applicant was considered to be of age while in 228 (2021: 228) cases the applicant’s minority was confirmed.[6]
Methods for assessing age
In the case of doubt with regard to the age of an unaccompanied asylum-seeking child, authorities may order a medical examination. Several methods might be used. According to the Asylum Act and decrees of the Minister of Interior (which are not public), age assessments through medical examination should be a measure of ultima ratio. Other evidence to prove age should be verified first. If doubts remain after investigations and age assessment, the principle of in dubio pro minore (the benefit of the doubt) should apply.[7] As part of a multifactorial examination methodology, three individual examinations are carried out (i.e. physical, dental and x-ray examinations). According to the Ministry of Interior, these examinations are conducted in compliance with the guidelines of the Association for Forensic Age Diagnostics (AGFAD).[8]
However, these principles are not strictly applied in practice. Children undertake age assessment tests but the asylum authorities do not acknowledge the documents that are submitted to them nor do they allocate sufficient time to obtain such documents. The Human Rights Board (Menschenrechtsbeirat), NGOs and the Medical Association have criticised the age assessment methods.[9] The age assessment examination states a minimum age and consists of three medical examinations: a general medical examination; an X-ray examination of the wrist and a dental examination by a dentist. If the X-ray examination of the wrist is not conclusive, a further X-ray (CT) examination of the clavicle may be ordered.
An example in which the VwGH applied the benefit of the doubt and ruled that the applicant should be considered to be a minor concerned a Gambian asylum seeker. His birth certificate, delivered by the Gambian authorities, indicated that he was a minor but the authorities in Norway and Italy had determined that he was an adult. The BFA had considered that the concerned Gambian applicant was between 17.04 and 18.44 years.[10]
Even though strategic litigation against the application of age assessment has almost ceased in the last years, concerns are being articulated by NGOs especially in reference to the indiscriminate application of age assessments The BFA regularly orders age assessment procedures, even in cases in which the applicants offered to present documents within days or weeks. The costs of an age assessment range between € 489.20 and € 1,246.80.[11] The statistical data of the Ministry of Interior is incomplete and does not allow conclusions to be drawn on the proportionality and scientific value of the application of age assessment.
Challenging age assessments
Age assessments are not an administrative decision but an expert opinion which is communicated to the applicant. As a result, there is no possibility to appeal the opinion. The question whether it is possible to challenge the decision declaring the majority of an asylum applicant has been referred to the Constitutional Court (VfGH). In a ruling of 3 March 2014, the Court ruled that the declaration of majority of an asylum applicant by the BFA, and the subsequent discharge of the legal representative, may not be appealed during the first instance procedure.[12] As a consequence, unaccompanied children who are erroneously declared to be adults have to continue the procedure without legal representation. Authors have raised concerns resulting from this ruling, in particular the fact that the Court established criteria that are not in line with the applicable legal safeguards and disregarded the significant procedural consequences a declaration of majority entails. [13]
The VwGH has confirmed the VfGH’s position, stating that age assessments should be seen as part of the examination of the asylum application. Since the age assessment is a mere procedural matter according to the VfGH, the asylum seeker does not lose any rights in the procedure that they would otherwise enjoy as an unaccompanied child.[14]
However, as explained by experts, the deprivation of the right to legal representation under Article 10(3) BFA-VG denies unaccompanied children of the right to a representative in violation of Article 25(1) of the recast Asylum Procedures Directive and Article 6(2) of the Dublin III Regulation, as well as of Article 24(1) of the recast Reception Conditions Directive.[15]
[1] Article 30 AsylG.
[2] 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, 7.
[3] Ibid.
[4] Ministry of Foreign Affairs, Report to the Parliament: Bekämpfung des Menschenhandels, Arbeitsausbeutung, Kinderhandel, Prostitution, November 2021, available in German at: https://bit.ly/36pRC9n.
[5] Ministry of Interior, Reply to parliamentary request, No 1240/AB, 4 September 2018, available in German at: http://bit.ly/2nU4rz4.
[6] Source: BFA-Detailstatistik 1.-4. Quartal 2022, available in German at: https://bit.ly/3SMUZLj.
[7] Article 13(3) BFA-VG.
[8] Reply to the parliamentary request No 1240/AB, 4 September 2018, , available in German at: http://bit.ly/2nU4rz4.
[9] Human Rights Board, Bericht des Menschenrechtsbeirates zu Kindern und Jugendlichen im fremdenrechtlichen Verfahren, 2011; Stellungnahme der Ärztekammer, FPG 2010, 21 July 2009.
[10] VwGH, Decision Ra 2017/18/0118, 27 June 2017, available in German at: https://bit.ly/3JlEMIG.
[11] Ministry of Interior, Answer to parliamentary request 4983/AB, XXVII. GP, 11 March 2021, available in German at: https://bit.ly/30VT4dd.
[12] VfGH, Decision U 2416/2013-8, 3 March 2014.
[13] See in particular D Lukits and R Lukits, ‘Neues zur Volljährigerklärung im österreichischen Asylverfahren, Fabl, January 2014.
[14] VfGH, Decision U 2416/2013-8, 3 March 2014.
[15] Amnesty International, Studie zur Situation besonders vulnerabler Schutzsuchender im österreichischen Asyl- und Grundversorgungsrecht, August 2016