Legal representation of unaccompanied children

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A legal representative is appointed as soon as an unaccompanied child applies for asylum. As opposed to adult asylum seekers, unaccompanied minors have to make the asylum application at the police station of Traiskirchen, near the initial reception centre. Unaccompanied children that are between 14 and 17 years old can further make 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.

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. Legal advisers are either from Verein Menschenrechte Österreich or from ARGE Rechtsberatung. According to the Human Rights Board (Menschenrechtsbeirat),^[1] 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 is still lacking a solution and has become a part of public debate throughout 2019. 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.[2]

It is still unclear whether there will be major changes concerning guardianship of unaccompanied minors following the establishment of the Federal Agency (BBU-GmbH) in 2021. 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.[3] NGOs, and UNHCR, IOM and UNICE, have urged the government to take measures without delay to implement a better protection.[4]

In one case in 2017 concerning an asylum seeker who had repeatedly missed age assessment appointments and for whom custody had been transferred by the court to the Child and Youth Service (Kinder- und Jugendhilfe), the BFA had conducted a Dublin interview without the child’s legal representative being present and rejected his asylum application, mentioning that he had seriously breached his obligation to cooperate. The BVwG had demanded an original power of attorney and stated that the submitted copy of power of attorney was insufficient. The VwGH found that it was not necessary for the Child and Youth Service to bring forward the original power of attorney, since the formal requirements had been satisfied.^[5]

In the case of siblings, the BFA and BVwG have assumed that an adult sibling has the power to represent his or her 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.^[6]

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 presentation 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.^[7] However, critics arouse in 2018 regarding the legal representation undertaken by a special coordination office in Lower Austria, as the best interests of an unaccompanied minor was not sufficiently taken into account. In fact, the asylum application of an unaccompanied minor was rejected and because he was not informed of that rejection he did not seek assistance from another organisation to appeal the decision.^[8] Similar incidents were not reported in 2019, however.

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, have returned voluntarily. In 2018, IOM, provided support to 10 unaccompanied minors for their voluntary return.^[9] In 2019, 61 unaccompanied minors left the country voluntarily, including in the context of Dublin procedures.[10] 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. Family tracing takes place on the basis of an official order of the BFA and is implemented by VMÖ, which is also responsible for the legal representation of unaccompanied children in the admissibility procedure. It is evident that a conflict of interest arises in these cases, as the organisation acts on behalf of the BFA at the same time as it represents the interests of the child. According to information provided to asylkoordination österreich by volunteers, the conversation between the child and the family tracing counsellor takes place in the child’s mother tongue so that legal representatives are not able to follow. Children searching for family members can also contact the Red Cross.

The number of unaccompanied children seeking asylum in Austria has steadily decreased from 8,277 in 2015 to 4,551 in 2016, 1,751 in 2017 and 488 in 2018. In 2019, however, an increase in the number of applications for international protection by unaccompanied children was noted, reaching 845 from January to October 2019.[11]

Source: Ministry of Interior.

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 being 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.[12] 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.[13]