Author
The Asylum Act contains the provisions on cessation and withdrawal of international protection in a single provision: Article 7 for refugees and Article 9 for beneficiaries of the subsidiary protection.
Refugee status can be ceased if the conditions in Article 1C of the Refugee Convention are met, or if refugee status has been granted in another country.[1] Subsidiary protection can be ceased where the conditions upon which status was granted no longer exist, where the person obtains subsidiary protection status in another country or obtains the nationality of another country and return thereto would not violate the principle of non-refoulement.[2]
Procedure
Every asylum seeker that comes to Austria is entitled to the free legal aid, when needed. In Austria, free legal counselling within the cessation and review of protection status procedures is provided by a state-based organisation BBU (Bundesagentur für Betreuungs- und Unterstützungsleistungen). BBU has been offering legal counsel and representation before the Federal Office for Immigration and Asylum (BFA) in accordance with Section 49 BFA-VG Federal Law Gazette I No. 87/2012 and before the Federal Administrative Court (BVwG) in accordance with Section 52 BFA-VG Federal Law Gazette I No. 87/2012 as amended since January 1, 2021.
BBU offers free legal counsel to those facing criminal charges, both at the initial hearing and during an appeal. However, the counselling provided by the organisation during the first-instance procedure is not needs based, but rather available only within specific hours established by the organisation.
Where the BFA considers that the conditions in the country of origin have changed, thus questioning whether the beneficiary’s fear of persecution is still valid, it shall inform the person ex officio of the initiation of a cessation procedure – irrespective of whether the person has a permanent or temporary residence permit.[3]
The authorities must assess whether return would be contrary to Articles 2, 3 or 8 ECHR and, in such a case, issue a residence permit. Where return would amount to refoulement, or in case of practical obstacles, the BFA is responsible for issuing a tolerated status card (Duldungskarte). In 2022, 325 tolerated status cards were issued,[4] compared to 265 in 2021 and 194 in 2020. As of September 2023, 213 tolerated status cards were issued.[5]
If a person has held refugee status for 5 years, refugee status may be terminated only after the person has received a residence permit under a different immigration status.
Cessation procedures for beneficiaries of the subsidiary protection are often initiated by the BFA when they apply for a prolongation of their residence permit. Persons originating from Russia, Syria and Afghanistan are particularly concerned by these procedures. The Administrative Court has stated that a subsidiary protection status that was granted because of the minority of a person can be withdrawn once the minor becomes an adult and commits a crime.[6]
A cessation procedure is further initiated when entering the country of origin or applying for a passport from the country of origin. The entry of persons entitled to protection in Austria with a Convention or Foreigner passport is reported by the border police to the BFA. As of today, it is not clear yet if every case of entry from third countries is reported.
Statistics on the number of initiated cessation/withdrawal procedures by the BFA at first instance re. asylum statuses
Statistics made available by the Ministry of Interior do not distinguish between cessation and withdrawal procedures. The number of initiated cessation or withdrawal procedures of the asylum status has consistently remained between 5,500 and 6,000 cases since 2018. In 2018, 5,991 cessation/withdrawal procedures were initiated,[7] resulting in the withdrawal/cessation of refugee status in 450 cases and of subsidiary protection in 475 cases.[8] In 2019, out of the total of 5,547 initiated withdrawal procedures, asylum status was ceased or withdrawn in 856 cases, while subsidiary protection was ceased or withdrawn in 917 cases.[9]
As of September 2023, 1,389 cessation and withdrawal procedures of the asylum status had been initiated on the following grounds:
| Initiated cessation/withdrawal procedures of the asylum status: Jan-Aug 2023 | |||||||
| Country of Origin | Delinquency[10] | Danger to public security[11] | Travel movement (COI)[12] | Altered circumstances[13] | Withdrawal/Cessation of status of the reference person | Other reasons | Total |
| Syria | 470 | 3 | 62 | 14 | 3 | 39 | 591 |
| Russia | 65 | 0 | 47 | 79 | 58 | 19 | 268 |
| Afghanistan | 160 | 0 | 26 | 1 | 0 | 11 | 198 |
| Iran | 50 | 0 | 16 | 2 | 0 | 12 | 80 |
| Iraq | 27 | 0 | 24 | 0 | 1 | 13 | 65 |
| stateless | 34 | 0 | 6 | 0 | 0 | 13 | 53 |
| Somalia | 18 | 0 | 3 | 10 | 7 | 6 | 44 |
| Serbia | 1 | 0 | 0 | 11 | 0 | 0 | 12 |
| Türkiye | 4 | 0 | 0 | 3 | 0 | 3 | 10 |
| DRC | 3 | 0 | 1 | 2 | 0 | 1 | 7 |
| Other | 18 | 1 | 1 | 0 | 7 | 4 | 61 |
| Total | 850 | 4 | 196 | 142 | 76 | 121 | 1,389 |
Source: Ministry of Interior, answer to parliamentary request 15846/ABXXVII. GP, 21 November 2023, available in German at: https://shorturl.at/1RclP.
Not all of the initiated procedures represented above resulted in a withdrawal or cessation of protection. As of September 2023, the BFA ceased and withdrew asylum status in 412 cases as follows (2022: 611; 2021: 1,304; 2020: 1,341):
| Ceased/withdrawn asylum status by BFA January – August 2023 | |||||||
| Country of Origin | Delinquency[14] | Danger to Public Security[15] | Travel Movement (COI)[16] | Altered circumstances[17] | Examination in the course of prolongation | Other reasons | Total |
| Russia | 24 | 1 | 38 | 117 | 51 | 30 | 261 |
| Iran | 7 | 0 | 25 | 1 | 0 | 6 | 39 |
| Syria | 5 | 0 | 4 | 2 | 3 | 15 | 29 |
| Somalia | 1 | 0 | 2 | 5 | 0 | 5 | 13 |
| Kosovo | 2 | 0 | 3 | 4 | 1 | 1 | 11 |
| Serbia | 0 | 0 | 1 | 6 | 3 | 0 | 10 |
| Iraq | 1 | 0 | 5 | 0 | 0 | 3 | 9 |
| Türkiye | 0 | 0 | 0 | 2 | 2 | 3 | 7 |
| Pakistan | 1 | 0 | 2 | 1 | 0 | 0 | 4 |
| DRC | 1 | 0 | 1 | 0 | 0 | 2 | 4 |
| Other | 4 | 0 | 3 | 5 | 5 | 8 | 25 |
| Total | 46 | 1 | 84 | 143 | 65 | 73 | 412 |
Source: Ministry of Interior, answer to parliamentary request 15846XXVII. GP, 21 November 2023, available in German at: https://shorturl.at/1RclP.
Statistics on the number of initiated cases of protection status ceased/withdrawn by the BFA at first instance re. subsidiary protection statuses
As regards subsidiary protection, the BFA initiated a total of (2022: 611) cessation/withdrawal procedures from January to August 2023:
| Initiated cases of withdrawal/cessation of subsidiary protection January – August 2023 | |||||||
| Country of Origin | Delinquency | Danger to public security | Travel movement (COI) | Altered circumstances | Withdrawal / cessation status of reference person | Other reasons | Total |
| Afghanistan | 122 | 0 | 20 | 0 | 4 | 12 | 158 |
| Iraq | 32 | 0 | 27 | 0 | 20 | 7 | 86 |
| Syria | 37 | 0 | 10 | 0 | 2 | 4 | 53 |
| Somalia | 19 | 0 | 0 | 0 | 6 | 3 | 28 |
| Russia | 9 | 0 | 2 | 0 | 0 | 8 | 19 |
| Armenia | 2 | 0 | 1 | 0 | 0 | 7 | 10 |
| stateless | 5 | 0 | 0 | 0 | 2 | 0 | 7 |
| Kosovo | 1 | 0 | 0 | 0 | 0 | 6 | 7 |
| Georgia | 0 | 0 | 3 | 0 | 2 | 0 | 5 |
| Ukraine | 3 | 0 | 0 | 0 | 0 | 0 | 3 |
| Other | 8 | 0 | 0 | 0 | 5 | 6 | 21 |
| Total | 238 | 0 | 65 | 0 | 41 | 53 | 397 |
Source : Ministry of Interior, Answer to parliamentary request 15846AB XXVII. GP, 21 November 2023, available in German at https://shorturl.at/1RclP.
As of September 2023, in 6 cases cessation of asylum status was followed by the granting of subsidiary protection, and in 23 cases a status on humanitarian grounds was granted.
As of September 2023 with regard to first instance decisions, asylum status was withdrawn in 412 cases (2022: 949), subsidiary protection was withdrawn in cases. As regards subsidiary protection, in 122 cases the status was withdrawn or ceased by the first instance authority (2022: 135; 2021: 342):
| Withdrawal of subsidiary protection status by BFA: January – August 2023 | ||
| Country of origin | Asylum | Subsidiary protection |
| Russian Federation | 261 | 14 |
| Iraq | 9 | 50 |
| Syria | 29 | 6 |
| Afghanistan | N/A | 9 |
| Somalia | 13 | 2 |
| Nigeria | N/A | N/A |
| Stateless | N/A | N/A |
| Armenia | N/A | 2 |
| Serbia | 10 | N/A |
| Kosovo | 11 | 23 |
| Other | 79 | 5 |
| Total | 412 | 122 |
Source: Ministry of Interior, answer to parliamentary request 15846AB XXVII. GP, 21 November 2023, available in German at: https://shorturl.at/1RclP.
It should be noted that the above figures only represent the number of protection status ceased/withdrawn by the BFA at first instance. In 2021, the BVwG decided on 409 appeals concerning withdrawal of asylum status and on 720 appeals concerning withdrawal of subsidiary protection.[18] Data for 2022 and 2023 is not available at the time of writing. Concerning the high number of withdrawal and cessation decisions regarding nationals of the Russian federation it has to be noted that the persons received a residence permit. The authority focused on cases that have been beneficiaries since the start of the 2000s, in those cases a status can only be withdrawn if a residence permit is granted.
[1] Article 7(2)-(3) AsylG.
[2] Article 9(1) AsylG.
[3] Article 7(2a) AsylG.
[4] Ministry of Interior, Answer to parliamentary request, 13740/AB, XXVII. GP, 20 April 2023 , available in German at: https://bit.ly/3AEzMuF; Ministry of Interior, Answer to parliamentary request 9531/AB, XXVII. GP, 11 April 2022, available in German at: https://bit.ly/3KPxwnY.
[5] Ministry of Interior, Answer to parliamentary request, 15847/AB, XXVII. GP, 21 November 2023, available in German at: https://shorturl.at/kmOBv.
[6] VwGH, Decision Ra 2018/18/0343, 21 June 2018, available in German at: https://bit.ly/3lgT5pZ.
[7] Ministry of Interior, Answer to parliamentary request, 4105/AB XXVI GP, 30 October 2019, available in German at: http://bit.ly/40aA4UL.
[8] Information provided by the Ministry of Interior on 1 February 2019.
[9] Ministry of Interior, Answer to a parliamentary request 4024/AB XXVI. GP, 16 September 2019, available in German at: https://bit.ly/2PEhsuJ.
[10] Article 7 (2) AsylG, in connection with Article 27 (3) (1-4) AsylG.
[11] Article 7 (1) (1), in connection with Article 6 (1) (3) AsylG.
[12] Article 7 (2) last sentence AsylG.
[13] Article 7 (2a) AsylG.
[14] Article 9 (3) AsylG.
[15] Article 9 (2) (2) AsylG.
[16] Article 9 (1) (1-2) AsylG.
[17] Article 9 (1) (1)AsylG.
[18] Source: Ministry of Justice, Answer to parliamentary request 9532/AB, XXVII. GP, 11 April 2022, https://bit.ly/3rxqhJw.