During the Covid-19 pandemic in 2020 and 2021, the BFA never suspended Dublin procedures and continued to receive and issue incoming and outgoing requests. However, between March and April 2020 no Dublin transfers were completed (both incoming and outgoing transfers). After the general easing of measures, in particular regarding travel restrictions, Dublin member states were informed on 16 June 2020 that Dublin transfers to Austria via Vienna-Schwechat Airport were possible again.
As regards incoming transfers during the COVID-19 pandemic, Austria adopted the following measures: the time for notification of transfer was extended so that appropriate national arrangements could be adopted to place Dublin returnees; information on the current state of health of the person to be transferred had to be shared in the transfer form including, where possible, whether they has been infected with COVID-19; and a negative PCR test was required in the interests of reciprocity.
Dublin statistics: 2022
As of December 2022, Austria carried out 1,100 outgoing Dublin transfers and received 1,575 incoming transfers. In 2021, the main countries receiving outgoing transfers from Austria were Germany and Italy.
In December 2022 Italy announced a temporary stop of Dublin transfers to Italy. There is no official information as to when Dublin transfers to Italy will resume. Overall, the significance of Dublin procedures decreased in 2021: even though around 4,000 take-back-requests were sent to Bulgaria and Romania, only around 150 transfers to these countries were implemented in practice. In 2022, the Dublin transfers increased slightly.
Dublin statistics: 1 January – 31 December 2022
|Outgoing Dublin requests 2021-2022||Incoming Dublin requests 2021-2022|
|Take charge||727||1,554||Take charge||198||361|
|Take back||13,440||6,083||Take back||7,853||24,092|
Source: Ministry of Interior, Answer to parliamentary request 9529/AB, 11 April 2022 and 13976/AB, 28 April 2023, available in German at: https://bit.ly/3ndzU1k.
|Outgoing Dublin requests by criterion: 2022|
|Dublin III Regulation criterion||Requests sent||Requests received|
|Article 8 (minors)||13||48|
|Article 9 (family members granted protection)||33||11|
|Article 10 (family members pending determination)||31||17|
|Article 11 (family procedure)||9||24|
|Article 12 (visas and residence permits)||717||195|
|Article 13 (entry and/or remain)||732||45|
|Article 14 (visa free entry)||1||3|
|“Take charge”: Article 16||–||3|
|“Take charge” humanitarian clause: Article 17(2)||18||15|
|Article 18 (1) (a)||–||111|
|Article 18 (1) (b)||12,854||23,718|
|Article 18 (1) (c)||14||11|
|Article 18 (1) (d)||505||227|
|Article 20 (3)||7||7|
Source: Ministry of Interior, Answer to parliamentary request 13976/AB, 28 April 2023, available in German at: https://bit.ly/3ndzU1k.
|Outgoing Dublin transfers 2021-2022||Incoming Dublin transfers 2021-2022|
Source: Ministry of Interior, Answer to parliamentary request 13976/AB, 28 April 2023, available in German at: https://bit.ly/3ndzU1k.
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.
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.
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 they 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, 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.
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.
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. In 2022 Austria received 39 take back and take charge requests from the Greek Dublin Unit, out of which 14 were accepted. Moreover, a total of 14 transfers were carried out (including transfers pending from the year before).
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.
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, they 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. 
As a consequence of two cases that asylkoordination österreich 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. No changes have been noted in practice, however. In January 2021, a deportation of a family to Georgia in the middle of the night was debated publicly. One girl was born in Austria and resided in the country over ten years. The case shed light on the fact that children’s rights are often not taken into account in asylum procedures and decisions. The Ministry of Justice introduced a Child Welfare Commission headed by former presidential candidate Irmgrad Griss to evaluate the implementation of children’s rights in asylum procedures. The Commission presented an elaborated report in July 2021 with many recommendations on how the best interest of the child could be guaranteed better in the asylum process, including reception conditions and Dublin III assessment. Recommendations for improvements were presented. In July 2022, the former member of the Commission made a press conference in which they announced that an evaluation done by Asylkoordination, and the Vienna Refugee Law Clinic shows that improvement in practice is still very poor, recommendations are neglected by the authorities. They also demanded the introduction of a permanent monitoring board concerning children’s rights in Austria.
To demonstrate family ties, every asylum applicant must have mentioned the existence of other family members during asylum procedure, 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 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.
Following the judgment of the CJEU in M.A. which concerned Article 8(4) of the Dublin III Regulation, for asylum applications lodged by unaccompanied children, the BFA 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. 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.
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.
The dependent persons and discretionary clauses
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.
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. 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.
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.
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.
The High Administrative Court ruled in December 2022 concerning the responsibility of a state for family members: Article 9 of the Dublin III Regulation contains special jurisdiction for family members of beneficiaries of international protection. If the applicant has a family member – regardless of whether the family already existed in the country of origin – who is a beneficiary of international protection and has the right to reside in a Member State, that Member State is responsible for examining the application for international protection, provided that the persons concerned express this wish in writing. This regulation not only allows the persons concerned (the applicant and the beneficiaries of international protection) to have a say, but gives them the power to decide whether they want to be reunited. These rules out the possibility that people are brought together against their will. The applicant must be informed of the requirement for such declarations within the framework of their right to information (cf. Art. 4 Para. 1 lit. b and c Dublin III Regulation) and, in the event of such a request by the applicant, it must be verified that the beneficiaries of the international protection agree to a reunification.
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.
In 2022, article 17 Dublin-VO III was applied in 14 cases.
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. 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 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, 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.
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.
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.
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.
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.
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.
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. 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. 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).
In September 2022, the Constitutional Court ruled against a decision by BVwG in which the second instance found a planned transfer of a Syrian national to Malta to be admissible. The Syrian national claimed that he would be put in detention upon return to Malta and the conditions in detention in Malta would violate his rights guaranteed by Art 2, 3 ECHR. The BVwG did not assess the situation in detention in Malta and ignored the deterioration following the Covid-19 situation in Malta.
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. 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.
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.
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 lodged, 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 their 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, but this is not relevant to the Dublin procedure. Due to the increase in applications in summer 2022, non-vulnerable applicants without EURODAC hits were not questioned right at the border but sent to another police directorate in different parts of Austria. The aim was to distribute the work of the police in the province close to Hungary, Burgenland, to other provinces.
Since September 2018, the Aliens Police Department and the BFA are authorised to examine 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. In December 2020 the Ministry of Interior announced that data storage has not been examined due to missing technical equipment but a purchasing process started in December 2021. As of August 2022, no data examination was conducted as further purchase of computers and mouse accessories was still to be done.
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. 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.
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. 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, they have 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 were still not requested systematically as of the end of 2020. 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.
Transfers are normally carried out without the asylum applicant concerned being informed of the time and the location they are transferred to before the departure from Austria, giving them 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. 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 their own means.”
In case of an enforced transfer to another EU Member State, the police first apprehend the asylum applicant and transfers them to a detention centre (see Detention of Asylum Seekers). 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). 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.
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.
In 2022, 1,100 Dublin-out transfers were conducted. 1,575 Dublin-in transfers were completed in the same time period. As more than 42,000 cases were discontinued due to absconding to other countries, the share of Dublin transfers completed only represents a small part of the applicants. Around 17,000 discontinued cases referred to Afghan nationals.
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). 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. 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 their 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. In practice, the BBU GmbH is notified in some cases and asked to provide legal counselling. There is no official statistics on how many interviews are conducted within 72 hours but in most cases applicants do not have access to legal counselling in Dublin procedures.
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. The Court noted that the dependency clause should have been applied in this case. In another case which involved Bulgaria, Austria did not inform the authorities that the asylum-seeker had been in Serbia for more than 3 months, although there was enough evidence.
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.
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. In 2021, 770 (2020: 394) Dublin decisions were appealed. Data for 2022 was not available at the time of writing.
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.
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 subject to 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. In 2022, in 68 cases a punishment of violation of restricted residence was applied by the authorities. 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 established by the state-owned BBU-GmbH in 2021 further strengthens 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 authority (BFA).
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. In the admission procedure, unaccompanied minors do have legal assistance in their asylum procedure but no legal guardian as the legal situation is disputed whether the Child and Youth Welfare Authority is legally obliged to take over the guardianship.
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 their 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 their application for international protection. NGOs are thus extremely concerned about the arbitrary nature of the provision of legal assistance in such cases. The BBU GmbH reports that if an interview is conducted within 72 hours, they are notified to provide legal counselling. The agency however does not have an overview or information, to what share of Dublin procedures they are involved. The Ministry of Interior also does not provide statistics on the matter. Anecdotal evidence shows that only a small part of the Dublin interviews are conducted within 72 hours and consequently only few applicants confronted with a Dublin procedure have access to free legal counselling.
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 they 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 (outgoing) 2020 have decreased as only 678 transfers have been completed.
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, 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 was granted by Greek authorities, the Courts rejected applications lodged in Austria. This changed in 2021 as the Constitutional Court ruled that, due to inadequate reception conditions in Greece a thorough assessment has to be carried out before transferring beneficiaries of international protection back to Greece. Transfers of persons with status in Greece are not suspended in general, however, there are no cases known of completed Dublin transfers to Greece in 2022. However, in at least one case a person who had received subsidiary protection in Greece and whose application was rejected in Austria, was deported to Greece in 2022.
In a project by asylkoordination called TETRAA, Diakonie Flüchtlingsdienst and a lawyer practising in Vienna, Christian Schmaus, supported cases of strategic litigation concerning persons that had received status of protection in Greece but found themselves homeless and without basic care there. The Constitutional Court and High Administrative Court both ruled that the situation of beneficiaries of international protection in Greece has to be assessed closely, especially the access to social services.
Hungary: In 2019 and 2020, one transfer has reportedly been carried out respectively in individual cases. While it is clear that individual guarantees must have been secured for the purpose of this transfer, no further information is available on this case. There are reports of Syrian and Afghan nationals being forcibly returned from Austria to Hungary in December 2020 and January 2021. It could not be verified whether these persons applied for asylum or not. In general, the BFA did not carry out any transfer to Hungary since the entry into force of the law on crisis situations on 28 March 2017 until 2022. In 2022, 34 take charge and 11 take back requests were sent to Hungary. 10 transfers were completed.
Italy: In 2020, 616 out of 3,196 requests concerned Italy, and 192 transfers were completed to Italy. 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. 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. Nevertheless, the BVwG largely allowed the BFA to carry out Dublin transfers to Italy throughout 2018 and 2019.
From 2015 onwards, the Italian Ministry of Interior had been issuing a number of letters guaranteeing that all families with minors transferred to Italy under the Dublin III Regulation would remain together and be accommodated in a facility adapted to their needs. Previous case law has also allowed for the transfer of families to Italy, including of a single mother and her baby; and of a family with four children (out of which two were minors) and their grandparents. The Constitutional Court also found that the situation of asylum seekers in Italy has improved and that special safeguards are no longer necessary.
In December 2022, Italy announced that it will temporarily suspend all Dublin incoming transfers. It did not mention when it resume accepting Dublin transfers at the time of writing. As of April 2023, time of writing, no transfers had since taken place from Austria to Italy and there is no official date of resumption of transfers.
Bulgaria: Transfers to Bulgaria are carried out by the BFA and generally upheld by the BVwG. 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. The VwGH has also found that the BFA must make a thorough assessment of the conditions in Bulgaria before transferring families. In March 2023, the Constitutional Court annulled two decisions of the BVwG in which the latter found a decision of the first instance determining a transfer to Bulgaria to be lawful. In one case the decision was found to have been taken in an arbitrary manner because the BVwG did not examine whether the person concerned would have an effective access to the asylum system without having to fear of a chain pushback to Türkiye. In a case of a single mother with her minor daughter the decision was annulled because the BVwG did not take into account that the persons concerned were member of a vulnerable group. In 2022, around 70% of all Austrian take back requests were sent to Bulgaria (9,196). 6,619 were accepted by Bulgaria, 34 transfers were effectively completed.
Croatia: Following the CJEU ruling in A.S. / Jafari, the BVwG rejected previously suspended cases 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 were completed without Austria asking for individual guarantees. In 2022, 37 transfers were completed to Croatia. In 2023, NGOs reported about many negative Dublin decisions and transfers to Croatia. In all cases, Croatia became responsible by not responding to the requests. Some persons transferred claimed that they have never been to Croatia before.
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. Dublin returnees also do not face any particular issues in accessing the reception system.
So far the BFA has not been requested to provide guarantees to other Member States prior to transfers.
 Ministerio dell‘ Interno, Circular letter to all Dublin units, 5 December 2022.
 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.
 Ministry of Interior, Reply to parliamentary question 10654/J (XXV.GP), 2 January 2017.
 CJEU, Cases C-490/16, A.S. v Republic of Slovenia, 26 July 2017, available at: http://bit.ly/3lbiyBd and C-646/16, Khadija Jafari and Zainab Jafari, Judgment of 26 July 2017, available at: http://bit.ly/3Jn0zQl.
 Letter from the Ombudsman to Asylkoordination Österreich, Fr. Dr. Glawischnig, 12 June 2018.
 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.
 BVwG Decision W233 2177425-2, 23 January 2018, available in German at: https://bit.ly/2SKvZrn.
 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, available at: http://bit.ly/3mMSRak, para 98.
 Article 2(1)(8) BFA-VG.
 Article 5(2) AsylG.
 Article 18 BFA-VG.
 VwGH, Decision Ra 2016/01/0274, 17 October 2017, available in German at: https://bit.ly/40eEUR9, citing CJEU, Case C-670/16 Mengesteab, Judgment of 26 July 2017, available at: http://bit.ly/3Tk9tSZ.
 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.
 In some cases, asylum seekers have reportedly been apprehended by the police during the night: Ibid.
 Article 77(5) FPG.
 Article 24(3) AsylG.
 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.
 Decision BFA, IFA 1312763810, 9 November 2022.
 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: https://bit.ly/3AMt8mf.
 See e.g.; BVwG, Decision W192 2212056-1, 7 January 2019, available in German at: https://bit.ly/3YMUZMx; W175 2212052-1, 8 February 2019, available in German at: https://bit.ly/3LwwBMe; W240 2204175-2, 25 March 2019, available in German at: https://bit.ly/3ZUTEoo; W175 2217936-1, 26 April 2019, available in German at: https://bit.ly/3Tkho2G; W165 2206407-1, 19 June 2019, available in German at: https://bit.ly/3lq7uA1; W165 2218873-1, 29 August 2019, available in German at: https://bit.ly/3mYF14Y; W165 2214983-1, 18 September 2019, available in German at: https://bit.ly/3mYU0LY; W144 2224022-1, 7 October 2019, available in German at: https://bit.ly/3Jo7icr; W243 2140308-1, 27 January 2017, available in German at: https://bit.ly/3yKmoUM; W144 2152033-1, 18 April 2017, available in German at: https://bit.ly/3FuSnw1; W205 2144676-1, 6 June 2017, available in German at: https://bit.ly/3JpUwKC; W192 2162712-1, 13 July 2017; W153 2166538-1, 22 September 2017, available in German at: https://bit.ly/40gcRAN.
 VWGH, Decision Ra 2016/20/0051, 23 June 2016.
 See e.g. BVwG, Decision W239 2217177-1, 26 April 2019, available in German at: https://bit.ly/3FqNHHq; W165 2174429-1, available in German at: https://bit.ly/3mNKhbk, 23 November 2017; W241 2178020-1, 7 December 2017, available in German at: https://bit.ly/3JIMmOL.
 VfGH, Decision E 2944/2022, 15 March 2023.
 VfGH, Decision E 1044/2022, 9 March 2023.