Admissibility procedure

Austria

Country Report: Admissibility procedure Last updated: 08/04/21

Author

Asylkoordination Österreich Visit Website

General (scope, criteria, time limits)

The admissibility procedure starts upon registration of the application with the first interrogation (Erstbefragung) of the asylum seeker by the public security officer, who has to submit a report to the branch office of the BFA. The caseworker of the BFA in charge of the case informs the police about the next steps of the admissibility procedure. If the applicant is admitted to the regular procedure he or she is ordered to travel to the initial reception centre (EAST) or transferred there by the police.[1] There are three EAST which are responsible for the admissibility procedure: one is located in Traiskirchen near Vienna, one in Thalham in Upper Austria and one at the Airport Vienna Schwechat. If the asylum applicant is not admitted to the regular procedure, he or she stays in the Federal reception system and is not being allocated to one of the provinces. The person has thus only the right to stay in the district where the Federal reception centre is located.

All asylum seekers have to undergo the admissibility procedure, except children born in Austria whose parents have received protection status in the country or whose application is admitted to the regular procedure. Their applications are admitted immediately to the regular procedure.[2]

An application may be rejected as inadmissible for the following reasons:

  • The person comes from a safe third country;[3]
  • The person enjoys asylum in an EEA country or Switzerland;[4]
  • Another country is responsible for the application under the Dublin III Regulation;[5]
  • The person files a subsequent application and “no change significant to the decision has occurred in the material facts”.[6]

Asylum seekers receive a green “procedure card” within 3 days, which is an indication that their stay in Austria is tolerated. This card is replaced by a “white card” as soon as the application is admitted to the regular procedure.

Within 20 days after the application for international protection has been lodged, the BFA must admit the asylum applicant to the in-merit procedure or notify him or her formally by procedural order about the intention to issue an inadmissibility decision on the ground that another state is considered responsible for the examination of the asylum claim; or that it intends to revoke the suspensive effect of a subsequent application. If the BFA does not notify the asylum applicant of its intention to issue an inadmissibility decision within 20 days, the application is thus admitted to the regular procedure. This time limit does not apply if consultations with another state on the application of the Dublin III Regulation take place.[7]

The 20 day time limit shall not apply if the BFA intends to reject the application for international protection and the applicant does not cooperate during the asylum procedure. The procedure is deemed no longer relevant, especially if the asylum seeker absconded from the procedure.[8] The duty of asylum seekers to cooperate includes the duty to provide the BFA with information and evidence about their identity and reasons for applying for international protection, to be present at hearings and personal interviews as well as to inform the authorities about their address. If the asylum seeker is unable to cooperate during the procedure for reasons relating to his or her person (e.g. illness, postponing the interview due to duty to comply with summons etc.), the 20-day time limit shall be suspended.[9]

If the BFA has ordered an age assessment, the 20-day time limit also does not apply. This practice is based on a lack of cooperation on the part of the asylum seeker in the procedure. As a result, unaccompanied minors who applied for asylum often wait for several months before they are found underaged as a result of the age assessment and until their application is finally admitted. In practice the time limit is respected, however.

As a result of the admissibility procedure, the application may either be dismissed on the merits, or asylum or subsidiary protection status may be granted. The granting of a status or the dismissal of the application in the admissibility procedure replaces the admissibility decision.[10] An admissible application shall nevertheless be rejected if facts justifying such a rejection decision become known after the application was admitted.[11] In practice, this provision is applied in Dublin cases without the precondition that the facts justifying admissibility were not known before.[12]

The information provided by the Ministry of Interior did not include the number of inadmissibility decisions issued in 2019.[13] However, the admissibility procedure lasted for approximatively five days in 2018. This did not significantly change in 2019. It should be noted that, especially in the context of family proceedings, the admission often already takes place on the day of the application, which importantly reduces the calculation of the average duration.[14] It should be further noted that, during the admission procedure, asylum seekers are given basic care in federal care facilities. In 2020, asylum seekers were accommodated in federal facilities and received federal basic care for around 26 days on average.[15]

Personal interview

A personal interview is required by law. The asylum seeker is interrogated by law enforcement officials at the registration stage of the application for international protection and by officials of the BFA during the admissibility procedure at the initial reception centre. The police is not allowed to ask detailed questions on the merits of the application such as the specific reasons for fleeing the country of origin or residence. The clear division of tasks between the police – which has the duty to assess the identity, personal data and the travel route of the applicant – and the officials of the BFA for assessing the facts on which the application is based is not always respected in practice, however. In 2020, the police continued to ask questions relating to the reasons for applying for international protection in certain cases. As a result, the reasons for fleeing the country of origin may be found not credible at the interview stage before the officials of the BFA if the asylum seeker has based the application for international protection on other reasons than those stated immediately upon arrival. In this regard, Article 19(4) AsylG explicitly foresees that, in the admission procedure, the asylum seeker shall also be informed that his or her own statements will be accorded particular attention, meaning that he or she should be aware of the consequences of false testimonies.

The law allows for an exception from the personal interview in case the asylum seeker has absconded from the procedure while being accommodated in the initial reception centre. If the facts relevant to a decision on an asylum claim are established, the fact that the asylum seeker has not been interviewed yet by the BFA or by the BVwG shall not preclude the rendering of a decision. In practice this exception is not applied very often, however. The BFA files most of these cases as “discontinued”, which means that upon request by the asylum seekers the procedure will be reopened. An exception may apply in a subsequent asylum application that was submitted within two days before the execution of an expulsion order.[16] An interview during the admission procedure may be dispensed with if the procedure is admitted.

 

Appeal

 

For the admissibility procedure, the appeal stages are the same as in the regular procedure. The time limits within which an appeal against the BFA’s inadmissibility decision must be lodged is two weeks and the appeal has in general no suspensive effect, except when decided otherwise by the BVwG.

As a first step, the BVwG decides within one week after receiving the appeal whether the appeal will have suspensive effect during the continuing appeal procedure. If the BVwG does not grant a suspensive effect to the appeal or does not admit the appeal after seven days, the asylum applicant can be transferred to the responsible Member State, the safe third country or his or her country of origin in case of a subsequent application.

If the application is rejected on the merits in the admissibility procedure, such application shall be deemed to be admitted if, or as soon as, a complaint against that decision has suspensive effect.

Appeals against a decision rejecting the asylum application as inadmissible do not have suspensive effect unless this is granted by the BVwG.[17] The reasons for not granting suspensive effect to the appeal in inadmissible cases correspond to grounds for declaring claims manifestly unfounded, as mentioned in Regular Procedure: Appeal.

The appointed legal adviser is not obliged to help the asylum seeker to draft the complaint, despite the fact that it must be written in German, and the requested qualification for legal advisers is also not sufficient.

 

Legal assistance

 

A legal adviser is automatically appointed by the BFA in case it intends to reject the application in the framework of the admissibility procedure and if an interview is to be conducted within 72 hours of handing over a procedural order of its intention to reject the application in the admissibility procedure. Legal advice has to be provided at least 24 hours before the next interview, during which the asylum seeker is given the opportunity to be heard. Presence of legal advisers during the interview is mandatory unless the applicant dismisses the advisor explicitly

Free legal advice is foreseen for subsequent asylum applications under the same conditions (interview within 72 hours) as well, including at appeal stage.[18]  Most of the cases that are regarded as inadmissible are Dublin cases (see Dublin: Legal Assistance) and Safe Third Country cases.

Since January 2021, legal assistance is provided by the new Federal Agency, the BBU GmbH (see Regular procedure: Legal assistance).

[1] Article 29(1) AsylG.

[2] Article 17(3) AsylG.

[3] Article 4(1) AsylG.

[4] Article 4a(1) AsylG.

[5] Article 5(1) AsylG.

[6] Article 12a(2)(2) AsylG.

[7] Article 28(2) AsylG.

[8] Article 28(2) AsylG.

[9] Article 28(2) AsylG.

[10] Article 28(2) AsylG.

[11] Article 28(1) AsylG.

[12] VwGH, Decision Ra 2006/20/0624, 25 November 2008.

[13] Information provided by the Ministry of Interior, 18 February 2020.

[14] Answer to parliamentarian request, No 3235/AB-BR/2018, 31 July 2018.

[15] Ministry of Interior, Answer to parliamentary request 4244/AB, XXVII. GP, 18 January 2021, available in German at: https://bit.ly/2OPthRn.

[16] Article 19(1) AsylG.

[17] Article 16(2) BFA-VG.

[18] Article 52(1) BFA-VG.

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