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 must lodge the asylum application at a specific place, the police station of Traiskirchen, near the initial reception centre. Unaccompanied children who are between 14 and 17 years old can also 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 was 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] In 2022 and 2023, even more UAM disappeared after lodging an asylum application: In 2022, 11,613 cases were discontinued (87.5%) and in 2023 4,715 (95.3%). In 2024, the number of UAM applying for asylum decreased to 925 of which 488 cases were discontinued (52.8%).[5] In the first quarter of 2025, only 153 UAM applied for asylum of which 121 (79.1%) disappeared.[6]

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. This was criticised by the UN Committee Against Torture in its 2024 concluding observations, as it highlighted concerns about ‘the fact that legal guardians are appointed only after an unaccompanied or separated asylum-seeking child between 14 and 18 years of age has been assigned to a reception facility operated by one of the Länder, and that the transfer to the facility may take time due to age-assessment processes’.[7]

The improvement of the protection and legal status of refugee children is set as an objective in the 2025-2029 coalition programme.[8] It was already foreseen in the coalition programme of the predecessor government but not implemented. NGOs, and UNHCR, IOM and UNICEF have urged the government to take measures without delay to implement a better protection.[9] 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.[10] 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.[11] In the 2025-2029 coalition program, the governing parties included a pledge to the recommendations of the Kindeswohlkommission.[12]  The situation of unaccompanied minors got worse during the reception crisis in fall 2022: As the provinces failed to take over asylum applicants 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. The 2023 report of the Qualitätsbeirat highlights key challenges regarding unaccompanied minor refugees (UMFs). Nearly 600 UMFs remained in BBU facilities due to delays in transferring them to provincial care, overburdening the independent legal advice service, which lacks a guardianship mandate. The Board urges the Ministries of the Interior and Justice to ensure prompt guardianship assignments and faster transfers.[13]

This situation changed for the better in 2024 due to decreased applications and the minors are accommodated in the provinces faster. However, the oldest accommodation specialised in UAM run by SOS Kinderdorf in Salzburg closed in spring 2025. Its financial situation grew worse as only few applications were filed and the FPÖ-Landesrat decided to not step up the financial support.[14]

In 2024, 925 UAM (2023: 4,946) applied for asylum but 488 (2023: 4,715) absconded from the procedure.[15] This represents 52.8% (2023: 95.3%) of all applications by UAMs in 2024.[16]

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.[17]

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.[18]

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.[19] 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.[20]

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 2020, there was no deportation of unaccompanied minors.[21] At the same time, IOM provided support to three unaccompanied minors for their voluntary return to Afghanistan, Pakistan and Russian federation. In 2024, there were two forced deportations of Turkish boys to Türkiye. In the same timeframe, there were 14 voluntary returns of minors (7 to Türkiye).[22]

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.

Source: Ministry of Interior, Annual statistics 2024, March 2025, available in German at: https://shorturl.at/8FX8m.

In 2024, 925 UAM[23] (2023: 4,946) applied for international protection of which 488[24] (2023: 4,715) 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 here.

[5] BFA, Annual statistics 2024, March 2025, available in German https://shorturl.at/mAwpM.

[6] Ministry of Interior, Answer to parliamentary request 631/AB, XXVIII. GP, 19 May 2025, available in German at https://shorturl.at/SQRPv.

[7] UN Committee Against Torture, Concluding observations on the seventh periodic report of Austria, CAT/C/AUT/CO/7, 12 June 2024, available here.

[8] Bundeskanzleramt, „Jetzt das Richtige tun. Für Österreich.“, available in German at https://shorturl.at/c6UcW.

[9] 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 here.

[10] Kindeswohlkommission (Commission on the rights of the child), Report of the Kindeswohlkommission, 13 July 2021, available in German here.

[11] Parlamentskorrespondenz, Flucht, Migration und Kinderrechte dominieren Innenausschuss, 20 October 2021, available in German here.

[12] Kindeswohlkommission (Commission on the rights of the child), Report of the Kindeswohlkommission, 13 July 2021, available in German here.

[13] Qualitätsbeirat BBU GmbH, Jahresbericht 2023, available in German here.

[14] SOS Kinderdorf, Flüchtlingseinrichtung Clearing-house muss schließen, 15 April 2025, available in German at https://shorturl.at/ltnTK.

[15] BFA, BFA-Detailstatistik 2023, available in German here.

[16] Asylkoordination österreich, “Kind ist Kind? 550 Schulklassen voll Flüchtlingen verschwunden”, available in German here; BFA, Ministry of Interior, Answer to parliamentary request 631/AB, XXVIII. GP, 19 May 2025, available in German at https://shorturl.at/SQRPv.

^[17] VfGH, Decision E2923/2016, 9 June 2017, available in German here. VwGH, Decision Ra 2016/18/0324, 30 August 2017, available in German here.

[18] UNHCR, Rechtsvertretung von unbegleiteten Kindern und Jugendlichen im Asylverfahren, April 2018, available in German here.

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

[20] Asylkoordination österreich, Obsorge bei Fluchtwaisen, 28 June 2022, available in German here.

[21] Ministry of Interior, Answer to parliamentary request 3051/AB, XXVII. GP, 6 October 2020, available in German at here.

[22] Ministry of Interior, Answer to parliamentary request 631/AB, XXVIII. GP, 19 May 2025, available in German at https://shorturl.at/SQRPv.

[23] Ministry of Interior, Annual asylum statistics 2024, March 2025, available in German https://shorturl.at/AMjq3.

[24] Ministry of Interior, Answer to parliamentary request 631/AB, XXVIII. GP, 19 May 2025, available in German https://shorturl.at/dC8Sv.