Legal representation of unaccompanied children

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A legal representative for the asylum procedure is appointed by the BFA as soon as an unaccompanied child applies for asylum.[1] As opposed to adult asylum seekers, unaccompanied minors have to lodge the asylum application at a specific place, the police station of Traiskirchen, near the initial reception centre. Unaccompanied children that are between 14 and 17 years old can further lodge their application at a designated police office in Schwechat. Unaccompanied children have no legal capacity to act by themselves in the procedure; nevertheless, they have the duty to cooperate during the procedure just as adults. Legal representatives have to be present both at interviews organised by the BFA and hearings at the BVwG. [2]

During the admissibility procedure, the legal advisers (who are contracted by the Ministry of Interior) act as legal representatives of the unaccompanied asylum-seeking child. There is no legal guardian appointed as the Child and Youth Welfare Authority denies its responsibility arguing that during the admissibility procedure it is not clear whether the children have a perspective to stay in Austria. UAM are not able to act without the consent of their legal adviser, for example to choose a legal representative by themselves or to submit an appeal in case the legal adviser fails to do so. Legal advisers were either from Verein Menschenrechte Österreich or from ARGE Rechtsberatung up until 2020. By taking over legal assistance, the BBU GmbH also took over the responsibility of legal representation of unaccompanied children in January 2021. According to the Human Rights Board (Menschenrechtsbeirat),^[3] the fact that these legal advisers are only responsible for the asylum procedure and do not have full custody of the child is problematic. Furthermore, legal advisers are not required to have special expertise on children. The problem still lacks a solution and has become a part of public debate throughout 2020. An answer to a parliamentary request showed that more than 50% of unaccompanied minors disappear after lodging an asylum application. The Federal Youth Association (Bundesjugendvertretung) criticised the fact that no one has full custody over the children during the admissibility procedure and called for a solution that would foresee that full custody is assigned to a legal representative from the first day of the asylum procedure.[4]

With the takeover of the BBU GmbH in charge of providing legal counselling since January 2021 (see Legal assistance), no major changes concerning guardianship of unaccompanied minors have occurred. There is still no general appointed guardian in the admissibility procedure. The BBU GmbH is only responsible for legal representation in asylum procedures, all other areas of best interest of the child are not covered. The improvement of the protection and legal status of refugee children is set as an objective in the 2020-2024 coalition programme. Measures securing a swift access to childcare for unaccompanied minor refugees is foreseen and the child’s welfare is meant to be taken into consideration during the asylum procedure.[5] NGOs, and UNHCR, IOM and UNICEF have urged the government to take measures without delay to implement a better protection.[6] In 2022, the government has not yet presented a draft for a possible new guardianship law even though the pressure has increased following the report of the Kindeswohlkommission, an independent commission appointed by the Ministry of Justice following deportations of children in January.[7] The opposition parties have brought forward a parliamentary motion urging the federal government to further improve the protection and legal status of child refugees and to pay special attention to the best interests of the child.[8] The situation of unaccompanied minors got worse during the reception crisis in fall 2022: As the provinces failed to take over asylum seekers from the federal reception centres the centres’ capacity reached its limits. This resulted in up to 1,000 UAM having to stay in inadequate reception centres for months.

In 2023, 4,946 UAM (2022: 13,151) applied for asylum but 4,715 (2022: 11,629) absconded from the procedure.[9] This represents 95,3% (2022: 88,4%) of all applications by UAMs in 2023.[10]

In the case of siblings, the BFA and BVwG have assumed that an adult sibling has the power to represent their underage sibling in the admissibility procedure. The VwGH and VfGH have clarified, however, that legal representation during this procedure is a task for a legal adviser and cannot be performed by a sibling. The transfer of custody requires a court decision and cannot be based on the sole decision of the Child and Youth Service.^[11]

After admission to the regular procedure and transfer to one of the federal provinces, the Child and Youth Service (KJH Kinder- und Jugendhilfe) takes over the legal representation according to the Asylum Act or by court decision.

Legal representation services are provided by the KJH in three federal states (Vienna, Lower Austria, Tyrol). NGOs provide legal services in other federal states, (Carinthia, Styria, Vorarlberg) and the legal representation is divided between different NGOs in the three remaining states (Upper Austria, Salzburg, Burgenland). UNHCR conducted a survey and concluded that there was no difference in the quality of the legal representation services provided by the different NGO’s.^[12]

The quality of the assistance provided has been considered to be problematic in practice in some provinces  as well. NGOs report that in some cases the legal representative refrained from lodging an appeal, thereby disregarding the best interests of the child.[13] NGOs further reported to asylkoordination that, in cases where subsidiary protection was granted, the legal guardians appointed by the authorities refrained to consent to lodging an appeal against the negative asylum decision.[14]

Providing advice in return cases is mandatory since 2016 and unaccompanied children are also advised on return to their country of origin. Legal representatives are not informed about this, as a file note is only available when the application for voluntary return has already been signed. In 2017, 21 children, originating from Afghanistan, Iran and Iraq, returned voluntarily. In 2018, IOM, provided support to 10 unaccompanied minors for their voluntary return.^[15] In 2019, 61 unaccompanied minors left the country voluntarily, including in the context of Dublin procedures, and two unaccompanied children were deported to Nigeria and Serbia respectively.[16] In 2020, there was no deportation of unaccompanied minors.[17] At the same time, IOM provided support to three unaccompanied minors for their voluntary return to Afghanistan, Pakistan and Russian federation.

Unaccompanied children also have the duty to cooperate with family tracing in the country of origin or third countries, regardless of the organisation or person who is undertaking the tracing. Children searching for family members can contact the Red Cross.

The number of unaccompanied children seeking asylum in Austria steadily decreased from 8,277 in 2015 to 4,551 in 2016, 1,751 in 2017 and 488 in 2018. After however, an increase in the number of applications for international protection by unaccompanied children was noted, reaching 859 applications in 2019.[18] In 2020, 1,467 unaccompanied minors applied for asylum, mainly from Afghanistan (825), Syria (389) and Morocco (34). 2021 was marked by another significant increase with 5,605 unaccompanied children, mainly from Afghanistan (3,363) and Syria (1,435). In 2022, a record number of 13,276 UAM applied for asylum in Austria. At the end of 2022, however, an alarming number of 11,613 persons absconded from the procedure.[19]

Source: Ministry of Interior, Annual statistics 2023, available in German at: https://shorturl.at/ahkV5.

A reply to a parliamentary request from December 2019 indicated that only 170 cases of unaccompanied minors were admitted to the asylum procedure as minors. In 471 cases, the procedure was declared discontinued. Procedures are declared discontinued when the applicants leave the country voluntarily or have absconding from the procedure. Asylkoordination Österreich publicly criticised the authorities for losing track of these children and for not taking effective measures to protect underaged asylum applicants. This stands in direct connection with the refusal of the responsible KJH in the district of the initial reception centre of Baden to take over custody of unaccompanied minors during the admission procedure.[20] The Ministry of Interior argued that Child and Youth Service is responsible for the guardianship of unaccompanied minors while the Provence of Lower Austria (which is the supreme authority of the Child and Youth Service of Baden) stated that they can only take over responsibility for guardianship in emergency cases.[21]

In 2021, a total of 3,778 final decisions involving accompanied minor asylum seekers were issued, out of which 3,104 granted asylum (i.e. the large majority of 3,097 at first instance) and 266 granted subsidiary protection (all of them at first instance). In 2021, six residence permits were issued.[22] In 2021, around 4,500 unaccompanied minors disappeared after applying for international protection in Austria.[23] In 2023, 4,946 UAM (2022: 13,276) applied for international protection of which 4,715 (2022: 11,613) absconded, mostly within the first week after the application was lodged, NGOs and BBU GmbH reported to asylkoordination.

[1] Article 49 BFA-VG.

[2] Article 49 (3) BFA-VG.

^[3] Menschenrechtsbeirat, Bericht des Menschenrechtsbeirates zu Kindern und Jugendlichen im fremdenrechtlichen Verfahren , 2011.

[4] Bundesjugendvertretung,‘Bundesjugendvertretung fordert Aufklärung bezüglich abgängiger UMFs in Österreich‘, 20 January 2020, available in German at: https://bit.ly/33epMHf.

[5] Austrian coalition programme 2020-2024, available in German at: https://bit.ly/376xseX, 197.

[6] UNHCR, ‘Obsorge ab Tag 1: UNHCR, IOM und UNICEF rufen Österreich auf, Maßnahmen für unbegleitete Kinder und Jugendliche zu verstärken’, 25 February 2020, available in German at: https://bit.ly/38kRUcs.

[7] Kindeswohlkommission (Commission on the rights of the child), Report of the Kindeswohlkommission, 13 July 2021, available in German at: https://shorturl.at/msLOY.

[8] Parlamentskorrespondenz, Flucht, Migration und Kinderrechte dominieren Innenausschuss, 20 October 2021, available in German at: https://bit.ly/3JV6DOb.

[9] BFA, BFA-Detailstatistik 2023, available in German at: https://shorturl.at/CQZ79.

[10] Asylkoordination österreich, “Kind ist Kind? 550 Schulklassen voll Flüchtlingen verschwunden”, available in German at: https://bit.ly/3ZMRV3W; BFA, BFA-Detailstatistik 2023, available in German at: https://shorturl.at/CQZ79.

^[11] VfGH, Decision E2923/2016, 9 June 2017, available in German at: https://bit.ly/3ZJbhYd; VwGH, Decision Ra 2016/18/0324, 30 August 2017, available in German at: https://bit.ly/3lmvtjF.

[12] UNHCR, Rechtsvertretung von unbegleiteten Kindern und Jugendlichen im Asylverfahren, April 2018, available in German at: https://bit.ly/2ByL1GR.

[13] Meeting of legal counselling NGOs at asylkoordination, November 2023.

[14] Asylkoordination österreich, Obsorge bei Fluchtwaisen, 28 June 2022, available in German at: https://shorturl.at/deMR4.

[15] IOM, Press release: Freiwillige Rückkehr aus Österreich bleibt 2018 hoch: IOM unterstützt mehr als 3.400 Menschen, 1 January 2019.

[16] Ministry of Interior, Answer to parliamentary request 42/J (XXVII. GP), 19 December 2019, available in German at: https://bit.ly/427wBHA.

[17] Ministry of Interior, Answer to parliamentary request 3051/AB, XXVII. GP, 6 October 2020, available in German at: https://bit.ly/30eFWzz.

[18] Ministry of Interior, Answer to parliamentary request 42/J (XXVII. GP), 19 December 2019, available in German at: https://bit.ly/427wBHA.

[19] BFA, BFA-Detailstatistik 2022, available in German at: https://bit.ly/40RXfDP.

[20] Asylkoordiantion Österreich, “asylkoordination fordert Maßnahmen und hofft auf Ankündigung im Regierungsprogramm”,available in German at: https://bit.ly/2Spmyvo.

[21] Der Standard, ‘Die Hälfte der unbegleiteten Flüchtlingskinder in Österreich verschwindet‘, 6 December 2020, available in German at: https://bit.ly/2HCyQLZ.

[22] Ministry of Interior, answer to a parliamentary request 9406/AB, XXVII. GP, 28 March 2022, available in German at: https://bit.ly/3xCwszN.

[23] Asylkoordination österreich, Press relesase, Kampagne KIND ist KIND fordert Obsorge ab Tag eins, April 2022, available in German at: https://bit.ly/3ryMYwU.