Dublin

Austria

Country Report: Dublin Last updated: 30/11/20

Author

Asylkoordination Österreich Visit Website

 

General

Dublin statistics: 2019

As of August 2019, Austria has implemented 967 Dublin transfers. The main countries receiving outgoing transfers from Austria were Italy (428), Germany (273) and France (48).[1] Overall, in 2019 the decrease of Dublin procedures has continued as only 765 Dublin decisions have been issued in the first half of 2019 by the determining authority, compared to 2,597 rejections based on Art 5 AsylG in the whole year of 2018. More detailed statistics on outgoing and incoming procedures were not available at the time of writing.

Application of the Dublin criteria

If the special regulation due to threats to public security and order comes into effect (see Access to the Territory), third-country nationals will be returned to neighbouring countries. Since it will not be possible to lodge an asylum application, this will completely contravene the Dublin system.[2] Christian Filzwieser, judge at the Administrative Court, has doubted whether Austria’s neighbouring countries will agree to take persons back under such conditions, whereas under the Dublin III Regulation they are obliged to take charge or take back.

Austria applies the Dublin procedure systematically and, where it proves impossible to transfer an asylum seeker to one country, examines the criteria of the Regulation to determine whether the person can be sent to another country.[3]

Documentation and entry

The Dublin Regulation may be triggered if there is a so-called “Eurodac hit”, i.e. if the asylum applicant has obtained a visa from another Member State, if the asylum applicant admits that he or she entered the EU via another Member State or if there is a suspicion or circumstantial evidence indicating the asylum applicant entered via another Member State. Although there are other grounds applicable for determining a Member State’s responsibility under the Dublin III Regulation, these are the most common grounds applied in Austria.

After the CJEU ruling in Jafari,[4] which found that the state-organised transit through the Western Balkan route in 2015-2016 qualified as “illegal entry” under Article 13 of the Regulation, the VwGH dismissed the appeal against a transfer to Croatia on those grounds. The Court did not indicate that Austria applied the discretionary clauses in these cases.[5]

In a case concerning a person who transited through Bulgaria and following a short stay travelled to Serbia and then entered Hungary, without applying for asylum in any of these countries, the Administrative High Court ruled that the provisions of Article 13(1) in conjunction with Article 19(2) of the Dublin III Regulation and in the light of the A.S. ruling of the CJEU, can only be understood as meaning that the criterion of illegal entry, as defined in Article 13(1) of the Dublin III Regulation, is applicable if the asylum seeker did not apply for international protection in that Member State, but if that application was made in another Member State after a short-term voluntary exit to a third country. Bulgaria was therefore deemed responsible for the asylum application.[6]

Family unity

The BFA has put forward surprising arguments in the context of family reunification under the Dublin Regulation. In a case of an unaccompanied minor to whom a protection was granted in Austria, the Greek Asylum Service submitted a “take charge” request for the parents to be transferred from Greece to Austria. The BFA refused responsibility on the ground that the parents had deliberately accepted the separation from their minor child. The rejection of such requests is not considered a formal decision which may be legally challenged before the BVwG. Requests from Greece are also handled very slowly and take often more than a year, which is why Austria ends up being responsible for the asylum application by default. According to statistics from the Greek Asylum Service, Austria received 223 requests but only accepted 123 transfers throughout 2018.[7] In 2019, Austria received 170 requests from the Greek Dublin Unit, out of which 69 were accepted. Moreover, a total of 91 transfers were carried out (including transfers pending from 2018).[8]

In 2017, the VwGH examined the question of whether an unaccompanied child could stay in Austria, whilst Italy had been determined as responsible for his family members. Whereas the BVwG had referred to the sovereignty clause of Article 17 of the Dublin Regulation in order to prevent a violation of the right to private and family life, the VwGH stated that Article 11 of the Dublin Regulation prevailed in order to ensure the unity of the family and the best interests of the child.[9]

In 2018, the BvWG had to rule on a case of family reunification concerning parents that had applied for asylum in Austria, while their minor child and the grandmother had applied for asylum in Greece. In accordance with the Dublin III Regulation, Greece requested Austria to be responsible for the applications. However, the BFA had doubts on whether family reunification would be in the best interests of the child and refused to take responsibility. The BwWG confirmed the rejection of the BFA. In the case of refusal of family reunification, the only available option for the requesting Member State is to request a re-examination. As regards the asylum applicant, he or she cannot act directly against the negative decision nor bring it to appeal, as this is a purely intergovernmental procedure. Therefore, in this case, it was the responsibility of Greece as the requesting Member State to challenge Austria’s refusal to grant family reunification. The BvWG allowed for a regular revision, as there is currently no specific case-law on the issue. [10]

As a consequence of two cases that Asylkoordination had put forward to the Ombudsman, the Minister of Interior and the Ombudsman agreed that the BFA should involve the Child and Youth Welfare Agency when it examines family reunification requests under the Dublin III Regulation to UMF living in Austria.[11] No changes have been noted in practice, however.

To demonstrate family ties, every asylum applicant must have mentioned the existence of other family members during asylum procedure, i.e. in Austria as well as in the other Member States where they have applied for asylum. Marriage certificates or birth certificates are required on a regular basis. Depending on the country of origin, these documents are surveyed by the Federal Bureau of Criminal Investigation to prove authenticity. Austria requires the original documents, where available, to be sent for verification and does not leave such verification to the other Member States.

DNA tests may be required to provide proof of family ties but this is rare in practice. DNA tests have to be paid by the asylum seeker. If a DNA test has been suggested[12] by the BFA or the Administrative Court and family links have been verified, asylum seekers may demand a refund of the costs from the BFA. The issue of DNA tests was discussed in the context of a legislative reform affecting Family Reunification but was ultimately not included in the reform.[13]

Unaccompanied children

Following the judgment of the CJEU in M.A. which concerned Article 8(4) of the Dublin III Regulation,[14] for asylum applications lodged by unaccompanied children, the BFA/EAST has ordered age assessments even in cases where there are no reasons for doubts in regard to the age of the asylum seeker.

In one case concerning a transfer to Hungary, the BFA considered that the deadline for replying to a request should be suspended until an age assessment is conducted. The VwGH disagreed, however, and ruled that the deadline had expired.[15]  In 2018, another case related to the deadline for replying to a transfer request. In accordance with Article 21 (1) of the Dublin III Regulation, a request for transfer had been send to Croatia. Although the request was incomplete as it was missing the results of the medical age assessment of the child, the BFA considered that the available information was sufficient to conclude that the asylum seeker was an adult. However, the six-month transfer period was not triggered until the age report was received and Austria was therefore deemed responsible for the application.[16]

The VwGH further had to rule on a Dublin transfer to Bulgaria. The case concerned two brothers, one of whom was still a minor. Given that Bulgaria was already responsible for the asylum application of the older brother, the BFA concluded that Bulgaria should also be responsible for the asylum application of the minor, in compliance with the principle of family unity as defined in Article 20(3) of the Dublin III Regulation. The BFA had further assumed the minority of the younger brother without conducting any age assessment. The BVwG overturned the decision and stated that Art. 8(4) applied to the accompanied minor and that, subsequently, the adult was allowed to stay on the Austrian territory in accordance with Art. 17(1) of the Dublin III Regulation. However, the VwGH followed the BFA and the adult’s asylum application was rejected in first instance, on the grounds that Bulgaria remained responsible for that application.[17]

 

The dependent persons and discretionary clauses

 

Dependent persons

During a Dublin procedure with Italy, the Federal Administrative Court emphasised that Articles 16 (Dependent persons) and 17 (Discretionary clauses) of the Dublin III Regulation determine separate requirements and cannot be reduced to the meaning of Article 8 ECHR. Italy agreed to the Austrian request to take charge of the asylum application only after Austria expressed strong objections due to the fact that Italy had already issued a Schengen visa. The concerned asylum seeker in question was from Chechen origin and aged over 60 years old. He also suffered from a serious illness and a disability which suggested that he relied on support from his son who is legally residing in Austria. The Administrative Court found the decision unlawful and reverted the case back to the first instance authority because Article 16(1) of the Regulation had not been sufficiently considered by that authority. The Court noted, in addition, that Article 17(2) could also be relevant in this case because, due to the Chechen culture, the support of the son for his old parents is more likely to be accepted than foreign support. [18]

This argumentation can be found in another decision of the Court in the case of a single Afghan mother who applied for asylum with a small child and a new-born baby. She had been raped and was suicidal. The judgment held that the authorities should examine which female relatives, living in Austria as recognised refugees, could support her by taking care of the children. Furthermore, the help of females of a family among themselves could be preferred to foreign support based on the applicant’s cultural background.[19] The same argumentation led to the withdrawal of a Dublin decision regarding an Egyptian asylum seeker whose sister required support for her five under-age children after the death of her husband.[20]

A further Dublin decision was regarded as unlawful because a Chechen asylum seeker attempted suicide for the second time after enactment of the notice of transfer to Poland. Therefore, her demand for care and the willingness of her sister, who is living in Austria with refugee status, to take care of her should be examined. Due to the recommendation by a specialist to refrain from a transfer to Poland, it would also be a possibility to make use of the sovereignty clause.[21]

In another case, the BVwG referred to the wording of Art.16(1) of the Dublin III regulation on dependent persons to conclude that this provision also applied to cases in which the asylum applicant provides support to a family member (in the present case, an older brother providing support to his minor sister with special needs). In addition, the Court noted that no investigation on the special needs of the minor was undertaken by the BFA and considered that the responsibility of Italy would breach the ECHR given the particular circumstances of the case.[22]

Humanitarian clause

Austrian authorities make reference to this clause mostly in cases where the asylum applicant is still in another country and applies for reunification with relatives in Austria.

Sovereignty clause

In principle, an asylum seeker has the legal right to request the asylum authorities to implement the sovereignty clause, although this is not specifically laid down in law. The Constitutional Court has ruled, on the basis of case law from the European Court of Human Rights (ECtHR), that even in case of responsibility of another Member State under the Dublin Regulation, the Austrian authorities are nevertheless bound by the ECHR.[23] This means that, in case of a risk of a human rights violation, Austria has a duty to use the sovereignty clause. This decision is applicable according to Articles 2 and 3 ECHR as well as Article 8 ECHR following an interpretation consistent with the constitution.

However, the assessment of a risk of a human rights violation allowing the use of the sovereignty clause needs be conducted in a manner that does not unreasonably delay the examination of the asylum application. The principle that admissibility procedures should not last too long was reflected in a decision of the Administrative Court. A Chechen family had applied for asylum in Poland, Austria and Switzerland by submitting consecutive applications since 2005. One family member was severely traumatised. Switzerland decided on the merits of the case and issued a deportation order before they re-entered Austria. The Court reverted the procedure back to the Federal Office for Immigration and Asylum (BFA). The Court found that it would have been necessary to ask for the details of the procedure in Switzerland to prevent indirect violations of Article 3 ECHR through chain deportation. For one family member, the risk of suicide was obvious according to expert statements. The Court, referring to the judgment of the CJEU in the case of NS & ME,[24] held that the long duration of the admissibility procedure has to be taken into consideration when determining the Member State responsible for examining the asylum application and that applying a return procedure in such cases might be more effective.[25]

The sovereignty clause has to be applied in the case of vulnerable asylum seekers to prevent violations of Article 3 ECHR (Article 4 EU Charter). In the case of a refugee from Syria who arrived in Italy in 2013, where he was fingerprinted, but immediately continued to Austria, the Administrative Court agreed that the situation in his country of origin as well as his personal state of stress and uncertainty regarding the situation of his wife and three small children led to an exceptional psychological state with the consequence of several stays in hospital.[26]

In September 2015, in the case of an Afghan mother with 6 minor children who had applied for asylum in Hungary in September 2014 and shortly after in Austria too, the Administrative High Court ruled, that due to the change of the situation in Hungary, the presumption of safety is rebutted. The BVwG should have answered the question, whether systemic deficiencies exist in Hungary, and the sovereignty clause should be applied to prevent a violation of Article 3 ECHR / Article 4 of the EU Charter.[27]

In a ruling of January 2017 concerning the transfer of a family including two children to Croatia, the BVwG found that it was irrelevant that the adult brother was not legally responsible for the custody of his minor siblings. As the separation of the adult brother from his minor siblings would constitute an unacceptable interference with the right to family life and the children’s well-being, the application of the sovereignty clause was ordered.[28]

In December 2017, the BFA successfully appealed a decision of the BVwG concerning an unaccompanied child who had been allowed to remain in Austria under the sovereignty clause, while his younger brother was in Bulgaria. The VwGH ruled that the use of the sovereignty clause to prevent a violation of Article 8 ECHR presupposes a correct determination of Austria’s responsibility. The Court found that, if the close relationship between the two brothers would result in Austria not being responsible for the application of the elder brother, then the reference to the sovereignty clause by the BVwG to prevent an Article 8 ECHR violation lacked legal basis.[29]

In another case, the BFA appealed to the VwGH against a decision to transfer a Chechen family to Poland, where the father had already applied and passed the admissibility procedure in Austria. The VwGH found that the applications of the spouse and children should be admitted and the sovereignty clause used in order to preserve family unity.[30]

In several cases, the BVwG has argued that the sovereignty clause may only be applied where a third-country national has lodged an asylum application.

In 2018, Austria made use of the sovereignty clause and accepted to be responsible for the asylum application of a Georgian national, for whom the Czech Republic was initially responsible as she had obtained a visa there. Given that she was the legal guardian of her husband who has special needs and who has obtained the subsidiary protection in Austria, the Court concluded that the asylum seeker should not be separated from her husband and referred to Article 16 of the Dublin regulation on dependent persons as well as to Article 8 ECHR on the right to a private and family life.[31]

Another case in which Austria made use of the sovereignty clause in 2018 concerned a Russian asylum seeker and her two children, who were traveling from Moscow to Vienna. Given that she suffered from different serious illnesses (sclerosis and PTSD), that one of her underage children was mentally ill and that she had relatives in Austria, the BvWG considered that she should stay in Austria and benefit from their support, instead of going to Italy where no one could provide her adequate assistance.[32] In its reasoning, the Court paid particular attention to the child’s best interest (e.g. having adequate support in Austria and the presence of family members).

Moreover, the Constitutional Court held in 2018 that single parents with minor children are considered by Article 21 of the recast Reception Conditions Directive as vulnerable persons.[33] The case concerned an Afghan national and the refusal of the Federal Administrative Court to make use of the sovereignty clause. The latter had refused to recognise the existence of a marriage between the Afghan asylum seeker and her Afghan husband who had obtained the subsidiary protection in Austria, as they were married only under the shariah law in Pakistan. Although their child was born in Austria, the BvWG did not address the vulnerability of the single mother nor the one of the new-born child, despite the situation in Bulgaria as assessed in the AIDA report on Bulgaria (to which the BwWG had made reference).

 

 Procedure

 

Austria has not passed any national legislation to incorporate the Dublin III Regulation, as it is directly applicable, but refers to it in Article 5 AsylG. This provision, together with Article 2(1)(8) BFA-VG, states that the authorities issue an inadmissibility decision when Austria is not responsible for conducting the asylum procedure based on the Dublin III Regulation.[34] In the same decision, the authorities have to declare which Member State is responsible for the examination of the asylum application on its merits.

The law also states that there should also be an inadmissibility decision in case another Member State is responsible for identifying which Member State is responsible for the examination of the asylum application on its merits, that is in cases where the applicant is no longer on Austrian territory.[35]

There are three initial reception centres (EAST) which are responsible for the admissibility procedure: one is located in Traiskirchen near Vienna, one is in Thalham in Upper Austria and one is at the Airport Vienna Schwechat. These centres are specialised in conducting outgoing Dublin procedures. In addition, the legal counsel on the admission procedure provided by (Arge Rechtsberatung and Verein Menschenrechte Österreich) has offices in Traiskirchen and Thalham.

A central Dublin department in Vienna is responsible for supervising the work of the initial reception centres. Moreover, it conducts all Dublin procedures with regard to incoming Dublin requests (requests to Austria to take back or take charge an asylum seeker by another Member State) and, in response to a request of the Aliens Police department, all consultations with Member States concerning foreigners who have not applied for asylum.

Once an application for asylum is made, a preliminary interview by the police (Erstbefragung) takes place on the circumstances of entering Austria and the first country of entry in the EU, the personal data and – in a very brief manner – also on the reasons why an applicant left his or her home country. The applicant receives a copy of the report and is further fingerprinted and photographed. Fingerprints are taken from all asylum seekers older than 14 years of age. No problems have been reported with regard to the taking of fingerprints. In case an applicant refuses to be fingerprinted, the appeal against a negative decision may not benefit from suspensive effect,[36] but this is not relevant to the Dublin procedure.

Since September 2018, the Aliens Police Department and the BFA are authorised to evaluate the data storage of persons applying for international protection. However, this interference with the right to privacy is only permitted if the identity or travel route cannot be established on the basis of available evidence. Until the end of 2019, phones and/or other devices containing data of applicants could not be examined by Austrian authorities due to the lack of necessary data protection measures and missing technical equipment.[37]

The asylum seeker receives a green “procedure card” after the public security officer has consulted the BFA about the further steps to be taken in the asylum procedure: admittance to the regular procedure or admissibility procedure. Asylum seekers are transferred or asked to go to the initial reception centres when a Dublin procedure is initiated. The green card permits the asylum seeker to stay in the district of the initial reception centre. Cards for asylum seekers – as well as those granted to beneficiaries of protection – should be designed in such a way that they are counterfeit-proof and have a contactless readable data option.

In every procedure, the BFA has to consider within the admissibility procedure whether an asylum seeker could find protection in a safe third country or another EU Member State or Schengen Associated State.

The VwGH has determined that the deadline for an outgoing request starts running from the registration of the application, i.e. the moment the BFA receives the report of the Erstbefragung, in line with the CJEU ruling in Mengesteab.[38] The case before the VwGH concerned delays in the Erstbefragung, as the asylum seeker had applied for asylum in November 2015 but the preliminary interview only took place in January 2016 and the request was issued in March 2016.

The VwGH submitted a reference for a preliminary ruling to the CJEU on 24 November 2017, to assess whether it is possible to accept a “take charge” after the expiry of the deadline where the request has previously been rejected, if it is subsequently determined that the requested Member State is responsible.[39]

Every asylum seeker receives written information, usually through the form of leaflets, about the first steps in the asylum procedure, basic care, medical care and the Eurodac and Dublin III Regulation at the beginning of the procedure in the initial reception centres. No particular issue in the provision of information have been reported, although it is recommended that providing information orally on top of written information would help asylum seekers to understand the asylum system.

Within 20 calendar days after the application, the BFA has to either admit the asylum applicant to the in merit procedure or inform the applicant formally – through 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.[40] The same applies to so called fast-track in-merits procedures. After the requested Member State accepts responsibility, the asylum seeker is given the possibility to be heard. Before that interview, he or she has an appointment with a legal adviser who must be present at the interview and who can also access documents in the case file. These tasks will be carried out by legal advisors of the BBU as of 2021.

Individualised guarantees

Individualised guarantees are not requested systematically. Their content depends on the individual circumstances of each case according to the BFA. Already in 2017 it was demonstrated that individual guarantees are not requested for vulnerable persons, even where these are requested by legal advisers during the Dublin interview or the appeal before the BVwG. The authorities seem to deem it sufficient to request information from ACCORD or the State Documentation database, in specific cases e.g. access to medical treatment for cancer patients in Italy, and to base their decision thereon.

The sharing of information amongst Member State on the vulnerability and individual guarantees of asylum seekers is still not ensured. In the case of an Iraqi woman in a wheelchair, the BFA obtained a medical report confirming the availability of the necessary medical treatment in Italy. However, Italy had not been informed of the vulnerability in the first round of proceedings, which is why the BVwG granted the appeal and referred the case back to the BFA. The BVwG also rejected the rejection of the BFA in the second stage and stated that Austria was responsible for providing care to avoid a violation of Article 8 of the ECHR under the discretionary clause of Article 17 (1) of the Dublin III Regulation.[41]

 

Transfers

 

Transfers are normally carried out without the asylum applicant concerned being informed of the time and the location he or she are transferred to before the departure from Austria, giving him or her no possibility to return to the responsible Member State voluntarily. There continue to be reports of the BFA informing receiving countries of a Dublin transfer on very short notice, in some cases no more than a week, even for asylum seekers requiring special care.[42] This raises questions with regard to Recital 24 and Article 26(2) Dublin III Regulation according to which a transfer decision must contain the details of the time carrying out the transfer and “if necessary, contain information on the place and date at which the applicant should appear, if he is travelling to the Member State responsible by his own means.”

In case of an enforced transfer to another EU Member State, the police first apprehends the asylum applicant and transfers him or her to a detention centre (see Detention of Asylum Seekers).[43] There is also a special detention centre for families in Vienna. The asylum applicant has to stay there until the deportation takes place, usually after one or two days. Under the Dublin procedure, asylum seekers can be held for up to 48 hours without detention being specifically ordered. As a less coercive measure, asylum seekers may be ordered to stay at a certain place (such as a flat or a reception centre).[44] Depending on the responsible state and the number of persons being transferred, the transfer takes place by plane, by bus or by police car under escort.

Regarding detention, the Administrative High Court has stated that the time limit for transfer, which is of 6 weeks, does not start running before the suspensive effect ceases. Furthermore, the period begins running only after the one-week period of the BVwG to award the suspensive effect of the complaint has expired.[45]

No figures on the average duration of the procedure are available. However, the minimum period for a decision to be issued, an appeal to be filed and suspensive effect to be decided upon would be six weeks.

The BFA reported that 2,285 Dublin transfers were carried out in 2018, compared to 3,760 transfers in 2017.[46] This means that, during the same period, the number of asylum seekers has decreased by 45,8% from 2017 to 2018.[47] 2019 has seen another decrease as only 967 Dublin transfers were carried out in the fist half of the year.

 

Personal interview

 

A personal interview is required by law. The law permits an exception in case the asylum seeker has absconded from the procedure in the initial reception centre (EAST).[48] If the facts are established, and a decision can be taken, the fact that the asylum seeker has not been interviewed yet by BFA or by the BVwG shall not preclude the taking of a decision. In practice this exception is not applied very often.[49] Such relevant facts for a decision in Dublin cases could be a Eurodac hit and the acceptance of the requested Member State to take back the asylum seeker.

An appointed legal adviser must be present at the interview organised to provide the asylum seeker an opportunity to be heard. In practice, legal advisers are present at the hearing. Legal advisers are often informed only shortly before the interview, which means that they lack time to study the file. Legal advice to asylum seekers in detention takes place immediately before the hearing in the detention centre. The provision of § 29 (4) AsylG according to which the asylum seeker must have at least 24 hours to prepare for the hearing with the assistance of the legal adviser is not applied very strictly in practice. However, the reform of June 2019 establishing the BBU introduces a new threshold which grants the asylum applicant the right to free legal assistance by the Agency only if an appointment – during which the applicant exercises his or her right to be heard – is scheduled within 72 hours (3 days) after having been notified by the BFA of the intention to reject the asylum application. This means that, if the BFA grants the asylum applicant the right to be heard at a later stage (e.g. in 4 or 5 days), free legal assistance by the Agency will only be available if resources so allow.[50]

In Dublin procedures, the rules and practice are the same as in the Regular Procedure: Personal Interview.

The record of the Dublin consultation between Austria and the requested state(s) are made available to the asylum seeker and the legal adviser only after the procedural order of the intention to reject is given and Austria has received the answer from the requested Member State. Sometimes, the requested State has not received all relevant information. One of the judges of the Federal Administrative Court mentioned in a decision regarding a Chechen father whose son was legally residing in Austria that Italy, which had issued a visa for the couple from Chechnya, finally agreed to take charge but was not informed about the severe illness and the disability of the asylum seeker who relied on the care of his son.[51] The Court noted that the dependency clause should have been applied in this case. In another case which involved Bulgaria, Austria did not inform that the asylum-seeker had been in Serbia for more than 3 months, although there was enough evidence.[52] 

 

Appeal

 

As Dublin cases are rejected as inadmissible, the relevant rules detailed in the section on Admissibility Procedure: Appeal apply.

The time limit within which the appeal against the BFA’s inadmissibility decisions (including Dublin decisions) must be lodged is 2 weeks. The appeal has no suspensive effect, unless the Federal Administrative Court (BVwG) grants suspensive effect within 7 calendar days after the appeal reaches the court. The expulsion order may not be executed before the BVwG has decided if the appeal must be given suspensive effect. In Dublin cases, suspensive effect is hardly granted. Sometimes asylum applicants never receive a final decision because they are transferred back to the responsible Member State before the Court’s decision.

The VwGH dealt with the expiry of the transfer period in the context of an appeal that had a suspensive effect. In that case, the decision that gave the complaint a suspensive effect was taken by written procedure and was notified only after the expiry of the six-month transfer period, as laid down in Article 29 (1) of the Dublin III Regulation. The Court considered that granting a suspensive effect after the expiration of the transfer period is not possible and, as a result, the transfer period cannot be extended. Austria was therefore deemed responsible for the asylum application.[53]

The BVwG can either refuse the appeal or decide to refer it back to the BFA with the instruction to conduct either an in-merit procedure or investigate the case in more detail (for instance if the Court finds that the BFA has not properly taken into account family ties or that the assessment of the situation in the responsible Member State was based on outdated material or was insufficient with regard to a possible violation of Article 3 ECHR). Usually, the Court decides on the basis of the written appeal and the asylum file without a personal hearing of the asylum seeker. In 2018, the Austrian legal information system (RIS) provided a list of 1,284 Dublin cases before the BVwG. 975 of these cases are unsuccessful appeals and confirmed the order to return of the persons concerned. In only 54 cases, the Court finds that the transfer period has already expired and that the procedure should therefore be admitted. In 6,8% of the cases the decision of the BFA was referred back by the court.  In 2019, 445 Dublin decisions were appealed. In 62 cases (13,9%), the first instance decisions were referred back to the BFA.[54]

Asylum seekers whose appeals were accepted by the Court have the right to re-enter Austria by showing the decision of the court at the border. If no suspensive effect was granted but the court finds that the decision of the BFA was unlawful, the asylum seeker is also allowed to re-enter.

 

Legal assistance

 

Free legal assistance during the admissibility procedure was implemented to compensate for the restricted movement of asylum seekers during this type of procedure, as they are obliged to stay within the district of the initial reception centre (EAST). If asylum seekers leave the district of the EAST to consult an attorney-at-law or NGOs – which normally have their offices in bigger cities – they can be given a fine ranging from €100 to €1,000. In case of repeated violation of the restricted residence (Gebietsbeschränkung), the fine may reach €5,000 and detention may even be ordered in case the asylum seeker is unable to pay the fine. A violation of the restriction of movement could furthermore be a reason for pre-removal detention. This punishment is not applied very often in practice. The second reason why free legal assistance is provided at this stage of the procedure is the lack of suspensive effect of an appeal in admissibility procedures, which justifies the incorporation of additional safeguards in the first instance procedure.  

As discussed in the section on Regular Procedure: Legal Assistance, the quality of the advice provided raises concerns due to a lack of time of legal advisers and a lack of trust of asylum seekers, as the advisers are considered being too closely linked to the BFA. They have their offices within the building of the BFA, they provide assistance for voluntary return and their task is only to provide objective information about the procedure to the asylum seekers; not to assist them in the procedure and defend their interests. The new system of legal counselling to be established by the state-owned BBU-GmbH starting in 2021 will further strengthen this conflict of interests, as the Federal Agency responsible for providing legal assistance falls under the responsibility of the Ministry of Interior, which is also supervising the determining authoritiy (BFA). Due to the organisational, financial and personal dependencies laid down in law between the Federal Agency and the Ministry of Interior, a conflict of interest is inevitable. This further raises serious concerns as regards transparency and quality of legal assistance by the Federal Agency. The draft of the law has been criticised (inter alia for its non-conformity with Article 47 of the Fundamental Rights Charter of the European Union) by the Austrian Bar Chamber, UNHCR, the Association of Judges and several international and national NGOs.[55]

In case of unaccompanied asylum-seeking children, the appointed legal adviser becomes their legal representative during the admissibility procedure. They 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. The quality of the assistance provided has been considered to be problematic in practice here as well. NGOs report that in some cases the legal representative has refrained from lodging an appeal, thereby disregarding the best interests of the child. 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.

Although Article 29(4) AsylG provides that free legal assistance shall be provided to all asylum seekers at least 24 hours before the hearing on the results of the evidentiary findings determining the responsible Member State under the Dublin Regulation, legal advisers receive the file only shortly before the interview, therefore lacking time to study the file and prepare for the hearing. Moreover, the reform of the new legal aid system through the BBU-G introduces a new threshold which grants the asylum applicant the right to free legal assistance by the Agency only if an appointment – during which the applicant exercises his or her right to be heard – is scheduled within 72 hours (3 days) after having been notified by the BFA of the intention to reject the asylum application. This means that, if the BFA grants the asylum applicant the right to be heard at a later stage (e.g. in 4 or 5 days), free legal assistance by the Agency will only be available if resources so allow. The discretion of the BFA as regards the timing of the appointment thus has an influence on whether legal assistance will be provided at first instance because the Federal Agency is legally obliged to do so, or whether it will be provided if the Agency’s available resources allow so. In addition, the provision specifies that, if the asylum seeker did not make use of the right to be heard, this does not affect the outcome of the decision on his or her application for international protection.[56] NGOs are thus extremely concerned about the arbitrary nature of the provision of legal assistance in such cases.

The legal adviser must be present at the interview held to give the asylum seeker an opportunity to be heard. At the interview in relation to Dublin with the BFA, the asylum seeker together with the legal adviser may submit written statements with regard to the situation in the Member State deemed responsible or make requests for additional investigations, but they are not allowed to ask questions; this is usually respected by the legal advisers.

 

Suspension of transfers

 

Under the Dublin III Regulation, all EU Member States are considered safe where the asylum applicant may find protection from persecution. An exception applies to cases in which there is an obvious risk of lack of protection, e.g. if it is well-known to the authorities, or if the asylum applicant brings evidence that there is a risk that he or she will not be protected properly. This real risk cannot be based on mere speculations, but has to be based on individual facts and evidence. This statement of risk has to be related to the individual situation of the asylum applicant.

Country reports from various sources such as AIDA, UNHCR, the US Department of State, Amnesty International, Eurostat, as well as information from ACCORD and Austrian liaison officers are taken into consideration, but the threshold for declaring that a country is not in line with its obligations under the acquis is usually the establishment of an infringement procedure launched by the Commission against that country.

According to the jurisprudence, notorious severe human rights violations in regard of Article 3 ECHR have to be taken into consideration ex officio. If the asylum application is already rejected by the Member State responsible for the examination of the application, a divergent interpretation of the Refugee Convention in a Member State or manifestly unlawful procedures could be relevant in an individual case. Generally low recognition rates in a certain Member State are not regarded as a characteristic of a dysfunctional asylum system.

Overall, the number of completed Dublin transfers in the first half of 2019 have decreased as only 967 transfers have been completed. The top ten receiving countries were:

 

Dublin transfers in the first half of 2019

Receiving countries

Transfers

Italy

428

Germany

273

France

48

Spain

27

Switzerland

24

Slovenia

24

Poland

23

Slovakia

20

Portugal

14

Czech Republic

14

Rest

72

Total

967

 

Source: Ministry of Interior, Answer to a parliamentary request 4105AB/XXVI. GP, 30 September 2019, available in German at: https://bit.ly/39UDO3d.

 

Current practice with regard to selected Dublin countries is illustrated below:

Greece: After the ruling of the ECtHR in M.S.S. v Belgium and Greece, Austria suspended transfers to Greece. The director of the BFA announced Dublin procedures with Greece will start again in March 2017,[57] in line with the European Commission’s recommendation of December 2016. So far Dublin procedures to Greece have not started. In single cases where protection status were granted by Greek authorities, the Courts rejected the applications in Austria. There are no cases known of completed transfers to Greece in 2019.

Hungary: Although there have been intensive discussions with regard to Dublin transfers to Hungary in 2018, including with the Hungarian Ministry of Interior, no transfers have been carried out in recent years.[58] However, in 2019, one transfer has reportedly been carried out in an individual case. While it is clear that individual guarantees must have been secured for the purpose of this transfer, no further information is available on this.

Italy: The majority of outgoing requests – 1,951 out of 5,191– concerned Italy in 2018. For 2019, numbers on outgoing requests are not available. However, Italy was the main recipient of transfers in the first half of 2019, during which a total of 428 transfers were carried out. In relation to Italy, the BFA considers that the obligation to obtain guarantees on the basis of the Tarakhel v Switzerland judgment of the ECtHR has been fulfilled following the Italian Ministry of Interior’s letters of 8 June 2015 and 10 February 2016 to all Dublin Units, stating the projects where Dublin returnees would be accommodated.[59] The Constitutional Court pointed out in a ruling of 30 June 2016, in relation to the Circular letter and other procedural steps, that an individual assurance for a vulnerable asylum seeker would have been necessary before implementing a transfer.[60] Nevertheless, the BVwG has largely allowed the BFA to carry out Dublin transfers to Italy throughout 2018 and 2019.[61]

In a case concerning a Syrian couple and their three minor children – one of which was born in Austria – the BVwG considered that the transfer to Italy was admissible as the conditions in Italy have improved and adequate accommodation for families are now provided. The Court also underlined that the Federal Office is informed well in advance of the transfer of families and can therefore ensure the availability of adequate accommodation places.[62] In this case, the BFA had informed the Italian authorities about the Dublin transfer at least 15 days before the scheduled transfer date via DubliNet. If SPRAR accommodation places would not have been available, the Italian authorities would have informed the Federal Office of Aliens and Asylum prior to the transfer. In addition, the Italian Ministry of Interior has now issued a number of letters guaranteeing that all families with minors transferred to Italy under the Dublin III Regulation will remain together and will be accommodated in a facility adapted to their needs. Previous case law have also allowed for the transfer of families to Italy, including of a single mother and her baby;[63] and of a family with four children (out of which two were minors) and their grandparents.[64] The Constitutional Court also found that the situation of asylum seekers in Italy has improved and that special safeguards are no longer necessary.[65]

Bulgaria: Transfers to Bulgaria are carried out by the BFA and generally upheld by the BVwG.[66] No objections are raised for single asylum seekers or families. However, higher courts have taken a different line. In one case, the Constitutional Court deemed a transfer unlawful on the basis of the vulnerability of an Iraqi family with young children and the deterioration of reception conditions in Bulgaria.[67] The VwGH has also found that the BFA must make a thorough assessment of the conditions in Bulgaria before transferring families.[68]

Croatia: Following the CJEU ruling in A.S. / Jafari, the BVwG has rejected the cases previously suspended and the persons concerned have been returned to Croatia. In some cases the applications were admitted in Austria due to the expiry of the time limit for the transfer. In 2019, transfers to Croatia have been completed without Austria asking for individual guarantees.

Slovenia: There are no indications that would call into question the presumption of safety, according to the VwGH.[69]

 

The situation of Dublin returnees

 

Asylum seekers returning to Austria under the Dublin Regulation, and whose claim is pending a final decision, do not face obstacles if their transfer takes place within two years after leaving Austria. In this case, the discontinued asylum procedure will be reopened as soon as they request for it at the BFA or the BVwG. If a final decision has already been taken on the asylum application upon return to Austria, the new asylum application will be processed as a subsequent asylum application.

So far the BFA has not been requested to provide guarantees to other Member States prior to transfers.

 


[1]   Ministry of Interior, Answer to a parliamentary request 4105AB/XXVI. GP, 30 September 2019, available in German at: https://bit.ly/39UDO3d.

[2] Christian Filzwieser ‘Asyl und Fremdenrecht 2015 und erste Jahreshälfte 2016 – eine Einführung’ in Christian Filzwieser and Isabella Taucher (eds), Asyl und Fremdenrecht Jahrbuch 2016, (NWV 2016), 13.

[3]  Ministry of Interior, Reply to parliamentary question 10654/J (XXV.GP), 2 January 2017.

[4] CJEU, Cases C-490/16 A.S. and C-646/16 Jafari, Judgment of 26 July 2017.

[5]  VwGH, Decision Ra 2016/19/0303, 20 September 2017.

[6]  VwGH, Decision Ra 2017/19 / 0169-9, 5 April 2018, available in German at: https://bit.ly/2usyIbl.

[7]  Greek Asylum Service, Dublin statistics, December 2018.

[8] Greek Asylum Service, Dublin Statistics, January 2020, available at: https://bit.ly/3d2fJJG.

[9]   VwGH, Decision Ra 2016/20/0384, 22 June 2017.

[10] BvWG, W175 2206076-1, 1 October 2018.

[11]  Letter from the Ombudsman to Asylkoordination Österreich, Fr. Dr. Glawischnig, 12 June 2018.

[12]  It is not possible for the BFA to impose a DNA test. The authorities have to enable such testing, according to Article 13(4) BFA-VG.

[13] Fremdenrechtsänderungsgesetz 2017 – FrÄG 2017, 18 October 2017, available at: http://bit.ly/2Cel0Ku.

[14] CJEU, Case C‑648/11, M.A. v. Secretary of State for the Home Department, Judgment of 6 June 2013.

[15] VwGH, Decision Ra 2017/19/0081, 22 November 2017.

[16]  VwGH, Decision Ra 2016/18/0366, 06 November 2018, available in German at: https://bit.ly/2SUc21D.

[17]   VwGH, Decision Ra 2017/18/0433, 20 May 2018.

[18]   BVwG, Decision W149 2009627-1, 21 July 2014.

[19]  BVwG, Decision W 149 2009673-1, 20 June 2014.

[20]  BVwG, Decision W149 2001851-1, 3 July 2014.

[21] BVwG, Decision W185 2005878-1, 2 July 2014.

[22] BVwG Decision W233 2177425-2, 23 January 2018, available in German at:  https://bit.ly/2SKvZrn.

[23] VfGH, Decision 237/03, 15 October 2004, VfSlg. 16.122/2001.

[24] CJEU, Joined Cases C-411/10  NS v Secretary of State for the Home Department and C-493/10 ME v Minister for Justice, Equality and Law Reform, Judgment of 21 December 2011, para 98.

[25] BVwG, Decision W125.1257809-8, 20 January 2014, available at: http://bit.ly/1Jp8HLh.

[26] BVwG, Decision W205 1438717-1, 29 April 2014, available at: http://bit.ly/1EUIw8X.

[27] VwGH, Decision Ra 2015/18/0113 to 0120, 8 September 2015.

[28] BVwG, Decision W165 2140213-1, 26 January 2017, available at: http://bit.ly/2meMkAF.

[29] VwGH, Decision Ra 2017/01/0068, 5 December 2017.

[30] VwGH, Decision Ra 2015/18/0192 to 0195, 15 December 2017.

[31] VwGH, Decision W239 2152802-1, 30 July 2018; available in German at: https://bit.ly/2WYwcqj.

[32] BVwG, Decision W185 2188585-1,13 November 2018.

[33] VfGH, Decision E2418/2017, 11 June 2018.

[34] Article 2(1)(8) BFA-VG.

[35]  Article 5(2) AsylG.

[36] Article 18 BFA-VG.

[37] Ministry of Interior, Answer to parliamentary request 3614AB/XXVI. GP, 23 July 2019, available in German at: https://bit.ly/38PLAK7.

[38] VwGH, Decision Ra 2016/01/0274, 17 October 2017, citing CJEU, Case C-670/16 Mengesteab, Judgment of 26 July 2017.

[39] CJEU, Case C-657/17 Hussein, Reference of 24 November 2017, available in German at: http://bit.ly/2o3rBlM.

[40] Article 28 Asylum law has been amended. Since September 2018 the time limit for in-merits procedures may be lifted to enable more decisions during the admissibility procedure.

[41]  BVwG, Decision W241 2157798-2, 31 January 2018.

[42]  ECRE, Balkan Route Reversed: The return of asylum seekers to Croatia under the Dublin system, December 2016, 33.

[43]  In some cases, asylum seekers have reportedly been apprehended by the police during the night: Ibid.

[44]  Article 77(5) FPG.

[45]VwGH, Decision Ro 2017/21/0010, 26 April 2018.

[46] BFA: “2018-Das Jahr der Neuausrichtung 2.0”, 6 January 2019, available in German at: https://bit.ly/2RXC3s6.

[47] Kleine Zeitung: ‚Zahl der Asylwerber 2018 weiter stark gesunken‘, 8 January 2019, available in German at: https://bit.ly/2Sxi9JB.

[48] Article 24(3) AsylG.

[49] See Asylum Court, S6 430.113-1/2012, 5 November 2012: the Court found that the procedure was unlawful in the case of an unaccompanied minor asylum seeker from Afghanistan, who was interrogated by the police without the presence of his legal representative or a person of trust and disappeared shortly after. The Federal Agency for Aliens' Affairs and Asylum did not submit the minutes of the first interrogation or  give the legal representative the opportunity to be heard before rendering the rejection of the application. However, ct. the negative decision of the Asylum Court in the case of an unaccompanied minor: S2 429505-1/2012, 04 October 2012.

[50] ECRE, Reforming legal assistance in Austria: an end to independent provision? July 2019, 3, available at: https://bit.ly/2NHkaB0.

[51] BVwG, Decision W149 209627-1, 21 July 2014.

[52] BVwG, Decision W239 2106763-3, 12 October 2018.

[53] VwGH, Decision Ra 2018/14/0133, 24 October 2018.

[54] The cases are available in German at: https://www.ris.bka.gv.at/Vwgh/.

[55] Statements to the Draft, Austrian Parliament, available in German at: https://bit.ly/39jv6Lm.

[56] ECRE, Reforming legal assistance in Austria: an end to independent provision?, July 2019, available at: https://bit.ly/2PQ1H3N.

[57]See Kurier, ‘Griechenland soll ab März wieder Flüchtlinge zurücknehmen’, 20 January 2017, available in German at: http://bit.ly/2kaZVLc.

[58]  Answer to the parliamentarian request, No 847/AB, 16 July 2018.

[59] Information provided by the BFA to ECRE, November 2015. See Italian Ministry of Interior, Circular Letter to all Dublin Units Re: Dublin Regulation Nr. 604/2013 – Guarantees for vulnerable cases: family groups with minors, 10 February 2016, available at: http://bit.ly/1QxxRqJ.

[60] VfGH, Decision E 449-450/2016 and E 703-704/2016-14, 30 June 2016.

[61] See e.g.; BVwG, Decision W192 2212056-1, 7 January 2019; W175 2212052-1, 8 February 2019; W240 2204175-2, 25 March 2019; W175 2217936-1, 26 April 2019; W165 2206407-1, 19 June 2019; W165 2218873-1, 29 August 2019; W165 2214983-1, 18 September 2019; W144 2224022-1, 7 Oct 2019; Decision W243 2140308-1, 27 January 2017; W144 2152033-1, 18 April 2017; W205 2144676-1, 6 June 2017; W192 2162712-1, 13 July 2017; W153 2166538-1, 22 September 2017.

[62] BVwG Decision W153 2169452-2, 8 January 2018.

[63] VWGH, Decision Ra 2016/20/0051, 23 June 2016.

[64] VwGH Ra 2017/20/0061 to 0067, 23 March 2017.

[65]  VfGH, Decision E 2646/2016, 7 March 2017.

[66] See e.g. BVwG, Decision W239 2217177-1, 26 April 2019; W165 2174429-1, 23 November 2017; W241 2178020-1, 7 December 2017.

[67] VfGH, Decision E 484/2017, 9 June 2017. See also VfGH, Decision E 86/2017, 24 November 2017.

[68] VwGH, Decision Ra 2017/18/0039, 30 August 2017; Ra 2017/19/0100, 13 December 2017.

[69] VwGH, Decision Ra 2017/01/0153, 20 June 2017.

 

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