Border procedure (border and transit zones)

Austria

Country Report: Border procedure (border and transit zones) Last updated: 08/04/21

Author

Asylkoordination Österreich Visit Website

General (scope, time limits)

Austria has no land border with third countries. All neighbouring states are Schengen Associated States and Member States, party to the Dublin Regulation. A border procedure is foreseen at national level but is strictly limited to airports. In reality, all airport procedures are realised at Vienna airport as it is the only one where a reception centre is established.[2] Moreover, the Austrian airport procedure foresees the possibility to carry out both an admissibility assessment of the asylum claim as well as a full in-merit examination of the asylum claim, in accordance with Article 43 recast Asylum Procedures Directive. There is no available data on the number of applicants for international protection subject to the airport procedure. Overall the border procedure can be described as a black box and there is a serious lack of transparency on the functioning of procedure. The access to NGOs to the airport facility is also restricted in practice.

Under Article 33(1) and (2) AsylG, an asylum application lodged at the airport can only be rejected as inadmissible or dismissed on the merits on two grounds:

  • Dismissal on the merits if there is no substantial evidence that the asylum seeker should be granted protection status and:
  1. the applicant tried to mislead the authorities about his identity, citizenship or authenticity of his documents and was previously informed about the negative consequences of doing so;
  2. the applicant’s claims relating to the alleged persecution are obviously unfounded;
  • the applicant did not claim any persecution at all; or
  1. the applicant comes from a Safe Country of Origin; or

In practice, however, Article 33(2) is never applied.

Asylum seekers who apply for international protection at the airport are transferred after the interview with the police to the building of the police station with the initial reception centre and the rejection zone. The questions asked by the police are the same as in the regular procedure and focus on the travel route as well as one question concerning the reason for the application for international protection. The applicant has the same rights as in the regular procedure such as right to look into the file and receive a copy of the interview report. On the basis of the first interview, the BFA decides within a maximum time limit of one week whether the procedure shall be processed under the special regulations of the airport procedure, or if the case should be considered under the regular procedure.[3]

If the BFA intends to reject the application in the airport procedure, UNHCR has to be informed within one week, a time limit which is generally respected.[4] If the time limit is not met, the application is admitted to the regular procedure and the asylum seeker is allowed entry.[5] Moreover, UNHCR is entitled to contribute to the procedure (e.g. examine the application and talk to the applicant). A rejection of an application on the merits or because of existing protection in a safe third country requires the explicit consent of UNHCR.[6] On the basis of an agreement between Austria and UNHCR, the latter is obliged to respond and provide an opinion within 48 hours, maximum 96 hours, after a case has been submitted.[7] In case the UNHCR does not give its consent it has to bring in a written reasoning. However, UNHCR’s involvement during the airport procedure remains limited in practice due to financial constraints and data on the number of cases concerned are not available. In practice, the role of UNHCR as independent monitoring body seems limited, however, as the latter is bound by Government funding and shares little information on the functioning of the procedure. In the context of Dublin procedures at the airport, UNHCR is not involved.

The law foresees that the persons are not allowed to enter the territory but can leave for another country at any time.[8] Persons held in border facilities are de facto detained as they are forced to stay in the initial reception centre at the airport. Official detention is not regulated in law. Individuals remain in detention pending the implementation of the negative decision at the border and can only be maintained for a maximum duration of six weeks.[9] Therefore, at this stage, a decision rejecting the asylum application on the merits or as inadmissible is issued without an expulsion order. Rejection at the border may be enforced only after a final decision on the asylum application. While detailed statistics are missing, practice suggests that airport procedure are carried out in less than 6 weeks. Nevertheless, the fact that the 6 weeks deadline as foreseen at national level goes beyond the four weeks deadline foreseen in Article 43 APD has not been litigated so far.

Most cases processed at the airport were Dublin procedures and most decisions that were considered as manifestly unfounded at the airport were appealed. In 2018, only 1 appeal was successful while the other 11 appeals were rejected.[10] In 2019, the BVwG rejected all 22 appeals of asylum seekers originating from India, Iran, Philippines, Egypt, Sri Lanka, Lebanon, Russia and Cuba.

In 2016, a reform entered into force to allow for special measures at the border for the maintenance of public order during border checks, which will effectively enable police authorities to deprive asylum seekers of access to the asylum procedure (see Access to the Territory). As of January 2021, the measure was still not implemented in practice.

 

Personal interview

In procedures at the airport, only one personal interview by the BFA is conducted.[11] There are no other differences with interviews under the regular procedure. However, as already mentioned, UNHCR plays an active role in the processing of asylum applications in the airport procedure as it can issue binding opinions. Asylum applications can thus be rejected only upon approval of UNHCR, otherwise they must be processed in the regular procedure. There are no available statistics due to a lack of transparency on the procedure. The involvement of UNHCR is ambivalent: on the one hand it serves as a safeguard in an accelerated procedure, and on the other hand UNHCR is directly involved throughout a truncated procedure which can possibly create dependencies that might cause conflict with UNHCRs role as a UN organisation.

 

Appeal

The time limit for lodging appeals against a decision by the BFA in procedures at the airport is 1 week.[12] The BVwG must issue its decision within 2 weeks from the submission of the complaint.[13] A hearing in the appeal proceedings must be conducted at the initial reception centre at the airport,[14] but this rarely happens in practice. The appeal has automatic suspensive effect.[15]

 

Legal assistance

The federal agency BBU GmbH which is responsible for the provision of basic care in the reception centres of the Ministry of Interior, is also responsible for the provision of legal assistance to asylum seekers in the airport special transit centre. The legal counsellors have to provide legal counselling at first instance and are informed and appointed automatically by the BFA in cases where the BFA announces that it will conduct an interview within 72 hours after the application was lodged. As of February 2021, all interviews were held within 72 hours at the airport. Legal counsellors must be present during the interview. The legal counselling unit is not permanently present at the airport but is stationed in the nearby EAST in Traiskirchen and serves the airport procedures from there. There is not much information available yet on how this has worked so far in practice. NGOs do not have access to this area unless they have a power of attorney.

The BBU GmbH also provides basic care at the EAST at the airport. By 31 December 2019, there was a capacity of ten rooms for 38 beds at the transit zone at the airport.[16]

[1]  Time limit to send the file to UNHCR rather than to take a first instance decision.

[2]  Article 31- 33 AsylG.

[3]  Article 31(1) AsylG.

[4] Article 32(2) AsylG.

[5]  Article 33(2) AsylG.

[6]  Article 33 (2) AsylG

[7]  Abkommen Mitwirkung UNHCR im Asylverfahren, Art III (2), available in German at: https://bit.ly/3jX4OVm

[8] Article 32 (1) AsylG

[9] Article 32 (4) AsylG

[10] Information obtained through the legal information system (RIS), Decisions of the BVwG.

[11] Article 33(2) AsylG.

[12] Article 33(3) AsylG.

[13] Article 33(4) AsylG.

[14] Article 33(4) AsylG.

[15] Article 33 (5) AsylG

[16] Ministry of Interior, Answer to parliamentary request 873/AB XXVII GP, 10 April 2020, available in German at: https://bit.ly/3jZDSEC.

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