Short overview of the asylum procedure

Austria

Country Report: Short overview of the asylum procedure Last updated: 08/04/21

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Asylum and aliens law procedures are administrative procedures. For these procedures, the General Administrative Procedures Act (AVG) and the BFA Procedures Act (BFA-VG) apply. The Asylum Act (AsylG) and the Aliens Police Act (FPG) however, contain a number of special procedural rules which regulate asylum and aliens law proceedings.

The procedure before the Federal Administrative Court (Bundesverwaltungsgericht, BVwG) is regulated by the Asylum Act, the BFA Procedures Act (BFA-VG), by the General Administrative Procedures Act and the Federal Administrative Court Act (VwGVG).[1]

The Asylum Act contains norms on the granting of international protection, expulsion procedures in connection with the rejection or dismissal of applications, provisions on the rejection of applications due to the existence of a “safe third country” or to the responsibility of another state according to the Dublin Regulation, norms on family reunification procedures and on airport procedures. In 2016, “special provisions to maintain public order during border checks” were added to the Asylum Act. It allows the Ministry of Interior to issue a decree that would enable the authorities to not examine asylum applications on the merits. This raised a big public debate about the potential introduction of a ‘quota’ of asylum claims per year which would trigger the issuance of a decree once it is reached. However, no consensus was found on the matter and the decree was thus never issued. Moreover, the law does not foresee a limit of asylum applications that would trigger such a decree.

First instance procedure: The Asylum Act provides for a single procedure for applications for international protection. If such an application is lodged, the authorities have to decide whether the application is to be rejected on account of safety in a third country or the responsibility of another state. In the first stage of the procedure – called admissibility procedure – the authorities have to decide on the admissibility of the application. If the application is declared admissible, the authorities decide whether the person is to be granted refugee status. Only where an application for asylum is dismissed on the merits do the authorities have to grant subsidiary protection if the person qualifies for that status. A separate application for subsidiary protection is not possible. There is also an accelerated procedure for certain claims.

Appeal: Appeals to the Federal Administrative Court are possible against a decision rejecting the asylum application as inadmissible and also against a decision dismissing the application on the merits. The BFA Procedures Act (BGA-VG) regulates the appeal and its effects. Appeals against the decision rejecting the asylum application on the merits have to be submitted within four weeks and have suspensive effect, unless the BFA does not allow for the appeal to have suspensive effect. An appeal against a decision rejecting an application as inadmissible does not have suspensive effect and has to be submitted within two weeks. The ruling from the Constitutional Court, which considered the shortening of the appeal period as justified as long as there are special organisational and procedural measures which also ensure a correspondingly rapid decision, has been annulled by the new law that came into force on 1 September 2018.[2] Suspensive effect may be granted by the Court to an appeal against an expulsion order issued together with a decision rejecting the asylum application as inadmissible.

Article 18(1) BFA-VG provides a number of grounds for depriving suspensive effect. These include, inter alia, the applicant’s attempt to deceive the BFA concerning his/her true identity or nationality or the authenticity of his/her documents, the lack of reasons for persecution, if the allegations made by the asylum seeker concerning the danger he/she face are manifestly unfounded or if an enforceable deportation order and an enforceable entry ban was issued against the asylum seeker prior to the lodging of the application for international protection.

However, the Court may grant suspensive effect if there would otherwise be a risk of violation of the non-refoulement principle. The Court has to grant suspensive effect if an appeal is lodged against an expulsion order issued together with a decision rejecting the asylum application as inadmissible, if it can be assumed that the decision to refuse entry to the alien at the border and forcible return or deportation to the country to which the expulsion order applies would constitute a real risk of violation of the principle of non-refoulement according to Austria’s international obligations, or would represent a serious threat to their life or person by reason of indiscriminate violence in situations of international or internal conflict. The reasons must be set out in the appeal decision.

Together with the decision to reject the application for international protection, an expulsion order must be issued, unless reasons related to the right to family and private life according to Article 8 ECHR prevail over public interest and order, or where residence is permitted for other humanitarian reasons.

The evidential requirements are the same for refugee and subsidiary protection status. In appeal procedures before the Court, new facts and evidence may only be submitted in the following cases: if the grounds on which the first instance negative decision was based have undergone any material change; if the first instance procedure was irregular (e.g. if the right to be heard about the findings of the BFA was not respected, or if outdated country of origin information was used or evidence is missing to substantiate the reasoning of the BFA); if such new facts and evidence were not accessible earlier or if the asylum seeker had been unable to submit such new facts and evidence.[3] Decisions of the Court are issued in the form of judgments and all other decisions, such as those allowing the appeal to have suspensive effect, the rejection of an appeal because it was lodged too late, or on the continuation of an asylum procedures that was discontinued (i.e. decisions on procedural issues), are issued in the form of resolutions.

Onward appeal: The BVwG may decide that the rejection of the application can be revised before the Administrative High Court (Verwaltungsgerichtshof, VwGH). This possibility is foreseen if a decision on the case depends on a leading decision, e.g. if the Administrative Court’s decision is not based on a previous decision of the Administrative High Court. If the BVwG does not allow the appeal, the asylum seeker may demand an extraordinary revision.[4] The BFA can also file a revision with the VwGH to challenge decisions issued by the BVwG.

Appeals to the Federal Constitutional Court (Verfassungsgerichtshof, VfGH) may be lodged in instances where the applicant claims a violation of a right guaranteed by constitutional law.

In every stage of the procedure, asylum seekers are informed about the possibility of support for voluntary return. The BFA can also order consultation with regard to return. When an asylum seeker leaves the country in the context of voluntary repatriation to his or her country of origin, the asylum proceeding is filed as terminated.

[1]  See the section on Overview of the Legal Framework.

[2] The reason for shortening the appeal period was justified by the necessity to effectively carry out and enforce certain measures, such as the order to leave the territory. 

[3] Article 20 BFA-VG.

[4]  The BVwG can decide to declare the ordinary revision as admissible – which means that it considers that there is a fundamental legal question at stake – or as inadmissible – which means that the applicant and his/her lawyer must demonstrate themselves that there is fundamental legal question at stake so as to initiate an extraordinary revision. The main difference is that, in the case of an ordinary/regular revision, the applicant does not have to explain what fundamental legal question is at stake and that, in cases where the regular revision is declared as admissible, it is more probable that government sponsored legal aid will be granted granted (which is not a task of the BBU but of the bar association in case of appeals in front of the High Court).  

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