Author
In March 2020, the Ministry of Social Affairs, Health, Care and Consumer Protection issued a controversial decree concerning restrictions on the access to the territory in the context of COVID-19.[1] It regulated that entry is only permitted with a valid health certificate. It was disputed whether persons seeking international protection would also have to fulfil this condition.[2] After a criminal complaint was lodged against the Ministry of Interior it was clarified that it was not an internal decree but a ”non-binding legal opinion”.[3] 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.[4] In practice, however, none of the Ministries were able to confirm or deny whether the decree led to a denial of entry for asylum-seekers.
In July 2021 the 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.[5] 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 push-backs are “partly applied as a method in Austria.”[6] 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. [7] 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. He brought in a complaint and the procedure is still pending. In Slovenia, the asylum request was accepted and an asylum status has already been granted.[8]
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 has almost doubled from 81 to 174 in 2020,[9] 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.[10] From January to November 2021, the number of persons unlawfully returned to Slovenia based on bilateral readmission agreement has decreased to 59.[11] 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,[12] and 3 persons on January 2021.[13] 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.[14] 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”.[15] 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”.[16] More information on the German-Austrian border controls can be found in the AIDA report on Germany.[17]
Slovenia reaffirmed its opposition as regards Austrian border controls in recent years. 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”.[18]
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.[19]
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.[20] 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).[21]
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.[22]
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,[23] therefore an appeal to the State Administrative Court (LVwG) does not have suspensive effect.[24]
Although it has not been activated yet, the amendment has been criticised by UNHCR and civil society organisations,[25] 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.
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 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, there is no legal ground to grant a humanitarian visa from abroad.
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 issued a visa by Germany instead.[26]
[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] Article 1 (2) COVID-19-Einreiseverordnung
[5] Oe24.at, ‚Pushbacks in der EU – völkerrechtswidrig, aber gängige Praxis‘, 24 November 2020, available in German at: https://bit.ly/2ODjIEI.
[6] Asylkoordination österreich, „Gericht bestätigt systematische Menschenrechtsverletzungen durch österreichische Polizei”, 5 July 2021, available in German and English at https://bit.ly/3GJF9cy.
[7] Ministry of Interior, Answer to parliamentary request 4277/AB XXVII. GP, 20 Janduary 2021, available in German at: https://bit.ly/2ZpZCA4.
[8]Standard, “Wieder dokumentierter Pushback von Österreich nach Slowenien”, 7 September 2021, available in German at https://bit.ly/3GzS54M.
[9] Slovenian police, Illegalne migracije na obmocju Republike Slovenije, December 2020, available in Slovenian: https://bit.ly/3szYyqe, 4.
[10] Push back Alarm Austria, see: https://bit.ly/3asuo1z.
[11] Slovenian police, Illegalne, migracije na obmocju Republike Sloenije, November 2021, available in Slovenian: https://bit.ly/34qPe1d.
[12] Hungarian police, 23 December 2020, available in Hungarian at: https://bit.ly/37ntq4K.
[13] Hungarian police, 21 January 2021, available in Hungarian at: https://bit.ly/3s1wxHw.
[14] Ministry of Interior, Answer to parliamentary request 40AB/XXVII, 12 December 2019, available in German at: https://bit.ly/3aDEhXq.
[15] Der Standard, ‚Österreich kontrolliert weiterhin Grenze zu Slowenien und Ungarn‘, 8 October 2019, available in German: https://bit.ly/2uI59pu.
[16]Kurier, ‘Österreich verlängert Grenzkontrollen zu Slowenien und Ungarn erneut”, 14 October 2020, available in German at: https://bit.ly/2Nr4xOd.
[17] AIDA, Country Report on Germany – Update on the year 2021, April 2022, available at: https://bit.ly/3OchWVE, p. 42.
[18] Der Standard, ‚Österreich kontrolliert weiterhin Grenze zu Slowenien und Ungarn‘, 8 October 2019, available in German: https://bit.ly/2uI59pu.
[19] Articles 36-41 AsylG.
[20] 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.
[21] Article 38 AsylG.
[22] Article 41(1) AsylG.
[23] Article 39 AsylG.
[24] Article 41(2) AsylG.
[25] 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 BFA Verfahrensgesetz geändert werden, 21 April 2016; available in German at: http://bit.ly/2jx6Z29.
[26] Oberösterreichische Nachrichten, „Deutschland nahm afghanische Astronomin auf, Österreich nicht“, 10 January 2022, available in German at: https://bit.ly/3j0a7E7.