Refusals of entry at the Slovenian and Hungarian borders
Following the German announcement of prolonging extended border controls in October 2019, the Austrian Minister of Interior also prolonged the temporary border controls with Slovenia and Hungary until 14 May 2020. The argumentation of the Austrian Government has slightly changed, however: while it initially argued that the situation was not sufficiently stable, the Minister of Interior now argues that “border controls in the heart of Europe have led to a positive effect on migration movements”.
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”.
Across Austria there are more than 300 apprehended persons in irregular stay and 250 asylum applications made per week, which justifies border controls according to the federal state. At the bigger border crossing points, the police stopped about 270 irregularly entering persons and almost 20 human traffickers.
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,  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. It is most likely that these rejected persons did not apply for asylum in Austria. 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.
Austria was confronted with Bavaria’s plan to reject illegally entering persons from Austria. In the first half of 2018, 2,500 migrants were apprehended at the border between Italy and Austria – which equals to 15 persons per day. More recent figures are not available. However, the Austrian military – which is also deployed at the borders – reported that it apprehended 63 migrants at the Tyrolean border to Italy in 2019. According to the German police, in the first nine months of 2018, about 7,800 migrants were apprehended on the 820-kilometer-long German-Austrian border. About 50 to 60% of them were sent back to Austria.
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.
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. 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).
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.
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, therefore an appeal to the State Administrative Court (LVwG) does not have suspensive effect.
The amendment has been criticised by UNHCR and civil society organisations, 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.
 Burgenland‚ ‘Grenzkontrollen: Politik begrüßt Verlängerung‘, 12 June 2018, available in Gernan at: https://bit.ly/2Gjxqat.
 Burgenland.orf, Lage an der Grenz: sehr ruhig, 17 July 2018; available in German at: https://bit.ly/2tpEWIB.
 Kurier 03.07.2018, ‚Experte: "Zurückweisen dürfen die Deutschen nicht"", available in German at: https://bit.ly/2E4X3tg.
 Tiroler Tageszeitung, ‚Flüchtlinge: 2018 bisher deutlicher Rückgang an Aufgriffen in Tirol‘, 21 November 2018, available in German at: https://bit.ly/2NXqssB.
 Articles 36-41 AsylG.
 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.
 Article 38 AsylG.
 Article 41(1) AsylG.
 Article 39 AsylG.
 Article 41(2) AsylG.
[17 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.