Author
General (scope, grounds for accelerated procedures, time limits)
The law provides for “procedures for the imposition of measures to terminate residence” subject to reduced time limits for appeal and decisions on appeal, with the effect that certain cases are dealt with in an accelerated manner. For the purpose of this report, these are referred to as accelerated procedures.
Under Article 27 AsylG, an accelerated procedure is applied where:
- During the admissibility procedure, the BFA has notified the applicant of its intention to reject the application as inadmissible (see section on Admissibility Procedure) or dismiss the application on the merits;[1]
- The appeal procedure is to be discontinued where the asylum seeker has absconded the procedure and a return decision was issued by the BFA;[2]
- The BFA determines that the application should be rejected as inadmissible or dismissed on the merits and there is a public interest in accelerating the procedure.[3] Public interest exists in particular, albeit not exhaustively, where an applicant:[4]
- Has committed a criminal offence;
- Has been charged with a criminal offence by the Department of Public Prosecution;
- Has been subject to pre-trial detention; or
- Has been caught in the act of committing a criminal offence.
In case a “procedure for the imposition of measures to terminate residence” has been initiated, a decision on the asylum application shall be taken as quickly as possible and no later than 3 months.[5]
In addition, Article 27a AsylG provides an accelerated procedure as such and states that certain cases may be decided within 5 months, with a possible extension if necessary for the adequate assessment of the case. Such accelerated procedures are foreseen when grounds for denying the suspensive effect of appeals apply, as stated in Article 18 BFA-VG. These reasons are:
- The asylum seeker comes from a safe country of origin;
- There are indications that the asylum seeker endangers public security and order;
- The asylum seeker has provided false statements on his or her identity, nationality and authenticity of documents;
- No reasons for persecution have been asserted;
- Statements adduced are obviously false or contradictory;
- An executable return decision has been issued before applying for international protection; and
- The asylum seeker refuses to provide fingerprints.[6]
Procedures are also subject to stricter time limits in case the asylum application is examined at the airport (see section Border Procedure).
In 2020, 524 applications were subject to an accelerated procedures with an average duration of less than 72 hours. Another 283 procedures were conducted as classic fast track procedures with an average duration of 22.7 days.[7] In accelerated procedures, the authorities focus on applicants from countries with a low recognition rate. In 2020, the top three nationalities to be confronted with accelerated procedures were Morocco (55%), Algeria (18%) and India (5.8%).[8]
All asylum seekers must conduct a personal interview. The law permits an exception in case the asylum seeker has absconded from the procedure.[9] If the facts are established, failure by the BFA or by the Federal Administrative Court to conduct an interview should not preclude the rendering of a decision. No differences are observed from the Regular Procedure: Personal Interview.
The BFA may omit the personal interviews in cases of subsequent applications which aim to prevent the execution of an expulsion order and/or subsequent applications without de facto protection against deportation. Subsequent applications within 18 days of the deportation date have no suspensive effect, the expulsion order issued after the rejection of the first asylum application can be executed.[10]
Appeal
Time limits for appeals are the same as in the Regular Procedure: Appeal. The BVwG has to decide on the appeal within 3 months in cases granted suspensive effect.[11] The BVwG has to decide on the appeal against negative decisions – which include expulsion orders – within 8 weeks.[12]
In subsequent applications without protection against deportation, the court has to decide within 8 weeks if suspensive effect was not granted. This provision has not much effect in practice, however, as asylum seekers may have been expelled or transferred before. Nevertheless, the appeal may have suspensive effect.[13]
Difficulties in lodging an appeal against negative decisions in the accelerated procedure are similar to those described in the section on the Dublin Procedure: Appeal; especially regarding the lack of free legal assistance. Organisations contracted to provide legal assistance also have to organise interpreters if necessary.
Legal assistance
Access to free legal assistance at first instance is difficult for asylum seekers detained during the accelerated procedure, although they may contact NGOs for advice. Free legal assistance is available for subsequent asylum applications too.[14] Since January 2021, the Federal Agency (BBU-GmbH) is responsible for providing legal assistance also in these cases.
A right to legal advice – as required by the recast Asylum Procedures Directive – is only mandatory at second instance, i.e. before the BVwG. This means that, at first instance, legal assistance will only be provided depending on existing resources of the Federal Agency.[15] As a result, it is not guaranteed that asylum applicants in the accelerated procedure will have effective access to legal assistance. Moreover, while they are in principle allowed to access other NGOs, the restriction on their freedom of movement in the context of the admissibility procedure significantly limits their access to NGOs which are not present in certain initial reception centres.
In so-called accelerated procedures under Article 27a AsylG in conjunction with Article 18 BFA-VG, mandatory free legal aid for the admissibility procedure is circumvented by the possibility to forward the procedure to the BFA branch office without prior admission to the regular procedure. This practice took place from time to time in 2018 but has not been reported recently. When asylum seekers get an invitation to their interview, they are still subject to restrictions on their freedom of movement. Therefore they are not able to consult NGOs or lawyers outside the restricted area. There are only few cases reported in 2020. However, with the establishment of the Federal Agency (BBU-GmbH) in 2021, which will be responsible for accommodation and legal assistance, this practice is likely to increase and it is expected that cases will not be reported to the public as NGOs will not have general access.
[1] Article 27(1)(1) AsylG, citing Article 29(3)(4)-(5) AsylG.
[2] Article 27(1)(2) AsylG, citing Article 24(2) AsylG.
[3] Article 27(2) AsylG.
[4] Article 27(3) AsylG.
[5] Article 27(8) AsylG.
[6] Article 18 BFA-VG.
[7] Ministry of Interior, Answer to parliamentary request 4887/AB, XXVII GP, 12 March 2021, available in German at: https://bit.ly/2P47uVW.
[8] Ministry of Interior, „Nehammer: Schnellverfahren trennt erfolgreich zwischen Asyl und Migration“, 25 February 2021, available in German at: https://bit.ly/2P4CBRd.
[9] Article 24(3) AsylG.
[10] Article 19(1) AsylG.
[11] Article 27(8) AsylG.
[12] Article 17(2) BFA-VG.
[13] Article 18(2)(5) BFA-VG. See e.g. AsylGH (Asylum Court), A8 260.187-2/2011, 2 August 2011.
[14] Article 49(2) BVA-VG in conjunction with Article 29(3) BFA-VG.
[15] For additional information on the BBU-G, § 51 BFA-VG, see in German: https://bit.ly/378koFH.