Author
“Fast-track”/accelerated procedures
The list of safe countries of origin, based on which the accelerated procedure may be applied, was expanded in 2019 to cover three new countries, namely Namibia, Uruguay and South Korea. On the contrary, Sri Lanka was deleted from the list.
The so-called “fast-track procedure” (see Fast-Track Processing), was initiated in 8,285 (2022: 32,875) cases in 2023, leading to 8,241 (2022: 23,297) decisions of which 300 (2022: 1,188) were decided in an accelerated procedure. In most of the fast track procedures, which mostly applies to persons from countries listed as safe countries of origin and manifestly ill-founded applications (in 2023 55% Morocco, 21% India)), a decision was taken within 72 hours in 2023.[1]
Afghanistan
The situation of Afghan asylum seekers changed considerably in 2021: Austria hosts one of the largest Afghan diaspora communities in Europe. At the start of the year, recognition rates concerning subsidiary protection were decreasing compared to previous years. In June 2021, the death of a 13-year-old girl that had been raped several times (the Causa Leonie case) initiated a public debate as the alleged perpetrators were Afghan nationals who were asylum seekers or who had previously applied for asylum. This led the public to urge authorities to carry out an increased and faster number of removals of rejected asylum seekers with a criminal record, thereby contributing to the anti-Afghan-narrative.
After the fall of Kabul and the takeover by the Taliban in summer 2021, the situation changed. Even though Austria was one of the last countries to stop deportations to Afghanistan, the Ministry of Interior continued to state in public that Austria would resume deportations to Afghanistan as soon as possible. Starting from August 2021, the number of discontinued cases of Afghan nationals thus started to rise as they moved on to other countries. This is also closely linked to the Anti-Afghan-propaganda of the Ministry of Interior in the context of the Causa Leonie case.
2021 was further marked by a rise of subsequent applications lodged by Afghans from 266 in 2020 to 633 in 2021, but these were not prioritised by the BFA.[2] After an important ruling by the Constitutional court in September 2021, the general decision making at first instance changed and now mostly includes granting subsidiary protection to Afghans.[3] Return decisions were issued by a small group of BVwG judges between September and December 2021, but they were halted by another landmark ruling by the Constitutional Court stating that this would breach Art 3 ECHR.[4] Since then, all decisions involving Afghan nationals have been granting protection. In 2022 and 2023, return decisions were issued in single cases but no deportations to Afghanistan took place or were planned. In September 2022, the Supreme Administrative Court referred a case concerning an Afghan woman to the CJEU for guidance on two questions relating to Art 9 of the Qualification Directive: Firstly, whether a combination of measures adopted, encouraged or tolerated by a state which limit a women’s freedom could amount to persecution within the meaning of Article 9(1)(b) of the Qualification Directive (recast) and secondly, whether a woman who is affected by such measures taken by the state should be granted refugee status solely on the basis of her sex or if it would be necessary to examine the individual circumstances of the applicant to determine how the measures impact a woman’s individual situation.[5] The opinion of the Advocate General concluded that a combination of measures could amount to persecution per the Qualification Directive when those have the cumulative effect of depriving those women and girls of their most basic rights in society and thus undermine full respect for human dignity, and that the authorities could consider there was a well-founded fear of being subjected to such acts of persecution on account of gender, without having to look for other factors particular to the person’s personal circumstances.[6]
Palestine
Regarding applicants coming from Gaza, the BFA introduced new questions in the first interview conducted by the police. The applicants were questioned how they view the conflict between Gaza and Israel and what their position towards Israel is. These questions have led to several complaints brought in by affected applicants before courts based on discriminatory grounds. The procedures are pending at the time of writing.[7]
[1] Ministry of Interior, unpublished internal information, 25 January 2024.
[2] Reports from asylkoordination österreich and partner organisations, January 2024.
[3] VfGH, E3445/2021, 30 September 2021, available in German at: https://bit.ly/3rBSgYu.
[4] VfGH, E4227/2021, 16 December 2021, summary in English available at: https://bit.ly/3KYEOWx.
[5] VwGH, Ra 2021/20/0425 and Ra 2022/20/0028, 14 September 2022 (C-608/22, C-609/22), available in German at: https://bit.ly/3VjJUT8; to follow the evolution of this case, see procedure before the CJEU, registered as case C-608/22 here: https://bit.ly/3TyZLOM.
[6] CJEU, AH (C-608/22) and FN (C-609/22) intervener: Bundesamt für Fremdwesen und Asyl, Opinion of Advocate General Richard de la Tour, 9 November 2023, available at: https://shorturl.at/2bUr9.
[7] Report from Diakonie Flüchtlingsdienst to asylkoordination österreich, February 2024.