Access to the territory and push backs

Austria

Country Report: Access to the territory and push backs Last updated: 08/04/21

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Covid-19 related restrictions for access to territory and allegations of push-backs

 

In March 2020, the Ministry of Social Affairs, Health, Care and Consumer Protection issued a decree concerning restrictions of access to the territory in the context of COVID-19.[1] It regulated that entry is only permitted with a valid health certificate. This measure also applied to persons seeking international protection as confirmed by a high official from the Ministry of Interior at a press conference on 27 March 2020. In an official document from the Ministry addressed to all state police directorates, the reasoning for applying the requirement of a valid health certificate to asylum seekers was formulated as follows: “A contrary view of the law would contradict all measures taken to protect the population within the framework of the border and immigration regime. In this case, any person – including an EU citizen – could force entry into the federal territory simply by lodging an application for international protection, despite not meeting the entry requirements, such as having a health certificate”.[2]

Given that this interpretation of the law is unlawful as it undermines the right to asylum and the possibility to request international protection in front of any public security agent, a criminal complaint was lodged by an NGO against the Ministry of Interior. The prosecutor’s office rejected the complaint as the Ministry declared the document was not an internal decree but only a non-binding “legal opinion”.[3] The Ministry of Interior refused to share data on the number of persons that were denied entry as a result of this measure, pointing that it is the responsibility of the Ministry of Health to implement these restrictions. The Ministry of Health stated, however, that it is not responsible for asylum related matters and asylum applicants. As a result, no information was made available on the number of persons seeking international protection that were denied entry to the territory. The Ministry of Health only informed about 6 persons apprehended on 1 March 2020 that did not apply for asylum and where then brought to a Police detention centre (PAZ) in Vienna.[4] The decree restricting access to the territory was finally amended on 30 April 2020 and clarified that persons will be allowed entry when Austria is bound by international law obligations.[5] As of March 2021, the 68th amendment to the decree on restrictions of access to the territory was still in force and enables asylum seekers to access the territory without a health certificate.

In November 2020, a complaint was filed by a Moroccan national living in Bosnia against measures of the Austrian police in Styria. Despite having asked for asylum in September 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 who also ignored his claim. He was subsequently returned to Croatia and pushed-back to Bosnia.[6] The Ministry of Interior denied the fact that a request for asylum had been made, including for another case involving a Syrian national, as a result of which the concerned persons were handed over to Slovenian Police based on a readmission agreement. In 2020, 514 persons from 48 different countries were handed over to Slovenian authorities based on this ad hoc agreement. [7]

As a response to the allegations of illegal push backs taking place at the Southern border to Slovenia and the fact that the number of persons affected by readmissions to Slovenia has almost doubled from 81 to 176 in 2020,[8] 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.[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.

Hungarian police reports further mention that Austria sent 5 persons to Hungary on 23 December 2020,[10] and 3 persons on January 2021.[11] These individuals were subsequently pushed back to Serbia. There is no verified information about whether the Syrian and Afghan nationals have requested asylum in Austria.

Refusals of entry at the Slovenian and Hungarian borders

 

Following the German announcement of the prolongation of border controls in October 2019, the Austrian Minister of Interior had 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 have been further prolonged on 11 May 2021, based on the “continuing migration pressure” and “the tense situation resulting from Covid-19”.[14]

Slovenia reaffirmed its opposition as regards Austrian border controls. The Slovenian Ministry of the Interior considers border controls unjustified and disproportionate and 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”.[15]

Across Austria there were more than 300 apprehended persons in irregular stay and 250 asylum applications made per week in 2019, which justified border controls according to the federal state.[16] At the bigger border crossing points, the police stopped about 270 irregularly entering persons and almost 20 human traffickers.[17]

In Burgenland, which is at the border with Hungary, the state government has welcomed the extension of temporary border controls. The Ministry of Interior announced that 425 people were refused entry at the border with Hungary between 1 September 2018 and 31 October 2019. Moreover, during that same period, 599 victims of human trafficking and 34 alleged traffickers were apprehended in Burgenland, [18]  336 victims of human trafficking and 35 alleged traffickers were apprehended in Styria and 105 victims of human trafficking and 49 alleged traffickers were apprehended in Carinthia.

As regards the Slovenian border, 359 illegally entered migrants were refused entry in 2019. In 2020, 494 persons were rejected and handed over to the Slovenian authorities. The number includes rejections based on the Covid-19-entry restrictions decree.[19] The Ministry of Interior further stated that the costs of border controls to Hungary and Slovenia between September 2015 and May 2020 amounted to €137 million.[20]

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.[21]

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.[22] 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 has been 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.

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).[23]

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.[24]

An asylum seeker is not issued a decision ordering return, and cannot appeal against the refusal to have his or her claim examined. In such a case, the asylum seeker has no right to remain on the territory,[25] therefore an appeal to the State Administrative Court (LVwG) does not have suspensive effect.[26]

Although it has not been activated yet, the amendment has been criticised by UNHCR and civil society organisations,[27] 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.

[1] Ministry of Health, Decree on Measures concerning Entry of Territory from Italy, Switzerland, Liechtenstein, Germany, Hungary and Slovenia, BGBl. II Nr. 87/2020, amended by BGBl. II Nr. 195/2020, 30 April 2020, available in German at: https://bit.ly/3uHVkCi.

[2] Ministry of Interior, Answer to parliamentary request 1503/AB XXVII. GP, 9 April 2020, available in German at: https://bit.ly/3dljInl.

[3] Standard, ‘Absage an das Asylrecht durch Ministeriumserlass’, 22 April 2020, available in German at: https://bit.ly/3s2BdwQ.

[4] Ministry of Health, Answer to parliamentary request 2788/AB, 8 September 2020, available in German at: https://bit.ly/2ZmKDqn.

[5] Article 1 (2) COVID-19-Einreiseverordnung

[6] Oe24.at, ‚Pushbacks in der EU – völkerrechtswidrig, aber gängige Praxis‘, 24 November 2020, available in German at: https://bit.ly/2ODjIEI.

[7] Ministry of Interior, Answer to parliamentary request 4277/AB XXVII. GP, 20 January 2021, available in German at: https://bit.ly/2ZpZCA4

[8] Slovenian police, Illegalne migracije na obmocju Republike Slovenije, December 2020, available in Slovenian: https://bit.ly/3szYyqe, 4.

[9] Push back Alarm Austria, see: https://bit.ly/3asuo1z.

[10] Hungarian police, 23 December 2020, available in Hungarian at: https://bit.ly/37ntq4K.

[11] Hungarian police, 21 January 2021, available in Hungarian at: https://bit.ly/3s1wxHw.

[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] Der Standard, ‚Österreich kontrolliert weiterhin Grenze zu Slowenien und Ungarn‘, 8 October 2019, available in German: https://bit.ly/2uI59pu.

[16] Burgenland‚ ‘Grenzkontrollen: Politik begrüßt Verlängerung‘, 12 June 2018, available in Gernan at: https://bit.ly/2Gjxqat.

[17] Burgenland.orf, Lage an der Grenz: sehr ruhig, 17 July 2018; available in German at: https://bit.ly/2tpEWIB.

[18] Ministry of Interior, Answer to parliamentary request 40AB/XXVII of 19 December 2019, available in German at: https://bit.ly/39HPvKu.

[19] Ministry of Interior, Answer to parliamentary request 4277/AB, XXVII. GP, 20 January 2021, available in German at: https://bit.ly/3ueco1P.

[20] Ministry of Interior, Answer to parliamentary request 40AB/XXVII of 19 December 2019, available in German at: https://bit.ly/39HPvKu.

[21] Articles 36-41 AsylG.

[22]  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.

[23] Article 38 AsylG.

[24] Article 41(1) AsylG.

[25] Article 39 AsylG.

[26] Article 41(2) AsylG.

[27] 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: http://bit.ly/1MJVVM5; Asylkoordination Österreich et al, Stellungnahme zum Entwurf betreffend ein Bundesgesetz, mit dem das Asylgesetz 2005, das Fremdenpolizeigesetz 2005 und das BFAVerfahrensgesetz geändert werden, 21 April 2016; available in German at: http://bit.ly/2jx6Z29.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation